United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang, United States Magistrate Judge.
Judge Nina Y. Wang This matter comes before the court on
Defendant Penkhus Motor Company's Motion for Summary
Judgment [#12, filed on June 20, 2016] pursuant to the
Parties' consent under 28 U.S.C. § 636(c) and the
Order of Reference dated December 29, 2015 [#9]. The court
has reviewed the Parties' briefing [#12, # 14, and #16],
heard argument on the motion on August 23, 2016, and has
considered the applicable case law. For the reasons set forth
herein, the court hereby DENIES the Motion for Summary
Judgment for the following reasons.
case arises under Federal Credit Reporting Act
(“FCRA”). In their unverified Complaint,
Plaintiffs Huzma Qureshi (“Mr. Qureshi”) and
Lauryn Qureshi (collectively, “Plaintiffs” or
“the Qureshis”) allege that they are individual
consumers who reside in Colorado Springs, Colorado. [#1 at
¶ 2]. On or about August 3, 2015, Mr. Qureshi contacted
Penkhus Motor Company (“Penkhus”) about
potentially purchasing a vehicle. [Id. at ¶ 4].
On August 4, 2015, one of Defendant's sales
representatives emailed Mr. Qureshi, stating “Glad to
hear your (sic) ready to get an Evo. … I understand
your (sic) trading in a 2014 Honda this Time
(sic). I will speed the process up by doing a
sight unseen appraisal with you.” [#12-1 at 5]. As part
of the “sight unseen appraisal, ” Defendant asked
Mr. Qureshi to provide detailed information about his 2014
Honda. [Id.]. Not soon after, Mr. Qureshi provided
the requested information and stated, “Thank you for
doing this. … We are actually interested in a GSR this
time around.” [Id. at 6]. In that same email
correspondence, Mr. Qureshi stated, “Credit info
slightly different. Wife will now be primary. My income
changed to $84, 000 yearly. Address and employer are the
same.” [Id.]. Later that afternoon, Defendant
informed Mr. Qureshi of the value of his 2014 Honda and
stated, “We will need a good size down payment, ”
to which Mr. Qureshi replied, “What would be a good
sized down payment be on a GSR?” [Id.]. This
was the extent of the correspondences between Mr. Qureshi and
Defendant provided to the court, [id.], and
Plaintiffs apparently did not provide express written or oral
authorization to the Penkhus sales person to obtain their
credit reports, [#1 at ¶¶ 5-6].
about August 4, 2015, Penkhus obtained both Plaintiffs'
credit reports from three major consumer credit reporting
agencies: Equifax, Experian, and Trans Union. [#10 at 4].
Plaintiffs allege that the Defendant had neither
authorization nor any other permissible purpose under the
FCRA to obtain their credit reports thus violating the FCRA.
[#1 at ¶ 12]. Plaintiffs further allege that
Defendant's violation was willful, thus entitling
Plaintiffs to actual damages, statutory damages, punitive
damages, attorney fees and costs. [Id. at ¶
13]. Alternatively, Plaintiffs contend that even if
Defendant's violation was negligent, they are still
entitled to actual damages, attorney fees, and costs.
[Id. at ¶ 14].
moving for summary judgment, Penkhus argues that it only
accessed Plaintiffs' credit reports with authorization
from Plaintiffs, or for another permissible purpose, namely
that it had a legitimate business need for the information in
connection with the purchase of a vehicle from Penkhus. [#12
at 5-8]. It urges the court to grant summary judgment based
on a written authorization executed by the Qureshis six
months prior to the incident at issue, in February 2015. [#12
at 5-6]. It further contends that summary judgment is proper
because Penkhus had a legitimate business need for the
information because “Plaintiffs contacted the
salesperson Mr. Clarke at Penkhus Motors on August 4, 2015,
indicating they wanted to move forward with a vehicle
purchase.” [Id. at 7]. Plaintiffs argue, but
do not submit any testimony through declarations or
otherwise, that in August 2015, Plaintiffs “merely
inquired about obtaining a price on a trade in and a
different car. Defendant then pulled Plaintiffs'
credit reports without Plaintiffs' permission and without
having a permissible purpose under the Fair Credit Reporting
Act (FRCA).” [#14 at 2]. In Reply, Defendant argues
that “[the] communications [between Penkhus and
Plaintiffs] speak for themselves, and by indicating
‘this time around, ' make clear that the Plaintiffs
were intending to purchase a vehicle again in early August
2015.” [#16 at 2].
judgment is appropriate only if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Henderson v.
Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir.
1994). “A ‘judge's function' at summary
judgment is not ‘to weigh the evidence and determine
the truth of the matter but to determine whether there is a
genuine issue for trial.'” Tolan v.
Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting
Anderson v. Liberty Lobby, 477 U.S. 242, 249
(1986)). Whether there is a genuine dispute as to a material
fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or conversely,
is so one-sided that one party must prevail as a matter of
law. Anderson, 477 U.S. at 248-49; Stone v.
Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000);
Carey v. U.S. Postal Service, 812 F.2d 621, 623
(10th Cir. 1987). A fact is “material” if it
pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so
contradictory that if the matter went to trial, a reasonable
party could return a verdict for either party.
Anderson, 477 U.S. at 248. “Where the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no ‘genuine
issue for trial.'” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(citing First Nat. Bank of Ariz. v. Cities
Service Com, 391 U.S. 253, 289 (1968)).
reviewing a motion for summary judgment the court views all
evidence in the light most favorable to the non-moving party.
See Garrett v. Hewlett-Packard Co., 305 F.3d 1210,
1213 (10th Cir. 2002). Only when a moving party establishes
that the absence of any genuine issue of material fact does
the burden shift to the non-moving party to go beyond the
pleadings and set forth specific facts that would be
admissible. Anderson, 477 U.S. at 248. If the
non-moving party carries its burden, the nonmovant must
establish, at a minimum, an inference of the presence of each
element essential to the case. Hulsey v. Kmart,
Inc., 43 F.3d 555, 557 (10th Cir. 1994) (citation
omitted). In doing so, the non-moving party “may not
rest upon mere allegation or denials of his pleadings, but
must set forth specific facts showing that there is a genuine
issue for trial.” See also Anderson, 477 U.S.
at 256. To be considered by the court, the evidence must be
admissible, and the court views such admissible evidence in
the light most favorable to the non-moving party. Dodson
v. Bd. of Cty. Comm'rs, 878 F.Supp.2d 1227, 1239 (D.
Colo. 2012) (citations omitted). Any factual ambiguities are
resolved against the moving party, favoring the right to
trial. Id. (citing Quaker State Minit-Lube, Inc.
v. Fireman's Fund Ins. Co., 52 F.3d 1522, 1527 (10th
Cir.1995); Houston v. Nat'l Gen. Ins. Co., 817
F.2d 83, 85 (10th Cir.1987)).
established the Fair Credit Reporting Act in 1970 to ensure
“fair and accurate credit reporting, promote efficiency
in the banking system, and protect consumer
privacy.” Safeco Ins. Co. of Am. v. Burr,
551 U.S. 47, 52 (2007) (emphasis added). To that end, the
FCRA limits the circumstances in which a credit reporting
agency may provide a consumer's credit report. 15 U.S.C.
§ 1681b(a)(2). There are three statutory provisions that
are relevant to this action. A credit agency may furnish a
consumer's credit report to a third party upon written
instruction by the consumer to whom it relates. Id.
at §1681b(a)(2). A person or entity who “intends
to use the information in connection with a credit
transaction involving the consumer on whom the information is
to be furnished” may also access the credit report.
Id. at § 1681b(a)(3)(A). Finally, a person or
entity may also obtain an individual's credit report for
a legitimate business need under 15 U.S.C. §
Parties do not dispute the applicable law, but they do
contest whether Penkhus was authorized to obtain the
Qureshis' respective credit reports on August 4, 2015,
based on authorizations executed in February 2015 or based on
other permitted purposes. Under the FCRA, it is the
plaintiff's burden to establish that his or her credit
information was obtained for an impermissible purpose, and it
is the defendant's burden to establish a permissible
purpose as a complete defense. See Ritchie v.
Northern, 14 F.Supp.3d 229, 244 (S.D.N.Y. 2014)
(explaining the Parties' burdens under 15 U.S.C. §
1681b); Glanton v. DirecTV, L.L.C., ___ F.Supp.3d
___, 2016 WL 1177334, at *5-6 (D.S.C. Mar. 23, 2016) (holding
that the plaintiff has the burden of establishing that the
defendant had no legitimate business purpose for obtaining
her credit report).
court is not prepared to rule that as a matter of law, a
written authorization executed in February 2015 is sufficient
to permit Penkhus to obtain Plaintiffs' credit reports
six months later, nor does the communication between the
Parties constitute written authorization as a matter of law.
In the absence of written permission, an automobile dealer
may obtain a credit report “only in circumstances where
it is clear both to the consumer and to the dealer
that the consumer is actually initiating the purchase or
lease of a specific vehicle and, in addition, the dealer has
a legitimate business need for consumer information.”
See Traveler v. Glenn Jones Ford Lincoln Mercury
1987, Civil Action No. CV-05-0817-PHX-SRB, 2006 WL
173687, *4 (D. Ariz. Jan. 24 2006) (emphasis added).
close call, in reviewing the evidence submitted by the
Parties, this court is not persuaded that there is an absence
of any genuine issue of material fact - despite the
correspondence that states “[c]redit info is slightly
different, ” [#12-1 at 6] and Plaintiffs' failure
to submit their own testimony in rebuttal. Namely, the
correspondence that both sides rely upon may be reasonably
interpreted in different ways. And there is no evidence in
the record from which the court can ascertain Plaintiffs'
expectation or understanding as to why Penkhus accessed their
credit reports. Defendant submits no testimony taken from
Plaintiffs in which they admit that they were initiating the
purchase or lease of a specific vehicle, or that they were
authorizing Penkhus to access their credit reports for the
purposes of providing specific information about a specific
car, and the burden lies with Defendant to establish a