United States District Court, D. Maryland, Northern Division
February 24, 2015
ERIEN FRAZIER, Plaintiff,
RJM ACQUISITIONS LLC, Defendant.
WILLIAM D. QUARLES, Jr., District Judge.
Erien Frazier (the "Plaintiff"), pro se, sued RJM Acquisitions LLC ("RJM" or "the Defendant") for violations of the Fair Credit Reporting Act ("FCRA") and related state law claims. Pending are the Defendant's motion for summary judgment and the Plaintiff's motions to file a surreply and an amended complaint. No hearing is necessary. Local Rule 105.6 (D. Md. 2011). For the following reasons, the Defendant's motion for summary judgment will be granted; the other motions will be denied.
In August 2002, the Defendant, a debt collector, purchased a delinquent Fingerhut account from Fingerhut. ECF No. 17-4 (hereinafter "Matte Decl.) at ¶ 3. Fingerhut communicated to the Defendant that the account was opened by the Plaintiff and provided her last known address. Id. at ¶ 4. The past due balance on the account was $188.28. Id. ; see also ECF No. 17-5 (Email from Fingerhut).
To collect on the account, the Defendant used programs by TransUnion and Experian to obtain updates about the Plaintiff's address and contact information. Id. at ¶¶ 5-6. "[The] Defendant would provide the last known information of the debtor, and the programs would provide address and contact updates." Id. at ¶ 5. "Each time an address is updated through the TransUnion or Experian programs, a soft inquiry' is placed upon the consumer's file within the respective credit bureau's database, letting the consumer know that a creditor has sought [her] contact information...." Id. at ¶ 7. "Soft inquiries" are only viewable by the consumer; they do not affect credit score calculations, and are not seen by potential creditors looking into the consumer's credit history. Id. at ¶ 8.
On March 11, 2011 and February 1 and 10, 2012, the Defendant received contact update reports from TransUnion about the Plaintiff. ECF. No. 18-1 (hereinafter "Frazier Decl.") at ¶ 5. Notices of the soft inquiries were placed on the Plaintiff's consumer file. See ECF No. 1-1. "At no time did [the] Defendant access information regarding [the] Plaintiff through any credit reporting agency for any purpose other than collection of the debt owned by [the] Defendant." Matte Decl. at ¶ 9.
On December 18, 2013, the Plaintiff discovered the soft inquiries by the Defendant. See ECF No. 17-3 at 4. The Plaintiff emailed the Defendant and asserted that the Plaintiff had no outstanding debt with the Defendant. Id.
On January 8, 2014, the Plaintiff, pro se, sued the Defendant for violations of the FCRA and state law claims. ECF No. 1. On August 12, 2014, the Defendant moved for summary judgment. ECF No. 17. On August 29, 2014, the Plaintiff responded. ECF No. 18. On September 11, 2014, the Defendant replied. On December 15, 2014, the Plaintiff moved for leave to file a surreply. ECF No. 24. On February 18, 2015, the Plaintiff moved to file an amended complaint. ECF No. 28.
A. The Plaintiff's Motion to File a Surreply
Unless otherwise ordered by the Court, a party generally may not file a surreply. Local Rule 105.2(a). Leave to file a surreply may be granted when the movant otherwise would be unable to contest matters presented for the first time in the opposing party's reply. Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D. Md. 2003), aff'd, 85 F.Appx. 960 (4th Cir. 2004).
In its reply, the Defendant did not raise a new matter that the Plaintiff needed to address. In her opposition, the Plaintiff asserted that the declarations attached to the motion for summary judgment were not competent evidence. See ECF No. 18 at 4-6. The Defendant responded to this argument in its reply. ECF No. 21 at 1-2. The Plaintiff's surreply merely restates why the Court should not consider the declarations and reiterates her arguments about the Defendant's improper purpose in using TransUnion's system. ECF No. 24. The only new information contained in the surreply is the attachment of the asset purchase agreement between the Defendant and Fingerhut. ECF No. 26. However, the Plaintiff does not explain why the agreement could not have been attached to her original response. See ECF No. 24 at 3. Further, the agreement does not contradict any of the Defendant's factual assertions - if anything, it only bolsters the Defendant's argument that it purchased the Plaintiff's account from Fingerhut. Accordingly, the motion for leave to file a surreply will be denied.
B. The Defendant's Motion for Summary Judgment
1. Legal Standard
The Court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In considering the motion, the judge's function is "not... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248.
The Court must "view the evidence in the light most favorable to... the nonmovant and draw all reasonable inferences in [her] favor, " Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002), but the Court must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial, " Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003) (citation and internal quotation marks omitted).
