4) Cordoza Jacks, an employee of ACD, was acting on behalf of ACD, solely to collect a debt owed to ACD, when he telephoned the Oldroyds over their attorney's objection.
The plaintiffs submitted neither memoranda nor affidavits in response to this Court's order, and does not contest the statements in Mr. Geary's affidavit.
STANDARDS APPLICABLE TO THIS MOTION
Since it appears on the face of the Oldroyds' complaint that their Truth-in-Lending Act and defamation claims are barred by the applicable statutes of limitations, the limitations defense is properly raised by way of a motion to dismiss. Brown v. Bellaplast Maschinenbau, 104 F.R.D. 585, 587 (E.D. Pa. 1985). The issue of whether ACD is either a "consumer reporting agency" subject to the Fair Credit Reporting Act, or a "debt collector" subject to the Fair Debt Collection Practices Act, however, requires me to look beyond the four corners of the complaint, and I must treat ACD's motion to dismiss those claims as a motion for summary judgment. Different standards govern my review of motions to dismiss and for summary judgment.
In deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), I must "accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party". Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). The court may dismiss an action for failure to state a claim only where it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief". Robb v. City of Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984).
To succeed on a motion for summary judgment, the moving party must establish that no genuine issues of material fact remain in dispute and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Where there is a complete failure of proof concerning an essential element of the non-moving party's case, all other facts are rendered immaterial, and the moving party is entitled to a judgment as a matter of law. Id. at 323. In deciding whether the standards for summary judgment have been met, the evidence must be viewed in the light most favorable to the non-moving party. Mellon Bank Corp. v. First Union Real Estate Equity and Mortgage Invest., 951 F.2d 1399, 1404 (3d Cir. 1991).
I. The Truth in Lending Act Claim
The plaintiffs' Truth in Lending Act claim will be dismissed because it appears from the face of the complaint that it is barred by the applicable statute of limitations. Actions under the Truth in Lending Act must be brought within one year of the violation, though a consumer may raise violations of the Act as a defense to a collection action after the expiration of the filing period. 15 U.S.C. § 1640(e). The Oldroyds allege that ACD failed to disclose required information when they refinanced their home mortgage in November of 1989, four years before this action was filed. Complaint at PP V-XV. It therefore appears from the face of the complaint that the Truth in Lending Act claim is time-barred.
The plaintiffs argue that the Truth in Lending Act limitations period does not begin to run until "after rescission of the Loan Agreement", and that the loan agreement was rescinded by the Oldroyds on June 25, 1993, when their attorney informed ACD that the Oldroyds would be bringing a Truth in Lending Act claim. The plaintiffs' reliance upon Reid v. Liberty Consumer Discount Co. of Pa., 484 F. Supp. 435 (E.D. Pa. 1980), is misplaced. The limitations period runs from the date of rescission only if the violation alleged is the failure of the lender to terminate its security interest upon rescission, as required by 15 U.S.C. § 1635 (b). See Reid, 484 F. Supp. at 441. The Oldroyds do not allege such a violation, but only a failure to make required disclosures. Thus, the one year limitations period must run from the date of the complained-of violation: the failure to make those disclosures in November of 1989. The Truth-in-Lending Act claim is time-barred and will be dismissed.
II. The Fair Credit Reporting Act Claim
I will grant summary judgment on the plaintiffs' claim under the Fair Credit Reporting Act (FCRA) because there is no evidence that ACD is a "consumer reporting agency" subject to the requirements of the FCRA, or that its communications regarding the Oldroyds' mortgage were actionable under that Act.
The FCRA imposes liability only upon "consumer reporting agencies" and the recipients of "consumer reports" for violating its requirements for the issuance and use of such reports. 15 U.S.C. § 1681n. The FCRA specifically exempts "any report containing information solely as to transactions or experiences between the consumer and the person making the report" from the requirements imposed on the issuance of "consumer reports". 15 U.S.C. § 1681a(d).
