Viegas et al v. Toyota Financial Services et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-00668-PAB-STV
KERI L. VIEGAS and
JAMES VIEGAS,
Plaintiffs,
v.
TOYOTA FINANCIAL SERVICES,
PREDATOR RECOVERY INC., DBA SURE SHOT RECOVERY,
Defendants.
______________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
Chief Magistrate Judge Scott T. Varholak
This matter is before the Court on Defendant Predator Recovery Inc. dba Sure
Shot Recovery’s Motion to Dismiss Plaintiff’s Amended Complaint (the “Sure Shot
Motion”) [#109] and Defendant Toyota Financial Service’s Motion to Dismiss Plaintiff’s
First Amended Complaint (the “TFS Motion”) [##112, 112-1] (collectively, the “Motions”).
The Motions have been referred to this Court. 	[##110, 113] 	This Court has carefully
considered the Motions and related briefing, the case file, and the applicable case law,
and has determined that oral argument would not materially assist in the disposition of
the Motions. 	For the following reasons, the Court respectfully RECOMMENDS that the
Motions be GRANTED to the extent that they seek dismissal of Plaintiffs’ federal claims
and that the Court DECLINE SUPPLEMENTAL JURISDICTION over Plaintiffs’ state law
claims.
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I. 	BACKGROUND1
Plaintiff Keri Viegas “is one of We the People” and the sole lawful owner of a 2018
Toyota RAV4 (the “Vehicle”). [#108 at ¶¶ 1, 7] At some point, it appears that Defendant
Toyota Financial Services (“TFS”) had a lien on the Vehicle. [Id. at ¶¶ 12-14] On or about
March 9, 2023, the Colorado Department of Motor Vehicles (the “DMV”) issued Ms.
Viegas a title showing that TFS had released its lien on the Vehicle. [Id. at ¶ 11] On or
about August 8, 2023, TFS executed a duplicate title again certifying, under penalty of
perjury, that the lien was released. [Id. at ¶ 12] And on March 12, 2024, the DMV issued
a letter confirming that Ms. Viegas was the sole rightful owner of the Vehicle. [Id. at ¶ 13]
Despite these assurances that Ms. Viegas was the sole rightful owner of the
vehicle, on March 7, 2024, TFS directed Defendant Predator Recovery Inc, d/b/a Sure
Shot Recovery (“Sure Shot”) to seize the Vehicle from Plaintiffs’ private residence, which
is co-owned by Ms. Viegas and Plaintiff James Viegas. [Id. at ¶¶ 8, 14] Sure Shot entered
Plaintiffs’ property, which contained multiple “No Trespassing” signs on the driveway,
walkway, and windows. [Id. at ¶ 15] Sure Shot refused to leave despite repeated video
and audio warnings from Plaintiffs’ surveillance system. [Id.]
Deputies from the El Paso County Sheriff’s Department eventually arrived on the
scene after being contacted by the Homeowners’ Association security. [Id. at ¶ 16] “The
deputies ignored trespassing warnings, shined lights into Plaintiffs’ home windows, and
stood by while Sure Shot . . . hooked up the [Vehicle] and removed it.” [Id.] At the time
1 The facts are drawn from the allegations in Plaintiffs’ First Amended Complaint (the
“Complaint”) [#108], which must be taken as true when considering a motion to dismiss.
Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662
F.3d 1152, 1162 (10th Cir. 2011)).
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of the seizure, the Vehicle contained Mr. Viegas’s tools and recreation gear as well as
Ms. Viegas’s electronics, personal files, travel gear, and currency. [Id. at ¶ 17] None of
the items has been returned. [Id. at ¶ 18]
TFS subsequently auctioned and sold the automobile and sent a discharge notice.
[Id. at ¶ 19] Nonetheless, TFS has continued to furnish derogatory credit information to
Experian and TransUnion. 	[Id.] 	Plaintiffs disputed the inaccurate reporting but the
agencies verified in favor of TFS. [Id. at ¶ 20] Even today, the account is listed as closed
with “Charge-off” status and a false balance of $4,392. [Id.]
