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WHELAN v. TRANS UNION CREDIT REPORTING AGENCY

September 8, 1994

GEORGE M. WHELAN and MARY ANN WHELAN, Plaintiffs,
v.
TRANS UNION CREDIT REPORTING AGENCY, IAG FEDERAL CREDIT UNION and TRW, Defendants.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 Defendants Trans Union Credit Reporting Agency ("Trans Union"), IAG Federal Credit Union ("IAG") and TRW Inc., sued here as TRW ("TRW"), each moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This court granted IAG's motion from the bench on August 19, 1994; the merits of that motion, as addressed on the record, will not be reviewed herein. Presently before the court are the motions of defendants Trans Union and TRW. For the reasons described below, both motions are granted.

 FACTS

 Mrs. Whelan immediately telephoned the credit grantor at IAG, who informed her that "'it was an error and 30 others went out this month in error.'" M. Whelan Dep. at 22. *fn1" The same afternoon, Mr. Whelan went to IAG's office in Rye, New York and picked up a letter dated January 9, 1992, which was addressed "To Whom It May Concern" and stated as follows:

 
Mr. Whelan's account . . . is current and to date with payments. Mr. Whelan has been current with his payments for the past (12) months.
 
This is and [sic] TRW error in reporting and is being investigated and will be corrected.

 Affidavit of Brett M. Lev, Sworn to June 30, 1994 ("Lev Aff.") Ex. D; see also G. Whelan Dep. at 108. The Whelans provided Mrs. Gillespie with the letter, but Mrs. Gillespie nonetheless advised them not to pursue the refinancing; according to Mrs. Gillespie, the letter was unsatisfactory because it failed to address the period involving the allegedly delinquent payments: November and December 1991. Affidavit of Edward P. Kelly, Sworn to Aug. 11, 1994 ("Kelly Aff.") Ex. 2. The Whelans did not submit an application for refinancing at this time.

 It is undisputed that the Whelans contacted neither TRW nor Trans Union regarding the alleged inaccurate information contained in the January 1992 credit reports. At deposition, the Whelans conceded that they took no steps to correct the reports after contacting IAG in January 1992 because they believed that "the issue was to be cleared by IAG[.]" M. Whelan Dep. at 98, 66; G. Whelan Dep. at 109; see also Pls.' 3(g) Statement P 9. For its part, IAG alleges that it forwarded to Mr. Whelan a second "To Whom It May Concern" letter, dated March 3, 1992, in which it indicated that the erroneous information was the result of "an internal problem with [its] credit data reporting[.]" Affidavit of Roger A. Goodnough, Sworn to June 30, 1994 ("Goodnough Aff.) Ex. I; J. In addition, IAG alleges that it prepared documents known as "Bullseye Reports," dated January 13, 1992 and March 3, 1992, which it transmitted to TRW to notify TRW of the error. Goodnough Aff. Ex. I; J. TRW maintains that its records reveal that prior to the lawsuit, TRW received no correspondence from subscribers or other third parties relating to either plaintiff. Affidavit of Kelly Currie, Sworn to June 27, 1994 ("Currie Aff.") PP 9-11.

 In July 1992, Mrs. Whelan approached Kelly Germa at Sears Mortgage about refinancing the mortgage on the Bedford Property. Once again, before an application was completed, Ms. Germa advised Mrs. Whelan that derogatory information appeared on the Whelans' credit reports. *fn2" Mrs. Whelan contacted IAG by telephone regarding the inaccurate information; however, she did not contact TRW or Trans Union. M. Whelan Dep. at 66, 98. Mrs. Whelan testified at deposition that she was satisfied that the erroneous information had been corrected in August 1992, when she obtained accurate reports from TRW and Trans Union. M. Whelan Dep. at 74. However, the Whelans never submitted any application to refinance the Bedford Property, either before or after August 1992. M. Whelan Dep. at 77-78; G. Whelan Dep. at 117.

 The Whelans put the Bedford Property up for sale in September 1992, and ultimately sold the property in March 1993. According to Mrs. Whelan, they "sold [their] property at a big differential because it was sold in a very low price range in the state market." M. Whelan Dep. at 77.

 Plaintiffs thereafter commenced this action in the New York State Supreme Court, Queens County, on or about March 26, 1993, *fn3" and defendants removed the action to this court by Notice of Removal filed May 14, 1993. In their Complaint, plaintiffs allege seven causes of action against defendants. The first through fourth causes of action allege that defendants breached their obligations to plaintiffs under the Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq. (the "FCRA"), and the New York Fair Credit Reporting Act, N.Y. Gen. Bus. Law §§ 380 et seq. (the "NYFCRA"), and that such breach was willful and/or recklessly indifferent, entitling plaintiffs to recover both actual and punitive damages. The fifth cause of action alleges that the reports prepared and/or published by defendants defamed plaintiffs, and the sixth cause of action alleges a claim for unreasonable invasion of plaintiffs' privacy. Finally, in their seventh cause of action, plaintiffs seek attorneys' fees under the FCRA and the NYFCRA.

 Subsequent to the commencement of this action, on April 15, 1993, IAG forwarded a letter to Trans Union advising it to "change Mr. George M. Whelan's profile to show a current/satisfactory payment record for 12/91" under the IAG account. Kelly Aff. Ex. 3. IAG forwarded a second letter to Trans Union dated March 28, 1994, together with a Trans Union Consumer Dispute Verification Form, stating that it "had already corrected this members [sic] credit profile back in April of 1993," and advising Trans Union to delete all delinquent or negative reported information. Kelly Aff. Ex. 3.

 DISCUSSION

 I. Summary Judgment ...


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