United States District Court, N.D. Illinois, Eastern Division
July 19, 2004.
SHYLONDA Y. MINTER f/k/a/ SHYLONDA Y. DENNIS, Plaintiff,
AAA COOK COUNTY CONSOLIDATION, INC. and BEN HOFFMAN, Defendants.
The opinion of the court was delivered by: MICHAEL MASON, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Yolanda Minter ("Minter") filed a two-count complaint
against defendants AAA Cook County Consolidation, Inc. ("AAACCC")
and Ben Hoffman ("Hoffman") alleging a violation of The Fair
Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA" or
"Act") and the common law tort of intrusion upon seclusion. The
parties filed cross motions for summary judgment. We denied
defendants' motion for summary judgment in open court on March
25, 2004.*fn1 Now, we address plaintiff's motion for summary
judgment. For the following reasons, plaintiff's motion is DENIED
and Count II is dismissed with prejudice. Background
The following facts are drawn from parties' Local
Rule 56.1 Statements and are undisputed unless otherwise noted. Minter was
a customer of AAACCC, a debt consolidation company, from
approximately January, 2001 to May, 2001. During that period,
Minter and AAACCC entered into an agreement relative to
plaintiff's credit obligations. Plaintiff terminated the
agreement in May, 2001. Thereafter, on March 27, 2002, plaintiff
filed suit against AAACCC in the Circuit Court of Cook County
alleging, inter alia, damages relating to her previous
contractual relationship with AAACCC. See Dennis v. AAA Cook
County Consolidation, Inc., No. 02 CH 6207 ("State Case").
Specifically, plaintiff's state complaint alleges, in pertinent
[Minter] enrolled as a client with [AAACCC] because
she wanted to consolidate her credit card bills into
one bill with one lump-sum payment to her creditors,
in order to avoid late fees and possible harm to her
credit rating. [AAACCC] charged [Minter], and
[Minter] paid, client account fees. As part of its
agreement with [Minter], [AAACCC] promised to pay
creditors on a timely basis. However, [AAACCC] failed
to pay creditors on a timely basis.
States Case Complaint ¶¶ 12-15.
At the time Minter filed her State Case, she did not have a
business relationship with AAACCC. AAACCC was served in the State
Case on April 3, 2002. That same day, Hoffman, then president of
AAACCC, accessed Minter's credit report from Experian, a credit
reporting agency, on behalf of AAACCC. Minter did not provide
AAACCC with written consent to access her credit report on April
3, 2002. In his deposition, Hoffman stated that Minter provided
him oral consent to access her credit report in a telephone
conversation. This fact is disputed. In her affidavit, Minter
denied orally requesting, or consenting to, Hoffman accessing her credit
report on April 3, 2002.*fn2
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986), Flores v. Preferred Technical Group, 182 F.3d 512, 514
(7th Cir. 1999). When ruling on a motion for summary judgment,
the court construes the evidence and all inferences that
reasonably can be drawn therefrom in the light most favorable to
the non-moving party. See Pitasi v. Gartner Group, Inc.,
184 F.3d 709, 714 (7th Cir. 1999). The movant bears the burden of
establishing that there is no genuine issue of material fact.
Celotex Corp., 477 U.S. at 322-23.
Count I Violation of the FCRA
Plaintiff argues the evidentiary record shows beyond dispute
that defendants violated 15 U.S.C. § 1681b because they lacked a
permissible purpose to obtain her credit report on April 3, 2002,
and they used false pretenses to obtain the report in violation
of 15 U.S.C. § 1681q. Pl.'s Memo in Support of Mot. ("Pl.'s
Memo") at 3-4. Defendants disagree, arguing had a permissible
purpose for requesting plaintiff's credit report on April 3, 2002, and, therefore, plaintiff's claim must
fail as a matter of law.*fn3
A review of the FCRA is the natural starting point for our
analysis. The FCRA is a consumer protection statute regulating
the actions of both credit reporting agencies and those
requesting credit information from them. See 15 U.S.C. § 1681b
[A]ny consumer reporting agency may furnish a
consumer report under the following circumstances and
no other: . . .
