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Gaft v. Mitsubishi Motor Credit of America

September 22, 2009

MARK GAFT, PLAINTIFF,
v.
MITSUBISHI MOTOR CREDIT OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gershon, United States District Judge

OPINION AND ORDER

On February 2, 2007, plaintiff Mark Gaft filed a complaint alleging that defendants Equifax Information Services L.L.C. ("Equifax") and Mitsubishi Motor Credit of America ("MMCA") had misreported plaintiff's credit history in violation of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681a-1681x, (the "FRCA"), and the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1592a-1592p (the "FDCPA"). Plaintiff also alleged that defendants' actions violated state common law doctrines. On June 28, 2007, plaintiff filed an Amended Complaint adding similar claims against defendants Experian Information Solutions, Inc. ("Experian") and Trans Union LLC ("Trans Union").

The instant lawsuit follows a prior action by plaintiff against these defendants filed in this court on April 21, 2005, Gaft v. Equifax, et al., 05-cv-1941 ("Gaft I"). Following settlements with certain defendants, Gaft I was dismissed with prejudice.

All defendants have filed motions to dispose of this litigation.

BACKGROUND

Gaft I.

In Gaft I, plaintiff alleged that numerous defendants, including defendants in this action, who were engaged in "consumer credit transactions" or who were "credit reporting agencies," wrongly reported that plaintiff had been extended accounts of credit and owed certain debts when, in fact, plaintiff had never applied for these accounts. Plaintiff alleged that the improper reporting stemmed from identity theft. Specifically, plaintiff alleged that MMCA wrongly informed defendant credit reporting agencies that MMCA had made ten loans to plaintiff. Plaintiff alleged that the credit reporting agencies improperly published the ten incorrect MMCA accounts, as part of plaintiff's credit history, as debts owed. Based on these allegations, plaintiff sought damages for common law negligence and violations of the FCRA.

On October 28, 2005, plaintiff amended his original Gaft I complaint, intentionally omitting claims against MMCA and later informing the court that the action had been dismissed as to MMCA.*fn1 On March 6, 2006, plaintiff executed settlement agreements with defendants Equifax and Trans Union dismissing those defendants from Gaft I. Pursuant to those settlements, plaintiff received consideration in exchange for (i) plaintiff's acknowledgement that a version of his credit report, in the form attached as an exhibit to the stipulated settlement, was "accurate and correct"; and (ii) releasing defendants Equifax and Trans Union from claims or causes of action which were raised, or which could have been raised in that action.

On March 27, 2006, following the settlement agreements, the court dismissed, with prejudice, the entirety of Gaft I, with leave to reopen the action within 60 days.*fn2 On July 31, 2006, more than 60 days later, plaintiff moved, pro se, to reopen the litigation as to non-settling parties. The court denied the request as untimely.

Gaft II.

Plaintiff now brings the above-captioned action, pro se, against MMCA, Equifax, Trans Union and Experian alleging that, sometime during 2007, following the dismissal of the prior action, plaintiff discovered an eleventh inaccurate debt (the "Eleventh Account"), purportedly owed to Mitsubishi, which was improperly reported by Equifax, Trans Union and Experian. Plaintiff alleges that he has no knowledge of this debt.

Plaintiff contends that, following his discovery of the Eleventh Account on a credit report published by Equifax, he "officially disputed the accuracy of his Credit Report with Equifax," but that Equifax "failed or otherwise refused to provide copies of any validation to the plaintiff as demanded in plaintiff [sic] letter of request pursuant to the [Fair Credit Reporting] Act."*fn3

Plaintiff alleges that he later discovered the Eleventh Account on credit reports published by Trans Union and Experian and he amended his complaint to add these parties as defendants. Plaintiff contends that the false reporting was a product of the defendants' negligence, gross negligence and disregard of their statutory obligations.

Plaintiff also avers, without detail, that he is the target of an "internal fraud" perpetrated by unknown persons employed by MMCA who have access to plaintiff's credit information.

Finally, plaintiff contends that defendants' actions with respect to the inaccuracies alleged in Gaft I and the instant action "caused [him] to suffer 11 or more acts of fraud committed against him."

Based on these allegations, plaintiff claims that each defendant (i) failed to meet its duties, under the FCRA, to investigate plaintiff's written dispute and correct erroneous information; (ii) engaged in a pattern of "willful noncompliance" with the duties set forth under the FCRA by repeatedly reporting 11 erroneous credit events; (iii) misrepresented debts owed by plaintiff in violation of the FDCPA; (iv) made false statements concerning erroneous debts owed amounting to "Slander of Title"; (v) committed fraud by "accepting a fraudulent credit application" causing plaintiff to be named "as the debtor of the defendant Mitsubishi on 11 or more separate occasions"; (vi) committed negligence per se by violating the FCRA; and (vii) acted with gross negligence by violating the FCRA. Plaintiff seeks both a money judgment and injunctive relief against defendants.

