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Marie Ann Fuges, On Behalf of Herself and All Others Similarly Situated v. Southwest Financial Services

November 21, 2011

MARIE ANN FUGES, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
SOUTHWEST FINANCIAL SERVICES, LTD.,
DEFENDANT.



The opinion of the court was delivered by: Legrome D. Davis, J.

MEMORANDUM ORDER

AND NOW, this 21st day of November, 2011, upon consideration of (1) Motion of Defendant Southwest Financial Services, Ltd. for Summary Judgment (Doc. No. 47), (2) Plaintiff Marie Ann Fuges' Response to Defendant Southwest Financial Services, Ltd.'s Purportedly Uncontested Facts and Plaintiff's Counter-Statement of Material Facts (Doc. No. 52), (3) Plaintiff's Response in Opposition to Defendant Southwest Financial Services, Ltd.'s Motion for Summary Judgment (Doc. No. 53), (4) Defendant's Response to Plaintiff's Counter-Statement of Material Facts (Doc. No. 61), and (5) Reply Brief in Support of Defendant's Motion for Summary Judgment (Doc. No. 62), it is hereby ORDERED that Defendant's Motion for Summary Judgment (Doc. No. 47) is GRANTED.

The Clerk of Court is directed to close this matter for statistical purposes.

I. Factual Background and Procedural History*fn1 At bottom, this dispute concerns the proper application of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., to Defendant Southwest Financial Services' ("Defendant" or "Southwest") business, particularly to its so-called "current owner reports." As discussed in detail below, we conclude that no jury could reasonably find that Southwest willfully violated the FCRA, given the FCRA's ambiguity with respect to Southwest's business model and the extraordinary dearth of relevant judicial and agency guidance. Therefore, we grant Southwest's motion for summary judgment.

We begin with the facts. In early November of 2008, Plaintiff Marie Ann Fuges sought to increase her outstanding home equity line of credit (HELOC) and to purchase payment protection insurance on this credit line from PNC Bank. (Doc. Nos. 47 and 52, ¶¶ 1-5). PNC Bank subsequently obtained a report dated November 13, 2008, and entitled "In Re: Marie Fuges" from Defendant Southwest Financial Services. (Doc. No. 44 Ex. A). The two-page Southwest report contains four (4) sections: Deeds; Mortgages; Parcel Number and Taxes; and Lien Information. (Doc. No. 44 Ex. A). Under the "Parcel Number and Taxes" section, the report notes a delinquency of $111.11. (Doc. No. 44 Ex. A). Additionally, under the "Lien Information" section, the report lists a judgment against "Robert W. Fuges" in the amount of $2,923.63. (Doc. No. 44 Ex. A). The report does not include Plaintiff's social security number, payment history, employer, date of birth, account balances, or prior addresses. (Doc. Nos. 47 and 52, ¶¶ 41, 43).

Apparently relying on the information in the Southwest report, PNC Bank rejected Fuges' loan application because PNC was "unable to obtain...verification that real estate taxes on the collateral property are paid." (Doc. No. 44 Ex. B). Fuges contested the alleged tax delinquency with PNC and confirmed with the Philadelphia taxing authority that, in fact, she had no delinquency. (Doc. No. 52 ¶¶ 62-63). However, Fuges had not paid her 2008 Philadelphia property taxes in full by November 13, 2008, because she participated in Philadelphia's residential property tax installment plan, under which residents pay property taxes in monthly installments throughout the year. (Doc. Nos. 47 and 52, ¶¶ 6-9).

Fuges requested a copy of the report PNC Bank used to determine that Fuges had a tax delinquency, but PNC representatives repeatedly told Fuges that the report was confidential and that she could not receive a copy. (Doc. No. 52 ¶ 7). The Southwest report itself contains the following "CAUTION TO CUSTOMER" at the bottom of the first page: "This report is released with the understanding that the information reported is strictly confidential. This report contains information from public records and is not to be construed as an opinion of title, title guarantee, or title insurance policy." (Doc. No. 44 Ex. B). Nonetheless, Fuges persisted and eventually obtained a copy of the Southwest report from PNC. (Doc. No. 52 ¶¶ 7, 64).

