Etefia v. Credit Technologies, Inc.

• Decision Date: 27 April 2001
• Docket Number: Docket No. 216166.
• Parties: Okon ETEFIA, Plaintiff-Appellant v. CREDIT TECHNOLOGIES, INC., Lee Acceptance Corp., Murdoch J. Hertzog, and Thomas D. Hocking, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

628 N.W.2d 577

245 Mich. App. 466

Okon ETEFIA, Plaintiff-Appellant v. CREDIT TECHNOLOGIES, INC., Lee Acceptance Corp., Murdoch J. Hertzog, and Thomas D. Hocking, Defendants-Appellees.

Docket No. 216166.

Court of Appeals of Michigan.

Submitted December 13, 2000, at Detroit.

Decided April 27, 2001, at 9:10 a.m.

Released for Publication April 27, 2001.

Kelly L. Bidelman, Dearborn, for Okon Etefia.

Bigler, Berry, Johnston, Sztykiel & Hunt, P.C. (by Eric S. Goldstein), Troy, for Credit Technologies, Inc.

Before DOCTOROFF, P.J., and MARK J. CAVANAGH and METER, JJ.

MARK J. CAVANAGH, J.

Plaintiff Okon Etefia appeals as of right an order granting defendant Credit Technologies, Inc. (CTI), summary disposition of his claim for alleged violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. We affirm with regard to that order. Plaintiff also appeals from an order transferring his case against the remaining defendants from the circuit court to the 48th District Court pursuant to MCR 2.227. We reverse and remand with regard to that order.

This claim arises as a consequence of defendant CTI's¹ production of credit information regarding plaintiff and his wife in response to a subpoena. The subpoena was signed by defendant Murdoch J. Hertzog, as counsel for defendant Lee Acceptance Corporation (Lee),² and was served on defendant CTI in the course of a debt collection action originally filed against plaintiff's wife on behalf of defendant Lee in the 48th District Court.

Plaintiff brought the instant action alleging violations of the FCRA against all four defendants and, in addition, asserted various tort claims against defendants Hertzog, Thomas D. Hocking, and Lee. Defendant CTI moved for summary disposition, pursuant to MCR 2.116(C)(8) and (10), arguing that it did not violate the FCRA because it properly complied with a court order, the subpoena. Relying on MCR 2.506(B)(1) and MCR 2.117(B)(1), the trial court held that a subpoena signed by an attorney of record is a court order for purposes of the FCRA and that defendant Hertzog was an attorney of record although he had not filed his appearance until after the subpoena was served on defendant CTI. Consequently, the trial court granted defendant CTI summary disposition.

Subsequently, on its own motion pursuant to MCR 2.227, the circuit court entered an order transferring the case against the remaining defendants to the 48th District Court. The court held that it did not have subject-matter jurisdiction over the action because the case mediated for less than $25,000 and, on review of the complaint, it appeared that the amount in controversy did not exceed $25,000. After plaintiff failed to pay the statutory filing fee following entry of the transfer order, the circuit court dismissed plaintiff's case without prejudice.

On appeal, plaintiff first argues that the trial court erred in summarily dismissing his claim against CTI because a subpoena issued by an attorney is not a court order for purposes of the FCRA, in particular 15 U.S.C. § 1681b(a)(1). We disagree. This Court reviews rulings on motions for summary disposition de novo. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). Statutory interpretation is a question of law that is considered de novo on appeal. Oakland Co. Bd. of Co. Rd. Comm'rs v. Michigan Property & Casualty Guaranty Ass'n, 456 Mich. 590, 610, 575 N.W.2d 751 (1998). 15 U.S.C. § 1681b provides, in pertinent part:

(a) Subject to subsection (c), any consumer reporting agency may furnish a consumer report under the following circumstances and no other:

(1) In response to the order of a court having jurisdiction to issue such an order, or a subpoena issued in connection with proceedings before a Federal grand jury.

The trial court, relying on MCR 2.506(B)(1), held that a subpoena issued by an attorney of record is an order of the court for purposes of the FCRA. However, this case requires the interpretation of 15 U.S.C. § 1681b, a federal statute; therefore federal law controls. See Ann Arbor Housing Comm. v. Wells, 240 Mich.App. 610, 614, n. 4, 618 N.W.2d 43 (2000), quoting Auto-Owners Ins. Co. v. Corduroy Rubber Co., 177 Mich.App. 600, 604, 443 N.W.2d 416 (1989). Further, state courts are bound by holdings of federal courts on federal questions where there is no conflict among federal appellate courts. Ann Arbor Housing Comm, supra at 614, n. 4, 618 N.W.2d 43, citing Schueler v. Weintrob, 360 Mich. 621, 633-634, 105 N.W.2d 42 (1960), and Young v. Young, 211 Mich.App. 446, 450, 536 N.W.2d 254 (1995). Accordingly, the trial court erred in relying on the Michigan Court Rules for interpretation of the FCRA. However, this Court will not reverse a trial court's order if it reached the right result for the wrong reason. Detroit v. Presti, 240 Mich.App. 208, 214, 610 N.W.2d 261 (2000).

