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Krey v. Castle Motor Sales

March 21, 2007


The opinion of the court was delivered by: Honorable David H. Coar


Plaintiff Kevin Krey ("Krey" or "Plaintiff") has brought suit on behalf of a putative class of consumers against Castle Motor Sales, Inc. ("Castle") and Aspen Marketing Services, Inc. ("Aspen") (collectively "Defendants") for violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq ("FCRA"), common law Invasion of Privacy, and violations of § 2 of the Illinois Consumer Fraud Act, 815 ILCS 505/2 ("Consumer Fraud Act"). Before this Court are two motions: Plaintiff's motion for class certification under Federal Rule of Civil Procedure 23 (Doc. No. 25); and Defendant Aspen's motion for partial judgment on the pleadings under Federal Rule of Civil Procedure 12(c) (Doc. No. 58), which seeks dismissal of Plaintiff's request for injunctive remedies and all state law claims.


Plaintiff received a directed mailing from Defendants. Cert. Mot. Ex. A. The document was titled "PRE-APPROVED NOTICE" and stated in relevant part:

You have been pre-approved for an auto loan. Information contained in your credit bureau report, obtained from a consumer reporting agency was used in connection with selecting you for this offer.

The amount of loan may vary. Just call 800-467-7753 or log on to with your personal approval code listed below to find out what your approval amount is.

This offer has been extended to you because you have satisfied criteria for credit worthiness used to select consumers for this pre-approved offer. Your pre-approval is valid at Castle Honda...who has agreed to mark down all their new and used car inventory to keep within the guidelines of your pre-approval.

The document then sets out the steps necessary "to determine the pre-approval amount," and provides the contact information for both Castle and a loan approval organization. On the back of this notice, Plaintiff and the putative class members also found two additional paragraphs, printed in a small font: a "PRESCREEN & OPT-OUT NOTICE" referencing the document as a "prescreened" offer, as wells as "TERMS & CONDITIONS OF OFFER" including additional technical details and the name of the financing source ("Enterprise America").

Plaintiff alleges that Defendants accessed his credit report without permission, lacking any "permissible purpose" required by the FCRA, in willful violation of its requirements. He alleges that the purported offer contained in the mailer is "a sham, excessively vague, and totally lacking in terms," and thus has "no value beyond a solicitation for loan business." Compl. ¶ 33. As a result of this mailing, Plaintiff claims that he and the other members of the putative class were exposed to an increased risk of improper disclosure of their personal information and the possibility of identity theft. Plaintiff also claims that Defendants violated class members' privacy by having their personal information disclosed for personal profit and without lawful reason. Plaintiff alleges in his complaint that Defendants violated ICFA "by obtaining and using and causing others to obtain and use the private credit information of plaintiff and the class members." Compl. ¶ 56. Defendant Aspen has moved for judgment on the pleadings. Plaintiff has moved for certification of the class.


A motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) is appropriate where the material facts of a case are not in dispute, and a judgment on the merits may be achieved by focusing on the legal issues and agreed facts in the case. Wright & Miller, 5A Federal Practice and Procedure: Civil 2d § 1367 pp. 509-10 (1990). If the pleadings do not resolve all of the factual disputes, a trial is more appropriate than a judgment on the pleadings.

Id. at 514. As in a motion to dismiss, in deciding a motion for judgment on the pleadings, the court views the facts in the light most favorable to the non-moving party. Id. § 1368 pp. 518-19 (1990). All of the well-pleaded allegations in the non-moving party's pleadings are taken as true. Gilman v. Burlington Northern R.R. Co., 878 F.2d 1020 (7th Cir. 1989). All reasonable inferences from these facts are also given to the non-movant. National Fidelity Life Ins. Co. v. Laraganis, 811 F.2d 357 (7th Cir. 1987).


In its motion for judgment on the pleadings, Aspen asserts that Plaintiff fails to state a claim on the grounds that injunctive relief is not available for a FCRA action, and that the pendant state law claims are preempted by FCRA and otherwise inadequately plead.

Under FCRA, it is permissible for a credit reporting agency to furnish a consumer's credit report, and for others to use that report, only with the written consent of the consumer or for certain "permissible purposes." See 15 U.S.C. § 1681b. One of the designated "permissible purposes" is to make a "firm offer of credit" to the consumer. 15 U.S.C. § 1681b(c)(1)(B)(I). The statute defines a "firm offer of credit" as "any offer of credit ... to a consumer that will be honored if the consumer is determined, based on information in a consumer report on the consumer, to meet the specific criteria used to select the consumer for the offer." 15 U.S.C. § ...

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