United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
Erin Strohbehn (“Strohbehn”) filed her complaint
in this matter on July 26, 2016, against Defendant Access
Group, Inc. (“Access”). (Docket #1). Strohbehn
claimed that Access violated the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681 et seq.,
and the Wisconsin Consumer Act (“WCA”), Wis.Stat.
§§ 421, 427 et seq., in its attempts to
collect her decade-old student loan debts. Id. The
action was assigned to District Judge Charles N. Clevert, Jr.
On August 29, 2016, Access filed a motion to dismiss the
complaint. (Docket #9). On September 19, 2016, Strohbehn
filed an amended complaint. (Docket #15). The amended
complaint expounded on Strohbehn's allegations against
Access and added new claims against a collection agency,
Weltman Weinberg & Reis Co., LPA (“WWR”).
Access responded with another motion to dismiss on October 3,
2016. (Docket #17). WWR took no part in Access's motion
and answered the amended complaint on November 1, 2016.
(Docket #27). Access's motion was fully briefed and ripe
for decision as of November 23, 2016. See (Brief in
Opposition, Docket #30; Reply Brief, Docket
#33). On March 21, 2017, this matter was
reassigned to this branch of the Court upon Judge
Clevert's retirement. For the reasons explained below,
Access's motion must be denied.
STANDARD OF REVIEW
has moved to dismiss Strohbehn's complaint pursuant to
Federal Rule of Civil Procedure (“FRCP”)
12(b)(6). This rule provides for dismissal of complaints
which fail to state a viable claim for relief. Fed.R.Civ.P.
12(b)(6). To state a viable claim, a complaint must provide
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). In other words, the complaint must give “fair
notice of what the . . . claim is and the grounds upon which
it rests.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citation omitted). The allegations must
“plausibly suggest that the plaintiff has a right to
relief, raising that possibility above a speculative
level[.]” Kubiak v. City of Chicago, 810 F.3d
476, 480 (7th Cir. 2016) (citation omitted).
reviewing Strohbehn's complaint, the Court is required to
“accept as true all of the well-pleaded facts in the
complaint and draw all reasonable inferences in [her]
favor[.]” Id. at 480-81. However, a complaint
that offers “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action
will not do.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 555). The
Court must identify allegations “that, because they are
no more than conclusions, are not entitled to the assumption
of truth.” Id. at 679. Ultimately, dismissal
is only appropriate “if it appears beyond doubt that
the plaintiff could prove no set of facts in support of [her]
claim that would entitle [her] to the relief
requested.” Enger v. Chicago Carriage Cab
Corp., 812 F.3d 565, 568 (7th Cir. 2016).
the truth of Strohbehn's well-pleaded allegations and
drawing all reasonable inferences in her favor, the relevant
facts are as follows. Prior to 2007, Strohbehn obtained
student loans through Access. She alleges that sometime in
2007, she paid off the loans completely, via a single lump
sum payment. At the time, Access's servicer was Kentucky
Higher Education Student Loan Corporation. In 2012, this role
was transferred to ACS Education Services. Strohbehn states
that from 2007 until 2016, she received no contact from
Access or either of its servicers regarding the loans.
point in 2016, she received a letter from Access. The letter
indicated that Access believed she still owed at least a
portion of the loans. Strohbehn checked her credit report and
discovered that Access was reporting unpaid amounts on each
loan. She claims that the incorrect credit reporting caused
her frustration, distraction from work, embarrassment, and
other forms of stress.
contacted the three major credit bureaus in March 2016 to
dispute the improperly reported debts. As of that time, she
maintains that the debts were either fully paid in 2007 or,
alternatively, that the last payments thereon occurred more
than six years ago, bringing the debts outside
Wisconsin's statute of limitations on contracts.
See Wis. Stat. § 893.43(1). The credit bureaus
forwarded the disputes to Access. Access (or its agents)
responded to the bureaus that the debts were valid. The
negative reporting items mar Strohbehn's credit report to
alleges two counts relevant to Access. Count One states that
Access violated Section 1681s-2(b) of the FCRA by failing to
conduct a reasonable investigation into Strohbehn's
disputes and by refusing to update its erroneous credit
reporting items. Strohbehn further pleads that Access
willfully violated the FCRA because it “disregarded
notices pertaining to the status of the account[.]”
(Docket #15 at 7). Count Two is brought pursuant to the WCA.
Strohbehn alleges that Access harassed her by continuing
collection activity on fully paid debts and that Access
published false credit information.
primary thrust of Access's motion is that Strohbehn's
allegations are incorrect, namely that she did not completely
satisfy her loans in 2007. In support of this argument,
Access has provided three of its internal documents related
to Strohbehn's account: 1) a “Recovery Overview,
” which gives an overview of Strohbehn's account
and lists five loans under her name; 2) a “Borrower
History, ” providing a timeline of events on
Strohbehn's account from 2003 to 2012, including
Access's credit reporting activity; and 3) a
“Payment History, ” revealing that Strohbehn did
indeed make a substantial payment on the loans in April 2007,
but a relatively small balance nevertheless remained
(together, the “Account Documents”). (Docket
#19-1, #19-2, and #19-3).
as true, the Account Documents appear to destroy the
foundational allegation of Strohbehn's amended
complaint-that Access has been attempting to collect
non-existent debts. However, the Account Documents are not
properly included in Access's motion. The focus of a
motion to dismiss pursuant to FRCP 12(b)(6) is the ...