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. ...