Phox v. NCO Financial Systems Inc
4:14-cv-00073
W.D. Mo.Oct 24, 2014Background
- NCO Financial Systems (debt collector) was hired by PACER to collect $171.29 in unpaid PACER user fees from LaRonda Phox.
- To assist collection, NCO obtained Phox’s TransUnion consumer credit report on October 5, 2012; NCO later sent a collection letter and Phox paid on November 8, 2012.
- Phox (pro se) sued NCO on February 19, 2014 alleging NCO impermissibly accessed her credit report; her civil cover sheet referenced the FCRA and FDCPA.
- NCO moved for summary judgment and submitted undisputed affidavits and records; Phox did not controvert NCO’s statement of facts, so the court treated those facts as undisputed.
- The court evaluated whether NCO had a statutorily permissible purpose under the FCRA for obtaining the report and whether NCO’s conduct violated the FDCPA.
- The court granted summary judgment for NCO and denied Phox’s subsequent motion to amend the scheduling order as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NCO obtained Phox’s consumer report without a permissible purpose under the FCRA | Phox contends NCO "went into my credit bureau report without [a] permissible purpose" | NCO argues it obtained the report to collect a debt arising from a previous credit transaction, an FCRA-permitted purpose | Court: NCO had a permissible purpose under 15 U.S.C. §1681b(a)(3)(A); summary judgment for NCO |
| Whether NCO willfully violated the FCRA to support statutory damages | Phox alleges an impermissible access that would support willful violation | NCO argues its access was lawful and therefore not willful misconduct | Court: No willful violation because purpose was permissible; claim fails |
| Whether pulling the credit report violated FDCPA prohibitions on deceptive, unfair, or unconscionable practices (e.g., §§1692e(10), 1692f) | Phox asserts obtaining the report without permissible purpose is deceptive/unfair conduct under the FDCPA | NCO replies it complied with FCRA purposes and did not use deceptive or unfair means | Court: No FDCPA violation shown; summary judgment for NCO |
| Whether Phox’s late assertion that NCO failed to certify purpose to TransUnion (15 U.S.C. §1681b(f)) saves her FCRA claim | Phox raised lack of certification in supplemental briefing | NCO notes the claim was not pled or timely raised before summary judgment | Court: Late, unsupported certification allegation does not defeat summary judgment |
Key Cases Cited
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard and burden of proof)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (nonmoving party must show specific facts to create a genuine issue)
- Torgerson v. City of Rochester, 643 F.3d 1031 (weighing evidence and drawing inferences are jury functions)
- Phillips v. Grendahl, 312 F.3d 357 (elements of an FCRA claim for improper access)
- Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (willfulness standard under the FCRA)
- Huertas v. Galaxy Asset Mgmt., 641 F.3d 28 (debt-collection permissible purpose to obtain credit reports under FCRA)
- Poehl v. Countrywide Home Loans, Inc., 528 F.3d 1093 (statutory damages and willfulness under the FCRA)