HOWARD v. GE MONEY et al

Filing 39

MEMORANDUM OPINION AND ORDER. Signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 12/2/2014. For the reasons set forth herein, Defendants' Motion for Summary Judgment (Doc. 26 ) is GRANTED and this action is DISMISSED. A Judgment dismissing this action will be entered contemporaneously with this Memorandum Opinion and Order.(Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

THEODORE HOWARD,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
GE MONEY and SMITH DEBNAM
NARRON DRAKE SAINTSING &
MYERS, LLP,
Defendants.

1:12CV895

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
This matter is before the court on the Motion for Summary
Judgment (“Motion”) (Doc. 26) filed by Defendants GE Money
(“GECRB”) and Smith Debnam Narron Drake Saints & Myers, LLP
(“Smith Debnam”).1

Plaintiff Theodore Howard brought this pro se

action against Defendants alleging a violation of the Fair
Credit Reporting Act (“FCRA”) and a violation of his “right to
privacy” under the FCRA.

(Pro Se Complaint Form (Doc. 2) at 2;

Attach. 1, Original Complaint for Violation of the FCRA
(“Compl.”) (Doc. 2-1) at 2.)

Plaintiff responded to the Motion

(Docs. 32, 33, 34, and 35) and Defendants replied (Doc. 36).
1

Defendant GE Money states that its present name is “GE
Capital Retail Bank, FSB.” (Defs.’ Answer (Doc. 11) at 1.) The
court takes notice that Smith Debnam’s name is actually Smith
Debnam Narron Drake Saintsing & Myers, LLP.

This matter, therefore, is ripe for adjudication and, for the
reasons that follow, Defendants’ Motion will be granted.
I.

BACKGROUND
Plaintiff alleges that Defendants obtained his consumer

credit report in violation of the Fair Credit Reporting Act,
15 U.S.C. § 1681 et seq.

(Compl. (Doc. 2-1) at 2-3.)2

In his

Original Complaint, Plaintiff alleges that Defendants obtained
his TransUnion consumer credit report in February 2012 and, as a
result, are liable to him under the FCRA.

(Id. ¶¶ 7-11, 20.)

Plaintiff further alleged that he “never had any business
dealings or any accounts with, made application for credit from,
made application for employment with, applied for insurance
from, or received a bona fide offer of credit from GE MONEY,
SMITH DEBNAM NARRON DRAKE SAINTS [sic] & MYERS LLP” or given his
consent to Defendants to acquire his credit report. (Id. ¶¶ 1819.)
Defendants submitted two declarations, one from Jerry T.
Myers, managing partner of Smith Debnam, and one from Martha
2

In his Pro Se Complaint Form, Plaintiff stated the facts
of his case against Defendants as: “1. Obtained consumer report
(credit) without permission. 2. Not familiar with defendants. 3.
Defendants violated Plaintiff [sic] right to privacy according
to FCRA 15 U.S.C. § 1681.” (Pro Se Complaint Form (Doc. 2) at
2.) Thus, consistent with his “Original Complaint,” Plaintiff
pursues a single action under the FCRA.
- 2 -

Koehler, an employee of GECRB, as well as supporting documents.
(Docs. 28 and 29.)

According to Koehler’s Declaration and

attached documents, on or about October 22, 2001, Plaintiff
completed a Lowe’s Credit Card Application.
(Doc. 29) at 2; Tab A (Doc. 29-1) at 2.)

(Koehler Decl.

The Agreement, titled

(in bold caps) “Lowe’s . . . Monogram Credit Card Bank of
Georgia Credit Card Agreement,” stated that it governed
Plaintiff’s use of his Lowe’s credit card account and was with
Monogram Credit Card Bank of Georgia (“Monogram”), its
“assignees, or other holders of this Agreement or your
[Plaintiff’s] account.” (Id., Tab B (Doc. 29-2) Heading and
¶ 1.)

Koehler, in her Declaration, states that Monogram later

merged with GE Capital Consumer Card Co. and changed its name to
GE Money Bank, FSB, and later changed its name to GE Capital
Retail Bank. (Id. at 2; Tab A (Doc. 29-1); see Defs.’ Mem. of
Law Supp. Summ. J. (Doc. 30) at 3.) The Agreement further
provided that:
You [Plaintiff] give us [Monogram] permission to
request information and to make whatever inquiries we
consider necessary and appropriate (including
obtaining information from third parties and
requesting consumer reports from consumer reporting
agencies) for the purpose of . . . reviewing or
collecting your Account.
(Koehler Decl., Tab B (Doc. 29-2) ¶ 14.)