The issue whether a subpoena issued by an attorney is an order of the court for purposes of 15 U.S.C. § 1681b(a)(1) was raised in Hahn v. Star Bank, 190 F.3d 708 (C.A.6, 1999). In that case, the plaintiffs asserted that the FCRA was violated by the disclosure of loan information in response to a subpoena that was invalid because it was issued by an attorney and thus was not an order of the court for purposes of the FCRA. The Hahn Court disagreed, holding:

In the first place, the subpoena issued by Gonzales [attorney] has every appearance of being "an order of a court," given that it is signed by Gonzales on behalf of the clerk of the court. See In re Grand Jury Proceedings, 503 F.Supp. 9, 12 (D.N.J.1980)

(reasoning that an "order of a court" under this section of FCRA may be oral, may be a paper bearing the word "order" that is "signed by a judge or other judicial officer [,][o]r it may be a subpoena, writ of execution or other process."). [Hahn, supra at 713.]

We are unaware of any conflict among the federal appellate courts with regard to this issue and thus are bound by the Hahn holding. See Ann Arbor Housing Comm, supra.

Therefore, a subpoena issued by an attorney is an order of the court for purposes of 15 U.S.C. § 1681b(a)(1).

Plaintiff argues, in the alternative, that the subpoena was invalid because it was not signed by an attorney of record, plaintiff was not a party in the debt collection case at the time the subpoena was issued, and there was no permissible purpose under the FCRA for defendant CTI to release the credit information. First, although defendant Hertzog did not formally file his appearance until after the issuance of the subpoena, he filed pleadings with the district court before the issuance of the subpoena and thus performed acts indicating that he represented defendant Lee in the action in accordance with MCR 2.117(B)(1). Second, plaintiff has cited no law providing that a subpoena becomes invalid if the parties are not accurately stated on the subpoena. Insufficiently briefed issues are deemed abandoned on appeal. See Dresden v. Detroit Macomb Hosp. Corp., 218 Mich.App. 292, 300, 553 N.W.2d 387 (1996). Finally, whether the disclosure of plaintiff's credit information was for an impermissible purpose under the FCRA was not properly preserved for appeal because it was not raised before and addressed by the trial court. See Fast Air, Inc. v. Knight, 235 Mich.App. 541, 549, 599 N.W.2d 489 (1999). Accordingly, the trial court properly dismissed plaintiff's claim against defendant CTI.

Next, plaintiff argues that the circuit court erred in transferring his claims against the remaining defendants to the 48th District Court because 15 U.S.C § 1681p provides any state court with jurisdiction without regard to the amount in controversy. We disagree. Whether a trial court has subject-matter jurisdiction is a question of law that this Court reviews de novo. Rudolph Steiner School of Ann Arbor v. Ann Arbor Charter Twp., 237 Mich.App. 721, 730, 605 N.W.2d 18 (1999).

15 U.S.C. § 1681p provides, in pertinent part:

An action to enforce any liability created under this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction....

The statute is plain and unambiguous; it does not specifically grant jurisdiction to a state circuit court, but to a court of competent jurisdiction. If the plain and ordinary meaning of statutory language is clear, judicial construction is generally neither necessary nor permitted. Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999). Claims involving the FCRA may be brought in state courts. Broom v. TRW Credit Data, 732 F.Supp. 66, 69 (E.D.Mich., 1990). A court of competent jurisdiction would be determined by the law of a particular state. In Michigan, circuit courts have original jurisdiction over civil claims except where exclusive jurisdiction is given in the constitution or by statute to another court. See M.C.L. § 600.605. However, M.C.L. § 600.8301 provides district courts with exclusive jurisdiction over civil claims when the amount in controversy does not exceed $25,000. Consequently, the circuit court did not have exclusive jurisdiction over plaintiff's FCRA claim and did not improperly deprive plaintiff of jurisdiction.

Plaintiff finally argues that the circuit court erred in transferring his claims against the remaining defendants to the 48th District Court, pursuant to MCR 2.227, for lack of subject-matter jurisdiction based on the amount in controversy. We agree.

Administrative Order No. 1998-1 controls reassignment of circuit court actions to the district court with regard to actions filed after January 1, 1997. Plaintiff filed his complaint on June 12, 1997; therefore, AO 1998-1 was applicable and provides, in pertinent part:

A circuit court may not transfer an action to district court under MCR 2.227 based on the amount in controversy unless: (1) The parties stipulate to the transfer and to an appropriate amendment of the complaint, se

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