Regarding the "Lien Information" section of the Southwest report, the judgment shown against Robert W. Fuges references a judgment against Plaintiff's son, even though Plaintiff's son was not applying for credit with PNC Bank and had never had an ownership interest in Plaintiff's residence. (Doc. No. 52 ¶ 107). However, Southwest notes that Plaintiff's deceased husband, Robert E. Fuges, had a nearly identical name and granted the property to Plaintiff in a not-for-value transaction, so a judgment against him would have encumbered the property (Doc. No. 61 ¶ 107).

Turning to Southwest's general business model, Southwest claims to sell "current owner title reports" or "limited property reports" to banks, which utilize the reports in evaluating HELOC or second mortgage applications (Doc. Nos. 47 and 52, ¶¶ 17, 58). According to Southwest, a current owner report is a type of title report that "summarizes information from public records regarding a particular parcel of property." (Doc. No. 47 ¶ 18). However, Plaintiff maintains that Southwest's reports relate to a consumer, not a parcel of property, pointing out that (1) Southwest titled the report in this matter "In Re: Marie Fuges," and (2) the report in question included information on a judgment against Fuges' son that was not, in fact, a "judgment lien" (Doc. No. 52 ¶¶ 18, 36, 37, 41).

Procedurally, Plaintiff brought this lawsuit on February 18, 2009, filing a purported class action complaint alleging that Southwest violated various provisions of the FCRA. (See Doc. No. 1). Plaintiff's most recent amended complaint asserts that Southwest willfully and/or negligently violated the FCRA by failing to follow reasonable procedures to assure maximum possible accuracy of the reports it sold, 15 U.S.C. § 1681e(b); failing to employ any procedures or personnel to assist consumers in obtaining or retrieving their credit file from Southwest, or to explain to consumers any information furnished about them, 15 U.S.C. § 1681h(c); prohibiting users of its reports from disclosing the reports' contents to consumers when adverse action is taken against the consumers based on information in the reports, 15 U.S.C. § 1681e(c); failing to obtain permissible purpose certificates for its reports, and failing to follow procedures to assure that Southwest sold its reports for permissible purposes only, 15 U.S.C. §§ 1681e(a), 1681b; and failing to provide notices to its customers regarding their responsibilities under the FCRA, 15 U.S.C. § 1681e(d).

Upon the stipulation of counsel, we permitted the parties to submit summary judgment motions prior to moving for class certification. (Doc. No. 46). Defendant Southwest filed a motion for summary judgment on August 1, 2011, essentially arguing that its business, particularly its current owner reports, are not subject to the FCRA. (Doc. No. 47). Plaintiff responded on September 12, 2011, opposing summary judgment and, notably, withdrawing its claims that Southwest negligently violated the FCRA. Specifically, Plaintiff explicitly elected to pursue only her willful violation claims and associated statutory damages. (Doc. No. 53-2, at 34). Defendant filed a reply brief on October 12, 2011 (Doc. No. 62), and this summary judgment motion is now ripe for disposition. As set forth below, we grant summary judgment in favor of Southwest on Plaintiff's willful noncompliance claims, the only remaining claims in this matter.

II. Legal Analysis

Under Federal Rule of Civil Procedure 56(a), we must "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." Specifically, summary judgment is appropriate where "the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252.

In passing the FCRA, Congress found that our "banking system is dependent upon fair and accurate credit reporting. Inaccurate credit reports directly impair the efficiency of the banking system, and unfair credit reporting methods undermine the public confidence which is essential to the continued functioning of the banking system." 15 U.S.C. ยง 1681(a)(1). With that in mind, Congress passed the FCRA to ensure "that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and ...


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