Plaintiff’s credit

card application, purportedly bearing his signature, itself
- 3 -

contained a similar consent regarding reviewing or collecting
his account.

(Id., Tab A (Doc. 29-1) at 2.)

Defendants, by declaration and documents, submitted
evidence that Plaintiff used the credit card account and in
December 2009, wrote to “GE Money Bank” regarding his credit
card account.

(Id. at 7; Tab D (Doc. 29-4) at 2-3.)

Defendants

also submitted a copy of a summary judgment obtained by GE Money
Bank against Plaintiff in North Carolina District Court on
May 7, 2013, in the amount of $3,506.93.
(Doc. 29-3).)

(Id. at 5-6; Tab C

GECRB’s declarant stated that, in light of her

review of GECRB records and upon her knowledge of the process
and procedures regarding retail credit card accounts, all
contacts between GECRB and one or more credit card reporting
agencies regarding Plaintiff’s Lowe’s account would have
occurred only as follows:

(1) when the credit card application

was made; (2) in response to Plaintiff’s claim that the Lowe’s
credit card was not his; (3) during periodic credit reviews; and
(4) when the account was in collection.

(Id. at 6-8.)

GECRB

also made monthly reports to the credit reporting agencies.
(Id.)
Both declarants attest to Smith Debnam serving as counsel
to GECRB to collect on Plaintiff’s past due credit card account.
In addition to the state court summary judgment noted above,
- 4 -

which noted a Smith Debnam attorney as counsel to GE Money Bank,
Defendants submitted the declaration of Smith Debnam’s managing
partner and practice leader of the firm’s Creditors’ Rights
Retail practice group, Jerry T. Myers.
at 1.)

(Myers Decl. (Doc. 28)

Myers’ Declaration states that on or about May 19, 2010,

his firm was hired by GE Money Bank, FSB (a predecessor to
GECRB) to collect a Lowe’s retail card account alleged to be
owed by Plaintiff.

(Id. at 2.)

Myers stated that as part of

its investigation for purposes of aiding in the collection of
the account, Smith Debnam retrieved credit information regarding
Plaintiff.

(Id.)

On February 3, 2011, Smith Debnam filed a

complaint in North Carolina District Court on behalf of GE Money
Bank against Plaintiff for the balance alleged to be due on
Lowe’s retail credit card account.

(Id.)

After a hearing at

which Plaintiff appeared pro se, summary judgment was entered
against Plaintiff in that case.

(Id. at 3 and Ex. A.)

On the

same day as the entry of summary judgment, the state court
granted GE Money Bank’s motion to dismiss Plaintiff’s appeal of
his dismissed counterclaims for failure to serve a proposed
record.

(Id. and Ex. B.)

Plaintiff responded with general hearsay objections against
the contents of Defendants’ declarations and supporting
documents.

(See Docs. 32, 33, 34 and 35.)
- 5 -

With respect to the

Koehler Declaration, Plaintiff presented no evidence that
GECRB’s retail credit card accounts were not maintained in the
regular course of business but claimed that he received only
copies, not originals, in discovery and that his transactions
were with Lowe’s and not GE Money or the other names by which it
was known.

(Pl.’s Opp’n to Martha Koehler (Doc. 35) at 2.)

He

denied that he completed and mailed a Lowe’s Credit Card
application as stated in the Koehler Declaration, asserting that
Koehler’s statement was hearsay and that the copy of the credit
card application provided with the Koehler Declaration was not
proper evidence as it is not a ‘wet signature’ original.

(Id.)

Of note, Plaintiff, in responding to the Koehler
Declaration’s review of occasions when GECRB would have obtained
credit reports relating to Plaintiff, replied: “The issue is
that the attorney firm pulled the credit report without
plaintiff’s permission and a permissible purpose.”

(Id. at 4.)

