Morris v. Northland Group, Inc
ORDER AND OPINION GRANTING DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT, 8 and 21 . Signed on 6/24/16 by District Judge Ortrie D. Smith (Matthes, Renea) Modified on 6/24/2016 (Matthes, Renea). Mailed to Plaintiff on 6/24/2016 (Martin, Jan).
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ANTHONY G. MORRIS, JR.,
NORTHLAND GROUP, INC.,
Case No. 15-0888-CV-W-ODS
ORDER AND OPINION GRANTING
DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT
Pending are two motions for summary judgment by Defendant Northland Group,
Inc.’s (“Defendant”). Doc. #8, #21. For the reasons discussed below, both motions are
Pro Se Plaintiff Anthony Morris (“Plaintiff”) filed the instant action in state court on
October 19, 2015. On November 12, 2015, Defendant removed the case to this Court.
Plaintiff’s initial Petition raises two counts, alleging Defendant impermissibly obtained
his credit report in violation of (1) the Fair Credit Reporting Act (“FCRA”) and (2) the
Missouri Identity Theft statute. Defendant filed a motion for summary judgment as to
these claims on January 8, 2016. Doc. #8.
Before filing a response to Defendant’s motion, Plaintiff filed an Amended
Complaint on February 17, 2016. Doc. #14. Plaintiff’s Amended Complaint asserted
additional claims pursuant to (1) the Fair Debt Collection Practices Act (“FDCPA”), (2)
the Missouri Merchandising Practices Act (“MMPA”), and (3) the Missouri Deceptive
Business Practices Act (“MDBPA”). Id. Defendant filed a second motion for summary
judgment as to these claims on April 15, 2016. Doc. #21. After receiving no opposition
to Defendant’s second summary judgment motion, the Court ordered Plaintiff to show
cause as to why Defendant’s motion should not be granted. Doc. #24. Having received
no response from Plaintiff, the Court considers Defendant’s motions for summary
judgment ripe for consideration.
A moving party is entitled to summary judgment on a claim only if there is a
showing that “there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” See generally Williams v. City of St. Louis,
783 F.2d 114, 115 (8th Cir. 1986). “[W]hile the materiality determination rests on the
substantive law, it is the substantive law’s identification of which facts are critical and
which facts are irrelevant that governs.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). Thus, “[o]nly disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.”
Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011) (quotation omitted).
In applying this standard, the Court must view the evidence in the light most favorable to
the non-moving party, giving that party the benefit of all inferences that may be
reasonably drawn from the evidence. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 588-89 (1986); Tyler v. Harper, 744 F.2d 653, 655 (8th Cir. 1984),
cert. denied, 470 U.S. 1057 (1985). However, a party opposing a motion for summary
judgment “may not rest upon the mere allegations or denials of the…pleadings, but…by
affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that
there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).
A. Fair Credit Reporting Act Claim
Plaintiff asserts Defendant violated the FCRA because Defendant allegedly
impermissibly pulled Plaintiff’s credit report. “The FCRA imposes civil liability upon a
person who willfully obtains a consumer report for a purpose that is not authorized by
the FCRA.” Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 34 (3d Cir. 2011); see also
Phillips v. Grendahl, 312 F.3d 357, 364 (8th Cir. 2002), abrogated on other grounds by
Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007). The FCRA provides that a person
has a permissible purpose to obtain a credit report when that person “intends to use that
information in connection with a credit transaction involving the consumer…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); see also Huertas, 641 F.3d at 34; Norman v.
Northland Grp. Inc., 495 F. App’x 425, 427 (5th Cir. 2012); Miller v. Wolpoff &
Abramson, LLP, 309 F. App’x 40, 43 (7th Cir. 2009); Perretta v. Capital Acquisitions &
Mgmt. Co., No. 02-05561, 2003 WL 21383757, at *5 (N.D. Cal. May 5, 2003).
Additionally, as “long as a [person] has reason to believe that a permissible purpose
exists, that [person] may obtain a consumer report without violating the FCRA.” Miller v.
