United States District Court, W.D. Kentucky, Louisville Division
DANA ADAMS, et al. PLAINTIFFS
FIFTH THIRD BANK DEFENDANT
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge
matter is before the Court upon Defendant Fifth Third
Bank's motion for judgment on the pleadings. [DN 10.]
Plaintiffs Dana Adams and Robert Jones have responded, [DN
13], and Fifth Third has replied, [DN 19]. Plaintiffs have
also moved to supplement the record with certain items
obtained during discovery. [DN 20]. Fully briefed, both
motions are ripe for adjudication. For the following reasons,
Plaintiffs' motion to supplement the record [DN 20] is
GRANTED. Fifth Third's motion for judgment on the
pleadings [DN 10] is GRANTED IN PART and DENIED IN PART.
Facts and Procedural History
facts of this case, taken primarily from Plaintiffs'
complaint, are largely undisputed. In 2004, Plaintiffs Dana
Adams and Robert Jones executed a note and mortgage with
Fifth Third Bank (Louisville), assumed name for Fifth Third
Bank, Kentucky, Inc. [DN 13 at 2; DN 19 at 4.] Fifth Third
Bank, Kentucky, Inc. later merged with Fifth Third Bank, Inc.
(“Fifth Third”), the Ohio corporation that is the
defendant in this suit. [DN 19-1 at 1.] ¶ 2009, Fifth
Third filed a foreclosure action against Adams and Jones in
Jefferson County, Kentucky Circuit Court. [DN 1 at 1.]
Although its reason for doing so is unclear, Fifth Third
voluntarily dismissed the 2009 suit and released the
underlying mortgage by filing a Deed of Release with the
Jefferson County Clerk. [Id.] Six years later, Fifth
Third again sued Adams and Jones in Jefferson Circuit Court,
attempting to collect upon the note that was the subject of
the 2009 suit. [Id.] Fifth Third then moved for
summary judgment in the 2015 suit, attaching to their motion
a copy of the previously-released mortgage. [Id. at
2.] Plaintiffs' attorney contacted Fifth Third in early
2016 in an attempt to convince Fifth Third to dismiss the
2015 state court suit. [Id. at 3.] Fifth Third did
not dismiss the case, but instead withdrew its motion for
summary judgment. [Id.] The 2015 suit is still
pending in Jefferson Circuit Court. [DN 10-1 at 2.]
allege that on or about March 31, 2016, after Fifth Third
withdrew its motion, Fifth Third initiated “hard credit
inquiries” for Plaintiffs' consumer credit reports.
[Id.] Because neither Adams nor Jones had made an
application for credit with Fifth Third near that time, they
contend that Fifth Third's credit inquiries violated the
Fair Credit Reporting Act (FCRA). [DN 1 at 6.] Specifically,
Plaintiffs claim that Fifth Third “knowingly and
intentionally violated the FCRA by requesting
[Plaintiffs'] consumer credit reports for an
impermissible purpose, ” and is liable to them for
statutory damages of $1, 000 or their actual damages,
whichever is greater, together with punitive damages, and
attorney's fees. [Id.] In the alternative,
Plaintiffs claim Fifth Third “negligently violated the
FCRA, ” and are therefore liable to Plaintiffs for
actual damages and attorney's fees. [Id.]
Third answered, [DN 8], and then moved for judgment as a
matter of law on the pleadings, [DN 10]. Plaintiffs
responded, [DN 13; DN 18], and Fifth Third replied, [DN 19].
Plaintiffs also filed a motion to supplement their response,
[DN 20], to which Fifth Third responded, [DN 23]. Fully
briefed, this matter is ripe for adjudication.
Standard of Review
Rule 12(c) of the Federal Rules of Civil Procedure, “a
party may move for judgment on the pleadings.”
Fed.R.Civ.P. 12(c). Courts apply the same standard to motions
for judgment on pleadings and motions to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure. Warrior
Sports, Inc. v. Nat'l Collegiate Athletic Ass'n,
623 F.3d 281, 284 (6th Cir. 2010) (citing EEOC v. J.H.
Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001)).
“For purposes of a motion for judgment on the
pleadings, all well-pleaded material allegations of the
pleadings of the opposing party must be taken as true, and
the motion may be granted only if the moving party is
nevertheless clearly entitled to judgment.”
JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577,
581 (6th Cir. 2007) (quoting Southern Ohio Bank v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 479
F.2d 478, 480 (6th Cir. 1973)). The Sixth Circuit has stated
that a Rule 12(c) motion for judgment on the pleadings
“is granted when no material issue of fact exists and
the party making the motion is entitled to judgment as a
matter of law.” Id. (quoting Paskvan v.
City of Cleveland Civil Serv. Comm'n, 946 F.2d 1233,
1235 (6th Cir. 1991)).
establish Fifth Third's liability under the FCRA,
Plaintiffs must prove that Fifth Third accessed their credit
reports without a permissible statutory purpose. Although
Fifth Third contends otherwise, Plaintiffs assert a
sufficiently concrete injury-in-fact giving them standing to
pursue this case. Moreover, a material issue of fact exists
regarding the purpose for which Fifth Third accessed
Plaintiffs' credit reports. Although Plaintiffs have
failed to adequately plead a negligent violation of the FCRA
under 15 U.S.C. § 1681o, their willful
violation claims under § 1681n may proceed.
Credit Reporting Act
Fair Credit Reporting Act, 15 U.S.C. § 1681 et
seq., seeks to protect consumers from erroneous or
arbitrary credit reporting. The FCRA, among other things,
regulates the permissible uses of “consumer reports,
” defined by the statute as “any written, oral,
or other communication of any information by a consumer
reporting agency bearing on a consumer's credit
worthiness” that is used for an authorized purpose. 15
U.S.C. § 1681a(d)(1). Section 1681b delineates the
exclusive circumstances under which a credit reporting agency
may furnish a credit report. Pertinent to this case, “A
consumer reporting agency may furnish a consumer report . . .
to a person which . . . intends to use the information in
connection with a credit transaction involving the consumer .
. . and involving the . . . review or collection of an
account.” Id. § 1681b(a)(3) (internal
subdivisions omitted). To succeed on a claim of improper use
or acquisition of a credit report, the plaintiff must prove
three elements: “ that there was a ‘consumer
report' within the meaning of the statute,  that the
defendant used or obtained it, and  that the defendant did
so without a permissible statutory purpose.”
Bowling v. Scott Lowery Law Office, P.C., No.
5:13-CV-00091-TBR, 2014 WL 3942280, at *2 (W.D. Ky. Aug. 12,
2014) (citations omitted). When a defendant
“willfully” violates the FCRA, it may be liable
to the consumer for the consumer's actual damages or $1,
000 statutory damages, whichever is greater, together with
costs, attorney's fees, and punitive damages. 15 U.S.C.
§ 1681n(a). A negligent violation of the FCRA,
meanwhile, exposes a defendant to liability for the
consumer's actual damages, costs, and fees. Id.
Third advances several arguments seeking to show why it is
not liable to Plaintiffs. First, Fifth Third contends that
Plaintiffs have not sufficiently alleged a concrete
injury-in-fact giving rise to Article III standing. Second,
Fifth Third argues that it obtained Plaintiffs' credit
reports for the permissible purpose of collecting a debt.
Finally, Fifth Third claims that Plaintiffs cannot recover
under § 1681n because they have not alleged that Fifth
Third acted ...