He makes no reference to GECRB’s pulling credit reports.3
In opposing the Koehler Declaration, Plaintiff does not
provide evidence challenging the successor corporation name
3

By this statement, Plaintiff appears to concede his FCRA
claim against GECRB as he does not state any agency liability
against GECRB for the acts of Smith Debnam. Indeed, as noted in
text, he denies that Smith Debnam is even GECRB’s lawyer. In
light of Plaintiff’s arguments that he did not have a
relationship with GECRB, however, the court will address claims
against both Smith Debnam and GECRB.
- 6 -

changes of GECRB as described in the Koehler Declaration.
id. at 2-3.)

(See

Plaintiff admits the state court lawsuit and

summary judgment but asserts the amount of the award was
incorrect, the judge in that case had several conflicts of
interest, and judgment was wrongfully granted due to his being
on narcotic medication.

(Id.; Pl.’s Opp’n to Mem. Supp. Summ.

J. (Doc. 33) at 2.)
In his opposition to the Myers Declaration, Plaintiff
asserted general hearsay objections and claimed Smith Debnam
“refused to provide proof that they were hired by GE Money” and
that his privacy rights were being invaded because “Defendant
appears to be using deceptive practices, and attempting to
mislead the Court.”

(Pl.’s Opp’n to Declaration of Jerry T.

Myers (Doc. 34) at 1-4.)

Plaintiff, however, acknowledged the

lawsuit against him in North Carolina District Court, although
complaining about the amount of the judgment and alleged
conflicts of interest of the state court judge.
II.

(Id. at 2-3.)

LEGAL STANDARD
Summary judgment is appropriate where the facts and

evidence on the record demonstrate no genuine dispute as to any
material fact exists and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a), (c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (discussing the
- 7 -

predecessor to Rule 56(a)). The moving party bears the burden of
initially demonstrating the absence of a genuine dispute of
material fact. Celotex, 477 U.S. at 323. If the moving party has
met that burden, then the non-moving party must persuade the
court that a genuine dispute remains for trial.

Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
In considering whether a genuine dispute as to any material
fact exists, the court must be careful not to weigh the evidence
or make credibility determinations.

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986). Instead, the court must view the
facts in the light most favorable to the non-moving party,
drawing all reasonable inferences in favor of that party. Id.
However, “[a] party asserting that a fact cannot be or is
genuinely disputed must support the assertion . . . .” Fed. R.
Civ. P. 56(c).
III. ANALYSIS
In order to state a claim for improper use or acquisition
of a consumer report under the FCRA, Plaintiff must prove the
following: (1) that there was a consumer report; (2) that
Defendants used or obtained it; (3) that Defendants did so
without a permissible statutory purpose; and (4) that Defendants
acted with the specified culpable mental state.
- 8 -

Suit v.

Directv, LLC, Civil Action No. RDB-13-0466, 2013 WL 6817630, at
*2 (D. Md. Dec. 20, 2013).

Although courts set out slightly

different elements, courts uniformly include the requirement
that a plaintiff prove that a defendant obtained a credit report
without a permissible statutory purpose.

Defendants’ Motion

asserts that there is no genuine dispute as to any material fact
relating to a permissible statutory purpose and that they are
entitled to summary judgment as a matter of law.

Defendants

also argue that Plaintiff should be estopped from claiming he
did not have a credit relationship with GECRB.
A.

Plaintiff’s Objections to Defendants’ Declarations and
Exhibits

As a preliminary matter, the court notes that Plaintiff
proceeds pro se.

“Appearing pro se does not relieve a litigant

of his obligation to follow legitimate rules.”

United States v.

Beckton, 740 F.3d 303, 306 n.* (4th Cir.), cert. denied, ____
U.S. ____, 134 S. Ct. 2323 (2014).

- 9 -

In addition to a general

response to Defendants’ summary judgment motion (Doc. 32)4 and an
opposition to Defendants’ memorandum in support (Doc. 33),
Plaintiff filed two additional documents (Docs. 34 and 35), both
“[p]ursuant to Rule 56(c)(4)” in opposition to the declarations
filed in support of Defendants’ Motion.

Plaintiff’s objections

address each of Defendants’ declarations paragraph by paragraph,
admitting or denying each paragraph and at times providing
further explanation.

Both oppositions are signed by Plaintiff

under penalty of perjury pursuant to 28 U.S.C. § 1746.

The

court will consider these oppositions (Docs. 34 and 35) as
declarations in support of Plaintiff’s response.
Plaintiff’s response and oppositions assert that
significant parts of Defendants’ declarations and supporting
materials are hearsay.

