Pinson v. Monarch Recovery Management, Inc.

Filing 48

OPINION AND ORDER denying Plaintiff's 38 Motion for Summary Judgment; granting 40 Defendant's Amended Motion for Summary Judgment. All pending motions are denied as moot. This case is CLOSED. Signed by Judge Kenneth A. Marra on 3/12/2013. (ir)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-80480-CIV-MARRA/BRANNON
JOHN PINSON,
Plaintiff,
vs.
MONARCH RECOVERY MANAGEMENT,
INC., a/k/a ACADEMY COLLECTION
SERVICE, INC.,
Defendant.
____________________________________/
OPINION AND ORDER
This cause is before the Court upon Plaintiff’s Motion for Summary Judgment (DE 38)
and Defendant’s Amended Motion for Summary Judgment (DE 40). The Court has carefully
considered the motions and is otherwise fully advised in the premises.
I. Background
The facts, as culled from affidavits, exhibits, answers, answers to interrogatories and
reasonably inferred therefrom, for the purpose of these motions, are as follows:1
According to Defendant Monarch Recovery Management’s (“Defendant”) chief
administrative officer, Defendant was retained to collect a Citibank, N.A. (“Citibank”) Sears
Gold Mastercard account owned by Plaintiff John Pinson (“Plaintiff”). (Diane Mazzacano Aff. ¶
¶ 1, 3; DE 40-1.) Defendant had a reasonable basis to believe that the debt belonged to Plaintiff.
(Id. at ¶ 4.) Citibank provided Defendant with Plaintiff’s account number, name and social

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To the extent the parties have made factual statements that are not supported by specific
references to the record, the Court has disregarded them. See S.D. Fla. L. R. 56.1(a)(2).

security number and a statement indicating the balance of Plaintiff’s debt obligation assigned to
Defendant. (Id. at ¶ 5.) On March 6, 2009, Defendant accessed Plaintiff’s Experian credit report
for purposes of assuring that it had the most current address and telephone numbers for Plaintiff
in order to contact Plaintiff about his debt obligation and engage in collection efforts. (Id. at ¶ ¶
9-10.) Defendant also sought this information for the purpose of providing the proper
disclosures to Plaintiff. (Id. at 11.) Plaintiff did not give Defendant permission to obtain his
Experian credit report. (Pl. Aff. ¶ 9, DE 45-2.)
Defendant moves for summary judgment, claiming that it had a permissible purpose in
obtaining Plaintiff’s credit report and that its conduct was not willful as a matter of law. Plaintiff
also moves for summary judgment and contends that Defendant’s claim that it had a permissible
purpose to obtain Plaintiff’s credit report is conclusory and that Defendant has not been
cooperative in communicating with Plaintiff and has provided unsatisfactory discovery
responses.
II. Summary Judgment Standard
The Court may grant summary judgment “if 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). The stringent burden of establishing the absence of a genuine issue of material
fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court
should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and any doubts in this regard should be resolved
against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
The movant “bears the initial responsibility of informing the district court of the basis for
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its motion, and identifying those portions of [the record] which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. To discharge this
burden, the movant must point out to the Court that there is an absence of evidence to support the
nonmoving party’s case. Id. at 325.
After the movant has met its burden under Rule 56(a), the burden of production shifts and
the nonmoving party “must do more than simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Electronic Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). “A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by citing to particular parts of materials in the record . . . or showing that the materials
cited do not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A) and (B).
Essentially, so long as the non-moving party has had an ample opportunity to conduct
discovery, it must come forward with affirmative evidence to support its claim. Anderson, 477
U.S. at 257. “A mere ‘scintilla’ of evidence supporting the opposing party’s position will not
suffice; there must be enough of a showing that the jury could reasonably find for that party.”
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). If the evidence advanced by the nonmoving party “is merely colorable, or is not significantly probative, then summary judgment may
be granted.” Anderson, 477 U.S. 242, 249-50.

