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Barash v. Ford Motor Credit Corp.

June 20, 2007

PHILIP BARASH, PLAINTIFF,
v.
FORD MOTOR CREDIT CORPORATION, DELL COMPUTER CORPORATION, EXPERIAN AND TRANS UNION, DEFENDANTS.



The opinion of the court was delivered by: Joseph F. Bianco, District Judge

MEMORANDUM AND ORDER

On November 3, 2006, pro se plaintiff Philip Barash ("Mr. Barash") commenced a civil action in the Supreme Court of the State of New York, Nassau County against defendants Ford Motor Credit Corporation ("Ford"), Dell Inc.*fn1 ("Dell"), Experian Information Solutions, Inc.*fn2 ("Experian") and Trans Union LLC*fn3 ("TransUnion") (collectively, "defendants") pursuant to the New York Fair Credit Reporting Act, N.Y. Gen. Bus. Law §§ 380-380-u (hereinafter, "the NYFCRA"), and New York Personal Property Law §§ 302, 401-403, 405. On December 6, 2006, defendant Experian filed a notice of removal to remove this action to federal district court for the Eastern District of New York. Defendants Ford, Dell and TransUnion join in Experian's notice of removal.

Plaintiff now moves to remand the action to state court, for sanctions against counsel for Experian pursuant to Federal Rule of Civil Procedure 11, and for attorney's fees. For the reasons that follow, plaintiff's motions are denied.

I. BACKGROUND

A. The Complaint

The following facts are taken from the amended complaint and are not findings of fact by the Court.

1. The Ford Loan

On June 23, 2003, an individual purchased a 2003 Lincoln Navigator vehicle ("the vehicle") from Margate Lincoln Mercury ("Margate"), a car dealer located in Broward County, Florida. (Compl. Exs. 2, 8.) A car loan for the vehicle was obtained from Ford in the amount of $59,419. (Id.) The loan was to be paid in installments. (Compl. Exs. 1, 2.) The retail installment contract for the vehicle, which listed Philip Barash as the borrower, was signed in Massachusetts. (Compl. Ex. 1.) According to plaintiff, he did not sign the installment contract.*fn4 (Id.) Plaintiff avers that "[Ford] paid [Margate] for the vehicle without proper contact with Philip Barash a citizen of New York." (Compl. Ex. 2.) Mr. Barash claims that he "did not execute any vehicle retail installment contract with Margate Lincoln Mercury, has never been to Margate Lincoln Mercury, and never took possession of any Lincoln Motor Car from Margate Lincoln Mercury." (Compl. Ex. 2.)

On July 16, 2003, a certificate of title to the vehicle was filed in Florida. (Compl. Ex. 8.) The title was made out in plaintiff's name, with a Florida address, and identified Ford as the sole lienholder on the vehicle. (Compl. Ex. 8.) Mr. Barash asserts that he "did not execute, cause to execute nor authorize anyone to file with the State of Florida for a Certificate of Title for a Lincoln Navigator in his name." (Compl. Ex. 2.)

According to Mr. Barash, the vehicle "had been tendered to Jonathan Barash," who made nineteen (19) installment payments on the vehicle to Ford.*fn5 (Id.) Ford accepted the payments from Jonathan Barash. (Id.) Mr. Barash asserts that, "[w]hen Jonathan Barash could not [sic] longer afford to make payments he voluntarily returned the vehicle to [Ford]."*fn6 (Id.) The vehicle was returned on May 20, 2005, when Jonathan Barash brought it back to Margate. (Id.)

On May 26, 2005, six days after the vehicle was returned to Margate, Ford filed a complaint against Mr. Barash in the Circuit Court of the Seventeenth Judicial Circuit, Broward County, Florida. On April 18, 2006, Mr. Barash moved to dismiss the complaint on grounds that venue was improper in Florida state court, since Mr. Barash is a New York citizen who did not conduct business in Florida, and because the installment contract was not signed in Florida. (Compl. Ex. 1) On May 8, 2006, Judge Alfred J. Horowitz granted plaintiff's motion and dismissed the action with prejudice. (Id.)

An outstanding balance of $14,234.59 remained on the installment loan, and Ford sought the funds from Mr. Barash. (Compl. Exs. 8, 13.) Mr. Barash objected to Ford's repeated requests for payments on the outstanding balance, and claimed that the car loan had been fraudulently obtained in his name. (See id.)

On August 6, 2005, Mr. Barash drafted a document entitled "Notice of Fraudulent Use of a Credit Report" (hereinafter, "Police Notice"), addressed to the Old Brookville Police Department, in which he claimed that his credit report had been fraudulently used. (Compl. ¶ 8(g), Ex. 3.) In the document, Mr. Barash refers to his credit report and states that the Ford account listed therein was not "opened by, continued by, or authorized by" him.*fn7 (Compl. Ex. 3.)

Nevertheless, according to Mr. Barash, the defaulted car loan remained on his credit reports issued by Experian and TransUnion, two credit reporting agencies, despite his requests to Ford, Experian and TransUnion to have it removed. (Id. ΒΆ 8(f).) The Ford car loan is not listed on plaintiff's credit ...


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