Eaton v. Central Portfolio Control, Inc.

Filing 36

ORDER granting 31 Motion for Leave to File Reply/Surreply; granting 32 Motion for Leave to File Reply/Surreply; granting 13 Motion for Summary Judgment; denying 20 Motion to Strike Affidavit; denying 22 Motion for an Order Directing Plaintiff's Appearance at Hearing.(Written Opinion). Signed by Senior Judge David S. Doty on 12/9/2014. (PJM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 14-747(DSD/FLN)
Clifford Eaton,
Plaintiff,
ORDER

v.
Central Portfolio Control, Inc,
Defendant.

Clifford Eaton, #12878-074, FCI Otisville, P.O. Box 1000,
Otisville, NY 10963-1000, pro se.
James R. Bedell, Esq., Michael S. Poncin, Esq. and Moss
& Barnett, PA, 150 South Fifth Street, Suite 1200,
Minneapolis, MN 55402, counsel for defendant.

This matter is before the court upon the motion for summary
judgment by defendant Central Portfolio Control, Inc. (CPC). Based
on a review of the file, record, and proceedings herein, and for
the following reasons, the court grants the motion.

BACKGROUND
This credit dispute arises out of a consumer credit report
accessed by Central Portfolio Control, Inc. (CPC).
business of debt collection.

CPC is in the

Barrett Supp. Aff. ¶ 1.

On January

17, 2012, CPC requested Clifford Eaton’s credit report to assist
with collecting on a debt that Eaton allegedly owed to Nissan.
¶ 4, 5.

Id.

Eaton obtained copies of his credit report on April 18,

2012, and June 25, 2012, and discovered that CPC accessed the

report.

Eaton Decl. ¶¶ 8, 9.

On March 17, 2014, Eaton filed this

action,

alleging

of

seclusion.

violations

the

FCRA

and

intrusion

upon

CPC moves for summary judgment.1

DISCUSSION
I.

Standard of Review
“The court shall 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

A dispute is genuine if the evidence is such that it could

cause a reasonable jury to return a verdict for either party.

Id.

at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
Id. at 255.

The nonmoving party, however, may not rest upon mere

denials or allegations in the pleadings but must set forth specific
facts sufficient to raise a genuine issue for trial.

1

Celotex, 477

Eaton has requested leave to file a surreply in opposition
to this motion and a reply in support of his motion to strike
affidavit.
ECF Nos. 31, 32.
He filed the surreply and reply
before receiving further direction from the court. In order to
give a complete review of Eaton’s pro se pleadings and the record
in this matter, the court grants Eaton’s request and considers the
reply and surreply in deciding the instant motion.
2

U.S. at 324.

A party asserting that a genuine dispute exists - or

cannot exist - about a material fact must cite “particular parts of
materials in the record.”

Fed R. Civ. P. 56(c)(1)(A).

If a

plaintiff cannot support each essential element of a claim, the
court must grant summary judgment because a complete failure of
proof regarding an essential element necessarily renders all other
facts immaterial.
II.

Celotex, 477 U.S. at 322-23.

Fair Credit Reporting Act
Eaton argues that CPC violated § 1682b(f) of the FCRA by

accessing

his

credit

report

without

a

permissible

purpose.

Congress enacted the FCRA “to ensure fair and accurate credit
reporting, promote efficiency in the banking system, and protect
consumer privacy.” Poehl v. Countrywide Home Loans, Inc., 528 F.3d
1093, 1096 (8th Cir. 2008) (quoting Safeco Ins. Co. of Am. v. Burr,
551 U.S. 47, 52 (2007)).

An entity may not use or obtain another’s

credit report unless it is “for a purpose for which the consumer
report is authorized to be furnished under this section.”
U.S.C. §1681b(f).

15

The FCRA is not violated, however, so long as

the entity has “a good faith belief that it had a permissible
purpose” to access the report.

See Barton v. Ocwen Loan Servicing

LLC, Civ. No. 12-162, 2013 WL 5781324, at *4 (D. Minn. Oct. 25,
2013).
CPC argues that it had a permissible purpose for accessing
Eaton’s report - to collect on the debt Eaton allegedly owed to

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Nissan.

The court agrees.

A debt collector may access a credit

report if it “intends to use the information in connection with a
credit transaction involving the ... collection of an account.” 15
U.S.C. § 1681b(a)(3)(A).

CPC submitted internal account notes and

a copy of Eaton’s credit report showing that Eaton was past due on
his account with Nissan and that the account was placed with CPC
for collection.

Barrett Supp. Aff. Exs. 1, 2.