To be sure, “[h]earsay evidence, which

is inadmissible at trial, cannot be considered on a motion for
4

Plaintiff’s response largely chastises Defendants for
filing a frivolous motion for summary judgment and accuses
Defendants’ lawyers for failing “to follow the simple guidelines
set out in the NCRCP and Rules of the Judicial Administration.”
(Pl.’s Opp’n to Summ. J. (Doc. 32) at 1.) Plaintiff’s
invocation of “NCRCP” appears to refer to the North Carolina
Rules of Civil Procedure. Based on Plaintiff’s reference to a
case, uncited but by the court’s determination a Florida
District Court of Appeals opinion, the “Rules of the Judicial
Administration” appear to refer to the Florida Rules of Judicial
Administration. Plaintiff chose to file this action, based
primarily if not exclusively on federal law, in federal court.
Defendants’ attorneys are bound in this action by neither the
North Carolina Rules of Civil Procedure nor the Florida Rules of
Judicial Administration.
- 10 -

summary judgment.”

Md. Highways Contractors Ass’n v. State of

Md., 933 F.2d 1246, 1251 (4th Cir. 1991).

With respect to

affidavits and declarations, Rule 56(c)(4) requires that they
“set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the
matters stated.”

Here, the declarations submitted by

Defendants, under penalty of perjury, are based on first-hand
knowledge directly or from a review of the records or are based
on the declarants’ familiarity with the policies and procedures
of, and records maintained by, the respective Defendants.

See

Harris v. NCO Fin. Sys., Civil Action No. No. RDB-13-0259, 2013
WL 6858852, at *2 n.5 (D. Md. Dec. 23, 2013) (noting in FCRA
case, “the Plaintiff’s hearsay arguments do not apply.

The

affidavits are based on personal knowledge gained by a review of
the relevant records.

It is of no moment that the affiants did

not state whether they worked for their respective companies
during the time that the Plaintiff’s credit reports were
obtained.”).
With respect to documents submitted by Defendants, a wellrecognized exception to the hearsay rule is records of a
regularly conducted activity.

Pursuant to Federal Rule of

Evidence 803(6), a record of an act or event is not excluded as
hearsay if, as relevant here, (A) the record was made at or near
- 11 -

the time by, or from information transmitted by, someone with
knowledge, (B) the record was kept in the course of a regularly
conducted activity of a business, (C) the making of the record
was a regular practice of that activity, (D) conditions (A)-(C)
are shown by the testimony of the custodian or another qualified
witness, and (E) neither the source of information nor the
method or circumstances of preparation indicate a lack of
trustworthiness.

Fed. R. Evid. 803(6).5

Defendants’

declarations comply with Rule 803(6)(A)-(D).

(See Myers Decl.

(Doc. 28) ¶¶ 1, 3-4; Koehler Decl. (Doc. 29) ¶¶ 1-5.)

As to the

fifth requirement (subpart (E)), there is no apparent lack of

5

Plaintiff references and appears to quote, in part, an
uncited case “Mitchell v. Westfield.” The court concludes that
this case is Mitchell Bros., Inc. v. Westfield Ins. Co., 24
So.3d 1269 (Fla. App. 1st Dist. 2009) (per curiam). Although
decided under Florida law, Mitchell supports the court’s
conclusion. In Mitchell, unlike here, the party submitting
documents had failed to establish that the documents were
admissible business records and had failed to introduce any
other admissible evidence. See Mitchell, 24 So.3d at 1269.
- 12 -

trustworthiness despite Plaintiff’s general objections.6
Further, Plaintiff’s own admissions and the North Carolina state
court proceedings between Plaintiff and GECRB are in accord with
Defendants’ declarations and submitted documents, thereby
supporting the conclusion that neither the source of information
nor the method or circumstances of preparation indicate a lack
of trustworthiness.

See Harris, 2013 WL 6858852, at *2 n.5

(“Finally, the Plaintiff’s account statements presented by the
Defendants would be admissible as business records under Federal
Rule of Evidence 803(6).”). To the extent Plaintiff challenges
the form of material submitted by Defendants, he has not raised
an issue indicating that the material cannot be presented in a
form that would be admissible in evidence.

See Fed. R. Civ. P.

56(c)(2).

