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MINTER v. AAA COOK COUNTY CONSOLIDATION

July 19, 2004.

SHYLONDA Y. MINTER f/k/a/ SHYLONDA Y. DENNIS, Plaintiff,
v.
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 part,:
[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

  Legal Analysis

  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

  Liability

  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 stating:
[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 information —
(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. ...


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