Gonzalez v. Continental Service Group Inc
Filing
53
Memorandum Opinion and Order granting 43 Motion for Summary Judgment filed by Continental Service Group Inc: The court ORDERS that defendant's motion for summary judgment be, and is hereby, granted, and that all claims and causes of action asserted by plaintiff, Andrew J. Gonzalez, against defendant, continental Service Group, Inc. d/b/a Conserve, be, and are hereby, dismissed with prejudice. (See Order for specifics.) (Ordered by Judge John McBryde on 7/23/2013) (mdf)
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»tSTRICT COURT
(:NORTHERN DISTRICT OFTU;i.\\~'
FILED
IN THE UNITED STATES DISTRIC
NORTHERN DISTRICT OF TEX
FORT WORTH DIVISION
' :.;'.,
' .. ..
ANDREW J. GONZALEZ,
·if'~muc.l1.s. DISTRICT COURT
'. B7
DeputY
§
§
Plaintiff,
§
§
VS.
§
§
CONTINENTAL SERVICE GROUP, INC.
DBA CONSERVE,
NO. 4:12-CV-SS3-A
§
Defendant.
§
§
§
MEMORANDUM OPINION
and
ORDER
Came on for consideration the motion of defendant,
Continental Service Group, Inc. d/b/a Conserve, for summary
jUdgment as to all claims and causes of action brought against it
by plaintiff, Andrew J. Gonzalez.
Defendant also filed a
supplement to its motion for summary jUdgment.
response, and defendant filed a reply.l
Plaintiff filed a
Having now considered
all of the parties' filings,2 the summary judgment record, and
lPlaintiffs response was titled "Plaintiffs Memorandum in Opposition to Defendant's Motion for
Summary Judgment," and defendant's reply was titled "Response to Plaintiffs Memorandum in
Opposition to Defendant's Motion for Summary Judgment."
2Plaintiff also filed a motion to strike the affidavit of Mary Kay Holleran, included as part of
defendant's supplement to the summary judgment motion. Rather than rule on the motion, the court will
give the affidavit whatever weight and consideration it deserves. Plaintiff also filed a motion to file SUfreply, which the court denied. Plaintiff then filed a motion for the court to take judicial notice of the Fair
Credit Reporting Act, 15 U.S.C. § 1681b(a)(3)(A). Such a motion is unnecessary for the court to
consider the statute on which a cause of action is based. However, to the extent plaintiff is attempting to
use the motion for judicial notice to make the arguments set forth in his proposed sur-reply, the motion
for judicial notice is denied.
the applicable legal authorities, the court concludes that the
motion for summary jUdgment should be granted.
1.
Plaintiff's Claims and the Summary Judgment Motion
Plaintiff filed his amended complaint on September 19, 2012,
alleging violations by defendant of the Fair Credit Reporting
Act, 15 U.S.C.
§
1681b(f)
("FCRA").
The following factual
allegations in the amended complaint are undisputed: 3
On June 1, 2010, defendant obtained plaintiff's consumer
credit report from Experian, a consumer reporting agency. On June
4 and July 13, 2010, defendant obtained plaintiff's consumer
credit report from another consumer reporting agency, TransUnion.
At no time has plaintiff had any relationship with defendant.
Plaintiff alleged that defendant willfully and negligently
failed to comply with the FCRA when it obtained his credit report
on June 1, June 4, and July 13, 2010, for a total of six claims
against defendant.
In the motion, defendant argues that it is entitled to
summary judgment on all of plaintiff's claims because it obtained
his credit report a permissible purpose under the FCRA:
collecting a debt.
30nly the factual allegations in the complaint, as opposed to plaintiffs legal conclusions, are
undisputed.
2
II.
Applicable Summary Judgment principles
Rule 56(a) of the Federal Rules of civil Procedure provides
that the court shall grant summary jUdgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
P.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
56(a)i
(1986).
Fed. R. civ.
T~e
movant bears the initial burden of pointing out to
the court that there is no genuine dispute as to any material
fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).
The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim, "since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."
Id. at 323.
Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.
Id. at 324.
See also Fed. R. civ. P. 56(c)
("A party
asserting that a fact . . . is genuinely disputed must support
the assertion by
the record
citing to particular parts of materials in
.").
If the evidence identified could not lead
a rational trier of fact to find in favor of the nonmoving party
3
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.
Matsushita Elec. Indus. Co. v. zenith Radio Corp.,
475 U.S. 574, 587, 597 (1986).
III.
Analysis
The only issue before the court for resolution in this
action is whether defendant had a "permissible purpose" for
obtaining plaintiff's credit report.
Under the FCRA, a debt
collector or collection agency may access a consumer's credit
report only for a permissible purpose.
One such permissible
purpose occurs when a debt collector "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 . . . review or collection of an account of, the consumer."
15 U.S.C.
§
1681b(a) (3) (A).
See also Norman v. Northland Group,
Inc., 495 F. App'x 425 (5th Cir. 2012).
Defendant contends it
obtained plaintiff's credit report for the purpose of collecting
a debt as authorized by
§
1681b(a) (3) (A).
Defendant relies on two pieces of evidence to establish that
it obtained plaintiff's credit report for the permissible purpose
of collecting a debt.