Rubin & Rothman, LLC, No. 10-2198, 2011 WL 4359977, at *3 (D. Minn. Sept. 19,
2011); see also Beckstrom v. Direct Merchant’s Credit Card Bank, No. 04-1351, 2005
WL 1869107, at *3 (D. Minn. Aug. 5, 2005); Shah v. Collecto, Inc., No. 04-4059, 2005
WL 2216242, at *12 (D. Md. Sept. 12, 2005). This is true even if it is later determined
that the consumer did not owe the debt at issue. Rubin & Rothman, 2011 WL 4359977,
Here, Defendant established it is a debt collection agency and its client,
Department Stores National Bank (“DNSB”), placed a delinquent Macy’s credit card
account in Plaintiff’s name with Defendant so Defendant could collect on Plaintiff’s
account. Doc. #9-1, page 1. Defendant engaged in its standard procedures to collect
on Plaintiff’s account, which included obtaining Plaintiff’s credit report. Doc. #9-1, page
2. Defendant obtained Plaintiff’s credit report solely for the purpose of collecting on
Plaintiff’s account. Doc. #9-1, page 2.
To dispute a fact, a party must cite “to particular parts of materials in the
record….” Fed. R. Civ. P. 56(c)(1)(A). This Court’s Local Rules state that “[a]ll facts set
forth in the statement of the movant shall be deemed admitted for the purpose of
summary judgment unless specifically controverted by the opposing party.” Local Rule
56.1. Here, Plaintiff did not specifically controvert facts asserted by Defendant in
support of its motion for summary judgment, nor did Plaintiff cite to specific materials in
the record to dispute Defendant’s asserted facts. The “Declaration of Affidavit” filed with
Plaintiff’s response to Defendant’s first summary judgment motion only indicates Plaintiff
disputes whether he had a debt with Defendant or with Defendant’s client, DNSB. Doc.
#18-1, page 2.
Regardless of whether Plaintiff had a debt with Defendant or Defendant’s client,
Defendant is entitled to judgment as a matter of law with respect to Plaintiff’s FCRA
claim because Defendant had a permissible purpose in obtaining Plaintiff’s credit report.
It is undisputed that DNSB is a long-time client of Defendant, the information Defendant
received from DNSB over the past twenty years was accurate, and Defendant relied on
the information DNSB provided. Doc. #9-1, page 2. Based on its historical relationship
with DNSB, Defendant believed Plaintiff’s account was due and collection efforts were
permissible. Doc. #9-1, page 2. The Court finds Defendant had, at the very least, a
“reason to believe” it had a permissible purpose in obtaining Plaintiff’s credit report. See
Beckstrom, 2005 WL 1869107, at *3 (finding Defendant had reason to believe it had
permissible purpose, and thus, no FCRA violation where Defendant relied on
information supplied by its client to pull Plaintiff’s credit report and begin collection
efforts). Accordingly, the Court grants summary judgment in Defendant’s favor on
Plaintiff’s FCRA claim.1
B. Fair Debt Collection Practices Act Claims
Plaintiff asserts Defendant violated the FDCPA because Defendant allegedly
impermissibly pulled Plaintiff’s credit report and attempted to collect on the debt by
communicating via deceptive letters. As an initial matter, Plaintiff’s complaint is barred
by the FDCPA’s statute of limitations. The FDCPA requires any action to enforce any
liability created by the FDCPA be brought “...within one year from the date on which the
violation occurs.” 15 U.S.C. § 1692k(d). The date of the last letter that allegedly does
Plaintiff’s arguments that Defendant is not entitled to summary judgment are without
merit. First, Plaintiff argues that under the FCRA, a debtor-creditor relationship is
required to permissibly obtain a debtor’s credit report. A review of the FCRA reveals
that this assertion is not true; and Plaintiff does not identify, and the Court is not aware
of any statute or case supporting his assertion. Second, Plaintiff notes he sent several
letters to Defendant prior to filing suit, in which Plaintiff disputed the propriety of
Defendant obtaining his credit report. Plaintiff seems to maintain that because he did
this and Defendant did not respond or settle the matter prior to Plaintiff filing suit,
Defendant is liable under the FCRA. Whether Defendant responded to Plaintiff’s prepetition letters has no bearing on whether Defendant either had a permissible purpose
or had reason to believe it had a permissible purpose in obtaining Plaintiff’s credit
not comply with FDCPA requirements is the operative date for the statute of limitations.
