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Weitz v. Wagner

November 24, 2009


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


Plaintiff Jared Weitz ("Weitz" or "plaintiff") brought the pending action against defendant Carol Wagner ("Wagner" or "defendant") for violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., alleging that defendant obtained plaintiff's credit report on two occasions without a permissible purpose pursuant to the statute.*fn1 On November 24, 2008, the court conducted a one-day bench trial. Based upon the evidence at trial, the following are the court's Findings of Fact and Conclusions of Law pursuant to Fed. R. Civ. P. 52(a).


In 2004, defendant was a finance manager at a car dealership. In that capacity, defendant assisted individuals clear their credit so that they could receive automobile loans. (Tr. 179.) Plaintiff dated defendant's daughter, Elyse Wagner, from 2004 until June 2005. (Tr. 19, 32.) When plaintiff started dating Elyse, he was struggling financially and Wagner attempted to assist plaintiff clear his credit so that he could get a student loan and attend college. (Tr. 20-24.)

With plaintiff's oral permission, defendant pulled plaintiff's credit report during the summer of 2004 to determine how much money plaintiff owed on his credit cards. (Tr. 22-23.) By doing so, plaintiff and defendant determined that plaintiff owed $2,579 to Washington Mutual and $1,244 to Palisades. (Tr. 73.) In approximately early September of 2004, defendant gave plaintiff $4,000 in cash so plaintiff could pay off his credit card debt and improve his credit score with the understanding that this money was a loan and plaintiff would pay her back. (Tr. 26, 71-74, 183.)

Defendant additionally bought an Apple computer, printer and computer bag for plaintiff on October 14, 2004, which cost $3,725.72, with the intention that plaintiff would eventually reimburse her for it. (Tr.27, 219.) Defendant also paid a portion of plaintiff's tuition to Nassau County Community College, with the intention that she would be reimbursed when defendant received a student loan. The first payment made to Nassau County Community College was by check dated August 16, 2004, the second was dated August 12, 2004, and the third was dated July 23, 2004. (Tr. 235, 238; Joint Ex. 17.) Although defendant understood that plaintiff would pay her back from the proceeds of a student loan, plaintiff never received a student loan. (Tr. 183, 185-186.)

Because plaintiff's poor credit prevented him from obtaining a phone number in his own name, defendant paid his telephone bills. (Tr. 175.) During the course of plaintiff's relationship with defendant's daughter, plaintiff sought defendant's financial advice regarding stock he owned. (Tr. 175, 231-233.) Plaintiff often asked defendant "what should I do now" when he had a problem or when he needed money and defendant would help him. (Tr. 184.) For example, defendant arranged for a friend to provide free dental care to plaintiff. (Tr. 184.)

Defendant additionally assisted plaintiff in setting up a gold embleming business, originally operated by defendant's friend, which gold plated emblems on cars. (Tr. 87.) Defendant purchased the equipment and chemicals plaintiff used in the business from her friend for approximately $1,500, plus $250 per chemical use. (Tr. 212-213.) Defendant would market a "gold package" to purchasers at the dealership and, when one was sold, plaintiff did the work.

Plaintiff moved to Louisiana at some point between fall 2004 and spring 2005 to be with defendant's daughter, who was attending college there. Defendant's son took over the gold embleming business at that time. (Tr. 28-29, 228-229.) When plaintiff moved, defendant transferred $200 a week into plaintiff's personal account at Commerce Bank. (Tr. 27.) Defendant also assisted plaintiff by paying for his apartment in New Orleans. (Tr. 176.)

In June 2005, plaintiff and defendant's daughter had moved back to New York and their relationship ended. (Tr. 32.) Plaintiff testified that, although plaintiff never asked defendant to help him out with his indebtedness (Tr. 70), he accepted her assistance. After the relationship between defendant's daughter and plaintiff ended, defendant received $3,000 from plaintiff's bank account to partially pay defendant back for the money defendant had advanced to plaintiff. (Tr. 54-55, 176.) Defendant cancelled the telephone service she was paying for and asked plaintiff to pay for the cancellation fee as well as the partial month of telephone service prior to the service being cancelled, totaling approximately $300. Plaintiff paid defendant $300. (Tr. 34-36.) Defendant then told plaintiff that he owed her $159 for another bill; plaintiff did not pay defendant any additional money. (Tr. 36.)

Approximately one to two months later, defendant sued plaintiff in New York Small Claims Court alleging Weitz owed defendant $5,000. (Tr. 36.) The court papers alleged defendant had paid off plaintiff's credit card debt, paid plaintiff's Verizon telephone bill and paid for his college tuition. The small claims case went to trial on February 6, 2006. (Tr. 37-38; Ex. 6 & 7.) To ascertain the precise amount of money defendant paid on plaintiff's credit report, defendant asked her former colleague, Denise Zarick, at a different car dealership to pull plaintiff's credit report. Zarick pulled the credit report on January 31, 2006 with the understanding that defendant was helping plaintiff buy a car. This understanding was based on Zarick's past employment with defendant when she observed plaintiff come to the office where Zarick worked with defendant. Zarick observed defendant attempting to help plaintiff with his finances. (Tr. 133-140.) Defendant did not have plaintiff's specific consent to access his credit report in January 2006. (Tr. 61-62, 180) The Small Claims Court Judge never looked at the credit report, nor was it admitted into evidence. (Tr. 48-49.) Defendant used the report to refresh her recollection of the amount she paid for plaintiff's debts. A small claims judgment was awarded in favor of defendant in an amount of $4,405.70. (Tr. 54; Ex. 7.)

Pursuant to the Small Claims Court judgment, plaintiff's bank account was frozen and his wages were garnished. Ultimately, plaintiff took out a loan and paid off the judgment in full in April 2007. (Tr. 56-57.) Plaintiff applied to four different places for the loan, three of which turned him down. The last place gave him a loan with an 18.99% interest rate. (Tr. 57.) By January 2006, there were at least 23 inquiries on plaintiff's credit history. Of those multiple inquiries, Wagner had caused plaintiff's credit report to be accessed once without his specific permission. (Tr. 67-68.)


The FCRA is a federal consumer protection statute enacted by Congress to ensure that consumer reporting agencies adopt reasonable procedures to protect the accuracy and confidentiality of consumer credit information. 15 U.S.C. § 1681b. Much of the FCRA regulates conduct of credit reporting agencies, however, the FCRA also extends to the conduct of parties who request credit information. See Stonehart v. Rosenthal, No. 01-cv-651, 2001 U.S. Dist. LEXIS 11566, at *10-11 (S.D.N.Y. Aug. 13, 2001). In this case, plaintiff alleges that defendant violated § 1681b of the FCRA by ...

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