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Krumholz v. TRW Inc.

Decided: May 13, 1976.

ALAN L. KRUMHOLZ, PLAINTIFF-APPELLANT,
v.
TRW, INC., A CORPORATION AUTHORIZED TO DO BUSINESS IN NEW JERSEY, DEFENDANT-RESPONDENT



Allcorn, Kole and Ard. The opinion of the court was delivered by Kole, J.A.D.

Kole

[142 NJSuper Page 82] At the end of the entire case the trial judge granted a judgment of involuntary dismissal of plaintiff's claim against defendant, a credit reporting agency, for

damages allegedly resulting from admittedly false reports of two judgments against him. It also later entered an order denying plaintiff's motion for a new trial. Its reasons are set forth in its oral determination at the end of the trial, its written supplementary letter opinion of February 21, 1975 and its letter opinion of April 18, 1975. Plaintiff appeals.

Assuming, without deciding, that the Fair Credit Reporting Act (FCRA), 15 U.S.C.A. § 1681 et seq. , alone applies to the Gulf credit card transaction and that the trial judge properly held that, as a matter of law, plaintiff produced "evidence of negligent non-compliance within 15 U.S.C.A. , § 1681e(b),"*fn1 we have concluded that plaintiff failed to sustain his burden of proving actual damages as to that transaction. And this is so whether the term "actual damages," as used in that statute, is to be defined by federal or state law. See Ackerly v. Credit Bureau of Sheridan , 385 F. Supp. 658 (D.C. Wyo. 1974); Bock v. Plainfield Courier-News , 45 N.J. Super. 302, 311-312 (App. Div. 1957).

With respect to the Gulf credit card matter there is no proof, as the trial judge found, of any inconvenience or loss of any benefit of bargain or any other damage by reason of plaintiff's failure to obtain the card. Additionally, there is no evidence, as to that transaction, of injury to plaintiff's reputation or feelings or other injuries for which compensatory damages may be awarded even in a libel action in this State. See also, Time, Inc. v. Firestone , 424 U.S. 448, 96 S. Ct. 958, 47 L. Ed. 2d 154 (1976); Gertz v. Robert Welch, Inc. , 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974); Barbetta Agency, Inc. v. Evening News Pub. Co. , 135 N.J. Super. 214 (App. Div. 1975);

Annotation, "Construction and application of Fair Credit Reporting Act," 17 A.L.R. Fed. 675.

Hence, as to the Gulf transaction, the trial judge properly dismissed, as a matter of law, the claim for relief to the extent that it was grounded on the FCRA; and we need not determine whether, and the extent to which, that statute was intended to preempt the defamation law established by the courts of this State concerning the liability of a consumer credit reporting agency. For the effect on plaintiff of that erroneous credit report was minimal, and what we hold hereafter as to the bank mortgage transaction will give plaintiff the full measure of relief to which he is entitled under the law. As to preemption of State by federal law, see De Canas v. Bica , 424 U.S. 351, 96 S. Ct. 933, 47 L. Ed. 2d 43 (1976); Davenport v. Terry , 134 N.J. Super. 88, 96-97 (App. Div. 1975); Yellow Cab Co. v. State , 126 N.J. Super. 81 (App. Div. 1973), certif. den. 64 N.J. 498 (1974).

The trial judge correctly held that the bank mortgage loan transaction, relating to the purchase of an office building and involving a credit report delivered in response to a request based on plaintiff's application for business credit, was not governed by the FCRA. Wrigley v. Dun & Bradstreet, Inc. , 375 F. Supp. 969 (N.D. Ga.), aff'd 500 F.2d 1183 (5 Cir. 1974); Sizemore v. Bambi Leasing Corp. , 360 F. Supp. 252 (N.D. Ga. 1973); Fernandez v. Retail Credit Co. , 349 F. Supp. 652 (E.D. La. 1973).

Accordingly, the defamation law established by the courts of this State is applicable to the claim for relief based on the false reports of the two judgments given by defendant to the bank on or about March 16, 1973.

A credit reporting agency in this State has a qualified or conditional privilege to publish false information as to the credit of any person at the request of one of its subscribers, provided that the information was given under an honest belief in its truth and without express or actual malice. Van Horn v. Van Horn , 56 N.J.L. 318 (E. &

A. 1893); King v. Patterson , 49 N.J.L. 417 (E. & A. 1887); Fahr v. Hayes , 50 N.J.L. 275 (Sup. Ct. 1888). See also, Coleman v. Newark Morning Ledger , 29 N.J. 357 (1959); Barbetta Agency, Inc. v. Evening News Pub. Co., supra; Cashen v. Spann , 125 N.J. Super. 386, 404-407 (App. Div. 1973), mod. on other grounds 66 N.J. 541 (1975), cert. den. 423 U.S. 829, 96 S. Ct. 48, 46 L. Ed. 2d 46 (1975); Neigel v. Seaboard ...


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