2. The Plaintiff's FCRA Claims
The Plaintiff asserts that the Defendant violated the FCRA by accessing her TransUnion Credit report without a permissible purpose. ECF No. 1 at 2-3. The Defendant argues that it is entitled to summary judgment because debt collection is a permissible purpose under the FCRA. ECF No. 17-1 at 2-4. The Plaintiff contends that the Defendant never had a debt claim against her, and therefore there was no permissible purpose. ECF No. 18 at 4-6.
"The... FCRA... was crafted to protect consumers from the transmission of inaccurate information about them, and to establish credit reporting practices that utilize accurate, relevant, and current information in a confidential and responsible manner." Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995) (citations omitted) ( quoted by Cortez v. Trans Union, LLC, 617 F.3d 688, 706 (3d Cir. 2010)). Section 1681b(a) of the FCRA provides:
[A]ny consumer reporting agency may furnish a consumer report under the following circumstances and no other:
(3) To a person which it has reason to believe -
(A) intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer....
15 U.S.C. § 1681b(a). The person obtaining or using a consumer report must have an authorized purpose from § 1681b(a). Id. at § 161b(f). It is a plaintiff's burden to "show that [a] defendant [ ] had an impermissible purpose in obtaining the credit report...." Korotki v. Attorney Servs. Corp., Inc., 931 F.Supp. 1269, 1276 (D. Md. 1996).
Collection of an outstanding debt is a permissible purpose under the FCRA. 15 U.S.C. § 1681b(a)(3)(A); see also Miller v. Wolpoff & Abramson, LLP, 309 Fed.App'x 40, 43 (7th Cir. 2009); Alston v. Cent. Credit Servs., Inc., No. DKC 12-2711, 2013 WL 4543364, at *2 (D. Md. Aug. 26, 2013) ("As applied to a user, this means that if a user had a reason to believe that a consumer owed a debt, it would have a permissible purpose to access the consumer's credit report.").
Here, the undisputed facts show that the Defendant had a permissible purpose - collection of a debt - in using the TransUnion database. The Plaintiff argues that there is a question of fact about whether the purpose was permissible because there is no "proof or evidence of any contracts of the alleged account.'" ECF No. 18 at 4. The Plaintiff states that she is "not in possession of any verified evidence of a legal contract indicating that [she] owe[s] RJM Acquisitions any alleged debt." Frazier Decl. at ¶ 1.
The Plaintiff's conclusionary comments that she is not in possession of absolute proof that the Defendant had her Fingerhut account does not create a dispute of material fact. The Defendant provided a declaration and the email from Fingerhut showing that it purchased the Fingerhut account and believed the Plaintiff had an outstanding debt. See ECF Nos. 17-3, 17-4. The Plaintiff has cited no evidence on the record - other than her conclusion that no evidence exists - contradicting these facts. See ECF No. 18-1.
Further, even if the debt did not exist, the Defendant would still have a permissible purpose in obtaining the information. As long as the Defendant had "reason to believe" that it held the Plaintiff's outstanding debt, it did not violate the FCRA, even if the belief was mistaken. See Korotki, 931 F.Supp. at 1276. The email and the declaration show that the Defendant had reason to believe a debt existed, even if the Plaintiff is correct that the debt did not exist, there is nothing on the record showing the Defendant's bad faith.
Accordingly, the Court will grant the Defendant's motion for summary judgment.
3. The Plaintiff's State Law Claims
In the complaint, the Plaintiff also asserted that the Defendant's actions violated Maryland Consumer Credit Reporting Agencies Act ("CCRAA"). ECF No. 1 at 3-4.
The CCRAA is "virtually identical" to the FCRA. Korotki, 931 F.Supp. at 1280. "[R]elief under the state statute precisely parallels that under FCRA...." Ausherman v. Bank of America Corp., 352 F.3d 896, 900 (4th Cir. 20013); see also Md. Code Com. Law. § 14-1202(a) (3) (i) (stating that debt collection is a permissible purpose). Accordingly, the Defendant is entitled to summary judgment on the state law claims for the same reasons that the Plaintiff's FCRA claims fail. See Korotki, 931 F.Supp. at 1280 ("Because the FCRA and the CCRAA are virtually identical, this Court concludes that defendants violated neither statute.").
C. The Plaintiff's Motion to File an Amended Complaint
On February 18, 2015, the Plaintiff moved to file an amended complaint. ECF No. 28. The Amended complaint contains no new factual allegations. For the reasons stated above, the amended complaint would be futile. Accordingly, the Court will deny the Plaintiff's motion.
For the reasons stated above, the Plaintiff's motions will be denied; the Defendant's motion for summary judgment will be granted.