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Murray v. Indymac Bank

September 13, 2007

THOMAS A. MURRAY, PLAINTIFF,
v.
INDYMAC BANK, F.S.B., DEFENDANT.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendant Indymac Bank, F.S.B.'s ("Indymac") renewed motion for summary judgment on the issue of willfulness. For the reasons stated below, we grant the motion for summary judgment.

BACKGROUND

Plaintiff Thomas A. Murray ("Murray") claims that Indymac unlawfully accessed the credit reports of numerous Illinois consumers for the purpose of sending them letters offering a mortgage loan. Murray alleges that he received such a letter ("Letter") in October 2004, which stated: "Information from a consumer report was used in conjunction with this offer." (SA Compl. Ex. A). The Letter allegedly further stated: "This offer has been extended based upon information from this consumer credit report which indicates that you meet certain criteria for the offered credit." (SA Compl. Ex. A). According to Murray, Indymac initiated the obtaining of Murray's consumer credit report and the Letter from Indymac does not contain a firm offer of credit, and therefore is in violation of the Fair Credit and Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq. Murray also argues that the Letter does not include certain required disclosures in a clear and conspicuous manner as is required under the FCRA. Furthermore, Murray contends that Indymac's actions were done willfully in violation of 15 U.S.C. §1681n of the FCRA.

Murray's counsel entered into settlement negotiations with Indymac on behalf of Murray and the purported class referenced in the amended complaint. On January 12, 2006, we entered the final approval order for a settlement between Indymac and the Plaintiff class. Subsequently, certain individual class members ("Individual Class Members") sought to intervene in the action contending that they did not receive proper notice of the proposed settlement and indicating that they objected to the settlement. We denied the motion to intervene as moot since we already entered the final approval order for the settlement. The Individual Class Members then filed a motion to vacate the January 12, 2006, order. Since the Individual Class Members showed that they did not receive proper notice of the proposed settlement in advance of the January 12, 2006, ruling, we granted the motion to vacate and reinstated the instant action.

Murray then moved for leave to file a second amended complaint, excluding the Individual Class Members from this action, and a motion for class certification. We granted both motions and on August 29, 2006, Plaintiffs filed a motion for summary judgment and Indymac filed a cross-motion for summary judgment. On November 7, 2006, we granted Murray's motion for summary judgment as to the violations of the "firm offer of credit" and "clear and conspicuous" disclosure requirements of the FCRA and we denied Indymac's motion for summary judgment on those claims. We also denied both sides' motions on the issue of whether there was a willful violation of the FCRA. Indymac then moved to vacate the November 7, 2006, ruling to the extent that the court ruled concerning the issue of willfulness and moved to stay the action. Indymac indicated that a ruling in the United States Supreme Court was imminent in Safeco Ins. Co. of America v. Burr, which would clarify the proper standard for willfulness under the FCRA. In light of the upcoming ruling by the United States Supreme Court, we granted the motion to vacate and motion to stay. On June 4, 2007, the Court ruled in Safeco Ins. Co. of America v. Burr,127 S.Ct. 2201 (2007), and on June 26, 2007, we gave the parties an opportunity to file renewed motions for summary judgment on the issue of willfulness. Indymac has filed the instant motion for summary judgment.

LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of summary judgment, the moving party must identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

DISCUSSION

Murray bases his claims upon violations of 15 U.S.C. §1681b ("Section 1681b") and 15 U.S.C. §1681m ("Section 1681m"). Section 1681b(c) and (f) provide that "[a] person shall not use or obtain a consumer report for any purpose unless . . . the consumer report is obtained for a purpose for which the consumer report is authorized to be furnished under this section," and "[a] consumer reporting agency may furnish a consumer report relating to any consumer . . . in connection with any credit or insurance transaction that is not initiated by the consumer only if . . . the consumer authorizes the agency to provide such report to such person; or . . . the transaction consists of a firm offer of credit or insurance." 15 U.S.C. § 1681b (emphasis added). Section 1681m requires "[a]ny person who uses a consumer report on any consumer in connection with any credit or insurance transaction that is not initiated by the consumer" must "provide with each written solicitation made to the consumer regarding the transaction a clear and conspicuous statement that" contains certain specific information. 15 U.S.C. § 1681m(d). Indymac contends that although we previously found that the Letter violated Section 1681b and Section 1681m, in light of the recent ruling in Safeco, the court can conclude as a matter of law that the violations of the FCRA were not willful violations.

I. Broad Scope of Prior Motions for Summary Judgment

As indicated above, in regard to the parties' prior motions for summary judgment on the issue of willfulness, we denied the motions, finding that there was insufficient evidence to warrant making a finding as a matter of law for either side.

We concluded that the willfulness issue could only be resolved by the trier of fact. (11/7/06 OP 15-17). We subsequently vacated that ruling on the willfulness issue in light of the upcoming ruling in Safeco. It is also worth noting that due to the fact that the prior motions for summary judgment needed to address a variety of issues concerning the violations of the FCRA, in addition to the willfullness issue, the parties were able to devote only limited attention to the willfullness issue in their prior motions. In the instant renewed motion for summary judgment, however, the parties were able, for the first time, to devote their full attention to the willfulness issue. Thus, in Indymac's renewed motion for summary judgment, not only is the court presented with a new legal standard for the willfullness issue, the court has also been presented with a much more complete and comprehensive view of the parties' legal arguments on the willfulness issue, which could support a different result than the one accorded to Indymac's original motion for summary judgment.

II. Knowing Violation of FCRA

In Safeco, the Court indicated that a plaintiff can establish a willful violation of the FCRA by showing a "knowing violation" of the FCRA. 127 S.Ct. at 2208. In this case, Murray does not point to any evidence that shows that Indymac employees knew that the Letter violated the FCRA. Murray admits, pursuant to Local Rule 56.1, that the employees in Indymac's internal compliance department ("Compliance Department") were not aware of law or regulations that would have alerted them that the Letter violated the "clear and conspicuous" requirement of the FCRA when the Letter was mailed. (R SF Par. 32). Although Murray argues that the Indymac employees' "requisite knowledge" is a question of fact that should be assessed by the trier of fact, (Ans. 4), Murray has been allowed to conduct discovery in the instant action and thus has had the opportunity to collect evidence concerning the knowledge and intent of Indymac's employees. Despite that opportunity, Murray has failed to point to sufficient evidence showing that the employees had the knowledge or intent that would show a willful violation of the FCRA. Murray cannot simply ask the trier of fact to speculate that the Indymac employees knew that they were violating the FCRA or that they intentionally violated the FCRA. Indymac has, on the other hand, pointed to evidence concerning matters such as Indymac's FCRA compliance process that the Letter passed through, which supports a conclusion that the Indymac employees believed in good faith that the letter did not violate the FCRA. Thus, Murray has failed to show that a reasonable trier of fact could conclude that Indymac employees acted in bad fath and knowingly violated the FCRA.

III. Objective Standard for Reckless Determination

In Safeco the Court stated that, aside from showing a knowing violation of the FCRA, a plaintiff could establish willfulness by showing a "reckless disregard of statutory duty. . . ." 127 S.Ct. at 2208. (stating that "where willfulness is a statutory condition of civil liability, [the Court has] generally taken it to cover not only knowing violations of a standard, but reckless ones as well"). The Court in Safeco applied the common law meaning to "reckless," which is defined as "conduct violating an objective standard: action entailing 'an unjustifiably high risk of harm that is either known or so obvious that it should be known.'" Id. at 2209, 2215 (referring to the "general rule that a common law term in a statute comes with a common law meaning"). Thus, the Court in Safeco emphasized that ...


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