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Jonas v. International Airline Employees F.C.U.

May 19, 2006

GORDON JONAS, PLAINTIFF,
v.
INTERNATIONAL AIRLINE EMPLOYEES F.C.U., DEFENDANT.



The opinion of the court was delivered by: John G. Koeltl, District Judge

MEMORANDUM OPINION AND ORDER

The plaintiff, Gordon Jonas, proceeding pro se, brought this suit alleging that the defendant, International Airline Employees F.C.U. ("IAEFCU"), violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., and specifically 15 U.S.C. § 1681c(a)(4), by reporting a collection on a debt from the plaintiff in November 2000. (Amend. Compl. at 1.) The defendant now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56, and the plaintiff has cross moved for summary judgment.

The plaintiff initially filed a complaint on May 13, 2003 against IAEFCU, Equifax Information Services LLC ("Equifax"), and Michael Kohl, alleging a violation of the FCRA. Thereafter, the plaintiff and defendant Equifax stipulated to the dismissal of Equifax. The plaintiff never served Kohl properly and dismissed him when the plaintiff filed his Amended Complaint, leaving only his claim against IAEFCU.

The plaintiff filed the Amended Complaint on March 22, 2004, alleging that IAEFCU, in reporting to Equifax a November 2000 payment on an account placed for collection in 1993, allegedly violated § 1681c(a)(4), which provides that consumer reporting agencies ("CRAs") may not make any consumer reports on "[a]ccounts placed for collection or charged to profit and loss which antedate the report by more than seven years." 15 U.S.C. § 1681c(a)(4).

In responding to the motion for summary judgment, the plaintiff also alleged that in addition to § 1681c(a)(4), the defendant also violated 15 U.S.C. § 1681b; 15 U.S.C. §§ 1681s-2(a)(1), (a)(2), and (b)(1); and 15 U.S.C. § 168li(a)(2). The plaintiff also filed a cross motion for summary judgment.

The defendant's motion for summary judgment argues that § 1681c(a)(4) of the FCRA applies exclusively to credit reporting agencies, and not to entities that provide information to such CRAs. For the reasons stated below, the defendant's motion for summary judgment is granted, and the plaintiff's cross motion is denied.

I.

The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of informing the district court of the basis for its motion and identifying the matter that it believes demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Summary judgment is appropriate if it appears that the non-moving party cannot prove an element that is essential to the non-moving party's case and on which it will bear the burden of proof at trial. See Cleveland v. Policy Mgt. Sys. Corp., 526 U.S. 795, 805-06 (1999); Celotex, 477 U.S at 322; Powell v. Nat. Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. T.R.M. Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its initial burden of showing a lack of a material issue of fact, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998).

Where, as here, a pro se litigant is involved, although the same standards for dismissal apply, a court should give the pro se litigant special latitude. See McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999) (courts "read the pleadings of a pro se plaintiff liberally and interpret them 'to raise the strongest arguments that they suggest'") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). In particular, the pro se party must also be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment. See Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999); Gonzalez-Jimenez v. U.S., No. 99 Civ. 3772, 2000 WL 1448628, at *4 (S.D.N.Y. Sept. 28, 2000). In this case, the defendant provided the required notice to the plaintiff by complying with Local Rule 56.2.*fn1

II.

The following facts are undisputed unless otherwise noted. In 1989 and 1993, the plaintiff borrowed money from IAEFCU, a federally chartered credit union and the plaintiff's former employer. (Def.'s Rule 56.1 Stmt. at 1; April 20, 2000 Trial Transcript at 2-9.) After the plaintiff defaulted on this loan, the defendant commenced suit against the plaintiff in Civil Court of the City of New York, which resulted in a restraint placed upon the plaintiff's bank account and a levy issued by a city marshal.

(Def.' Rule 56.1 Stmt. ¶¶ 3, 4.) Pursuant to this levy, the defendant received funds in November 2000, which were credited to the plaintiff's account. (Id.)

The summary judgment record shows that the defendant received a payment totaling $5,050.66 on November 6, 2000 on behalf of the plaintiff from Professional Services of New York, Ltd., a collection agency. (Affidavit of Regina Kaler, sworn to March 4, 2004 ("Kaler Aff.") at 1.) Upon receipt, IAEFCU deposited this payment and credited the plaintiff's loans. (Kaler Aff. at 1.) Of the $5,050.66 received, $1,012.42 was credited to ...


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