Baker v. Bronx-Westchester Investigations, Inc.

• Citation: 850 F. Supp. 260
• Decision Date: 22 April 1994
• Docket Number: No. 92 Civ. 3556 (WCC).,92 Civ. 3556 (WCC).
• Parties: Robert BAKER, Plaintiff, v. BRONX-WESTCHESTER INVESTIGATIONS, INC., a/k/a Westchester Investigations, Joseph De Ettore and Richard Nagle, Defendants.
• Court: U.S. District Court — Southern District of New York

850 F. Supp. 260

Robert BAKER, Plaintiff, v. BRONX-WESTCHESTER INVESTIGATIONS, INC., a/k/a Westchester Investigations, Joseph De Ettore and Richard Nagle, Defendants.

No. 92 Civ. 3556 (WCC).

United States District Court, S.D. New York.

April 22, 1994.

Michael G. Flanagan, New York City, for plaintiff.

Law Offices of Richard M. Horowitz, Mount Vernon, NY, for defendants; Richard M. Horowitz, Adam S. Cohen, of counsel.

OPINION AND ORDER

WILLIAM C. CONNER, District Judge:

Plaintiff Robert Baker filed the instant Complaint against Bronx-Westchester Investigations, Inc. ("Bronx-Westchester"), a private investigative agency; Joseph De Ettore ("De Ettore"), an officer and shareholder of Bronx-Westchester; and Richard Nagle ("Nagle"), also an officer and shareholder of Bronx-Westchester, alleging violations of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq., and N.Y.Gen.Bus.L. §§ 349, 380 et seq. The case is currently before the Court on defendants' motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). We are treating this motion as one for summary judgment pursuant to Fed.R.Civ.P. 56.¹ For reasons discussed below, we grant summary judgment in favor of defendants.

BACKGROUND

The undisputed facts are as follows. Defendant Bronx-Westchester is a private investigation firm formed as a New York corporation, and defendants De Ettore and Nagle are private investigators at Bronx-Westchester. Barbara Baker is the former wife of plaintiff. In mid-December, 1991, Ms. Baker requested Defendant De Ettore to assist her in locating plaintiff in order to collect child support payments. Ms. Baker gave De Ettore a copy of an order dated June 6, 1990, whereby the Family Court of the State of New York had ordered plaintiff to pay Ms. Baker $39,987.00 in child support arrears. Plaintiff had not made any child support payments as of December 1991.

De Ettore agreed to assist Ms. Baker in locating plaintiff on a pro bono basis. As part of his investigation, De Ettore, through Bronx-Westchester, submitted plaintiff's name to U.S. Datalink Employment Service ("Datalink") to obtain a consumer report. A report regarding plaintiff was thereafter issued, and on January 6, 1992, plaintiff was notified that Datalink had made an inquiry on his credit file. After plaintiff contacted Datalink to inquire as to the nature and purpose of this search, Datalink stated in a letter that it had issued the report to Bronx-Westchester pursuant to Bronx-Westchester's indication that it "had a release to run this credit report."

Plaintiff commenced the instant action alleging that defendants violated the provisions of the Fair Credit Reporting Act because (1) defendants did not have a permissible purpose to obtain a credit report in violation of 15 U.S.C. § 1681(b) and N.Y.Gen.Bus. § 380-b; (2) defendants obtained the credit report under false pretenses in violation of 15 U.S.C. § 1681(q) and N.Y.Gen.Bus. § 380-o; and (3) in violating the above statutory provisions, defendants engaged in deceptive acts and practices in violation of N.Y.Gen.Bus. § 349.

DISCUSSION

Summary judgment is to be granted when "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In the instant case there is no dispute as to any of the material facts. Rather, there are two legal questions presented for the Court: first, whether a detective agency has a "permissible purpose" under 15 U.S.C. § 1681b to obtain a consumer report on behalf of a judgment creditor in order to facilitate the collection of child support arrears. Second, whether defendants obtained the credit report under "false pretenses" in violation of 15 U.S.C. § 1681q by indicating to Datalink that they had plaintiff's authorization to obtain the report.²

1. Permissible Purpose

Under the Fair Credit Reporting Act and the companion provisions of the New York General Business Law, consumer reporting agencies and users of information are liable for willful or negligent noncompliance with the statutory provisions. 15 U.S.C. §§ 1681n, 1681o; N.Y.Gen.Bus. §§ 380-1 and 380-m.

