Fritz v. Capital Mgmt. Servs., LP, 2:12-cv-1725
| Decision Date | 29 August 2013 |
| Docket Number | 2:12-cv-1725 |
| Parties | NORMA DIANE FRITZ, Plaintiff, v. CAPITAL MANAGEMENT SERVICES, LP, Defendant. |
| Court | U.S. District Court — Western District of Pennsylvania |
Presently before the Court is DEFENDANT CAPITAL MANAGEMENT SERVICES, LP'S MOTION FOR SUMMARY JUDGMENT (ECF No. 26), with brief in support (ECF No. 27). In response, Plaintiff has filed PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 31), also with brief in support (ECF No. 30). The issues have been fully briefed and the factual record has also been thoroughly developed via the STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT CAPITAL MANAGEMENT SERVICES, LP'S MOTION FOR SUMMARY JUDGMENT (ECF. No. 28) and the STATEMENT OF DISPUTED MATERIAL FACTS filed by Plaintiff (ECF No. 29). The motion is, therefore, ripe for disposition.
The facts of this case are fairly straightforward. Norma Diane Fritz ("Plaintiff") is a credit card accountholder at Chase Bank ("Chase"). App. to Def.'s Concise Stmt. of Material Facts, Ex. 2-D (ECF No. 28-2). On November 4, 2010, Chase retained Capital Management Services, LP ("Defendant") to collect an unpaid balance of $13,334.33 on Plaintiff's account. Def.'s Concise Stmt. of Material Facts ¶ 5.
According to the affidavit of Kim Flitt, Defendant's chief customer advocate, once an account is placed with the Defendant, the accountholder's credit profile is automatically accessed. Id. ¶ 8. In this case, upon placement with Defendant, the account was identified as belonging to Plaintiff. Id. ¶ 9.
On November 6, 2010, as part of the collection process, Defendant requested and obtained Plaintiff's consumer credit report from the credit reporting agency Equifax using the account information (i.e., the cardholder's name and social security number) provided by Chase. Id. ¶ 10. The parties do not dispute that Plaintiff never authorized Defendant to conduct a credit inquiry. Id. ¶ 4(d). That same day, Defendant provided Plaintiff with a notice setting forth the amount of the debt, the name of the creditor to whom the debt was owed, and the other information required by 15 U.S.C. § 1692g. Id. ¶ 11. Several weeks later, Plaintiff requested validation of the debt from Defendant, which was provided on December 17, 2010. Id. ¶¶ 12-13. Plaintiff returned the document she received from Defendant with handwritten comments on it. Id. ¶ 14.
On December 28, 2010, Plaintiff's account with Chase was closed, and, as a result, Chase recalled the account from Defendant. Id. ¶ 15. Approximately one (1) month later, Plaintiff contacted Defendant and Chase and claimed that the validation provided by Defendant on December 17 was not sufficient. Id. ¶ 16.
More than a year passed during which there was no correspondence between the parties. Then, sometime in or around June 2012, Plaintiff viewed a copy of her consumer credit report through Equifax. App. to Def.'s Concise Stmt. of Material Facts, Ex. 1, at 17 (ECF No. 28-1). The report revealed Defendant's November 6, 2010, inquiry under the heading, "Inquiries that may impact your credit rating." Id. (emphasis added). On June 20, 2012, Plaintiff, apparentlybelieving that Defendant's unauthorized inquiry had adversely affected her credit score,1 sent Defendant a letter seeking information about the inquiry. Def.'s Concise Stmt. of Material Facts ¶¶ 4(b), 17. As a result of the letter, Defendant had the credit inquiry removed on or about June 29, 2012. Id. at ¶ 18.
On November 26, 2012, Plaintiff brought this action, pro se, pursuant to the Fair Credit Reporting Act ("FCRA" or the "Act"), 15 U.S.C. § 1681, et seq. She alleges that Defendant lacked a permissible purpose for inquiring into her credit history and that Defendant's conduct was either willful or negligent, thereby violating the FCRA. Compl. ¶¶ 6, 11, 15 (ECF No. 1). Defendant filed its Answer on December 20, 2012, denying the material portions of Plaintiff's allegations. (ECF No. 3). After the close of discovery, Defendant filed the instant motion for summary judgment, in which it argues that there is no evidence of a willful violation of the FCRA because it had a permissible purpose for obtaining Plaintiff's consumer report, namely for assistance in collecting a debt. (ECF No. 26). Defendant also argues that Plaintiff cannot prove a negligent violation because she failed to establish that she suffered actual damages.