Plaintiffs do not dispute the evidence that ACD is not a "consumer reporting agency" under the FCRA, since it does not "regularly engage . . . in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties". 15 U.S.C. § 1681a (f). Instead, the plaintiffs argue that a creditor who reports misleading or false information to a credit reporting agency should fall under the scope of the FCRA, and cite in support the provision of the FCRA which states that the FCRA does not preempt state laws with respect to the collection, distribution or use of consumer credit information, except to the extent that such laws are inconsistent with the FCRA. As that section of the statute implies, the FCRA is not intended to sweep across the spectrum of possible claims for harmful credit reporting practices. The statute is limited in scope, and I will not expand it beyond its intended application.
Furthermore, the plaintiffs do not dispute that the information ACD gave to the credit reporting agency related solely to ACD's own transactions or experiences with the plaintiffs, and therefore falls within the exemption in 15 U.S.C. § 1681a(d). Because there is no genuine issue of fact as to the applicability of the FCRA to ACD or its communications to credit reporting agencies about the Oldroyds' mortgage, I will grant summary judgment for the defendants on the plaintiffs' FCRA claim.
III. The Fair Debt Collection Practices Act Claim
A. Statute of Limitations
The plaintiffs' claim under the Fair Debt Collection Practices Act (FDCPA) is not barred by the statute of limitations. Actions under the FDCPA must be brought within one year of the alleged violation. 15 U.S.C. § 1692k(d). The plaintiffs allege that ACD's employee made a harassing phone call to them in August of 1993, after their attorney notified ACD by telephone and letter dated June 25, 1993, that the Oldroyds did not want to be contacted directly, but would only deal with ACD through their attorney. Complaint at PP XXXII-XXXIII, Ex. B. This complaint was brought on December 7, 1993, well within one year of the alleged violation.
B. The Applicability of the FDCPA
I will dismiss the Oldroyds' FDCPA claim, however, because ACD is not liable under the act. The FDCPA imposes civil liability only upon "debt collectors": persons who regularly engage in the business of collecting or attempting to collect debts owed to another. 15 U.S.C. § a(6). The statute specifically excludes "any officer or employee of a creditor while, in the name of the creditor, collecting debts of such creditor" from the definition of a "debt collector". 15 U.S.C. § a(6)(a). Plaintiffs do not dispute the evidence that ACD's principal business purpose is to make and service consumer loans and not the collection of debts, that ACD does not collect any debts owed to any entity other than ACD, and that Cordoza Jacks was an employee of ACD and acting on its behalf when he telephoned the Oldroyds about their loan. ACD is therefore not a "debt collector" as defined by the FDCPA, and summary judgment is granted for the defendants on the plaintiffs' FDCPA claim.
IV. The Defamation Claim
The Oldroyds' common law defamation claim is also barred by the applicable statute of limitations. Pennsylvania's one year statute of limitations for injuries to the person applies to defamation actions. 55 Pa. Cons. Stat. An. § 5523. The Oldroyds allege that Cordoza Jacks, Jr. telephoned the branch manager at Commercial Credit Finance in July of 1992 and falsely and maliciously reported that the Oldroyds were behind in their mortgage payments. Complaint at PP XXIV-XXVI. Since this lawsuit was not filed until December of 1993, it appears on the face of the complaint that the claim is time-barred.
The Oldroyds argue that the limitations period has not expired because the defamation complained of is a "continuous and ongoing act", in that the Oldroyds are still suffering damage from the alleged defamation. Under Pennsylvania law, however, the limitations period on a claim for slander or libel runs from the date of publication. See Zions First National Bank, N/A v. United Health Clubs, Inc., 533 F. Supp. 1127 (E.D. Pa. 1982), reversed in part on other grounds, 704 F.2d 120 (3d Cir 1983); Abernethy v. Williams, 136 Pa. Commw. 715, 584 A.2d 1085, 1087 (Pa. Cmwlth. 1990). Since the Oldroyds' complaint does not allege that Jacks continued making defamatory statements after July of 1992, the limitations period elapsed in July of 1993, six months before the Oldroyds filed their complaint. I will dismiss the Oldroyds' defamation claim.
AND NOW, this 16th day of September 1994, upon consideration of the motion of Defendant Associates Consumer Discount Company to dismiss the complaint, the plaintiffs' response, and the supplementary submissions ordered by this Court, (a) I ORDER that the First and Third counts of the complaint are DISMISSED with prejudice, (b) I ORDER that on the Second and Fourth counts of the complaint summary judgment is granted in favor of the Defendant and against the Plaintiff.
Anita B. Brody, J.