One is a letter dated May 23, 2012, from
defendant to plaintiff; the letter appears to be in response to a
4
letter defendant received from plaintiff questioning the reason
defendant obtained plaintiff's credit report.
Listed near the
top of the letter are: defendant's account number; the notation
"RE: NTNL COLLEGIATE TRST"; a client account number; and, a
balance amount.
The letter informs plaintiff that defendant
obtained plaintiff's credit report pursuant to 15 U.S.C.
§
1681b
for the collection of a debt.
Defendant also relies on the affidavit of Mary Kay Holleran
("Holleran"), defendant's Director of Operations Services.
Holleran avers that plaintiff's account was placed for collection
with defendant by First Marblehead Education Resources, Inc.,4
and that the only contact defendant had with any credit reporting
agency was in its attempts to collect the debt.
In his response, plaintiff does not dispute that attempting
to collect a debt is a "permissible purpose" under the FCRA.
Rather, plaintiff takes issue with the evidence on which
defendant relies to support its claim of having such a
permissible purpose.
Plaintiff objects that there was "no
account on [his] consumer credit reports" which defendant could
have been attempting to collect, nor did defendant have a
4Although the letter and the affidavit each appear to name a different entity for whom defendant was
engaged in debt collection services, the court concludes that the difference does not amount to a genuine
issue of material fact. Whatever the relationship between the two entities, or absent any relationship, the
documents show that defendant was attempting to collect a debt from plaintiff.
5
~collection
account listed" on plaintiff's credit report.
Mem. in Opp'n to Def. 's Mot. for Summ. J.
(~PI.'s
Pl. 's
Resp.") at 7.
Plaintiff also objects that defendant failed to provide, along
with the letter and Holleran affidavit, any verification of the
~type
of account or obligation," or
~who
the alleged original
creditor is, or any other identifying information regarding any
alleged account" which defendant could have been attempting to
collect.
rd. at 8.
Plaintiff's objections appear to confuse the issue.
Defendant does not contend that plaintiff had an account with
defendant that it was trying to collect, nor does defendant claim
it was attempting to collect an account that was listed on
plaintiff's credit report.
Rather, defendant maintains that an
outside entity placed plaintiff's account with it for collection,
and defendant obtained plaintiff's credit report to assist it in
collecting that debt, not in collecting its own debt from
plaintiff.
As the court recently explained in dismissing a
similar FCRA complaint filed by this plaintiff,
~[t]here
is no
requirement under FCRA that a consumer establish an account with
a debt collector for the debt collector to obtain a consumer
credit report for collection purposes."
Gonzalez v. Midland
Funding, LLC, No. 4:13-CV-50-A, 2013 WL 1291802 at *6 (N.D. Tex.
Mar. 29, 2013).
6
Similarly, plaintiff also appears to confuse the concept of
proving up an account--which he claims requires verification of
the type of account or obligation, or the name of the original
creditor or other identifying information--with proving that
defendant had a permissible purpose under the FCRA.
Plaintiff
has directed the court to no authority supporting his contention
that defendant must "prove up" an account in order to establish
that it had a permissible purpose under the FCRA, nor has the
court's research uncovered any such authority.
The court also notes that the affidavit submitted by
plaintiff in support of his response does not directly controvert
defendant's summary jUdgment evidence or the existence of the
account defendant contends it is attempting to collect.
Rather,
the affidavit is comprised primarily of legal conclusions and
other generalized assertions, some of which ignore evidence in
the summary jUdgment record.
For example, plaintiff avers that
he is not "in receipt of anything, nor is there anything on the
record made," that shows defendant obtained his credit report "to
assess or evaluate any account" relating to plaintiff.
Resp., Ex. A.,
~
1.
PI.'s
The affidavit further states that plaintiff
is not "in receipt of anything, nor is there anything on the
record made," that shows any account of plaintiff's with a
balance due that could be assessed, evaluated, or collected by
7
defendant.
Id. at
~
3.
These statements ignore defendant's
summary jUdgment evidence showing otherwise.
stating one's
disagreement with the movant's evidence, or ignoring it
altogether, does not create a triable issue of fact.
Elsewhere in the affidavit, plaintiff makes the legal
conclusion that he "is not in receipt of anything, nor is there
anything on the record made," that shows defendant had a
permissible purpose to obtain his credit report.
Ex. A.,
~~
2, 4.
An
PI.'s Resp.,
affidavit containing legal conclusions is
insufficient to defeat summary jUdgment.
Clark v. Am.'s Favorite
Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997).
The affidavit
fails to controvert defendant's summary jUdgment evidence and
nothing therein is sufficient to create a genuine issue of
material fact.
Accordingly, the court concludes that defendant
has established that it had a permissible purpose under the FCRA
to obtain plaintiff's credit report.
Having a permissible
purpose to obtain plaintiff's credit report, there can be no
violation of the FCRA.
IV.
Order
Therefore,
The court ORDERS that defendant's motion for summary
jUdgment be, and is hereby, granted, and that all claims and
8
causes of action asserted by plaintiff, Andrew J. Gonzalez,
against defendant, continental Service Group, Inc. d/b/a
Conserve, be, and are hereby, dismissed with prejudice.
SIGNED July
~ ~,
2013.
y
/
Distric ,r'Judge
/
9
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