United States District Court, N.D. Alabama, Middle Division
ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE
matter comes before the court on Defendant Regions Bank's
motion for summary judgment. (Doc. 29).
Fryer is the sole mortgagee on a home she owns jointly with
her daughter, Plaintiff Terry Blumenfeld. Regions Bank is Ms.
Fryer's mortgagor. While at the bank on other business, a
Regions Bank employee asked Ms. Fryer- who was there without
her daughter-if she was interested in lowering the interest
rate on her mortgage, and Ms. Fryer said yes. After speaking
further with Ms. Fryer, another Regions Bank employee learned
that Ms. Blumenfeld actually made each monthly payment on Ms.
Fryer's mortgage. That employee discussed with Ms. Fryer
the possibility of Regions Bank financing a new mortgage in
Ms. Blumenfeld's name, and, without obtaining Ms.
Blumenfeld's consent, pulled Ms. Blumenfeld's
consumer report. He printed out the consumer report, went
over it with Ms. Fryer, and gave her a copy to give to Ms.
Blumenfeld filed suit against Regions Bank, asserting six
counts. (Doc. 12). The court has already dismissed Count Five
and part of Count Six, and in her briefing on Regions
Bank's motion for summary judgment, Ms. Blumenfeld
withdraws Count Three. (See Doc. 19; Doc. 37 at 5).
The remaining counts are (1) violation of the Fair Credit
Reporting Act (FCRA), 15 U.S.C. § 1681 et seq.
(Count One); (2) invasion of privacy, in violation of Alabama
law (Count Two); (3) wanton hiring, training, and supervising
of incompetent employees and/or agents, in violation of
Alabama law (Count Four); and (5) wanton and reckless
conduct, in violation of Alabama law (Count Six). (Doc. 12 at
court GRANTS IN PART and DENIES IN PART Regions Bank's
motion for summary judgment. The court DENIES the motion for
summary judgment on Count One because a jury could conclude
that Regions Bank willfully violated the FCRA by pulling Ms.
Blumenfeld's consumer report even though she had not
initiated a transaction with the bank. The court GRANTS the
motion for summary judgment in favor of Regions Bank on Count
Two because Ms. Blumenfeld presented no evidence showing that
Regions Bank's action in pulling her consumer report and
sharing it with her mother would have caused an ordinary
person outrage or mental shame, suffering, or humiliation.
The court GRANTS the motion for summary judgment in favor of
Regions Bank on Count Four because Ms. Blumenfeld failed to
present evidence showing that Regions Bank was aware of any
incompetence on the part of its employee. The court DENIES
the motion for summary judgment on Count Six because Ms.
Blumenfeld has introduced evidence from which a jury could
find that Regions Bank violated the FCRA.
deciding a motion for summary judgment, the court
“draw[s] all inferences and review[s] all evidence in
the light most favorable to the non-moving party.”
Hamilton v. Southland Christian Sch., Inc., 680 F.3d
1316, 1318 (11th Cir. 2012) (quotation marks omitted). The
parties submitted four depositions in support of and
opposition to Regions Bank's motion for summary judgment:
one by the plaintiff, Ms. Blumenfeld; one by her mother, Ms.
Fryer; one by a mortgage loan officer, Tracy Goodwin; and one
by Mr. Goodwin's supervisor, Kristy Smith. (Docs. 30-1 to
in the light most favorable to Ms. Blumenfeld, the evidence
shows that, when Ms. Blumenfeld divorced her husband, Ms.
Fryer bought the Blumenfelds' marital home to ensure that
her daughter could continue to live in it. Thereafter, Ms.
Fryer took out a mortgage on the house from Regions Bank.
(Doc. 30-2 at 38; Doc. 30-1 at 75-76). Eventually, Ms. Fryer
executed a warranty deed conveying an equal interest in the
property to her daughter. (Doc. 30-2 at 80).
2016, Ms. Fryer visited a Regions Bank branch about a new
debit card. (Id. at 61). The employee helping her
asked if she would be interested in speaking to someone about
getting a lower interest rate on her mortgage, to which she
said yes. (Id. at 61-62). The employee took her into
the office of Mr. Goodwin, a mortgage loan officer.
(Id. at 63). Mr. Goodwin pulled Ms. Fryer's
consumer report and, after reviewing it, noted that she had
two mortgages. (Id. at 64-65). Ms. Fryer told him
that she had a mortgage on her house as well as a mortgage on
her daughter's house. (Id. at 66). Ms. Fryer
explained that although the mortgage was in her name alone,
Ms. Blumenfeld made the payments on that mortgage.
(Id.). Mr. Goodwin offered to see if they could
finance a new mortgage in Ms. Blumenfeld's name.
(Id. at 66-67).
Goodwin ran Ms. Blumenfeld's consumer report and began
printing it. (Doc. 30-2 at 67, 69). At the same time, he told
Ms. Fryer to call Ms. Blumenfeld to ask permission for him to
pull her consumer report. (Id. at 68). He testified
that before Ms. Fryer made the call, he either told her to
put Ms. Blumenfeld on speakerphone or asked to speak directly
with Ms. Blumenfeld. (Doc. 30-3 at 71). He did that because
Regions Bank's Mortgage Production Manual requires the
“borrower's expressed consent” before a loan
officer can pull a borrower's consumer report, and
because he knew that pulling a consumer report without the
borrower's permission was against the law. (Id.
at 42, 59-60, 91-92). But the call was not on speakerphone
and he did not speak directly to Ms. Blumenfeld.