As a result of their troubles, Plaintiffs have suffered financial losses and emotional
damage. [Id. at ¶¶ 21-22] Plaintiffs have had to obtain replacement transportation costs
including 	the 	acquisition 	of 	a 	new 	automobile, 	have 	lost 	the 	benefit 	of 	recent
improvements and maintenance to the Vehicle, and have lost the economic value of
owning a fully paid-off automobile. [Id.] Plaintiffs have also suffered emotional distress,
experienced heightened anxiety, and have had difficulty sleeping and eating. [Id. at ¶ 21]
Plaintiffs initiated this action on March 11, 2024. 	[#1] 	The operative Complaint
brings five claims for relief: (1) Unlawful Seizure and Due Process Violation, pursuant to
42 U.S.C. § 1983 [#108 at ¶¶ 23-27]; (2) Civil Theft, pursuant to Colo. Rev. Stat. § 18-4-
405 [id. at ¶¶ 28-30]; (3) Trespass, pursuant to Colorado common law [id. at ¶¶ 31-33];
(4) Conversion, pursuant to Colorado common law [id. at ¶¶ 34-35]; and (5) False Credit
Reporting in violation of the Fair Credit Reporting Act (“FCRA”) against Defendant TFS
[id. at ¶¶ 36-39]. 	On October 1, 2025, Sure Shot filed the Sure Shot Motion. 	[#109]
Plaintiff has responded [#111] and Sure Shot has replied [#116]. On October 15, 2025,
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TFS filed the TFS Motion. 	[#112] Plaintiff has responded [#114] and TFS did not file a
reply.
II. 	STANDARD OF REVIEW
A. 	Federal Rule of Civil Procedure 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint
for “failure to state a claim upon which relief can be granted.” In deciding a motion under
Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and
view these allegations in the light most favorable to the plaintiff.” Cassanova v. Ulibarri,
595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090,
1098 (10th Cir. 2009)). 	Nonetheless, a plaintiff may not rely on mere labels or
conclusions, “and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the
scope of the allegations in a complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims
across the line from conceivable to plausible.’” 	Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff
to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she
is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court
is to “determine whether the complaint sufficiently alleges facts supporting all the
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elements necessary to establish an entitlement to relief under the legal theory proposed.”
Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
B. 	Pro Se Litigants
“A pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520–21 (1972)). “The
Haines rule applies to all proceedings involving a pro se litigant.” 	Id. at 1110 n.3. 	The
Court, however, cannot be a pro se litigant’s advocate. See Yang v. Archuleta, 525 F.3d
925, 927 n.1 (10th Cir. 2008). 	Moreover, pro se parties must “follow the same rules of
procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).
III. 	ANALYSIS
The operative Complaint brings five claims for relief: (1) Unlawful Seizure and Due
Process Violation, pursuant to 42 U.S.C. § 1983 [#108 at ¶¶ 23-27]; (2) Civil Theft,
pursuant to Colo. Rev. Stat. § 18-4-405 [id. at ¶¶ 28-30]; (3) Trespass, pursuant to
Colorado common law [id. at ¶¶ 31-33]; (4) Conversion, pursuant to Colorado common
law [id. at ¶¶ 34-35]; and (5) False Credit Reporting in violation of the FCRA against
Defendant TFS [id. at ¶¶ 36-39]. Defendants’ Motions seek to dismiss all claims. [##109,
112] The Court begins with Plaintiffs’ federal claims then turns to Plaintiffs’ state claims.
A. 	Unlawful Seizure and Due Process Violation
Plaintiffs’ first claim alleges that Defendants unlawfully seized the Vehicle and
violated Plaintiffs’ due process rights. 	[#108 at ¶¶ 23-27] 	It is brought pursuant to 42
U.S.C. § 1983. 	[Id.] 	“Under Section 1983, liability attaches only to conduct occurring
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‘under color of law.’ 	Thus, under the state action doctrine, a proper defendant in a
[Section] 1983 action is one who represents the state in some capacity.” 	Schwab v.
Kansas Dep’t of Child. & Fams., 851 F. App’x 110, 117 (10th Cir. 2021) (quotations
omitted).
Here, the Complaint alleges that TFS “is a corporation doing business in Colorado”
and Sure Shot “is a Colorado corporation engaged in automobile repossession.” 	[#108
at ¶¶ 9-10] Thus, neither are state actors. For these private entities to be considered to
have operated as state actors, the conduct at issue must be “fairly attributable to the
state.” Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982). In order for conduct to be
fairly attributable to the state:
First, the deprivation must be caused by the exercise of some right or
privilege created by the State or by a rule of conduct imposed by the State
or by a person for whom the state is responsible. Second, the private party
must have acted together with or . . . obtained significant aid from state
officials or engaged in conduct otherwise attributable to the State.
Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir. 1996) (quotations omitted). 	Generally,
private parties are not state actors, as “private conduct that is not fairly attributable to the
State is simply not actionable under [Section] 1983, however discriminatory or wrongful
the conduct is.” 	Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir. 1995) (internal citations
and quotations omitted). 	Nonetheless, “[w]here a private party conspires with state
officials to deprive others of constitutional rights . . . the private party is acting under color
of state law.” McDonald v. Citibank N.A., No. 21-cv-00427-PAB-NRN, 2021 WL 5736437,
at *7 (D. Colo. Dec. 2, 2021) (citing Tower v. Glover, 467 U.S. 914, 920 (1984); Dennis v.
Sparks, 449 U.S. 24, 27–28 (1980)).
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Here, the Complaint alleges that El Paso County Sheriff Deputies were present
and that the “deputies ignored trespassing warnings, shined lights into Plaintiffs’ home
windows, and stood by while Sure Shot . . . hooked up the [Vehicle] and removed it.”
[#108 at ¶¶ 15-16] According to the Complaint, the “deputies’ presence, combined with
[Sure Shot’s] actions, constitute joint participation under color of state law.” [Id. at ¶ 25]
But besides shining a light into Plaintiffs’ windows—which Plaintiffs do not allege assisted
TFS or Sure Shot in any way—the El Paso County Sheriff Deputies merely “stood by
while Sure Shot . . . hooked up the [Vehicle] and removed it.” [Id. at ¶ 16] This does not
represent the type of coordination necessary to turn Defendants into state actors.
Indeed, the Complaint fails to allege sufficient facts to infer that the El Paso County
Sheriff Deputies themselves were engaged in state action. 	The Tenth Circuit has
explained that “officers are not state actors during a private repossession if they act only
to keep the peace, but they cross the line if they affirmatively intervene to aid the
repossessor.” 	Marcus v. McCollum, 394 F.3d 813, 818 (10th Cir. 2004), overruled on
other grounds by, Pearson v. Callahan, 555 U.S. 223 (2009). “[T]he overarching lesson
of the case law is that officers may act to diffuse a volatile situation, but may not aid the
repossessor in such a way that the repossession would not have occurred but for their
assistance.” Id. at 819.
Here, the Complaint does not allege that the officers assisted in Defendants’
repossession or that the repossession would not have occurred but for the officers
assistance. 	Instead, it alleges that the officers “stood by” while Sure Shot removed the
vehicle. [#108 at ¶ 16] Thus, the officers did not “weigh in on the side of the repossessor
[or] assist an illegal repossession,” Marcus, 394 F.3d at 820, but instead stood idly by
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while the private actors repossessed the Vehicle. As a result, the officers did not engage
in state action and if the officers were not engaged in state action, their presence at the
scene could not have converted Defendants’ private conduct into state action. 	And
without state action, Plaintiffs do not have a Section 1983 claim.2 Schwab, 851 F. App’x
at 117.
Accordingly, 	the 	Court 	respectfully 	RECOMMENDS 	that 	the 	Motions 	be
GRANTED to the extent they seek to dismiss Plaintiffs’ First Claim and that Plaintiffs’ First
Claim 	be 	DISMISSED 	WITH 	PREJUDICE. 	“Though 	the 	Court 	would 	ordinarily
recommend the dismissal of certain of [this] claim[ ] without prejudice,[3] Plaintiffs have
caused Defendants and the court significant time and resources on what appear to be
entirely meritless claims.” 	Viegas v. Kane, No. 23-cv-03291-PAB-MDB (D. Colo. 2023)
(“Viegas I”),4 ECF No. 38 at 16 n.6 (citing Avery v. Wade, No. 22-4093, 2022 WL
2 Plaintiffs argue that “Chief Judge Brimmer has already determined that these same
operative facts—an automobile seized from private property following lien release and in
the presence of law enforcement—state a plausible § 1983 claim.” 	[#114 at 5]
Presumably, Defendants are referring to Chief Judge Brimmer’s order from August 9,
2024, rejecting Magistrate Judge Braswell’s recommendation that Plaintiffs’ original
complaint be dismissed for lack of subject matter jurisdiction. [#47] But Judge Brimmer
did not conclude that Plaintiffs had stated a plausible claim of state action, only that “the
issue of whether the complaint plausibly alleges the state action requirement for a § 1983
claim is more properly addressed on a motion to dismiss for failure to state a claim.” [Id.
at 8] 	Thus, consistent with Judge Brimmer’s earlier ruling, the Court now issues its
Recommendation concerning state action in response to the Motions.
