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POPIK v. AMERICAN INT'L MORTG. CO.

September 12, 1996

ANDREW H. POPIK, Plaintiff, against AMERICAN INTERNATIONAL MORTGAGE COMPANY and ALAN EISENBERG, Defendants.


The opinion of the court was delivered by: CEDARBAUM

 CEDARBAUM, J.

 Andrew H. Popik sues Alan Eisenberg pursuant to the Fair Credit Reporting Act, 15 U.S.C.§§ 1681-1681t (1994) ("FCRA"), for willfully obtaining a copy of Popik's consumer credit report under false pretenses in connection with the settlement of a landlord-tenant dispute. Both sides have moved pursuant to Fed. R. Civ. P. 56 for summary judgment. For the reasons that follow, both motions are denied.

 Undisputed Facts

 I. Eisenberg, American International Mortgage Company and Credit Lender Services Agency, Inc.

 Although the caption speaks of two defendants, up to 1991 Eisenberg was a mortgage banker who did business under the name American International Mortgage Company. On October 25, 1988, Eisenberg filed a certificate with the Clerk of Essex County, New Jersey which stated that he intended to conduct business as a mortgage banker under the name American International Mortgage Company. (Ex. H to Pl.'s Mot.) The New Jersey Department of Banking issued a mortgage banker license to American International effective July 1, 1989. (Ex. G to Pl.'s Mot.)

 On September 26, 1989, American International entered into an agreement with Credit Lenders Service Agency, Inc. ("CLSA"), a consumer reporting agency. American International agreed that it would comply with all provisions of the FCRA and that it would request information only for permissible purposes, namely:

 
(A) In connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer, or
 
(B) In connection with a business transaction involving the consumer, and the applicant agrees to identify to [CLSA] each request at the time such report is ordered, and to certify the legitimate business need for such report.

 (Ex. N. to Pl.'s Mot.) Eisenberg testified at his deposition that CLSA never asked him for such identification when a request was made in connection with a business transaction or to certify the legitimate business need for such a report. (Ex. D to Pl.'s Mot. at 107.)

 On March 11, 1991, Eisenberg returned the mortgage banker license to the New Jersey Department of Banking and informed the Department that he had ceased doing business as a mortgage banker in November of 1990. (Ex. C to Pl.'s Mot. P 5; Ex. J to Pl.'s Mot.) On May 31, 1991, Eisenberg filed a "Certificate of Dissolution" with the Essex County Clerk declaring that he was no longer conducting business as a mortgage banker under the name American International Mortgage Company. (Ex. I to Pl.'s Mot.) Eisenberg never informed CLSA that he had ceased doing business as a mortgage banker or that he had returned the mortgage banker license to the New Jersey Department of Banking. (Ex. C to Pl.'s Mot. PP 21-22.)

 II. The landlord-tenant dispute between Popik and Eisenberg

 In November of 1989, Popik purchased a building located at 229 West 71st Street in New York City. Eisenberg was a tenant in the building pursuant to a rent-stabilized lease, and after the purchase, Popik offered to "buy-out" his lease. This offer was never revoked. In December of 1992, Popik commenced a suit in Civil Court of the City of New York to recover possession of Eisenberg's apartment. On March 1, 1993, Eisenberg ordered a report on Popik from CLSA. (Ex. O to Pl.'s Mot.) At that time, Eisenberg had ceased doing business as a mortgage banker. He had given up his mortgage banker license and had filed a certificate with the Essex County Clerk declaring that he was no longer operating under the name American International Mortgage Company.

 Eisenberg alleges that he ordered the report because he desired "to learn the financial ability of Mr. Popik to make good on the offer that he made." (Eisenberg Aff. P 55.) Eisenberg did not inform CLSA of the purpose for which he was requesting the report. On the basis of the information contained in Popik's report, Eisenberg accepted Popik's offer of $ ...


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