The defendant, Macy's Northeast Inc. moves for summary judgment against plaintiff, Maria V. Laracuente raising issues of first impression in this state involving the Fair Credit Reporting Act (FCRA) 15 U.S.C. 1681 et seq. and its effect on retail merchants in state consumer actions. The narrow issue is whether retail merchants, as providers of information to credit reporting agencies, are immune from suit under the Act where they are charged with allegations of negligence absent any assertions of malice.
The facts presented in a light most favorable to the plaintiff are as follows. The plaintiff instituted suit against Macy's charging plaintiff's sister-in-law, defendant, Maria A. Laracuente, allegedly used the plaintiff's social security number and vital statistics to obtain credit at Macy's. Apparently the defendant had been living in plaintiff's house prior to her marriage to plaintiff's brother. In 1979-1980 the plaintiff lost her social security card and had to obtain a new one. Plaintiff has suggested defendant could have rummaged through her drawers or stolen the original social security card. In 1989 plaintiff discovered the defendant's activities when she applied for a car loan at Autoland on Route 22 in Springfield, New Jersey and could not obtain credit.
The crux of plaintiff's argument is that Macy's was negligent in allowing defendant to sign her name and further that the signatures did not match. Notwithstanding this argument, at deposition plaintiff testified she never saw defendant's signature
and furthermore had no knowledge whether its appearance was similar to her own.
In addition, plaintiff has no knowledge regarding the status of her credit rating. Two T.R.W. credit reports were obtained by plaintiff on June 30, 1989 and August 22, 1989. While the earlier report referred to Macy's Northeast Inc., the latter report failed to make any mention of Macy's. The August T.R.W. only reflects two accounts due: Shoppers Charge and Lerners in a total amount of $305.00. As of August 22, 1989 there was no credit due and owing to Macy's.
Plaintiff conceded that other than her credit rating she has suffered no loss of money or any other loss. Moreover, plaintiff has not requested or obtained a T.R.W. report since August 22, 1989 and therefore does not know the present status of her credit rating. Finally, plaintiff has not applied for any type of loan since the incident at Autoland in 1989 and testified that she does not know whether she would be approved for a loan. Against this background, plaintiff claims to have suffered economic hardship and damage to her credit.
Macy's argues that the plaintiff has failed to state a cause of action pursuant to the Fair Credit Reporting Act (FCRA) 15 U.S.C. 1681 et seq. and further that the Act preempts all state consumer actions.
The purpose of the Fair Credit Reporting Act is:
The Act provides for the protection of consumer's reputation while recognizing the legitimacy of credit reports. See Thornton v. Equifax Inc., 619 F.2d 700 (8th Cir.1980), cert. denied 449 U.S. 835, 101 S. Ct. 108, 66 L. Ed. 2d 41 (1980). The legislative history discloses an intention to not include mere providers of information within the definition of a "consumer reporting
agency". In amendments to the Act the House stated its concern that the definition of a "consumer reporting agency" not include, "financial institutions whose lending officers merely relate information about an individual with whom they have had direct financial transactions." H.R.Rep. No. 975, 91st Cong., 2d Session 2, reprinted in 1970 U.S.Code Cong. and Admin.News 4394, 4414. Clearly the House did not intend to insulate financial institutions alone but rather all entities similarly situated in the role of providing information about an individual with whom they have had direct transactions.
In order to prevail under the Act a plaintiff must initially prove that the defendant is a "consumer ...