(2) In accordance with the written instructions of
the consumer to whom it relates.
(3) To a person which it has reason to believe
. . .
(F) otherwise has a legitimate business need for the
(i) in connection with a business transaction that is
initiated by the consumer; or
(ii) to review an account to determine whether the
consumer continues to meet the terms of the account
. . .
15 U.S.C. § 1681b (emphasis added).
Subject to subsection (c) of the section, 1681b(a) provides an
exhaustive list of the authorized or permissible purposes for
obtaining a consumer credit report. § 168b(f) further provides
that "it is unlawful for any person to use or obtain a credit
report for an unauthorized purpose." Castro v. Union Nissan,
Inc., 2002 WL 1466810 at *3 (N.D. Ill. July 8, 2002). Therefore,
if plaintiff can show, through the undisputed facts in the
evidentiary record, that defendants did not access her credit
report on April 3, 2002 under one of the circumstances outlined
above, defendants have violated § 1681b(f) and plaintiff is
entitled to judgment in her favor as a matter of law. Conversely,
if defendants had a permissible purpose for accessing plaintiff's
credit report under the Act, then they necessarily did not access
it under false pretenses.*fn4 Pappas v. City of Calumet,
9 F. Supp.2d 943, 949 (N.D.Ill 1998); Allen v. Kirkland & Ellis,
1992 WL 206285 at *2 (N.D.Ill. Aug. 17, 1992).
Before we can determine whether defendants' purpose in
accessing plaintiff's credit report was "permissible", we must
first identify their purpose. Without a citation to the record,
plaintiff argues that defendant Hoffman accessed her credit
report on behalf of AAACCC for the purpose of "trying to help a
former client," or based on plaintiff's alleged oral consent.
Pl.'s Memo at 4. Also without a citation to the record,
defendants disagree, arguing that they accessed plaintiff's
credit report in connection with the defense of plaintiff's State
Case against them.
After reviewing the evidentiary record before us, we find a
factual dispute as to defendants' purpose in accessing Minter's
credit report on April 3, 2002. Plaintiff cites to pages 136-37
of Hoffman's deposition, which contain the following questions
from plaintiff's attorney and answers from Hoffman:
Q. Only one phone call between you and Ms. Dennis?
A. I believe that was it, yes. . . .
Q. Who initiated that call, you or her? A. I believe I may have. Yeah, I may have. . . .
Q. Do you remember when the call was?
A. Do I remember? Only by reading the file. Yeah, I
think it was April 2001. . . .
Q. Why did you call her?
A. Because we got this lawsuit that you had
initiated. . . .
Q. What was other than the fact that you got the
lawsuit papers, what was the purpose of your call?
A. To find out what was what she was talking about.
I didn't know what her claim was about. That's all.
Q. What did you say to her and what did she say to
you in that call?
A. . . . But I know she said something about her
credit bureau file and if I could get a copy of it,
and I did. . . .
Q. Did you have any discussions during that
conversation about obtaining her credit report?
A. Yes, she asked me to get it. . . .
Based on the foregoing exchange, plaintiff concludes that "Mr.
Hoffman's own testimony indicated that he did not think he had a
permissible purpose to get the report until plaintiff asked him
to do so." Pl.'s Response to Def.'s Mot. for Summ. J. at 4.
Plaintiff further argues that "If, as defendants contend,
plaintiff's filing a lawsuit in state court gave them a
permissible purpose to pull the report, there would have been no
need for Mr. Hoffman to telephone plaintiff, and only after she
allegedly asked him to obtain her credit report, for him to get
the report." Id. We cannot accept plaintiff's inferences on
summary judgment. As stated supra, we must construe the
evidence and all inferences that reasonably can be drawn
therefrom in the light most favorable to the non-moving party, in
this instance, defendants. See Pitasi, 184 F.3d at 714.
After reviewing Hoffman's deposition and the remainder of the
evidentiary record, we cannot find any evidence conclusively stating
defendants' purpose for accessing plaintiff's credit report.
Hoffman was not asked his purpose in his deposition.
Additionally, neither side provided us with interrogatory answers
or any other evidence containing defendants' purpose for
accessing the report. On summary judgment we cannot infer that
defendants' purpose was to access plaintiff's credit report based
on plaintiff's oral consent.