3 See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (holding that when the
plaintiff is proceeding pro se, dismissal with prejudice is only appropriate “where it is
obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile
to give him an opportunity to amend” (quotation omitted)); Reynoldson v. Shillinger, 907
F.2d 124, 127 (10th Cir. 1990) (holding prejudice should not attach to dismissal when
plaintiff has made allegations “which, upon further investigation and development, could
raise substantial issues”).
4 Plaintiffs’ expansive history of litigation involving vehicle repossessions and mortgage
foreclosures is set forth in other opinions of the Court. See Viegas v. Rojas, No. 24-cv-
03174-PAB-STV, 2025 WL 1560782, at *8 n.2 (D. Colo. June 3, 2025).
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17544077, at *2 (10th Cir. Dec. 9, 2022) (finding that the district court “didn't abuse its
discretion 	in 	dismissing 	[the 	plaintiff’s] 	claims 	with 	prejudice” 	because 	he 	raised
“indisputably meritless legal theor[ies].” (quoting Northington v. Jackson, 973 F.2d 1518,
1520 (10th Cir. 1992))).
B. 	False Reporting in Violation of the FCRA
Plaintiff’s Fifth Claim alleges false credit reporting in violation of the FCRA against
Defendant TFS. [#108 at ¶¶ 36-39] TFS argues that “Plaintiffs’ claims under the FCRA
are conclusory, unsupported, and unsupportable.”5 [#112-1 at 10] The Court agrees that
Plaintiffs have failed to plausibly state a FCRA claim.
Congress enacted the FCRA to “ensure accuracy and fairness in credit reporting
and to require that such reporting is confidential, accurate, relevant, and proper.”
Matthiesen v. Banc One Mortg. Corp., 173 F.3d 1242, 1245 (10th Cir. 1999)). The law
prohibits “furnish[ing] any information relating to a consumer to any consumer reporting
agency if the person knows or has reasonable cause to believe that the information is
inaccurate.” 15 U.S.C. 	§ 1681s-2(a)(1)(A). 	One has reasonable cause to believe that
information 	is 	inaccurate 	when 	they 	have 	“specific 	knowledge, 	other 	than 	solely
allegations by the consumer, that would cause a reasonable person to have substantial
doubts about the accuracy of the information.” Id. § 1681s-2(a)(1)(D).
But while the FCRA provides private rights of action for claims against credit
reporting agencies, it limits private rights of actions against furnishers of information.
5 As support for its argument that Plaintiffs’ claims are unsupportable, TFS attaches a
“true and correct copy of [Ms. Viegas’s] payment history.” [#112-1] TFS fails to provide
any authority for this Court’s consideration of that payment history, or the related affidavit,
on a Rule 12(b)(6) motion.
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Sanders v. 	Mountain Am. Fed. Credit Union, 689 F.3d 1138, 1147 (10th Cir. 2012).
“Congress did not want furnishers of credit information [to be] exposed to suit by any and
every consumer dissatisfied with the credit information furnished, [though] Congress [did]
allow[ ] consumers to enforce the duty of accurate reporting through FCRA’s dispute
process.” 	Id. “When the furnisher receives notice of a dispute from the credit reporting
agency, it must perform the verification and correction duties described in [the FCRA].”
Id. And a breach of those duties may expose the furnisher to liability. Id.
Here, Plaintiffs assert that they disputed the inaccurate reporting but the credit
reporting agencies verified in favor of TFS. [#108 at ¶ 20] But other than the conclusory
statement that TFS “failed to reasonably investigate or correct inaccuracies” [id. at ¶ 38],
Plaintiffs do not allege any specific failure in TFS’s performance of its verification and
correction duties. 	And such conclusory allegations fail to state a FCRA claim against a
furnisher. 	Race v. JPMorgan Chase Bank, N.A., No. 24-cv-01989-REB-KAS, 2025 WL
1267155, at *4 (D. Colo. Apr. 11, 2025) (neither conclusory allegations nor mere fact that
the furnisher continued to report the contested debt obligations plausibly alleged that the
furnisher failed to reasonably investigate or correct inaccuracies); Bath v. Experian Info.
