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Tremble v. Town & Country Credit Corp.

January 18, 2006

JOHNNY TREMBLE, PLAINTIFF,
v.
TOWN & COUNTRY CREDIT CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

Johnny Tremble has sued Town & Country Credit Corporation (T&C) for violating the Fair Credit Reporting Act (FCRA).*fn1 Tremble claims that T&C willfully failed to comply with the FCRA by obtaining his credit report for impermissible purposes in violation of 15 U.S.C. §1681b and by sending him an offer of credit without "clear and conspicuous" disclosures in violation of 15 U.S.C. § 1681m(d). T&C has moved for partial judgment on the pleadings, claiming there is no private right of action for violations of 15 U.S.C. § 1681m. T&C has also moved for summary judgment claiming that even if it violated the FCRA, Tremble has suffered no actual harm and thus is not entitled to sue. For the reasons outlined below, the Court grants T&C's motion for partial judgment on the pleadings on the § 1681m claim but denies T&C's motion for summary judgment with regard to the § 1681b claim.

Discussion

1. T&C's motion for partial judgment on the pleadings

Rule 12(c) of the Federal Rules of Civil Procedure permits a party to move for judgment on the pleadings after the complaint and the answer have been filed. The court must view the facts in the light most favorable to the non-moving party and cannot grant the motion "unless it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief." Gustafson v. Jones, 117 F.3d 1015, 1017 (7th Cir. 1997) (citations omitted).

T&C seeks judgment on the pleadings in its favor on Tremble's claim for violation of § 1681m, citing a recently-adopted statutory enactment that it contends eliminated private causes of action for violation of that section. T&C argues that in 2003, Congress eliminated private rights of action for violation of § 1681m in the Fair and Accurate Credit Transaction Act (FACTA). Section 311 of FACTA amended § 1681m by adding a subsection, § 1681m(h). Section 1681m(h) provides, in substance, that if a person extending credit uses a credit report in connection with an application for or a grant of credit on terms that are materially less favorable than those given to most consumers, it must (with some exceptions) provide certain disclosures to the consumer. The minimal history that exists regarding § 311(a) indicates that it was aimed at "risk-based credit underwriting." 149 Cong. Rec. E2512 (daily ed. Dec. 8, 2003) (statement of Rep. Oxley).

The part of FACTA § 311(a) upon which T&C relies is the final provision, which states:

(8) Enforcement

(A) No civil actions. Sections 616 and 617 of this title shall not apply to any failure by any person to comply with this section.

(B) Administrative enforcement. This section shall be enforced exclusively under section 621 of this title by the Federal agencies and officials identified in that section.

This newly adopted subsection, as it appears in the United States Code, converts FACTA's references to "sections 616 and 617" to their statutory references, sections 1681n and 1681o, and reads as follows:

(8) Enforcement

(A) No civil actions. Sections 1681n and 1681o of this title shall not apply to any failure by any person to comply with this section.

(B) Administrative enforcement. This section shall be enforced exclusively under section 1681s of this title by the Federal agencies and ...


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