Trikas v. Universal Card Services Corp., 01-CV-3287 (DLI).

• Decision Date: 03 January 2005
• Docket Number: No. 01-CV-3287 (DLI).,01-CV-3287 (DLI).
• Citation: 351 F.Supp.2d 37
• Parties: James J. TRIKAS, pro se, Plaintiff, v. UNIVERSAL CARD SERVICES CORP. (UCS) aka Universal Bank N.A. aka AT & T Universal Card, subsidiary of Citibank, member of Citigroup, Defendant.
• Court: U.S. District Court — Eastern District of New York

351 F.Supp.2d 37

James J. TRIKAS, pro se, Plaintiff, v. UNIVERSAL CARD SERVICES CORP. (UCS) aka Universal Bank N.A. aka AT & T Universal Card, subsidiary of Citibank, member of Citigroup, Defendant.

No. 01-CV-3287 (DLI).

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

January 3, 2005.

COPYRIGHT MATERIAL OMITTED

James J. Trikas, Flushing, NY, pro se.

Christine B. Cesare, Robert R. Reed, Robin Kitzes Silk, Bryan Cave LLP, New York City, Timothy P. Creech, Satzberg Trichon Kogan & Wertheimer PC, Philadelphia, PA, for Defendant.

OPINION AND ORDER

IRIZARRY, District Judge.

Plaintiff in this action, appearing pro se, alleges violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., based on the failure of a credit card company, defendant Universal Card Services Corp.¹ ("Bank"), to report his account as closed to various consumer reporting agencies. Plaintiff also lists state law claims for violations of N.Y. Gen. Bus. L. §§ 349 (consumer protection statute prohibiting deceptive acts or practices) and 380 et seq. (the state equivalent of the FCRA) and breach of privacy promise. For the reasons set forth below, the Bank's motion for summary judgment is granted in its entirety, and the complaint is dismissed without costs to either party.

I. FACTS

A. Background

Plaintiff opened a credit card account with the Bank in April 1994, and his last card expired in May 1999. The Bank's internal customer service records show that Plaintiff's card was declined for reissue in April 1999 and that Plaintiff contacted the Bank by telephone on June 10, 1999 to inquire about the expiration of his card. (Pl.'s Exs. B, B1.) The Bank informed Plaintiff during this phone call that reissue had been declined due to inactivity. Plaintiff called the Bank again a week later, on June 17, 1999, as well as several more times in August 1999 to inquire about his card not being reissued. (Pl.'s Exs. B2, B3, D, D1.) By letter dated August 7, 1999, the Bank explained to Plaintiff that his account was declined for reissue because of inactivity in the previous year and, consequently, closed. (Pl.'s Ex. E.)

However, Plaintiff's account continued to be reported as "open" on several consumer reporting agency credit reports: (1) a Privacy Guard report dated August 9, 2000 listed Plaintiff's account with the Bank as "pays as agreed" for 4/00 or 5/00, according to three credit bureaus; (2) an Experian report dated August 15, 2000 listed Plaintiff's account as "open/never late"² and listed monthly balances at "0" for June 1999 through April 2000; and (3) a Trans Union report dated August 17, 2000 listed Plaintiff's account as "paid or paying as agreed in prior 24 months from date paid[;] never late," without giving any indication that the account was closed. (Pl.'s Ex. N.)

In addition to the inaccurate reporting of his account as open, Plaintiff complains of several inquiries made by the Bank, occurring after his account was supposedly closed, that appear on the credit reports: the Experian report shows an inquiry made in July 2000, which the Privacy Guard report also lists for Experian, and the Trans Union report shows inquiries for 6/1999, 8/1999, 10/1999, 12/1999, 2/2000, 3/2000, and 7/2000.³

The Bank's records show a call received from Plaintiff regarding these inquiries on August 9, 1999. (Pl.'s Ex. D1.) In response, the Bank sent a letter to Plaintiff on August 9, 1999 to address his concerns and to inform him that "the only the inquiries visible to creditors are the ones initiated by you when you apply for credit." (Pl.'s Ex. F.) On August 11 and 12, 1999, Plaintiff called the Bank again, requesting an explanation as to what permissible purpose the Bank would have with his credit report. (Pl.'s Exs. G, G1.) Although the Bank's records of Plaintiff's subsequent calls, if any, are unclear, the Bank sent Plaintiff a letter on August 16, 2000 to inform him that his account had been cancelled. (Pl.'s Ex. O.)

