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Howard v. Money

United States District Court, M.D. North Carolina

December 2, 2014

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

MEMORANDUM OPINION AND ORDER

WILLIAM L. 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).

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. ¶¶ 18-19.)

Defendants submitted two declarations, one from Jerry T. Myers, managing partner of Smith Debnam, and one from Martha 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. (Koehler Decl. (Doc. 29) at 2; Tab A (Doc. 29-1) at 2.) 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 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. (Id. at 5-6; Tab C (Doc. 29-3).) 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, 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. (Myers Decl. (Doc. 28) at 1.) 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.) 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 changes of GECRB as described in the Koehler Declaration. (See id. at 2-3.) 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, ...


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