Freyermuth v. Credit Bureau Servs., Inc., 248 F.3d 767, 770 (8th Cir. 2001). The
allegedly impermissible credit pull and initial letter from Defendant occurred in August
2014.2 Defendant’s last effort to collect on the debt via letters to Plaintiff was on
September 18, 2014. Doc. #22-2, page 4.
Plaintiff’s Petition, which did not state a claim under the FDCPA, was filed on
October 19, 2015. Doc. #1. Plaintiff’s Amended Complaint, raising FDCPA claims, was
filed on February 17, 2016. Doc. #14. Plaintiff’s Amended Complaint relates back to
the original filing because the Amended Complaint adds claims arising out of the same
transaction or occurrence, namely the allegedly impermissible credit pull and deceptive
letters. See Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1543 (8th Cir. 1996); Fed. R.
Civ. P. Rule 15(c)(1)(B). Nonetheless, Plaintiff’s FDCPA claims are still barred by the
one-year statute of limitations because any conduct by Defendant that can possibly be
construed as an FDCPA violation occurred prior to the one-year period before October
19, 2015, when Plaintiff filed this action.3
To the extent Plaintiff’s FDCPA claim is based on correspondence with
Defendant in April, May, and June of 2015, Defendant is entitled to summary judgment.
After discovering the credit pull on November 24, 2014, Plaintiff initiated communication
with Defendant in a letter dated April 13, 2015 to dispute the debt. Doc. #22, page 4.
Thereafter, Plaintiff and Defendant engaged in a series of communications via letter in
which Defendant verified the debt by providing Macy’s credit card account statements,
Defendant pulled Plaintiff’s credit report on August 8, 2014, and mailed an initial letter
to Plaintiff’s last known address on August 15, 2014. It is unclear whether Defendant
received this initial communication. Regardless, the FDCPA does not require Plaintiff
receive the notice validating the debt, merely that Defendant send the notice. See
Mahon v. Credit Bureau of Placer County Inc., 171 F.3d 1197, 1201 (9th Cir. 1999)
(stating section §1692g only requires that a validation of debt notice be sent to the
debtor, not that it must be received by the debtor).
Plaintiff argues that the October 19, 2015 filing was within the statute of limitations
because he discovered the alleged violation after requesting his credit report on
November 24, 2014. The Court can find no case law supporting the notion that the
FDCPA statute of limitations runs upon discovery of an alleged violation. The plain
language of section 1692k(d) indicates the operative date is when the alleged violation
identified DNSB as the Plaintiff’s creditor, and informed Plaintiff that Defendant had
ceased all collection efforts. Doc. #22-2.
The FDCPA provides that within five days of an initial communication with a
consumer, a debt collector shall send written notice to the consumer that indicates: (1)
the debt amount, (2) the creditor to whom the debt is owed, (3) a statement that the
debt will be assumed valid unless disputed by the debtor within 30 days of receipt of the
letter, (4) a statement that the debt collector will obtain verification of the debt if disputed
by the debtor within 30 days of receipt of the letter, and (5) a statement that the identity
of the original creditor, if different than the current creditor, will be supplied within 30
days if the consumer requests such information. 15 U.S.C. § 1692g(a). Defendant fully
complied with this provision twice. First, Defendant’s August 15, 2014 letter complied
with the above requirements. Second, Defendant’s response to Plaintiff’s April 2015
letter included the above requirements.4
To the extent Plaintiff’s April 2015 letter was a timely dispute of the debt,
Defendant complied with FDCPA requirements because Defendant’s response, sent the
same day Plaintiff’s letter was received, included verification of the debt and informed
Plaintiff that his account was closed. See 15 U.S.C. § 1692g(b) (requiring debt
collectors to cease collection of the debt upon dispute of the debt and providing a debt
collector thirty days to send verification of the debt upon request by consumer).
Moreover, Defendant ceased collection efforts on September 18, 2014, seven months
prior to receiving Plaintiff’s April 2015 letter. For the above reasons, the Court grants
summary judgment in Defendant’s favor on Plaintiff’s FDCPA claims.
