Lendino v. Trans Union Credit Information Co., 1631

• Decision Date: 27 July 1992
• Docket Number: D,No. 1631,1631
• Citation: 970 F.2d 1110
• Parties: , 23 Bankr.Ct.Dec. 405 James LENDINO, Plaintiff-Appellant, v. TRANS UNION CREDIT INFORMATION CO., Defendant-Appellee. ocket 92-7206.
• Court: U.S. Court of Appeals — Second Circuit

Page 1110

970 F.2d 1110

23 Fed.R.Serv.3d 743, 23 Bankr.Ct.Dec. 405

James LENDINO, Plaintiff-Appellant, v. TRANS UNION CREDIT INFORMATION CO., Defendant-Appellee.

No. 1631, Docket 92-7206.

United States Court of Appeals Second Circuit.

Argued June 4, 1992.

Decided July 27, 1992.

Tedd Blecher, New York City, for plaintiff-appellant.

Mark E. Kogan, Philadelphia, Pa. (Mark E. Kogan & Associates, of counsel), for defendant-appellee.

Before: OAKES, Chief Judge, McLAUGHLIN, Circuit Judge, and LAY, Senior Circuit Judge. ^*

LAY, Senior Circuit Judge:

James Lendino appeals the district court's grant of summary judgment in favor of Trans Union Credit Information Company (Trans Union), a consumer credit reporting agency. Lendino claims that Trans Union violated the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681t (1988), by disseminating obsolete information about his credit history. ¹ The district court found no genuine issue of material fact, and determined that Lendino failed to make a sufficient showing that Trans Union ever issued the obsolete information. We respectfully disagree and vacate the grant of summary judgment.

Background

In 1977, a bankruptcy court discharged all dischargeable debts incurred by Lendino, including a debt to Citibank for over $900. Under 15 U.S.C. § 1681c, consumer reporting agencies are prohibited from reporting adverse credit information which antedates the report by more than seven years. Lendino claims that although he frequently informed Trans Union of its error, it reported the discharged Citibank debt from 1978 to 1987 in violation of section 1681c.

In April of 1987, Bloomingdale's denied Lendino's application for a credit card, indicating that its decision was based "in part, or in full," on credit information it received from Trans Union. Lendino contacted Trans Union to request a copy of his credit report and was ultimately sent three credit files: (1) a credit report for a "James R. Lending" which contained Lendino's correct social security number and address; (2) a report for a "James Lendino" which also contained the correct social security number and address; and (3) a report for a "James Lendino, Jr." which had an incorrect address and a slightly incorrect social security number. Only the report for "James Lendino, Jr." contained a reference to the discharged Citibank debt; the other two reports indicated no delinquent credit accounts or any other adverse information.

According to Trans Union, when credit information is requested and reported, that inquiry is automatically recorded in, or "posted" to, an individual's credit report. The only Lendino file which indicated access by Bloomingdale's was the report in the name of "James R. Lending," which did not contain a reference to the Citibank account. ² In an affidavit filed with the court, however, Lendino claimed that an unidentified Trans Union representative told him over the telephone that the three reports sent to him were also furnished to Bloomingdale's.

The district court relied upon Trans Union's asserted practice of automatically recording access to credit reports in its finding that the credit report sent to Bloomingdale's did not contain a reference to the obsolete Citibank debt. The court noted that even if a Trans Union employee did tell Lendino that all three reports were sent to Bloomingdale's, such information was clearly erroneous in light of the absence of an access notice posted to either of the other two credit files.

Discussion

The principles governing the grant or denial of summary judgment are well established. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Suffice it to say, the non-moving party must, under Federal Rule of Civil Procedure 56, demonstrate to the court the existence of a genuine issue of material fact. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. As the Supreme Court has observed, the standard for granting summary judgment "mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a)...." ³ Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. It has long been the rule that "[o]n summary judgment the inferences to be drawn from the underlying facts contained in [the moving party's] materials must be viewed in the light most favorable to the party opposing the motion...." Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)).

In the present case, Trans Union denies forwarding to Bloomingdale's the bad credit history of Lendino. It urges that Lendino has produced no evidence to dispute this material fact. However, Lendino argues that this is a disputed issue of material fact because of his claim that a Trans Union representative told him all three reports were sent to Bloomingdale's. Corroborative of this statement, Lendino further argues that a reasonable inference can be drawn from the documentary exhibits that Trans Union did issue the obsolete information to Bloomingdale's. Lendino relies upon (1) Bloomingdale's letter to Lendino ⁴ indicating that its rejection was based in part or in full on Trans Union information, and (2) the fact that the good credit rating shown in the "James R. Lending" report would have afforded no reasonable basis for Bloomingdale's to deny Lendino's credit application. ⁵

We believe a reasonable jury could find from the totality of evidentiary circumstances contained in this limited record that the defendant transmitted the negative credit report containing the obsolete Citibank information to Bloomingdale's. There is, at least on the present record, no other evidence which reasonably demonstrates why Bloomingdale's rejected Lendino's credit application. ⁶ As this court stated in Donahue v. Windsor Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.1987), ...