6

Although not part of the court’s analysis, the court notes
that absent contrary Congressional action, after December 1,
2014, Subpart (E) of Rule 803(6) will provide (emphasis added)
that: “the opponent does not show that the source of information
or the method or circumstances of preparation indicate a lack of
trustworthiness.” This amendment is to “clarify that if the
proponent has established the stated requirements of the
exception [i.e., subparts (A) through (D)] . . . then the burden
is on the opponent . . . . [and] [w]hile most courts have
imposed that burden on the opponent, some have not. It is
appropriate to impose this burden on [the] opponent, as the
basic admissibility requirements are sufficient to establish a
presumption that the record is reliable.” Fed. R. Evid. 803
cmt. 2014 amendments.
- 13 -

B.

No Genuine Dispute Exists as to any Material Fact

Defendants have satisfied their burden of showing that
there is no genuine dispute of any material fact remaining for
trial.

The court has viewed the facts in the light most

favorable to Plaintiff, the non-moving party, drawing all
reasonable inferences in his favor.

However, the court finds

that Plaintiff has not adequately supported his assertions that
facts material to consideration of the grounds for summary
judgment are subject to a genuine dispute.
As set out in the Background section above, Defendants
provided evidence that Plaintiff entered into an agreement with
Monogram for a Lowe’s credit card.

After a merger, Monogram

changed its name to GE Money Bank, FSB, the same entity which
retained Smith Debnam for litigation against Plaintiff in state
court to recover on Plaintiff’s account and with whom Plaintiff
corresponded regarding his credit card debt.
Plaintiff, as the non-moving party, has failed to persuade
the court that a genuine dispute remains for trial.

Plaintiff

argues that the Lowe’s card was not obtained by him and that
therefore any debt owing is not chargeable to him (this argument
is discerned through Plaintiff’s constant requests to see the
‘wet signature’ version of the contract).

The court finds,

however, that Plaintiff has failed to raise a genuine dispute as
- 14 -

to whether Plaintiff entered into an agreement for a Lowe’s
credit card. Plaintiff’s admitted involvement in the state court
action against him and claims that summary judgment against him
in that action had the wrong amount (and a conflicted judge)
acknowledges the existence of the credit relationship itself.7
Further, Plaintiff himself admits that he attempted to pay on
the credit card. (Pl.’s Opp’n to Mem. Supp. Summ. J. (Doc. 33)
at 3.) Plaintiff’s correspondence with GECRB (at the time named
GE Money Bank, FSB) regarding his credit card account and the
other evidence relating to that account noted above,
demonstrates that Plaintiff cannot and does not create any
genuine issue as to whether he was a party to the Lowe’s credit
card account.8
Plaintiff also fails to raise a genuine dispute as to
whether GECRB is the true owner of any debt owed or that he no
longer had a relationship with GECRB because he was not
permitted to “opt-out” at the time of any name change.

He has

7

In his opposition to the Koehler Declaration, Plaintiff
states: “The summary judgment in state court was wrongfully
granted. The amount is incorrect. The attorney deceived the
court with stating that the amount was one sum when the amount
is different. Also, there were several conflicts of interest
with the Judge and the Plaintiff of which will be reported.”
(Pl.’s Opp’n to Martha Koehler (Doc. 35) at 4.)
8

There is no question that the record establishes that the
credit card was listed in Plaintiff’s name.
- 15 -

presented no evidence nor cited a statute or regulation
providing that he was entitled to opt-out (of what, he does not
say) when GECRB merged with another company and changed its
name.

Indeed, the Agreement specifically notes that it applies

to assignees of Monogram or other holders of Plaintiff’s
agreement or account.

In this case, the uncontroverted evidence

is that GECRB is not even an assignee but is a direct successor
of Monogram.
In reply to the reviews by GECRB’s employee of what
contacts were made between GECRB and credit reporting agencies,
Plaintiff responded with a denial based on his claim that “[t]he
issue is that the attorney firm pulled the credit report without
plaintiff’s permission and a permissible purpose.”
to Martha Koehler (Doc. 35) at 4.)

(Pl.’s Opp’n

What is clear is that

Plaintiff has not provided any evidence to contradict GECRB’s
evidence of proper use of credit reporting agencies with respect
to Plaintiff’s account.
Finally, Plaintiff fails to raise a genuine dispute
regarding the Smith Debnam representation of GECRB in a
collection action against Plaintiff.