The Court is unclear whether Defendant received these letters or was otherwise aware
of any communication sent from Defendant. Plaintiff’s April, May, and June 2015
correspondence was sent via a third-party notary public. Plaintiff did not provide a
mailing address or alternative way for Defendant to contact Plaintiff in regards to the
dispute. Defendant mailed replies to Plaintiff’s address on file, rather than risk exposing
Plaintiff’s confidential information to a third-party. The FDCPA requires only that
Defendant send the notice, not establish receipt by the debtor. See Mahon, 171 F.3d at
1201; May v. NCEP, LLC, No. 4:13-CV-1583, 2014 WL 2009081, at *4 (E.D. Mo. May
16, 2014) ( finding “it is not relevant that [Plaintiff] did not receive the letter because it
was sent to her last known address instead of her current address”). It is undisputed
that Defendant sent notices to Plaintiff’s address on file in April, May, and June 2015.
C. Missouri Identity Theft Claim
Plaintiff asserts Defendant violated the Missouri Identity Theft statute because
Defendant allegedly impermissibly pulled Plaintiff’s credit report. The Missouri Identity
Theft statute provides, “a person commits the crime of identity theft if he or she
knowingly and with the intent to deceive or defraud obtains, possesses, transfers, uses,
or attempts to obtain, transfer or use, one or more means of identification not lawfully
issues for his or her use.” Mo. Rev. Stat. § 570.223.1. “Means of identification”
includes items such as a person’s Social Security number and credit card number. Id.
at 570.223.2. This statute does not apply to a person who “is otherwise authorized by
law to engage in the conduct that is the subject of the prosecution.” Id. at 570.223.9(5).
As discussed above, Defendant had a permissible purpose or had reason to believe it
had a permissible purpose under the FCRA to obtain Plaintiff’s credit report.
Accordingly, Defendant did not violate the Missouri Identity Theft statute, and the Court
grants summary judgment in Defendant’s favor on Plaintiff’s Missouri Identity Theft
D. Missouri Merchandising Practices Act Claim
Plaintiff asserts Defendant violated the MMPA because Defendant impermissibly
pulled Plaintiff’s credit report and improperly posed as a creditor to collect on the debt.
Section 407.025.01 creates a private right of action under the MMPA in favor of “[a]ny
person who purchases or leases merchandise primarily for personal, family or
household purposes and thereby suffers an ascertainable loss of money or
property, real or personal, as a result of the use or employment by another person of a
method, act or practice declared unlawful by section 407.020.” Mo. Rev. Stat. §
407.025.01. A prima facie MMPA case requires Plaintiff allege he (1) purchased or
leased merchandise from Defendant, (2) for personal, family, or household purposes,
and (3) suffered an ascertainable loss of money or property, (4) as a result of an act
declared unlawful by section 407.020. Chochorowski v. Home Depot U.S.A., Inc., 295
S.W.3d 194, 198 (Mo. Ct. App 2009). Plaintiff failed to establish the first element
because he never purchased or leased anything from Defendant. Thus, the Court
grants summary judgment in Defendant’s favor on Plaintiff’s MMPA claim.
E. Missouri Deceptive Business Practices Act Claim
Plaintiff asserts Defendant violated the MDBPA because Defendant
impermissibly pulled Plaintiff’s credit report. This is a criminal statute, making deceptive
business practices a class A misdemeanor. Mo. Rev. Stat. § 570.140. There is no
indication the legislature intended a private civil action to flow from a violation of this
criminal statute. See Campbell v. Accounts Receivable Mgmt., Inc., No. 14-cv-00793,
2016 WL 4425823, at *5 (W.D.Mo July 20, 2015) (granting summary judgment to
Defendant on alleged MDBPA violation based on impermissible credit pull); Shqeir v.
Equifax, Inc., 636 S.W.2d 944, 948 (Mo. 1982) (“When the Legislature has established
other means of enforcement, we will not recognize a private civil action unless such
appears by clear implication to have been the legislative intent.”). Thus, the Court
grants summary judgment in Defendant’s favor on Plaintiff’s MDBPA claim.
For the foregoing reasons, the Court grants summary judgment in Defendant’s
favor with respect to all of Plaintiff’s claims.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: June 24, 2016
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?