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RAYMOND v. RAYMOND

October 12, 2005.

MICHAEL RAYMOND, Plaintiff,
v.
CECELIA RAYMOND, JOSEPH F. MIRABELLA, GEORGE S. FREDRICK, LYNN M. MIRABELLA, JOHN B. KINCAID, MIRABELLA & KINCAID, P.C., FRANK RABBITTO and PROFESSIONAL CLAIMS BUREAU, Inc., Defendants.



The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge

MEMORANDUM OPINION AND ORDER

Michael Raymond has sued his former spouse, Cecelia Raymond, her attorneys, Joseph Mirabella, George Fredrick, Lynn Mirabella, and John Kincaid, the law firm Mirabella & Kincaid, P.C. (collectively, "Mirabella & Kincaid"), Frank Rabbito, and Professional Claims Bureau, Inc., alleging that the defendants violated the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681, et seq., by illegally obtaining and using Michael Raymond's credit report in connection with the Raymonds' divorce proceedings. This case is before the Court on the Mirabella & Kincaid defendants and Professional Claims Bureau's motions for summary judgment. For the reasons stated below, the Court grants Professional Claims Bureau's motion for summary judgment and denies the Mirabella & Kincaid defendants' motion for summary judgment. Facts

This case is the product of a highly contentious divorce between Michael and Cecelia Raymond. In April 2001, Cecelia filed for divorce in the Circuit Court of DuPage County, Illinois. She retained Mirabella & Kincaid to represent her in the proceedings. During the course of discovery, Cecelia turned over a box of documents to her attorneys, which, according to the defendants, included a five-page document that appears to be a portion of Michael's credit report. As these motions do not involve Cecelia, the Court need not delve into how she might have acquired the report. Michael seems to suggest that the law firm knew about the existence of the credit report prior to this time. Regardless of the timing, it is undisputed that Mirabella & Kincaid possessed a copy of the document. The partial report does not contain Michael's name, a date, or any indication of what company issued the report. See Pl's Ex. 14.

  Michael contends that Mirabella & Kincaid used information obtained from the report to issue deposition subpoenas in April 2002 to several third parties in the divorce matter, including Circuit City and Homemaker's Furniture. Michael reasons that defendants could not otherwise have known that he maintained accounts with these companies, thus, they must have obtained this knowledge from the credit report. In addition, Ben Raymond, Cecelia and Michael's son, testified during a deposition that in January or February 2002, he observed what appeared to be Michael's credit report on his mother's dining room table and that he overheard a telephone conversation between his mother and, he believes, her attorney, during which his mother referred to Michael's credit report. See Ben Raymond's Dep. at 14-16.

  Mirabella & Kincaid maintain that the subpoenas they issued were not based on information learned from Michael's credit report and that the firm did not use the credit report in any manner. These defendants assert that they issued a subpoena to Homemaker's Furniture because Cecelia told her attorneys that Michael loved the store's furniture and sometimes purchased furniture from the store. Similarly, they claim to have issued a subpoena to Circuit City based on information from Cecelia that Michael had recently purchased a large-screen television from the store.

  Professional Claim Bureau's connection to this lawsuit is less clear. PCB is a billing and collection agency based in New York. In his complaint, Michael submits that on December 18, 2001, Frank Rabbitto, a former employee of PCB, obtained a copy of Michael's credit report from Experian without Michael's consent. This contention is based on an October 23, 2003 Experian credit report that lists an inquiry made on December 18, 2001 by someone using PCB's access code. See Pl's Ex. 15. PCB's president states that PCB never authorized any employee or agent to access Michael's credit report; he acknowledges that Michael does not have a collection account that is, or has ever been, managed or accepted by PCB. Marcus Affid. ¶¶ 9-10. PCB denies that it ever accessed Michael's credit report in connection with any business or services being performed. Id. ¶ 11.

  Discussion

  Summary judgment is appropriate where "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 judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining whether a genuine issue of material fact exists, the Court must construe all facts and draw all reasonable and justifiable inferences in favor of Michael, the non-moving party on these motions. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

  The FCRA imposes civil liability on any person who willfully fails to comply with any of FCRA's requirements. 15 U.S.C. § 1681n(a). Though Michael's complaint indicates that he seeks to hold defendants liable for violations of § 1681q, his response brief clarifies that he is suing for violations of § 1681b(f). Reliance on § 1681q, a criminal liability statute, is unnecessary, as the civil liability provisions now cover the act of obtaining a consumer report without a permissible purpose. See Phillips v. Grendahl, 312 F.3d 357, 364 (8th Cir. 2002). Specifically, § 1681b(f) provides that "a person shall not use or obtain a consumer report" unless it is obtained for an authorized purpose. Id. Michael's failure to identify the applicable FCRA section in his complaint is not fatal to his complaint, as his allegations were sufficient to state a claim under § 1681b(f). See id. at 364; Pl's Compl. ¶¶ 15, 23.

  To establish liability under § 1681n(a), Michael must prove that there was a consumer report, that defendants used or obtained the report without a permissible statutory purpose, and that the defendants willfully violated the statute. See Phillips, 312 F.3d at 364; see also Hinton v. Trans Union LLC, No. 03 C 2311, 2004 WL 1114744, at *2 (N.D. Ill. May 4, 2004).

  1. Professional Claims Bureau's motion for summary judgment

  PCB argues that it is entitled to summary judgment because Michael has failed to produce any evidence showing that PCB obtained a copy of his credit report, much less that it obtained the report for an impermissible purpose. The Court agrees.

  Michael speculates that the partial credit report at issue in this case is the Experian credit report purportedly requested by Rabbitto. But he has provided no evidence to support this belief. The report does not contain any indication that it was issued by Experian, nor does it appear to include a date that would tie it to the December 18, 2001 inquiry made by someone at PCB. Moreover, Rick Haas, the custodian of records at Experian testified that because the document is not a full report, he could not ascertain whether the document is from Experian or some other company. See Haas Dep. at 65, 75. Thus, Michael has failed to provide evidence from which a jury could infer a link between PCB and the document he claims was obtained for unlawful purposes.

  The only evidence Michael has provided that suggests a connection between PCB and this case is the October 2003 Experian report showing that PCB made a credit inquiry about him on December 18, 2001. But Haas testified that this listing alone does not reflect that PCB ever ...


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