Wilkins v. Specialized Loan Servicing, LLC
| Decision Date | 23 August 2022 |
| Docket Number | 20 Civ. 543 (GWG) |
| Parties | CRAIG WILKINS, Plaintiff, v. SPECIALIZED LOAN SERVICING, LLC, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Craig Wilkins brings this action against Specialized Loan Servicing, LLC (“SLS”) alleging violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C § 1681 et seq., and the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. See Complaint, filed Jan. 17, 2020 (Docket # 1) (“Comp.”). Both parties have moved for summary judgment.[1]For the reasons stated below, SLS's motion is granted and Wilkins' motion is denied.
The following facts are undisputed.
Wilkins owns a property located at 85-21 213th Street, Hollis, New York. See Def. 56.1 Statement ¶ 1; Pl. 56.1 Statement ¶ 1. On April 28, 2006, Wilkins signed two notes secured by mortgages on 85-21 213th Street, one an adjustable rate note in the amount of $512,000 (the “First Mortgage”), and a second fixed rate note in the amount of $128,000 (the “Second Mortgage”). See First Mortgage, annexed as Ex. A to Wallace Decl.; Second Mortgage, annexed as Ex. B to Wallace Decl.; Def. 56.1 Statement ¶¶ 1-2; Pl. 56.1 Statement ¶¶ 2-6. Wilkins defaulted on the mortgage loans in 2007 or 2008. See Def. 56.1 Statement ¶ 4; Pl. 56.1 Statement ¶ 8. In 2010, Deutsche Bank National Trust Company (“Deutsche Bank”) filed a foreclosure action against Wilkins in New York Supreme Court, see Deutsche Bank Complaint, dated May 25, 2010, annexed as Ex. 2 to Wilkins Aff., which it voluntarily discontinued in 2012, see New York Supreme Court Order, dated Feb. 8, 2012, annexed as Ex. 3 to Pl. Mot., at 3; Def. 56.1 Statement ¶ 6; Pl. 56.1 Statement ¶¶ 9-11.
In January and February of 2017, SLS informed Wilkins that it had assumed service of the two mortgage loans. See Notice Letter, dated Jan. 11, 2017, annexed as Ex. C to Wallace Decl.; Notice Letter, dated Feb. 10, 2017, annexed as Ex. D to Wallace Decl.; Def. 56.1 Statement ¶¶ 9-10; Pl. 56.1 Statement ¶ 13. Between 2017 and 2020, SLS called Wilkins approximately 80 times regarding his unpaid mortgage loans. See Pl. 56.1 Statement ¶ 14; Def. Supp. 56.1 Statement ¶ 14. During several of these calls, SLS informed Wilkins that failure to make payments due on his mortgages could result in a foreclosure action being filed. See Pl. 56.1 Statement ¶ 15; Def. Supp. 56.1 Statement ¶ 15; Transcript of Sept. 25, 2019 Telephone Call, annexed as Ex. 8 to Pl. Mot., at 2, 5.
Rule 56(a) of the Federal Rules of Civil Procedure provides that a court shall grant summary judgment when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, “[t]he evidence of the non-movant is to be believed” and the court must draw “all justifiable inferences” in favor of the nonmoving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); accord Morales v. Quintel Ent., Inc., 249 F.3d 115, 121 (2d Cir. 2001) ().
Once the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law, “the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial, ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis in original) (internal quotation omitted), and “may not rely on conclusory allegations or unsubstantiated speculation,” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citing cases). See Fed.R.Civ.P. 56(c), (e). In other words, the nonmovant must offer “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256. Where “the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to its case.” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (punctuation and quotation omitted). Thus, “[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case.” Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48); accord El-Nahal v. Yassky, 835 F.3d 248, 252, 256 (2d Cir. 2016).
