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Ostrander v. Unifund Corp.

March 28, 2008

ROBERT OSTRANDER, PLAINTIFF,
v.
UNIFUND CORPORATION A/K/A UNIFUND AND UNIFUND CCR PARTNERS, AND SHARINN AND LIPSHIE A/K/A SL FINANCIAL SERVICES, INC. AND SHARINN & LIPSHIE, P.C., DEFENDANTS.



The opinion of the court was delivered by: John T. Curtin United States District Judge

In this action, plaintiff Robert Ostrander (proceeding pro se) seeks money damages against defendants Unifund Corporation and Sharinn & Lipshie, P.C. for alleged violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. Pending for decision are (1) plaintiff's motion to strike Unifund's amended answer, (2) Unifund's motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted, and (3) Sharinn & Lipshie's motion to dismiss or for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons that follow, defendants' motions are granted, and the case is dismissed.

BACKGROUND

Plaintiff filed this action on February 15, 2007, claiming that Unifund (a buyer and seller of consumer debt) and Sharinn & Lipshie (a collection law firm) improperly accessed his credit report on several occasions, resulting in numerous violations of the FCRA (see generally Item 1). Plaintiff also claims that Unifund failed to provide accurate information to consumer reporting agencies, resulting in additional FCRA violations (id.).

More specifically (or as nearly as can be deciphered from the pro se complaint), plaintiff alleges that both Unifund and Sharinn & Lipshie "knowingly and willfully used deception and false pretenses" to obtain plaintiff's credit report, in violation of FCRA § 1681q (Item 1, pp. 4, 9), and did so without a permissible purpose, in violation of FCRA § 1681b (id. at pp. 4, 10-11). Plaintiff also alleges that Unifund continued to furnish information to credit reporting agencies about a purported credit card debt owed by plaintiff without providing notice that the debt was disputed, resulting in violations of FCRA § 1681s-2(a)(3) (id. at p. 6).

On March 19, 2007, an answer was filed on behalf of both defendants by Brian F. Hogencamp, Esq., an attorney associated with the law firm of defendant Sharinn & Lipshie (Item 5). Unifund subsequently obtained new counsel, and filed an amended answer asserting affirmative defenses, set-offs based on a delinquent credit card account with Providian which was assigned to Unifund (which formed the basis for a previous state court collection action against plaintiff), and a counterclaim for an award of attorney's fees pursuant to 15 U.S.C. § 1681n(c) (Item 20). Plaintiff then moved to strike Unifund's amended answer, asserting that it contains "irrelevant and scandalous material," and that the affirmative defenses are not properly pleaded (Item 21, p. 1).

Unifund has now moved to dismiss the complaint for failure to state a claim upon which relief can be granted (Item 28). Unifund contends that plaintiff has failed to plead or show that Unifund had no permissible purpose for accessing plaintiff's credit report, as required for a violation of FCRA § 1681b, and that plaintiff lacks standing to pursue claims under FCRA § 1681s-2 (see Items 28, 45). Sharinn & Lipshie has also moved to dismiss or for summary judgment on the ground that plaintiff cannot show impermissible purpose under FCRA § 1681b (see Item 34).

Each of these contentions is discussed in turn below.

DISCUSSION

I. Unifund's Motion to Dismiss

Unifund moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. To survive Unifund's motion, plaintiff's complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. ___, ___,127 S.Ct. 1955, 1974 (2007) (rejecting longstanding precedent of Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that a Rule 12(b)(6) motion must be denied unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.").

In assessing the legal sufficiency of plaintiff's claims, the court may consider the facts alleged in the complaint, as well as any document attached to it as an exhibit or incorporated in it by reference, see Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985), "documents that the plaintiff[ ] either possessed or knew about and upon which [he] relied in bringing the suit[,]" Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) (quoting Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000)), and matters subject to judicial notice. See Prentice v. Apfel, 11 F. Supp. 2d 420, 424 (S.D.N.Y. 1998). While the court must accept as true all of the well-pleaded facts set forth in the complaint, conclusory allegations that merely state the general legal conclusions necessary to prevail on the merits but are unsupported by any factual averments will not be accepted as true. South Point, Inc. v. Krawczyk, 2008 WL 434590, at *2 (W.D.N.Y. February 14, 2008); New York State Teamsters Council Health and Hosp. Fund v. Centrus Pharmacy Solutions, 235 F. Supp. 2d 123, 126 (N.D.N.Y. 2002).

The court now turns to an assessment of the legal sufficiency of plaintiff's FCRA claims.

A. FCRA

The FCRA is a federal consumer protection statute enacted by Congress "to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit . . . in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information[.]" 15 U.S.C. 1681(b); see Fashakin v. Nextel Communications, 2006 WL 1875341, at *4 (E.D.N.Y. July 5, 2006). To accomplish these goals, the FCRA puts certain restrictions on the ability of consumer reporting agencies and creditors to ...


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