January 28, 2010
EMMANUEL ODOEMENE, PLAINTIFF-APPELLANT,
GREENPOINT MORTGAGE FUNDING, INC., DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8703-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2009
Before Judges Rodríguez and Yannotti.
Plaintiff Emmanuel Odoemene appeals from an order entered by the trial court on October 24, 2008, granting summary judgment in favor of defendant Greenpoint Mortgage Funding, Inc. (Greenpoint), and an order entered on December 19, 2008, denying his motion for reconsideration.
On October 31, 2007, plaintiff filed a complaint in the Law Division against Greenpoint, alleging that it fraudulently provided negative information to certain credit reporting agencies regarding plaintiff's loans. Plaintiff alleged that Greenpoint did not make the loans and several requests he made to correct the erroneous reports to the credit agencies were ignored. Plaintiff claimed that he sustained monetary damages due to the erroneous reports to the credit agencies.
On September 23, 2008, Greenpoint filed a motion for summary judgment. Greenpoint argued that plaintiff claims failed as a matter of law because the Fair Credit Reporting Act, 15 U.S.C.A. §§ 1681 to 1681(x) (FCRA), does not establish a private cause of action against a lender for providing inaccurate information to a credit reporting agency. In support of its motion, Greenpoint submitted a certification from Betty Johnson (Johnson), who is a litigation paralegal for the company.
In her certification, Johnson explained that on November 6, 2006, plaintiff and his wife, Doris Odoemene, delivered a note to Wall Street Financial Corporation (Wall Street), evidencing a loan in the amount of $552,000, payable over a thirty-year period. To secure the repayment of the note, plaintiff and his wife executed and delivered to Wall Street a mortgage lien against their residence in Newark, New Jersey. The mortgage was recorded in the Office of the Clerk for Essex County. The note and mortgage were assigned to Greenpoint.
Johnson stated that the loan transaction had been initially scheduled to close in August 2006, with the first payment due on October 1, 2006. However, on the scheduled closing date, plaintiff refused to execute the loan documents due to his dissatisfaction with some of the terms in those documents. The transaction ultimately closed on November 6, 2006.
Johnson acknowledged that the lender erroneously informed the credit reporting agencies that the first payment on the loan had been due on October 1, 2006, and the first three monthly payments were thirty days late. Johnson stated that on December 14, 2006, December 15, 2006, and May 16, 2007, Greenpoint sent electronic notices and certain forms to the four major credit reporting agencies correcting the error "to show that the payments due under the note and mortgage were made in a current manner."
The trial court considered Greenpoint's motion on October 24, 2008, and placed its decision on the record. The court found that plaintiff did not have a cause of action under the FCRA against Greenpoint based on the provision of inaccurate information to the credit agencies. The court accordingly entered an order dated October 24, 2008, granting Greenpoint's motion for summary judgment. Plaintiff thereafter filed a motion for reconsideration, which the court denied by order entered on December 19, 2008. This appeal followed.
When reviewing an order granting summary judgment, we apply the same standards that are applied by the trial court when ruling on a motion seeking that relief. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Stoffels v. Harmony Hill Farm, 389 N.J. Super. 207, 209 (App. Div. 2006). Summary judgment may be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Plaintiff argues that the trial court erroneously determined that he did not have a cause of action against Greenpoint under the FCRA based on the inaccurate reporting to the credit agencies that he was late in paying installments due under the loan. We disagree.
The FCRA provides in pertinent part that persons may not furnish information regarding a consumer to a "consumer reporting agency" if that person "knows or has reasonable cause to believe that the information is inaccurate." 15 U.S.C.A. § 1681s-2(a)(1)(A). The term "consumer reporting agency" includes credit reporting agencies. 15 U.S.C.A. § 1681a(f). The FCRA also provides that a person may not furnish information to a "consumer reporting agency" after notice and confirmation that the information is inaccurate. 15 U.S.C.A. § 1681s-2(a)(1)(B).