Sols., Inc., No. 19-cv-00106-RM-NYW, 2019 WL 3292126, at *4 (D. Colo. May 10, 2019)
(conclusory allegations that the furnisher failed to properly investigate were insufficient to
state a FCRA claim against the furnisher), report and recommendation adopted, 2019 WL
2574606 (D. Colo. June 24, 2019). Accordingly, the Court respectfully RECOMMENDS
that the TFS Motion be GRANTED to the extent it seeks to dismiss Plaintiffs’ Fifth Claim
and that Plaintiffs’ Fifth Claim be DISMISSED WITH PREJUDICE. 	See Supra Section
III.A.
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C. 	State Law Claims
Plaintiff also asserts three state law claims: (1) Claim Two, civil theft, pursuant to
Colo. Rev. Stat. § 18-4-405 [#108 at ¶¶ 28-30]; (2) Claim Three, trespass, pursuant to
Colorado common law [id. at ¶¶ 31-33]; and (3) Claim Four, conversion, pursuant to
Colorado common law [id. at ¶¶ 34-35]. 28 U.S.C. § 1367(c)(3) expressly authorizes the
Court to decline to exercise supplemental jurisdiction over these claims. 	“Whether to
exercise supplemental jurisdiction [when all federal claims have been dismissed] lies
within the discretion of the court” and “[n]otions of comity and federalism demand that a
state court try its own lawsuits, absent compelling reasons to the contrary.” 	Sauer v.
McGraw-Hill Cos., No. 99 N 1898, 2001 WL 1250099, at *18 (D. Colo. June 12, 2001)
(quotations omitted). 	As a result, a district court will generally decline the exercise of
supplemental jurisdiction when all federal claims have been eliminated prior to trial. See
id.; see also Aery v. Bd. of Cnty. Comm’rs of Tulsa Cnty., 696 F. App’ x 360, 361 (10th
Cir. 2017) (“When all federal claims have been dismissed, the court may, and usually
should, decline to exercise jurisdiction over any remaining state claims.” 	(quotation
omitted)). Here, given that Plaintiffs have failed to plausibly state any federal claim, the
Court respectfully RECOMMENDS that supplemental jurisdiction over Plaintiffs’ state
claims be DECLINED.
IV. 	CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that Defendant
Predator Recovery Inc. dba Sure Shot Recovery’s Motion to Dismiss Plaintiff’s Amended
Complaint [#109] and Defendant Toyota Financial Service’s Motion to Dismiss Plaintiff’s
First Amended Complaint [##112, 112-1] be GRANTED to the extent that they seek
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dismissal of Plaintiffs’ federal claims and that the Court DECLINE SUPPLEMENTAL
JURISDICTION over Plaintiffs’ state law claims.6
DATED: February 5, 2026 	BY THE COURT:
s/Scott T. Varholak
Chief United States Magistrate Judge
6 Within fourteen days after service of a copy of this Recommendation, any party may
serve and file written objections to the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations with the Clerk of the United States District Court for
the District of Colorado. 	28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla
(In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put
the district court on notice of the basis for the objection will not preserve the objection for
de 	novo 	review. 	“[A] 	party’s 	objections 	to 	the 	magistrate 	judge’s 	report 	and
recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.” United States v. 2121 East 30th Street, 73
F.3d 1057, 1060 (10th Cir. 1996). 	Failure to make timely objections may bar de novo
review by the district judge of the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations and will result in a waiver of the right to appeal from
a judgment of the district court based on the proposed findings of fact, legal conclusions,
and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-
80 (10th Cir. 1999) (holding that the district court’s decision to review magistrate judge’s
recommendation de novo despite lack of an objection does not preclude application of
“firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d
901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain
portions of magistrate judge’s order by failing to object to those portions); Ayala v. United
States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to
appeal the magistrate judge’s ruling by failing to file objections). 	But see, Morales-
Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule
does not apply when the interests of justice require review).
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