Because we cannot determine defendants' "real" purpose in
accessing the credit report, we cannot analyze whether it was
permissible under § 1681b(a)(3)(F). See Larason v. Logan
Consumer Discount Co., 1991 WL 34308 at *2 (E.D.Pa. March 8,
1991) (In an FCRA case, the court cannot reach the issue of
whether a purpose is permissible if there is "a genuine dispute
on the factual question of whether defendants' proffered reason
was their real reason for obtaining the report."); see also
Sawyer v. United States, 831 F.2d 755, 760 (7th Cir. 1987)
("[B]ecause the evidentiary record was incomplete and genuine
issues of material fact could exist . . . summary judgment is
In an attempt to sidestep this factual dispute, plaintiff
argues that defendants' averment that they accessed the report to
aid in defending against plaintiff's State Case should be
disregarded because defendants' failed to provide factual support
for the statement. True, defendants should not make
unsubstantiated factual averments in their submissions to the
court. Local Rule 56.1 mandates that instead of speculating as to
Hoffman's purpose, defendants should have submitted an affidavit
from Hoffman stating his actual purpose for accessing Minter's
credit report. However, this oversight does not merit the remedy plaintiff seeks. Regardless of whether
we consider defendants' purported purpose, to aid in preparing a
defense to plaintiff's State Case, there is still a genuine issue
as to a material fact in the evidentiary record before us. The
record leaves open the question of defendants' "real" purpose.
Defendants' "real" reason for accessing plaintiff's credit report
is a question of fact, which we must leave for the jury to
decide. On the record before us, a reasonable jury could find
that defendants accessed the report (1) based on plaintiff's
alleged oral consent, (2) to aid their defense of plaintiff's
state claim, or (3) for some other reason. Because we cannot
determine defendants' purpose in accessing the report, we cannot
determine whether or not it was permissible as a matter of law,
precluding summary judgment on Count I as to liability.
However, for completeness, we will address plaintiff's argument
that even if defendants accessed her credit report to aid in
defending against her State Case, that does not constitute a
permissible purpose under § 1681b(a)(3)(F), and, therefore, was a
violation of the Act as a matter of law.*fn5 Specifically,
Minter seeks a ruling that the defense of her State Case does not
constitute "a legitimate business need for the information in
connection with a business transaction that [was] initiated by
In determining whether a consumer report was obtained for a
permissible purpose § 1681b(a)(3)(F) should be broadly construed.
See lppolito v. WNS, 864 F.2d 440, 451 n. 11 (7th Cir. 1988).*fn6 This broad definition
"allows consumer reports to be used for legitimate business
purposes while preventing the use of consumer reports for
improper purposes." Id. Preparation for litigation can qualify
as a permissible purpose under the broad language of §
1681b(a)(3)(F). See Allen, 1992 WL 206285 at *2 (N.D.Ill. Aug.
17, 1992) ("Preparation for litigation regarding a business debt
qualifies as a permissible purpose under the broad language of
In Allen, the defendant law firm requested plaintiff's credit
report in preparation for litigation regarding a business debt.
Id. Specifically, defendant's client filed a countersuit
against the plaintiff alleging nonpayment of a corporate account.
Id. at *1. The court found that the obligations running between
defendant's client and the plaintiff were "business transactions"
and lawsuits based on them were "in connection" with those
transactions. Id. at *2. The court also found that the
collection of an allegedly unpaid account constituted "a
legitimate business need" under the Act. Id. Therefore, the
defendant law firm had a permissible purpose. Id. at 3. The
court further noted that "[a] different result may have been
reached if the report had been acquired in connection with
litigation that did not involve liability for a commercial
obligation deriving from a business transaction between the
parties." Id. at 3, n. 4. In Spence, the Sixth Circuit held that the defendant
reporting agency did not violate the Act by providing a credit
report to a party ("requestor") who requested it to aid in
preparing a defense to a lawsuit, initiated by the subject of the
credit report, alleging false reporting of a past-due debt.