Indeed, Plaintiff does not

provide even a scintilla of evidence against this claim and
merely denies it.

(See Pl.’s Opp’n to Declaration of Jerry T.

Myers (Doc. 34) at 2).

This is not surprising in light of the
- 16 -

unrebutted Defendants’ declarations and Plaintiff’s admissions
with respect to the state lawsuit against him.

Thus, there is

no genuine dispute that Smith Debnam acted as attorney for GECRB
in its efforts to collect on the Plaintiff’s credit card
account.
The court has considered Plaintiff’s other arguments and
evidence and finds them to be irrelevant or without merit.
Where, as here, the established record so blatantly contradicts
one party’s version of events, such that no reasonable jury
could adopt that party’s story, the court is not required to
“adopt that version of the facts for purposes of ruling on a
motion for summary judgment.”
372, 380 (2007).

See Scott v. Harris, 550 U.S.

This court finds that Plaintiff has failed to

persuade the court that a genuine dispute remains for trial.
C.

Defendants are Entitled to Summary Judgment as a
Matter of Law

The court may grant a motion for summary judgment only when
a defendant shows it is entitled to summary judgment as a matter
of law.

Fed. R. Civ. P. 56(a).

The Fair Credit Reporting Act,

15 U.S.C. § 1681 et seq., provides that consumer credit reports
may not be obtained without a “permissible purpose” as defined
in 15 U.S.C. § 1681b.

15 U.S.C. § 1681b(f).

- 17 -

Such permissible

purposes include receiving a consumer credit report by a person
who:
(A) intends to use the information 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 or collection of an
account of, the consumer; or
. . . .
(F) otherwise has a legitimate business need for the
information –
(i) in connection with a business transaction
that is initiated by the consumer; or
(ii) to review an account to determine whether
the consumer continues to meet the terms of the
account.
15 U.S.C. § 1681b(a)(3).

Where a company “willfully or

negligently fails to comply with any requirement imposed under
the Act,” the FCRA imposes civil liability.

Ausherman v. Bank

of America Corp., 352 F.3d 896, 899-900 (4th Cir. 2003) (citing
15 U.S.C. §§ 1681n, 1681o).

However, a consumer credit report

may be obtained where the user has only a “reason to believe”
that their purpose in obtaining the report was permissible.
Korotki v. Attorney Servs. Corp., Inc., 931 F. Supp. 1269, 1276
(D. Md. 1996).
In light of the facts for which there is no genuine
dispute, the legal analysis is straightforward.

Both Defendants

are entitled to summary judgment as a matter of law.
- 18 -

First,

GECRB is entitled to summary judgment under 15 U.S.C.
§ 1681b(a)(3)(A).

As holder of a debt resulting from

Plaintiff’s use of the Lowe’s credit card, GECRB could
permissibly access Plaintiff’s credit report (and other credit
information) not only in connection with the extension of credit
to Plaintiff but also with respect to the review or collection
of an account of Plaintiff.

15 U.S.C. § 1681b(a)(3)(A).9

Because the court finds that GECRB is entitled to summary
judgment as a matter of law pursuant to Section 1681b(a)(3)(A),
it need not consider whether a permissible purpose also exists
under Section 1681b(a)(3)(F).
With respect to Plaintiff’s claims against Smith Debnam,
the court concludes that GECRB’s retained law firm is also
entitled to summary judgment as a matter of law. Because GECRB
had a permissible purpose to review Plaintiff’s credit report

9

The court notes that Plaintiff also expressly agreed he
authorized Monogram (and its assignees and subsequent holders of
the agreement or account) to make “inquiries you consider
necessary (including requesting reports from consumer reporting
agencies and other sources) in evaluating my application, and
subsequently, for purposes of reviewing, maintaining or
collecting my account.” (Koehler Decl. (Doc. 29) at 3; Tab A
(Doc. 29-1) at 2; Tab B (Doc. 29-2) ¶ 14.) Thus, not only was
GECRB’s review of Plaintiff’s credit reports in this case a
permitted purpose under Section 1681b(a)(3)(A), Plaintiff also
consented to such reviews.
- 19 -

