Meeks v. Murphy Auto Group Inc. D/b/a Toyota Of Winterhaven, Case No. 8:09-cv-1050-T-TBM

PATRICIA DIANE MEEKS, Plaintiff,

v.MURPHY AUTO GROUP, INC. d/b/a TOYOTA OF WINTERHAVEN, Defendant.

Case No. 8:09-cv-1050-T-TBM

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

Dated: December 15, 2010

ORDER

THIS MATTER is before the court on Defendant's Motion for Summary Judgment (Doc. 65)¹ and Plaintiff's response in opposition (Doc. 76).² Oral arguments were held on October 7 and December 8, 2010. By the instant motion, Defendant seeks entry of final summary judgment in its favor as to all of the claims raised in Plaintiff's Second Amended Complaint. Because Plaintiff fails to prevail on any of her claims as discussed below, I conclude that Defendant is entitled to final summary judgment in its favor.

I.

A.

Plaintiff, Patricia Meeks, sues Defendant, Murphy Auto Group, Inc., for violations under the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. ("FCRA") and the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691, et seq., and Regulation B, 12 C.F.R. §§ 202.1, et seq. ("ECOA"). Many of the facts pertinent to the legal issues raised by the motion are undisputed. On or about May 16, 2007, Plaintiff sought to purchase a motor vehicle for her daughter from Defendant. After selecting a new 2007 Toyota Solara vehicle and some negotiations, Plaintiff signed a retail installment sales contract ("RISC") (Doc. 65-1), together with an Offer to Purchase (Doc. 66-1), a Consumer Protection Form (Doc. 65-3), a Bailment Agreement for Vehicle Spot Delivery (Doc. 65-4), an acknowledgment of receipt of Privacy Protection Notice (Doc. 65-5), a Standard Credit Application (Doc 66-2, 86-2), and an Agreement to Furnish Insurance Policy (Doc. 65-7). Under the terms of the RISC, Plaintiff made a down payment of $5,000.00 with the amount financed of $18,708.58 to be paid over 72 months at $413.71 per month. See (Doc. 65-1 at 1). Defendant does not finance its vehicle sales and in this case as in all other credit sales, it sought to locate a lender to finance the deal.³ Plaintiff maintains that after discussions, she was advised by the sales person that shewas approved for financing and when she left the dealership, she believed the car was hers. The vehicle was delivered that day to Plaintiff's daughter in a so-called "spot delivery." Defendant describes a "spot delivery" as one where the terms of the transaction have been agreed upon, but the financing has not been approved. Under the bailment agreement, the customer is given the vehicle to use subject to having to return it to the dealer should financing not be arranged. As was its practice, Defendant obtained credit information about the Plaintiff. Defendant transmitted the deal to Regional Acceptance Corporation (Regional) which initially approved the loan. (Doc. 65-9). On or about June 4, 2007, Regional purportedly forwarded to Defendant a Contract Return Notice indicating that 2-years tax returns, proof of residence and 6 more references were necessary. The notice indicated that "approval expires 6/16/07." Id. The loan was never closed with Regional, ostensibly for the failure of Plaintiff to provide adequate documentation. In June 2007, the vehicle was involved in an accident sustaining over $4,000.00 in damages. Insurance proceeds for the damage were paid to Plaintiff, but were not used to repair the vehicle. In early July 2007, Plaintiff's husband, Michael K. Williams, sought to purchase the vehicle by himself or as a co-signer. (Doc. 86-3). Another credit application was completed. (Doc. 86-4). No financing was obtained, and it appears in late July 2007 that the husband advised Defendant that he would be returning the vehicle. (Doc. 65-11). The vehicle was not voluntarilyreturned. Ultimately, in September 2007, Plaintiff was notified by letter that Defendant was rescinding the contract and demanding the return of the vehicle. (Doc. 65-10). The vehicle was finally recovered by Defendant pursuant to court order (Doc. 65-15) in November 2007. Plaintiff now sues Defendant for federal statutory violations and a declaration that certain definitional provisions of Florida motor vehicle law are in violation of these statutes and other federal law.

In Count I of her Second Amended Complaint, Plaintiff alleges that in connection with the sale of the vehicle, Defendant accessed and obtained her consumer credit reports on June 29, 2007, and again on August 17, 2007, for an improper purpose.⁴ (Doc. 37, ¶¶9, 10). Since Defendant completed the transaction in May 2007, the later credit pulls were not for the purpose of extending credit to the Plaintiff and were in violation of the FCRA. Id., ¶¶ 10, 11. Plaintiff alleges alternatively that Defendant acted either willfully or negligently and she seeks either actual damages or statutory damages, punitive damages, injunctive and declaratory relief, fees and costs. Id., ¶¶11-13.