Spence v. TRW, Inc., 92 F.3d 380, 383 (6th Cir. 1996). The
court held that "the filing of the lawsuit obviously gave the
[reporting agency] reason to believe that the [requestor] had a
`legitimate business need' for the report, such a need having
arisen in connection with the preparation of [requestor's]
defense to the lawsuit." Id. (citing lppolito, 864 F.2d 440,
The Sixth Circuit revisited the issue in Duncan v. Handmaker,
noting that "[w]hile a lawsuit occasionally may give rise to a
`legitimate business need' for a consumer report, trial
preparation generally does not fall within the scope of § 1681b."
149 F.3d 424, 427 n. 4 (6th Cir. 1998) (internal citations
omitted). However, the court also recognized that litigation has
been found to be a permissible purpose under the Act when the
litigation relates to the collection of a debt. Id. "As the
litigation moves outside the realm of debt collection, however,
it is less likely although not altogether impossible that an
attorney will obtain the report for a purpose that is within the
purview of § 1681b." Id. (citing Spence, 92 F.3d at 383).
In the instant case, AAACCC purportedly obtained Minter's
credit report to aid in defending against her claim that they,
inter alia, breached their contractual obligation to pay her
creditors on a timely basis. It seems to us that under the broad
interpretation of § 1681b(a)(3)(F), and the relevant case law,
defendants' proposed purpose would be permissible. The filing of
the lawsuit against AAACCC provided a "legitimate business need" for the credit report. See Spence, 92 F.3d at 383.
Furthermore, the alleged contractual obligation of AAACCC to pay
Minter's creditors on a timely basis is a "business transaction"
that was "initiated by the consumer, [Minter]." The facts of our
case appear to fit within the purview of § 1681b. However, as
stated supra, because defendants' "real" purpose for accessing
the report is disputed and thus a question for the jury, we
cannot reach the issue of whether or not their purpose was
permissible as a matter of law.
Next, plaintiff seeks summary judgment on the issue of damages.
Plaintiff is seeking actual, statutory and punitive damages for
defendants' alleged negligent and/or willful noncompliance with
the FCRA. § 1681o governs damages for negligent noncompliance
stating, "[a]ny person who is negligent in failing to comply with
any requirements imposed under [the Act] with respect to any
consumer is liable to that consumer" for actual damages and
reasonable attorney's fees for a successful action to enforce
As a matter of law, plaintiff cannot succeed on her negligent
noncompliance damage claim because there is no evidence in the
record to support her claim for actual damages. Plaintiff merely
states that "[u]pon finding out that [AAACCC] had obtained her
credit report without her permission, plaintiff felt angry,
humiliated, frustrated and embarrassed." Pl.'s 56.1 Statement,
Ex. F (Minter Aff. ¶ 4). "When an injured party provides the
only evidence of any emotional distress or mental anguish, [she]
must reasonably and sufficiently explain the circumstances of the
injury, and not rely on mere conclusory statement." Quinn v. Experian Solutions, 2004 WL
609357 at *5 (N.D.Ill. Mar. 24, 2004) (quoting Field v. Trans
Union L.L.C, 2002 WL 849589 at *6 (N.D.Ill. May 3, 2002); see
also Schmit v. Trans Union L.L.C, 2004 WL 785098 at *4 (N.D.Ill.
Apr. 12, 2004) ("generalized claims of emotional injury are not
enough to establish damages."). Minter has failed to sufficiently
explain her emotional distress and thus cannot recover damages
for defendants' alleged negligent noncompliance with the FCRA as
a matter of law. See Quinn, 2004 WL 609357 at *5.
Plaintiff also seeks summary judgment on her damage claim for
defendants' allegedly willful noncompliance with the FCRA. §
1681n governs damages for willful noncompliance stating:
Any person who willfully fails to comply with any
requirement imposed under [the Act] with respect to
any consumer is liable to that consumer [for] . . .
(1)(A) . . . actual damages . . . of not less than
$100 and not more than $1,000; or
(B) in the case of liability of a natural person for
obtaining a consumer report under false pretenses or
knowingly without a permissible purpose, actual
damages sustained by the consumer as a result of the
failure or $1,000, whichever is greater;
(2) . . . punitive damages . . .; and
(3) in the case of any successful action to enforce
any liability under this section, the costs of the
action together with reasonable attorney's fees as
determined by the court.