Defendants Equifax, Trans Union and Experian each move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Defendant MMCA moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the sake of judicial economy these motions will be addressed together.

DISCUSSION

Legal Standards

Motions for Judgment on the Pleadings

The motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure by defendants Experian, Equifax and Trans Union are evaluated under the same standard as a motion to dismiss under Rule 12(b)(6). See Nicholas v. Goord, 430 F.3d 652, 658 n.8 (2d. Cir. 2005). On a motion to dismiss, the allegations in the complaint are accepted as true. See Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998). The court may properly consider any statements or documents which have been incorporated by reference into a complaint, although mere discussion or limited quotation of a document does not constitute incorporation. See Holmes v. Poskanzer, No. 08-CV-14750, 2009 WL 2171326, at *1 (2d Cir. July 21, 2009); Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989). However, even "where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders it integral to the complaint." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).

When considering a motion to dismiss, the court "view[s] all reasonable inferences that can be drawn from [the] allegations and [appropriate] documents in the light most favorable to the plaintiff." See Dangler v. N.Y.C. Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999) (internal quotations and citations omitted). While a complaint need not include "detailed factual allegations" to survive a motion for judgment on the pleadings, it cannot be a conclusory "recitation of the elements of a cause of action." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Rather, a plaintiff must assert enough facts to state a claim to relief that is "plausible" on its face, rather than merely possible. Id. at 1950. A document filed pro se must be "liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Boykin v. Keycorp, 521 F.3d 202, 214 (2d Cir. 2008) (internal quotation marks omitted).

MMCA's Motion for Summary Judgment

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A "genuine" issue of material fact exists where "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). MMCA, as the moving party, bears the burden of showing that it is entitled to summary judgment. Huminski v. Corsones, 386 F.3d 116, 132 (2d Cir. 2004). "When the burden of proof at trial would fall on the nonmoving party, it is ordinarily sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non-movant's claim." Jaramillo v. Weyerhauser Co., 536 F.3d 140, 145 (2d Cir. 2008). The burden then shifts to the non-movant to put forth admissible evidence sufficient to create a genuine issue of material fact for trial. Id. A court must draw all "justifiable inferences" in the non-movant's favor, and construe all of the facts in the light most favorable to the non-movant. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). In the case of Gaft, who is pro se, the court is further obliged to "read his supporting papers liberally, and . . . [to] interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Even a pro se party, however, "may not rely simply on conclusory allegations or speculation to avoid summary judgment, but instead must offer evidence to show that its version of the events is not wholly fanciful." Auguste v. New York Presbyterian Medical Center, 593 F. Supp. 2d 659, 663 (S.D.N.Y. 2009) (quoting Morris v. Lindau, 196 F.3d 102, 109 (2d Cir. 1999)).

MMCA's 56.1 Statement

Local Rule 56.1 provides that a motion for summary judgment is to be accompanied by a "short, concise statement . . . of the material facts as to which the moving party contends there is no genuine issue to be tried." Local Rule 56.1(a). The party opposing the motion is to provide a responsive statement of "additional material facts as to which it is contended that there exists a genuine issue to be tried." Id. at (b) (emphasis omitted). Each statement by the movant or the opponent "must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e)." Id. at (d). To the extent a Rule 56.1 statement cites to an affidavit, the affidavit must be a sworn statement of fact based on personal knowledge "that would be admissible in evidence at trial." Cameron v. Coach Apparel Store, No. 07-CV-3991, 2009 WL 536068, at *3 (S.D.N.Y. Mar. 3, 2009). A court may disregard "portions of an affidavit that are not based upon the affiant's personal knowledge, contain inadmissible hearsay or make generalized and conclusory statements." Hollander v. Am. Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999).

Plaintiff, who appears pro se, did not submit a Rule 56.1 Statement in opposition to MMCA's motion. Although ordinarily a party's failure to oppose an adverse party's Rule 56.1 statement is grounds for admitting all proposed facts in that statement, the court has discretion to overlook failures to conform to the Local Rules, including Rule 56.1, especially where the party is pro se. See, e.g., Butler v. Potter, No. 06-CV-3828, 2009 WL 804722, at *1 n.1 (E.D.N.Y. Mar. 26, 2009). Therefore, the court will not deem MMCA's Rule 56.1 Statement admitted in its entirety; rather, the facts as set forth by MMCA will be deemed admitted only where a statement of fact in MMCA's Rule 56.1 Statement is supported by citations to admissible evidence. See Alfano v. NGHT, 623 F. Supp. 2d 355, 362 (E.D.N.Y. 2009).

Defendant MMCA states in its Rule 56.1 Statement that plaintiff, at an August 27, 2007, conference before the court, produced a "report" listing the false account which serves as the basis of his claims and "it was determined that the account [in the report] was reported prior to the settlement and dismissal of the First Action, and that Gaft knew it was ...


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