Aleshire v. Harris, N.A.

Filing 146

MEMORANDUM Opinion and Order, Signed by the Honorable Sharon Johnson Coleman on 3/1/2012. Civil case terminated. Mailed notice(keg, )

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

SUZANNE ALESHIRE,
Plaintiff,
v.
HARRIS, N.A.,
Defendant.

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No. 08 C 7367
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER

Defendant Harris N.A. moves for summary judgment on Count II of plaintiff Suzanne
Aleshire’s Second Amended Complaint, the only remaining claim. Aleshire claims that the Fair
Credit Reporting Act (“FCRA”), 15 U.S.C. §1681 et seq. prohibited Harris from obtaining
Aleshire’s credit report in May 2009. Harris asserts that it is entitled to judgment as a matter of law
on this issue for three independent reasons: (1) Aleshire provided Harris with written authorization
in her home equity line of credit agreement to obtain Aleshire’s credit report; (2) Harris had a
permissible purpose under the FCRA to review her credit; and (3) even if Harris had neither written
permission or a proper purpose under the FCRA, there is no evidence in the record to show that
Harris’ violation was willful. For the reasons stated herein, the motion is granted.
Legal Standard
Summary judgment is appropriate if the evidence in the record demonstrates that there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). The court must construe the evidence in the light most favorable to the nonmoving
party. Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005). The plaintiff here bears the

burden of proof and therefore may not rest on the pleadings, but must affirmatively demonstrate
that there is a genuine issue of material fact. Ruffin-Thompkins v. Experian Info. Solutions, Inc., 422
F.3d 603, 607 (7th Cir. 2005). Local Rule 56.1 provides that when a responding party’s statement
fails to controvert the facts as set forth in the moving party’s statement in the manner dictated by
the rule, the court shall deem those facts admitted for purposes of the motion. N.D. ILL. L.R.
56.1(b). Courts in this district have consistently held that a failure to respond by the nonmovant as
mandated by the local rules results in an admission. See, e.g.,Smith v. Lamz, 321 F.3d 680, 683 (7th
Cir. 2003). Aleshire did not respond to Harris’ motion for summary judgment, and thus, the facts
set forth in Harris’ Rule 56.1 Statement of Undisputed Material Facts will be deemed admitted.
Background
Suzanne Aleshire obtained a $400,000 home equity line of credit on September 21, 2004,
from Villa Park Trust & Savings Bank that was secured by real property located at 402 Willow
Road, Winnetka, Illinois. The line of credit was set to mature on September 21, 2009. Pursuant to
the terms of the line of credit agreement, the lender had the option to extend the maturity date. The
line of credit agreement also contained a provision that authorized the lender to obtain a copy of
Aleshire’s credit report “at any time.” Specifically, the agreement states under the section titled
“Annual Review”: “You agree that you will provide us with a current financial statement, a new
application, or both, annually, on forms provided by us… You also agree we may obtain credit
reports on you at any time, at our sole option and expense, for any reason, including but not limited
to determining whether there has been an adverse change in your financial condition.”
Harris obtained Aleshire’s credit report from TransUnion in May 2009. Harris obtained the
credit report to determine the options available to Aleshire for a renewal or an extension of her line
of credit that was set to mature in 120 days. Prior to obtaining Aleshire’s credit report in May 2009,
Harris certified to TransUnion that the consumer credit reports that it provided to Harris would be

used only for purposes permitted by the FCRA. Harris notified Aleshire by letter that it had
obtained her credit report from TransUnion in connection with its review of her line of credit.
Discussion
Under the FCRA, a creditor may access a consumer’s credit report in accordance with the
consumer’s written instructions or for certain permissible purposes, including to use the information
in connection with a credit transaction involving the consumer such as the extension of credit to, or
review or collection of an account of, the consumer. 15 U.S.C. §§1681b(a)(2), (a)(3)(A). The FCRA
also requires that the user of the consumer’s credit report certify to the consumer reporting agency
that its purpose for obtaining the credit report is permissible. See 15 U.S.C. §1681b(f). Even where
a creditor has obtained a consumer credit report in contravention of the FCRA, the statute only
imposes liability where the plaintiff affirmatively demonstrates that such violation was willful or
negligent. See15 U.S.C. §§1681n, 1681o. The FCRA provides statutory damages for willful
noncompliance, but negligent noncompliance requires a showing of actual damages as a result of
the negligence. See Ruffin-Thompkins, 422 F.3d at 610.
Here, the undisputed facts show that Aleshire provided written authorization for Harris to
obtain her credit report at any time when she entered into the line of credit agreement. Harris has
also shown that it obtained Aleshire’s credit report in connection with a review of her line of credit
and whether to renew or extend the agreement that was set to mature in 120 days, which is a
permissible purpose under the FCRA. Additionally, Aleshire has not presented any evidence and
thus there is no evidence in the record to show that Harris did not comply with the FCRA either
willfully or negligently. Therefore, this Court finds that Harris is entitled to judgment as a matter of
law.

Conclusion
Based on the foregoing, Harris’ motion for summary judgment [140] is granted. Summary
judgment is entered in favor of Harris. Civil case terminated.
IT IS SO ORDERED.
Date: March 1, 2012

Entered:_________________________________
Sharon Johnson Coleman