15 U.S.C. § 1681n.
As stated above, there is a genuine dispute as to defendants'
purpose in obtaining plaintiff's credit report, precluding
definitive findings as to the permissibility of the disputed
purpose and whether the Act was violated. Plaintiff's failure to
establish a violation of the FCRA as a matter of law on summary judgment also
precludes an award of statutory or punitive damages and
reasonable attorney's fees at this stage in the litigation. See
Chester v. Purvis, 2003 WL 22454885 at *3-4 (S.D.Ind. Oct. 22,
2003) (denying summary judgment as to damages because there was a
question of fact as to whether defendant's actions were willful
under the Act).
Count II Intrusion Upon Seclusion
Finally, plaintiff seeks summary judgment on her common law
tort claim for intrusion upon seclusion (Count II). Initially, we
note "it is unsettled whether the common law of Illinois
recognizes such a claim" because the Illinois Supreme Court
failed to recognize the tort in Lovgren." Muick v. Glenayre
Elecs., 280 F.3d 741, 743-44 (7th Cir. 2002) (citing Lovgren v.
Citizens First Nat'l Bank of Princeton, 126 Ill.2d 411,
534 N.E.2d 987, 989 (Ill. 1989); Johnson v. K Mart Corp.,
311 Ill. App.3d 573, 723 N.E.2d 1192, 1195 (Ill.App. 2000). In
Muick, the Seventh Circuit acknowledged that the tort was
"generally recognized," but failed to address whether it thought
the Illinois Supreme Court will recognize it. Muick, 280 F.3d
at 743. For the purposes of this case, we need not address
whether the Illinois Supreme Court will recognize the tort of
intrusion upon seclusion because even if it exists, plaintiff has
failed to provide sufficient facts to support each element of the
tort. Count II must be dismissed.
To establish the tort of intrusion upon seclusion, plaintiff
must plead and prove the following four elements: "(1) an
unauthorized intrusion or prying into the plaintiff's seclusion;
(2) an intrusion that is offensive to a reasonable person; (3)
the matter upon which the intrusion occurs is private; and (4)
the intrusion causes anguish and suffering." Mlynek v. Household Fin. Corp., 2000 WL 1310666, *3
(Sept. 13, 2000 N.D.Ill.) (citing Johnson, 311 Ill. App.3d at
577.). We begin by analyzing element four because it is
dispositive of plaintiff's claim. Under Illinois law, to succeed
on Count II, Minter must prove that the alleged intrusion "caused
anguish and suffering." Schmidt v. Ameritech Illinois,
768 N.E.2d 303, 315 (Ill.App. Ct. 2002). To meet her burden, she
"must prove actual injury in the form of, for example, medical
care, an inability to sleep or work, or a loss of reputation and
integrity in the community." Id. at 316. "Injury is not
presumed." Id. Additionally, a causal relationship between
plaintiff's anguish and defendant's alleged intrusion must be
established. Id. at 317.
As discussed supra, Minter has failed to provide any evidence
to support her alleged anguish and suffering. The extent of
plaintiff's evidence is her own statement that she felt "angry,
humiliated, frustrated and embarrassed." Pl.'s 56.1 Statement,
Ex. F (Minter Aff. ¶ 4). This is insufficient as a matter of
law. Moreover, plaintiff has failed to produce any evidence to
support a causal relationship between her unproven anguish and
defendants' alleged intrusion. Therefore, Count II is dismissed
For the reasons set forth above, plaintiff's motion for summary
judgment is denied. There is a genuine issue of fact as to
defendants' purpose in accessing plaintiff's credit report,
precluding a finding on summary judgment as to liability in Count
I. Plaintiff's claim for actual damages in Count I is denied.
Count II is dismissed with prejudice. The parties are ordered to
appear for a status hearing on August 19, 2004. At that time, we will set a date for a settlement conference or a
trial. The trial, if necessary, will be solely as to Count I and
will address liability and, if applicable, statutory and punitive
damages. It is so ordered.