Under Federal Rule of Civil Procedure 56(c), summary judgment may be granted if, drawing all inferences in favor of the nonmoving party, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotation marks omitted).
The mere existence of some factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. at 247-48. A dispute over those facts that might affect the outcome of the suit under the governing substantive law, i.e., the material facts, however, will preclude summary judgment. Id. at 248. Similarly, summary judgment is improper so long as the dispute over the material facts is genuine. In determining whether the dispute is genuine, the court's function is not to weigh the evidence but rather to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party. Id. It is on this standard that the Court has reviewed the motion and responses filed by the parties.
As a preliminary matter, the Court must determine the sufficiency of the affidavit of Kim Flitt, which Defendant has attached in support of its motion for summary judgment and from which most of the factual record has been developed. Plaintiff attempts to create a genuine issue of material fact by attacking the affidavit as containing, inter alia, "hearsay, unauthenticated, unverified, and invalidated unsworn conclusions of law." Pl.'s Br. at 7 (ECF No. 30). Defendant did initially attach an unsigned version of Flitt's affidavit to its concise statement of material facts. (ECF No. 28-2). However, on July 12, 2013, Defendant corrected its initial error by way of an errata sheet containing a properly executed affidavit. (ECF No. 32). Although Plaintiff is correct in asserting that the Court should generally not consider an unsworn statement in deciding a motion for summary judgment, see Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 323 (3d Cir. 2005), it may substitute a properly executed affidavit for a deficient one prior to making its ruling, see Mid-Continent Cas. Co., 742 F. Supp. 2d 1293, 1306 (S.D. Fla. 2010)( to grant motion to strike affidavit where party inadvertently filed an unsigned version of the affidavit and later filed a properly executed version). There is no reason to believe that Defendant's failure to initially attach a signed affidavit was anything other than inadvertent. Therefore, the Court will substitute the subsequently filed affidavit signed by Flitt in place of the original.
Additionally, insofar as Plaintiff argues that the affidavit is insufficient because Flitt lacks personal knowledge and because Flitt's statement is not based on facts that would be admissible at trial, the Court disagrees. As the affidavit makes clear, it is based on "account notes" maintained by Defendant in the ordinary course of business, which "reflect the events transpiring with the account from inception to completion." App. to Def.'s Concise Stmt. of Material Facts, Ex. 2 (ECF. No. 28-2). These "account notes" would likely be admissible hearsay as a record of a regularly conducted activity under Fed. R. Evid. 803(6). Plaintiff also argues that Flitt is incompetent to testify regarding the accounts notes because she is not the custodian of the records. However, Defendant need not produce the custodian of such records in order to establish the grounds for their admissibility. Instead, Defendant need only produce a "qualified witness," which Flitt appears to be based on her position within Defendant's company. See id. For those reasons, the Court finds that the affidavit is sufficient, and the Court will consider it in the determination of Defendant's motion.
The essence of Plaintiff's claim is that Defendant obtained her credit report while lacking a legitimate purpose sanctioned by the FCRA. Defendant argues that it was permitted to obtain the report for assistance in the collection of a debt, which Defendant contends is a permissible purpose pursuant to 15 U.S.C. § 1681b(a)(3)(A). The Court agrees.
Congress enacted the FCRA for the dual purposes of promoting an efficient banking system and "protect[ing] consumer privacy." TRW Inc. v. Andrews, 534 U.S. 19, 23 (2001). In accordance with the latter purpose, the Act imposes liability for both willful and negligent noncompliance, which includes obtaining a credit report for an impermissible purpose. See 15 U.S.C. § 1681n (willful noncompliance); 15 U.S.C. § 1681o (negligent noncompliance). The FCRA enumerates several purposes for which a credit report may be obtained. See 15 U.S.C. § 1681b. For example, a reporting agency is expressly authorized to distribute a consumer report to a person who "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." Id. § 1681b(a)(3)(A).
Relying on the "collection of an account" language in § 1681b(a)(3)(A), courts - including our own appellate court - appear to be uniform in their agreement that a debt...
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