B. Actions Taken by Bank After Receiving a Consumer Dispute Verification

The Bank's records show that it received a consumer dispute verification (CDV) from Experian on or around August 24, 2000.⁴ (Def.'s Ex. 2.) The Bank received two more CDVs: one from Trans Union on September 8, 2000 and one from Equifax on September 15, 2000. (Id.)

The Bank sent Plaintiff another letter on September 2, 2000, reporting that his account was "close[d] due to nonusage for at least a year" and yet another letter on September 11, 2000 to explain to Plaintiff the closed status of his account. (Pl.'s Exs. P, Q.)

The Bank sent three more letters to Plaintiff, also to explain that his account had been closed, on September 30, 2000, October 5, 2000, and October 25, 2000 — the last two assuring Plaintiff that "the major credit reporting agencies ... have been notified... to show this account as `closed by consumer.'" (Pl.'s Exs. R, S, T.)

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The court must view all facts in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). However, the nonmoving party "may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is not fanciful." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir.1997) (internal quotation marks omitted). Furthermore, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505.

III. CLAIMS UNDER THE FAIR CREDIT REPORTING ACT

The purpose of the FCRA is to ensure "that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information." 15 U.S.C. § 1681(b). In addition to regulating the conduct of credit reporting agencies, the FCRA protects consumers from any "person" who obtains a consumer report for an impermissible purpose. 15 U.S.C. § 1681b(f).⁵ Furnishers of information under the FCRA also have a duty to provide accurate information and must correct inaccuracies when notified by a consumer reporting agency. 15 U.S.C. § 1681s-2.

The FCRA establishes civil liability for both willful and negligent noncompliance with the statute. 15 U.S.C. §§ 1681n-1681o. The FCRA also contains a provision setting forth criminal liability for "knowingly and willfully obtain[ing] information ... under false pretenses." 15 U.S.C. § 1681q. Following amendments in 1996, section 1681n now incorporates similar language that assigns civil liability: "Any person who obtains a consumer report from a consumer reporting agency under false pretenses or knowingly without a permissible purpose shall be liable to the consumer reporting agency for actual damages sustained by the consumer reporting agency or $1,000, whichever is greater." 15 U.S.C. § 1681n(b); see also Phillips v. Grendahl, 312 F.3d 357, 363-64 (8th Cir.2002) (providing a brief history of the courts' interpretation of § 1681q and civil liability and the significance of the 1996 amendments).

A. Claims Under § 1681b(f)

Section 1681b sets forth the permissible purposes by which a credit reporting agency may issue consumer reports, including to a "person" the reporting agency 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." 15 U.S.C. § 1681b(a)(3)(A). Subsection (f) extends liability to any "person" that obtains a consumer report for a purpose other than those permitted under § 1681b. Section § 1681b(f) also requires that the purpose be "certified in accordance with section 1681e of this title by a prospective user of the report through a general or specific certification." Plaintiff contends that the Bank (a "person") acted with an impermissible purpose when it made inquiries into his credit history several times from June 1999 through July 2000, because, as his account should have been closed, he was not a customer of the Bank.⁶

However, Plaintiff's argument overlooks the plain language of the statute, which focuses on the intent of the party obtaining the consumer report.⁷ See Scharpf v. AIG Marketing, Inc., 242 F.Supp.2d 455, 459 (W.D.Ky.2003). Indeed, the inclusion of the verb "intends" is significant, because "a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." Id. at 460 (quoting Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001)).

Although Plaintiff's account should have been closed, it remained open. The Bank explains that this error was caused by its failure to properly code the Plaintiff's account as "closed." (Def.'s Mem. at 4; Def.'s Resp. to Interrogs. at 2-3.) In its response to Plaintiff's interrogatories, the Bank explains: "To the extent the Bank's computerized records reflected Plaintiff's account as opened, Plaintiff's account would have been included in such periodic requests." (Def.'s Resp. to Interrogs. at 2-4.) Plaintiff does not put forth any evidence to contradict this purpose.

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