for purposes of “collection of an account” under Section
1681b(a)(3)(A), so did Smith Debnam:
An attorney collecting a debt for a creditor client,
including a party suing on a debt or collecting on
behalf of a judgment creditor or lien creditor, has a
permissible purpose to obtain a consumer report on the
debtor to the same extent as the client.
Korotki, 931 F. Supp. at 1277;10 see Fritz v. Capital Mgmt.
Servs., LP, No. 2:12-cv-1725, 2013 WL 4648370, at *3 (W.D. Pa.
Aug. 29, 2013) (“Relying on the ‘collection of an account’
language in § 1681b(a)(3)(A), courts . . . appear to be uniform
in their agreement that a debt collector is permitted to obtain
a consumer credit report for the purpose of collecting an
outstanding debt.” (citing cases)); Boston v. Client Servs. of
10

Plaintiff describes Korotki as an “old case” decided
prior to amendments by the FTC in 1997 and that Defendants are
committing fraud on this court. (Pl.’s Opp’n to Mem. Supp.
Summ. J. (Doc. 33) at 4.) Plaintiff does not, however, explain
how any amendment affected the language quoted in text.
Further, a review of the exhibit attached to Plaintiff’s
response indicates that the reference was to a 1997 amendment to
the FCRA itself. Plaintiff fails to point to the change or
discuss how it applies to this case. The court notes, however,
that in 1997 the permissible purpose language in Section
1681b(a)(3)(E) (now (F)) changed from when a creditor had a
legitimate business need for the information “in connection with
a business transaction involving the consumer” to “in connection
with a business transaction that is initiated by the consumer”
(emphases added). Pub. L. No. 104-208, § 2403, 110 Stat. 3009
(1996). This part of the amendment does not affect the court’s
analysis. Further, the court finds as a matter of law
Defendants’ actions were authorized by Section 1681b(a)(3)(A)
and did not need to consider Section 1681b(a)(3)(F).
- 20 -

Mo., Inc., No. 3:13CV184, 2013 WL 5925902, at *2 (W.D.N.C.
Nov. 1, 2013) (noting, in granting a motion to dismiss, that
“[a] debt collector is permitted to obtain a consumer report if
the agency is doing so for the purposes of collecting a debt”).
Here, there is no genuine dispute that Smith Debnam was hired to
pursue an alleged debt against Plaintiff and thus had a
permissible purpose under Section 1681b(a)(3)(A), that is, in
connection with the collection of an account resulting from a
credit transaction.11

11

Although Plaintiff’s Complaint specifically alleges only
a 2012 access to his credit report by Defendants (Compl. (Doc.
2-1) ¶ 9), one of his supporting documents indicates that on
May 24, 2010, and on November 20, 2008, a company identified as
“Smith Debnam Narron Wych” obtained Plaintiff’s credit history
from Experian. (Pl.’s Opp’n to Mem. Supp. Summ. J., Ex. A (Doc.
33-1).) The May 24, 2010 report clearly relates to the
collection process which led to the state court litigation
because Smith Debnam was retained in that case on or about
May 19, 2010. (See Myers Decl. (Doc. 28) at 2.) The
November 20, 2008 report, which was referenced generally but not
specifically by Plaintiff in his opposition, would appear
somewhat problematic. The court notes, however, that in a
January 19, 2009 letter supplied by Plaintiff, he stated that he
had “recently reviewed [his Experian] credit report very
carefully” and “noticed that there are some accounts showing on
my report that [do] not belong to [him].” (Pl.’s Opp’n to Mem.
Supp. Summ. J., Ex. C (Doc. 33-3).) From Plaintiff’s own
documents, it is clear that Plaintiff would have been on notice
of the November 20, 2008 inquiry by the time of his January 19,
2009 letter at the latest. This date is more than two years
before the filing of this lawsuit and therefore any claim
related to the 2008 inquiry would likely have been objected to
by Defendants as time-barred had it been set out in the
Complaint. See 15 U.S.C. § 1681p.
- 21 -

IV.

CONCLUSION
For the reasons set forth herein, IT IS HEREBY ORDERED that

Defendants’ Motion for Summary Judgment (Doc. 26) is GRANTED and
that this action is DISMISSED.

A Judgment dismissing this

action will be entered contemporaneously with this Memorandum
Opinion and Order.
This the 2nd day of December, 2014.

_______________________________________
United States District Judge

- 22 -