(Id. at 71-72). Mr. Goodwin testified that he did
not attempt to speak directly with Ms. Blumenfeld because he
“had no reason to believe [he] did not have
consent.” (Id. at 30-31).
Ms. Fryer called her daughter and explained that she was at
Regions Bank, trying to get a lower rate on the mortgage, and
that Mr. Goodwin needed Ms. Blumenfeld's permission to
run her consumer report. (Doc. 30-2 at 69; Doc. 30-1 at
98-99). Ms. Blumenfeld initially gave her permission, but
immediately changed her mind and said no. (Doc. 30-2 at 69;
Doc. 30-1 at 99). Ms. Fryer told her daughter, “Well,
it's too late. He has it.” (Doc. 30-2 at 69; Doc.
30-1 at 100). According to Ms. Fryer, her conversation with
Ms. Blumenfeld was “very, very short.” (Doc. 30-2
Ms. Fryer and Ms. Blumenfeld finished their phone call, Ms.
Fryer returned to her conversation with Mr. Goodwin. (Doc.
30-2 at 69-70). She never told him that Ms. Blumenfeld had
not consented to him running her consumer report. (Doc. 30-2
at 71). Mr. Goodwin went over Ms. Blumenfeld's consumer
report with Ms. Fryer, pointing out several ways in which Ms.
Blumenfeld could improve her credit score. (Doc. 30-2 at
73-74). At the end of their meeting, Mr. Goodwin gave Ms.
Fryer a copy of Ms. Blumenfeld's consumer report, which
she took home and shared with Ms. Blumenfeld. (Id.
at 82, 84-85).
Blumenfeld testified that she has not experienced any issues
with identity theft as a result of Regions Bank accessing or
sharing her consumer report, and she is not aware of a
decrease in her credit score. (Doc. 30-1 at 145-46). But she
testified that she was very angry, embarrassed, and stressed
about the disclosure of her consumer report to her mother.
(Id. at 115).
Bank moves for summary judgment on all counts raised against
it, contending that (1) the FCRA claim fails because it had
reason to believe it was authorized to pull Ms.
Blumenfeld's consumer report; (2) the FCRA claim fails
because Ms. Blumenfeld has not presented any evidence of
damages; (3) the FCRA preempts all of Ms. Blumenfeld's
state law claims; and (4) Ms. Blumenfeld's state law
claims fail as a matter of law. (Doc. 29).
deciding a motion for summary judgment, the court must first
determine if the parties genuinely dispute any material
facts, and if they do not, whether the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
A disputed fact is material if the fact “might affect
the outcome of the suit under the governing law, ” and
a dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). By and large, the parties agree on the
material facts, although they disagree about a number of
non-material facts. (See Doc. 31 at 5-15; Doc. 37 at
11-24; Doc. 40 at 2-5). Accordingly, the question before the
court is whether, based on the facts set out above, Regions
Bank is entitled to judgment as a matter of law.
The Fair Credit Reporting Act (Count One)
Blumenfeld asserts that Regions Bank willfully violated the
FCRA twice: once by pulling her consumer report and once by
sharing her consumer report with her mother. (Doc. 12 at 13;
Doc. 37 at 29-31). Regions Bank's arguments in support of
its motion for summary judgment focus solely on whether it
violated the FCRA by pulling her consumer report; it does not
address whether it violated the FCRA by sharing Ms.
Blumenfeld's report with Ms. Fryer. (See Doc. 30
at 16-25). Accordingly, the court will address only whether
summary judgment is appropriate with respect to Ms.
Blumenfeld's claim that Regions Bank willfully violated
the FCRA by pulling her consumer report.
FCRA regulates permissible uses of and access to consumer
reports, and creates a private right of action for willful
violations of the Act. See 15 U.S.C. §§
1681b, 1681n, 1681o. A “willful” violation of the
FCRA encompasses both knowing and reckless violations.
See Safeco Ins. Co of Am. v. Burr, 551 U.S. 47,
56-58 (2007); see also Levine v. World Fin. Network
Nat'l Bank, 554 F.3d 1314, 1318 (11th Cir. 2009)
(“To prove a willful violation [of the FCRA], a
consumer must prove that a consumer reporting agency either
knowingly or recklessly violated the requirements of the
FCRA uses a number of terms to refer to the parties involved
in the creation, use of, and access to consumer reports. A
“consumer reporting agency” is any party that,
“for monetary fees, dues, or on a cooperative nonprofit
basis, regularly engages in whole or in part in the practice
of assembling or evaluating consumer credit information or
other information on consumers for the purpose of furnishing
consumer reports to third parties.” 15 U.S.C. §
1681a(f). Regions Bank is not a consumer reporting agency; it
is a “person” as defined by the FCRA.
Id. § 1681a(b). The court will also use the
term “user” to describe Regions Bank, because the
FCRA uses that term to describe a person requesting a
consumer report. See, e.g., id. §
1681b(f). And a “consumer” is an individual-in
this case, Ms. Blumenfeld. Id. § 1681a(c).
1681b(f) of the FCRA sets forth the circumstances under which
a user may obtain a consumer report. It permits a user to
obtain a consumer report only for those purposes under which
an agency is authorized to furnish the report. 15 U.S.C.
§ 1681b(f)(1). Regions Bank contends that subsection (f)
incorporates language from § 1681b(a) permitting an
agency to furnish a report if it has “reason to
believe” the user intends to use that information in
certain ways, so that if it can prove that it had