The FCRA provides that:
15 U.S.C. § 1681b(f).
The FCRA establishes several purposes for which a person may obtain a consumer's credit report, including that the person “intends to use the information, as a potential investor or servicer, or current insurer, in connection with a valuation of, or an assessment of the credit or prepayment risks associated with, an existing credit obligation.” Id. § 1681b(a)(3)(E). A credit report may also be permissibly obtained based on a legitimate business need, so long as it is “in connection with a business transaction that is initiated by the consumer,” or for the purpose of “review[ing] an account to determine whether the consumer continues to meet the terms of the account.” Id. § 1681b(a)(3)(F).
“The FCRA creates a private right of action against credit reporting agencies for the negligent or willful violation of any duty imposed under the statute.” Neclerio v. Trans Union, LLC, 983 F.Supp.2d 199, 208 (D. Conn. 2013) (internal quotation marks and alterations omitted). “However, because even consumer reporting agencies acting in complete good faith cannot prohibit illicit use of consumer information if users are not bound to obtain consumer reports only for permissible purposes, the FCRA also extends to the conduct of parties who request credit information.” Braun v. Client Servs. Inc., 14 F.Supp.3d 391, 395 (S.D.N.Y. 2014) (punctuation omitted). “To state a claim for civil liability based on Section 1681b, a plaintiff must allege both that the defendant used or obtained the plaintiff's credit report for an impermissible purpose, and that the violation was willful or negligent.” Perl v. Am. Express, 2012 WL 2711270, at *2 (S.D.N.Y. July 9, 2012) (internal citations omitted); accord Farkash v. RJM Acquisitions Funding, Inc., 2012 WL 1948643, at *2 .
The parties each seek summary judgment on Wilkins' claim that SLS “violated FCRA by unlawfully retrieving Plaintiff's credit report on a delinquent account to which it already had knowledge of and where there was no permissible reason to obtain said report.” Pl. Mem. at 23; see Def. Mem. at 8-12. SLS argues that it did not obtain a credit report on Wilkins but that, in any event, doing so would not have violated the FCRA because SLS had a “permissible purpose” for obtaining Wilkins' credit report. See Def. Mem. at 9-10.
It is not necessary to reach the second argument because Wilkins has supplied no admissible evidence that would allow a reasonable jury to conclude that SLS obtained a credit report on Wilkins. Wilkins cites to a number of transcripts of calls between SLS and Wilkins and argues that these transcripts “support[] the above claims.” See Pl. Mem. at 24. However, nothing in the call transcripts allows the inference that SLS obtained Wilkins' credit report. Wilkins has also produced an affidavit which contains the statement that “SLS also violated FCRA by unlawfully retrieving my credit report on a delinquent account to which it already had knowledge of . . . .” See Wilkins Aff. ¶ 35. This statement does not support Wilkins' claim because Fed.R.Civ.P. 56(c)(4) requires that any affidavit “be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Wilkins' affidavit provides no basis for a finding that Wilkins had personal knowledge of this fact. Finally, while Wilkins has produced a copy of his credit report, see Merged Infile Credit Report, dated Oct. 28, 2019, annexed as Ex. 13 to Pl. Mot., nothing on the report ties it to SLS. Indeed, the report itself indicates that it was sent to “Jet Direct Funding Corp.,” see id. at 1, and Wilkins points to nothing in the record that ties this entity to SLS.[2]
While it bore no burden of proof, SLS has produced an affidavit from Cynthia Wallace, a Second Assistant Vice President at SLS, who states that she has “reviewed SLS' files and inquired of SLS' credit department,” and that “SLS has not pulled any credit reports on Wilkins since SLS assumed service of the mortgage loans in January and February 2017.” See Wallace Decl. ¶¶ 2, 31.
In light of this evidence, no reasonable jury could find, as Wilkins contends here, that SLS “obtain[ed]” Wilkins' credit report. See 15 U.S.C. § 1681b(f). Thus, summary judgment is granted for SLS on Wilkins' FCRA claim.
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