In Count II, Plaintiff alleges that Defendant is a creditor as that term is defined in 15 U.S.C. § 1602, 12 C.F.R. § 226.2, 15 U.S.C. § 1691a(e), and 12 C.F.R. § 202.2(1). And, that Defendant's rejection of Plaintiff's credit application in May 2007 was an "adverse action" as that term is defined in 12 C.F.R. § 202.2(c). Thus Defendant was required to issue a written adverse action notice under 15 U.S.C. § 1691(d) and Reg. B at 202.9. Id. at ¶ 17. Plaintiffseeks actual damages, punitive damages up to $10,000, declaratory and injunctive relief, attorneys fees, and costs.

Count III seeks a declaration that Florida Statutes §§ 319.001(9), Fla. Stat. (2008) and 320.60(10), Fla. Stat. (2006), are unconstitutional as being in violation of the Truth in Lending Act (TILA), the FCRA, the ECOA, and the Supremacy Clause of the United States Constitution.

B.

By its motion for final summary judgment, Defendant first argues that Plaintiff's claim for alleged violation of the FCRA fails because Plaintiff is unable to establish that Defendant accessed her credit without a permissible purpose. On the contrary, Defendant argues that the undisputed facts establish that Plaintiff signed two credit applications which provided the written authorization necessary to establish the permissible purpose for obtaining her credit report under the FCRA. Defendant urges further that notwithstanding Plaintiff's written authorizations, the FCRA authorizes a person to obtain a credit report if that person has a legitimate business need for the information in connection with a business transaction and for purposes of review or collection of an account of the consumer.

In support, it cites to the first Standard Credit Application dated May 16, 2007, which provided:

I/we certify that the information provided on this application is, to the best of my/our knowledge, complete and accurate. I/we understand that the financial institution(s) will rely on this information to judge my/our credit worthiness, and will retain this application and information about me/us whether or not the application is approved. Further, I/we authorize an investigation of my/our credit and employment history, I/we authorize the lender to release information about its experience with me/us. I/weunderstand that false statements may subject me/us to criminal penalties. (Doc. 86-2).

It cites also to additional language in the second Standard Credit Application which provided:

You agree that we may obtain a consumer credit report periodically from one or more consumer reporting agencies (credit bureaus) in connection with the proposed transaction and any update, renewal, refinancing, modification or extension of that transaction. You also agree that we or any affiliate of ours may obtain one or more consumer credit reports on you at any time whatsoever. If you ask, you will be told whether a credit report was requested, and if so, the name and address of any credit bureau from which we or our affiliate obtained your credit report. (Doc. 86-4).

By Defendant's account of the credit pulls, the first credit pull in May 2007 was made in connection with the initial attempt to get Plaintiff financing. The second credit pull, on or about June 29, 2007, occurred during the time Plaintiff's husband was attempting to negotiate financing for the vehicle either individually or as a co-signor. The third credit pull, on August 17, 2007, occurred after Defendant was unable to obtain financing with a third party lender and Plaintiff failed to return the vehicle. By its account, Defendant was forced to take steps to enforce its rights to recover the vehicle. Plaintiff offers no contrary testimony regarding the purposes of these credit pulls and Defendant maintains that each credit pull was made for one or more permissible purposes under the FCRA. More particularly, it notes that Plaintiff signed two credit applications which included authorizations permitting inquiry into her credit history. Such written authorization provided Defendant with the necessary permissible purpose under the statute. See 15 U.S.C. § 1681b(a)(2). Apart from the written authorizations, it asserts that it had a legitimate business need for the credit information in connection with this business transaction initiated by the Plaintiff. That too provides for apermissible purpose. See 15 U.S.C. § 1681b(a)(3)(F). As for the third credit pull, Defendant argues that such was also for a permissible purpose because the FCRA authorizes a business to access a credit report upon a reasonable belief such is necessary for the "review or collection of an account of the consumer." See 15 U.S.C. § 1681b(a)(3)(A). In sum, because each of Defendant's inquiries into Plaintiff's credit was for a permissible purpose, Plaintiff's claims under the FCRA fail as a matter of law. (Doc. 65 at 9-13).

As additional grounds for summary judgment, Defendant also urges that Plaintiff's failure to prove actual damages causally connected to the credit pulls bars her from bringing a negligence claim under the FCRA. Further, Defendant argues that Plaintiff fails to prove her claim that the...