In addition, the FCRA provides that, when informed of a dispute as to the completeness or accuracy of information provided to a "consumer reporting agency," the person who furnished the information must conduct an appropriate investigation; review the relevant information provided by the consumer reporting agency; report the results of the investigation to the agency; and modify, delete or permanently block any item of information found to be incomplete or inaccurate. 15 U.S.C.A. §§ 1681s-2(b)(1)(A)-(E).
The FCRA does not, however, provide a private cause of action against persons who violate the duties imposed under 15 U.S.C.A. § 1681s-2(a), and enforcement of those duties is limited to certain government agencies and officials. See, Nelson v. Chase Manhatten Mortg. Corp., 282 F.3d 1057, 1059 (9th Cir. 2002); Elmore v. N. Fork Bancorporation, Inc., 325 F. Supp. 2d 336, 339-40 (S.D.N.Y. 2004); Gordon v. Greenpoint Credit, 266 F.Supp. 2d 1007, 1009-10 (S.D. Iowa 2003). Thus, the trial court correctly determined plaintiff could not bring an action against Greenpoint because Greenpoint furnished inaccurate information about plaintiff's loan to certain credit agencies.
In addition, some courts have held that the FCRA creates a private cause of action against persons who willfully or negligently violate the duties imposed by 15 U.S.C.A. § 1681s-2(b) to investigate and correct incomplete and inaccurate reports to credit agencies. Philbin v. Trans Union Corp., 101 F.3d 957, 962 (3d Cir. 1996); Reed v. Experian Info. Solutions, Inc., 321 F. Supp. 2d 1109, 1116 (D. Minn. 2004); Gordon, supra, 266 F. Supp. 2d at 1010. To prevail on such a claim, a consumer must show that the furnisher received notice from a "consumer reporting agency," as opposed to the plaintiff alone, of a dispute as to accuracy of credit information provided to the agency. Nelson, supra, 282 F.3d at 1060; Aklagi v. Nationcredit Fin. Servs. Corp., 196 F.Supp. 2d 1186, 1193 (D. Kan. 2002); Elmore, supra, 325 F.Supp. 2d at 340.
Even were we to agree that the FCRA permits a cause of action for violating the duties under 15 U.S.C.A. § 1681s-2(b), plaintiff failed to plead sufficient facts to show that Greenpoint willfully or negligently failed to investigate or correct the erroneous information it had provided to the credit agencies after being informed of a dispute as to the accuracy of the information by the agencies involved. Indeed, the record shows that Greenpoint did, in fact, correct the error.
Plaintiff nevertheless argues that he pled sufficient facts to support a claim under 15 U.S.C.A. § 1681h(e), which provides in pertinent part that:
. . . no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against any consumer reporting agency, any user of information, or any person who furnishes information to a consumer reporting agency, based on information disclosed pursuant to . . . [15 U.S.C.A. 1681g, 1681h, or 1681m], or based on information disclosed by a user of a consumer report to or for a consumer against whom the user has taken adverse action, based in whole or in part on the report[,] except as to false information furnished with malice or willful intent to injure such consumer.
However, there is no evidence that Greenpoint furnished erroneous information to the credit agencies with "malice or willful" intent to injure plaintiff.
Plaintiff further argues that the trial court erred by dismissing his fraud claim. Again, we disagree. To establish a claim for fraud, a plaintiff must prove: "(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages." Banco Popular No. America v. Gandi, 184 N.J. 161, 172- 73 (2005) (quoting Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997)).
Here, plaintiff alleges that Greenpoint "fraudulently created" the loan in question, presumably by stating that the loan closed in August rather than November 2006. Plaintiff asserts that, by mistakenly reporting to the credit agencies that the loan closed in August 2006, Greenpoint engaged in an act of fraud for personal gain. However, plaintiff did not plead sufficient facts to support these allegations. In our judgment, plaintiff's unsupported assertions are insufficient to support a common law claim of fraud.
We have considered plaintiff's other contentions and find them to be of insufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(1)(E).
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