A consumer reporting agency³ can issue a report only for one of the purposes enumerated in § 1681b ("Permissible purposes of consumer reports"). Plaintiff argues that the collection of child support payments is not listed as a permissible purpose and thus defendants, in obtaining the report for this purpose, violated § 1681b. Plaintiff's interpretation of the statute is mistaken.

§ 1681b reads in pertinent part:

A 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. (emphasis added).⁴

On June 5, 1990, Ms. Baker became a judgment creditor when the Family Court of the State of New York ordered plaintiff to pay Ms. Baker $39,987.00 in child support arrears. Hence she had a "permissible purpose" to obtain a credit report on plaintiff because the collection of her judgment, i.e., arrears in child support, constitutes a "collection of an account" under § 1681b(3)(A). This is confirmed by the Federal Trade Commission's (FTC) interpretation of § 1681b:

A judgment creditor has a permissible purpose to receive a consumer report on the judgment debtor for use in connection with collection of the judgment debt, because it is in the same position as any creditor attempting to collect a debt from a consumer who is the subject of a consumer report.

16 C.F.R. Pt. 600, App. at 358 (1993).

Bronx-Westchester, a private investigative agency, and De Ettore and Nagle, two private detectives, all working on behalf of Ms. Baker, also had a "permissible purpose" to obtain the report. Turning again to the FTC for guidance, "a detective agency or private investigator, attempting to collect a debt owed by a consumer, would have a permissible purpose to obtain a consumer report on that individual for use in collecting that debt." 16 C.F.R. Pt. 600, App. at 358 (1993).⁵

Plaintiff argues that contrary to the apparent plain meaning of these FTC provisions, only a district attorney or child support agency may obtain a report to enforce a judgment for arrears in child support. Plaintiff points to the FTC provision which directly follows the two provisions cited above:

A district attorney's office or other child support agency may obtain a consumer report in connection with enforcement of the report subject's child support obligation, established by court (or quasi-judicial administrative) orders, since the agency is acting as or on behalf of the judgment creditor, and is, in effect, collecting a debt.

16 C.F.R. Pt. 600, App. at 358 (1993).

Plaintiff's argument that this is a limiting provision, i.e., that only the district attorney or other child support agency may obtain a report to assist with child support enforcement, is without merit. As indicated, Ms. Baker herself could have obtained the report because she is a judgment creditor. It is of no import that Ms. Baker went to a detective agency, which has the authority to obtain credit reports on behalf of judgment creditors in general, rather than the district attorney's office, which has the authority to obtain credit reports specifically in connection with child support payments.⁶ Indeed, the provision relied upon by plaintiff actually confirms this conclusion, as it states that the reason the district attorney may obtain the report is because "the agency is acting as or on behalf of the judgment creditor, and is, in effect, collecting a debt." Id.

The parallel state provision, N.Y.Gen.Bus. § 380-b ("Permissible dissemination of reports"), also provides that a consumer agency may furnish a report "to a person whom it has reason to believe 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...." N.Y.Gen.Bus. § 380-b(a)(3)(i). Thus we arrive at the same conclusion that defendants had a permissible purpose under state law to obtain a credit report concerning plaintiff. Cf. Klapper v. Shapiro, 154 Misc.2d 459, 586 N.Y.S.2d 846, 850-51 (1992) (giving same interpretations to parallel federal and state credit reporting provisions).

2. False Pretenses

Plaintiff's second allegation is that defendants obtained the report under "false pretenses" in violation of 15 U.S.C. § 1681q by misleading Datalink to believe that plaintiff had authorized issuance of the report. Plaintiff points to the letter written by Datalink stating that defendants had "indicated to Datalink that they had a release to run this credit report." Due to our finding that defendants had a "permissible purpose" to obtain the report under § 1681b, we disagree that the report was obtained under "false pretenses."

15 U.S.C. § 1681q reads in full:

Any person who knowingly and wilfully obtains information on a consumer from a consumer reporting agency under false pretenses shall be fined not more than $5000 or imprisoned not more than one year, or both.⁷

In Hansen v. Morgan, 582 F.2d 1214, 1219 (9th Cir.1978), the Ninth Circuit explained that "the standard for determining when a consumer report has been obtained under false pretenses will usually be defined in relation to the permissible purposes of consumer reports which are enumerated in 15 U.S.C. § 1681b." That is, assuming that a consumer reporting agency is issuing reports only for what it believes to be a permissible purpose in compliance with § 1681b, a user of information who does not have a permissible purpose "cannot utilize...