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Blumenfeld v. Regions Bank

United States District Court, N.D. Alabama, Middle Division

March 18, 2019

TERRY BLUMENFELD, Plaintiff,
v.
REGIONS BANK, Defendant.

          MEMORANDUM OPINION AND ORDER

          ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE

         This matter comes before the court on Defendant Regions Bank's motion to dismiss the amended complaint for lack of standing (doc. 55) and motion to exclude evidence (doc. 60). In this case, Plaintiff Terry Blumenfeld asserts that Regions Bank violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., and Alabama law by pulling her consumer report and sharing that report with her mother, all without Ms. Blumenfeld's consent.

         Regions Bank contends that Ms. Blumenfeld lacks standing because she has asserted nothing more than a bare procedural violation of the FCRA for which she has not shown a concrete injury. In response, Ms. Blumenfeld submitted an affidavit in which she attests that she spent $40 to $50 on a lock box so that she could secure the consumer report that Regions Bank disclosed to her mother. This affidavit prompted Regions Bank to move to exclude that evidence for failing to timely disclose it during discovery.

         The court DENIES the motion to dismiss because Ms. Blumenfeld has presented sufficient evidence to establish standing. The court DENIES the motion to exclude the evidence because Ms. Blumenfeld's failure to disclose the information is harmless.

         I. BACKGROUND

         The court described in detail the facts underlying this case in a previous memorandum opinion (see doc. 44), and will not now repeat all of those facts. Of relevance to the motions currently before the court, taken in the light most favorable to Ms. Blumenfeld, she has presented evidence that Regions Bank pulled her consumer report and shared that report with her mother, all while knowing it did not have her consent. (See Id. at 4-6).

         Ms. 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). She also testified that she did not have any out of pocket damages as a result of the violation. (Id. at 164). But she testified that she was very angry, embarrassed, and stressed about the disclosure of her consumer report to her mother. (Id. at 115).

         Now, after the close of discovery, Ms. Blumenfeld has submitted an affidavit in which she attests that she also spent $40 to $50 on a lock box in order to secure the consumer report. (Doc. 56-3 at 4 ¶ 13). The affidavit does not explain why she never before disclosed the purchase of the lock box. (See generally id.). After Regions Bank moved to exclude that part of the affidavit, Ms. Blumenfeld submitted another affidavit in which she states that “until [she] provided the affidavit to my lawyer . . ., [she] did not at the time understand the $40 or $50 dollars I spent for the lock box to be the type of out of pocket damages defendant was asking about.” (Doc. 63-1 at 2). Instead, she believed out of pocket damages meant “medical bills for seeing a doctor or a psychiatrist or psychologist or lost time from work.” (Id. at 3).

         II. DISCUSSION

         Regions Bank has moved to dismiss the case and to exclude Ms. Blumenfeld's evidence that she spent money on a lock box. (Docs. 55, 60). The court will address the motion to dismiss first, followed by the motion to exclude. But before that, the court will briefly set out the statutory background.

         The 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. By definition, a consumer report is

any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for-
(A) credit or insurance to be used primarily for personal, family, or ...

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