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III. Discussion
The Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., governs the use and
dissemination of consumer credit information. Under FCRA, a consumer reporting agency may
furnish a consumer report under specified permissible purposes. See 15 U.S.C. § 1681b. For
example, a report may be provided “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 of collection of an account of the consumer.” Id. at § 1681b(a)(3)(A). In other words, this
provision of FCRA permits a debt collector to request a credit report if it uses the report to
review an account. See Levine v. World Fin. Network Nat. Bank, No. 1:04–CV–1283–BBM,
2004 WL 5545033, at * 2 (N.D. Ga. Nov. 8, 2004), rev'd and remanded on other grounds, 437
F.3d 1118 (11th Cir. 2006) (citing Dumas v. City of Chicago, No. 99-C-5436, 2000 WL 91921,
at *1 (N.D. Ill. Jan 19, 2000)). “[S]o long as a user has reason to believe that a permissible
purpose exists, that user may obtain a consumer report without violating the FCRA.” Korotki v.
Attorney Svcs. Corp. Inc., 931 F. Supp. 1269, 1276 (D. Md. 1996). Whether a permissible
purpose existed is a question of law. See Miller v. Rubin & Rothman, LLC, No. 10-2198, 2011
WL 4359977, at * 3 (D. Minn. Sept. 19, 2011); Smith v. John P. Frye, P.C, No. 10–CV–3366,
2011 WL 748363, at * 2 (N.D. Ill. Feb. 24, 2011); Edge v. Professional Claims Bureau, Inc., 64
F. Supp. 2d 115, 117 (E.D.N.Y. 1999).
Here, Defendant has submitted an affidavit from its chief administrative officer stating it
was retained to collect a debt owed by Plaintiff to Citibank, that it had a reasonable basis to
believe the debt belonged to Plaintiff based on the information provided to it by Citibank, and in
an effort obtain Plaintiff’s address and telephone number to collect Citibank’s debt, it accessed
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Plaintiff’s credit report. (Mazzacano Aff. ¶ ¶ 3-5, 9.) Plaintiff has not provided any evidence to
refute these facts. Based on this undisputed evidence, the Court finds, as a matter of law, that
Defendant did not violate the FCRA. See Edge, 64 F. Supp. 119 (the debt collection agency had
a permissible purpose for obtaining the creditor’s credit report when it had the goal of obtaining
the debtor’s current address). Furthermore, because the evidence showed that Defendant
reasonably believed that the account was due and owing when it accessed the credit report, there
is no basis to find that Defendant acted willfully. See Harris v. Mexican Speciality Foods, Inc.,
564 F.3d 1301, 1310 (11th Cir. 2009) (a FCRA violation is “‘willful’ for the purposes of the
FCRA if the defendant violates the terms of the Act with knowledge or reckless disregard for the
law”).
Plaintiff disagrees. Plaintiff contends that Defendant has failed to provide record
evidence to show Defendant was assigned a debt, that a statement had been provided to
Defendant by the creditor and it had a reasonable basis to believe that the debt belonged to
Plaintiff. In support, Plaintiff states that Ms. Mazzacano’s affidavit is rife with hearsay and is
conclusory. It appears Plaintiff is under the impression that it is necessary for Defendant to
produce the documents that led Defendant to believe it was collecting a debt. That is not
necessary. All Defendant must show is that it is uncontroverted that it was under this belief
when it accessed the credit report. Indeed, that is the purpose of the affidavit. In fact, it is
Plaintiff who has made conclusory statements; namely, that Defendant did not have a reasonable
basis to access Plaintiff’s credit report. Plaintiff has not produced any record evidence, such as
deposition testimony from Defendant’s representative or exhibits, to challenge Defendant’s
evidence. Instead, Plaintiff has provided his own affidavit, which is conclusory and which states
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that he is not in receipt of anything to show that Defendant was “retained, referred or assigned to
collect” his account. (Pl. Aff. ¶ 4.) This is inadequate to support Plaintiff’s motion. See Leigh v.
Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000) (“This court has consistently held that
conclusory allegations without supporting facts have no probative value.”) (quoting Evers v.
General Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (internal quotation marks omitted).
Moreover, to establish a FCRA claim of willful misuse or acquisition of a consumer
report, Plaintiff must prove each of the following: (i) that there was a consumer report, (ii) that
Defendant used or obtained it, (iii) that Defendant did so without a permissible statutory purpose,
and (iv) that Defendant acted with the specified culpable mental state. Shephard-Salgado v.
Tyndall Federal Credit Union, No. 11–0427–WS–B, 2011 WL 5401993, at * 3 (S.D. Ala. Nov. 7,
2011). There is no dispute between the parties that there was a consumer report and that
Defendant obtained it. As a moving party, however, Plaintiff has not met its burden to show that
Defendant obtained the credit report without a permissible purpose or that Defendant acted
willfully. Instead, Plaintiff complains that Defendant failed to communicate with him and that
Defendant’s discovery responses were unsatisfactory. (DE 38 at ¶ ¶ 26, 34, 39, 41, 53, 57.)
Plaintiff, however, brought his discovery concerns to the Magistrate Judge assigned to this case,
who issued a ruling on both parties’ discovery concerns, which satisfied Plaintiff.2 (Jan. 15, 2013
Order, DE 36.)
For the foregoing reasons, the Court grants Defendant’s Amended Motion for Summary

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Specifically, Plaintiff filed a Notice with the Court stating that he found the discovery
conference helpful, that Defendant provided him with some of the requested materials, and that
the remaining documents either “do not exist, are not available or require court intervention for
production, and therefore [Plaintiff] will not move to modify the discovery plan.” (DE 37.)
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Judgment and denies Plaintiff’s Motion for Summary Judgment.
IV. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1)

Plaintiff’s Motion for Summary Judgment (DE 38) is DENIED.

2)

Defendant’s Amended Motion for Summary Judgment (DE 40) is GRANTED.

3)

The Court shall separately enter judgment for Defendant.

4)

The Clerk shall close this case and all pending motions are denied as moot.

DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 12th day of March, 2013.
______________________________________
KENNETH A. MARRA
United States District Judge

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