Although Eaton

disputes whether he owed any debt at all, such a dispute is
immaterial so long as CPC “had reason to believe that [Eaton]
defaulted on the ... account.”

Beckstrom v. Direct Merchant’s

Credit Bank, Civ. No. 04-1351, 2005 WL 1869107, at *3 (D. Minn.
Aug. 5, 2005) (dismissing FCRA claim where a credit report was
accessed in good faith in order to collect on a debt that plaintiff
did not owe).
Eaton also argues that the affidavits submitted by CPC to show
it had a permissible purpose are inadmissible under the best
evidence rule.

The

court

disagrees.

“An

original

writing,

recording, or photograph is required in order to prove its content”
unless provided otherwise by the Federal Rules of Evidence or a
federal statute.

Fed. R. Evid. 1002.

Eaton concedes that CPC does not need to prove the existence
or validity of his debt.

He argues, however, that CPC must submit

original documentation showing he had an account with Nissan and
that the account was placed with CPC for collection.

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The court

finds this distinction to be immaterial. As already explained, CPC
must show it had a good faith belief that it had a permissible
purpose to access Eaton’s report.

The internal notes and credit

report submitted by CPC show that it acted with such a belief.
Whether the account actually existed or was placed with CPC is
irrelevant. See Eaton v. Plaza Recovery, Inc., Civ. Act. No. H-123043, 2014 WL 2207865, at *2-3 (S.D. Tex. May 28, 2014) (denying
motion to strike affidavit under the best evidence rule and noting
that the FCRA does “not require a debt collector ... to prove that
the debtor owned the account ... or that the account was referred
to collection”). As a result, summary judgment is warranted on the
FCRA claim.
III.

Intrusion Upon Seclusion
Eaton next argues that CPC intruded upon his seclusion by

accessing his credit report.

Intrusion upon seclusion occurs when

there is (1) an intrusion, (2) that is highly offensive to a
reasonable person, (3) into some matter in which a person has a
legitimate expectation of privacy.

Swarthout v. Mut. Serv. Life.

Ins. Co., 632 N.W.2d 741, 744-45 (Minn. Ct. App. 2001) (citation
and

internal

quotation

marks

omitted).

“In

the

context

of

intrusion upon seclusion, questions about the reasonable person
standard are ordinarily questions of fact, ... but they become
questions of law if reasonable persons can draw only one conclusion

5

from the evidence.”

Id. at 745 (citation and internal quotation

marks omitted).
Eaton argues that the access of his credit report is highly
offensive because personal credit data is not ordinarily available
to the public.

Simply accessing another’s credit report in good

faith, however, does not typically give rise to an intrusion upon
seclusion claim.

See Phillips v. Grendahl, 312 F.3d 357, 373 (8th

Cir. 2002) (denying claim where the report listed a social-security
number, addresses of former employers, credit accounts, and a
child-support order), abrogated on other grounds by Safeco Ins. Co.
Am. v. Burr, 551 U.S. 47 (2007); Beckstrom, 2005 WL 1869107, at *4
(dismissing claim in part because debt collector believed it had a
legitimate purpose for accessing the report); see also Barton, 2013
WL 5781324, at *7 (denying summary judgment where a fact issue
existed

as

to

defendant’s

good

faith

belief

that

it

had

a

permissible purpose to access the report).
Eaton fails to distinguish the facts at issue here from other
cases in which the access of a credit report did not give rise to
an intrusion upon seclusion claim.

Instead, he notes that CPC has

not explained what information it obtained from his report. By not
pointing to any factual material to support his claim - such as
identifying the specific information in the report that he believes
would be offensive - Eaton fails to create a genuine factual
dispute for purposes of surviving summary judgment.

6

See Celotex,

477 U.S. at 324.

Moreover, the limited cases in Minnesota finding

intrusion upon seclusion are based on much more egregious facts
than those present here.

See, e.g., Swarthout, 632 N.W.2d at 745

(reversing summary judgment on intrusion upon seclusion claim where
defendant altered a release form to obtain medical information).
As a result, summary judgment is warranted on the intrusion upon
seclusion claim.

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that
1.

The motion for summary judgment [ECF No. 13] is granted;

2.

The motion to strike affidavit [ECF No. 20] is denied;

3.

The motion for an order directing plaintiff’s appearance

at hearing [ECF No. 22] is denied;
4.

The motion for leave to file a reply in support of motion

to strike affidavit [ECF No. 31] is granted;
5.

The motion for leave to file a surreply in opposition to

motion for summary judgment [ECF No. 32] is granted.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:

December 9, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court

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