The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
This action under the Fair Credit Reporting Act*fn1 (the
"Act") is before the Court on defendant's motion to dismiss or,
alternatively, for summary judgment dismissing the complaint.
The complaint, the allegations of which are accepted as true
for purposes of this motion,*fn2 alleges the following.
In 1993, Moses Elmore, Jr., plaintiff's father, obtained a
mortgage loan on premises located in Jamaica, New York, from
defendant's predecessor-in-interest. Although the title to the
property was in plaintiff's name in 1976, the complaint is silent
as to the status of legal title at the time the loan was
obtained. Nevertheless, plaintiff was not an obligor on the
mortgage note and never was indebted to defendant or its
Moses Elmore died intestate in 1999. In an effort to protect
the assets of the estate, plaintiff made a number of payments on
the mortgage, and the bank began addressing correspondence
concerning the loan to Moses Elmore in care of plaintiff. At no
time, however, did plaintiff assume any obligations to the
defendant or become an obligor on the note. When the probate
proceeding became protracted, plaintiff ceased making mortgage
payments. The mortgage went into default in December 2000 and
eventually became the subject of a foreclosure proceeding. The
property was sold in March 2002. Proceeds more than sufficient to
satisfy the bank's loan were placed in escrow and eventually
disbursed in full satisfaction of the mortgage loan.
At some point, the defendant bank reported the defaulted loan
to a consumer credit reporting service and claimed that plaintiff was jointly
responsible on the mortgage.
Plaintiff learned of the bank's report when he was denied a
credit card. On October 29, 2001, he wrote to the bank, advised
it of the inaccuracy, threatened legal action, and demanded that
the bank cease disseminating false credit information, retract
the information that it already had disseminated, and provide
proof that it had done so.
The bank responded on November 14, 2001. It represented "that,
as of October 31, 2001, the requisite information has been
transmitted to the credit bureaus to correct this error" and
apologized for any inconvenience.
In the summer of 2002, plaintiff sought to refinance his home
mortgage. His mortgage broker requested a credit report from MCR
of America, which reported that plaintiff was in default on the
North Fork mortgage. Plaintiff alleges that he was unable to
refinance his mortgage in consequence of North Fork's erroneous
The complaint contains two claims for relief. The first alleges
that defendant willfully and wantonly (a) furnished to consumer
reporting agencies information that it knew or consciously
avoided knowing was inaccurate, (b) did so after having been
notified by plaintiff that the information was inaccurate, and
(c) failed to correct and update the information it had provided.
The second alleges that ...