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Yurkovic v. New Jersey Higher Education Student Assistance Authority

United States District Court, D. New Jersey

July 11, 2019

Michael Yurkovic, Plaintiff,
New Jersey Higher Education Student Assistance Authority, et al, Defendants.


          PETER G. SHERIDAN, U.S.D.J.

         This matter comes before the Court on six motions: (1) a motion for summary judgment filed by Defendant Trans Union Corp. (ECF No. 62); (2) a motion for summary judgment filed by Defendant Russell P. Goldman (ECF No. 63); (3) a motion for summary judgment filed by Defendant New Jersey Higher Education Student Assistance Authority (HESAA) (ECF No. 65); (4) a cross-motion for summary judgment filed by Plaintiff Michael V. Yurkovich (ECF No. 77); (5) a motion for sanctions filed by Defendant Goldman (ECF No. 84); and (6) a motion to strike Plaintiffs statement of material facts and an affidavit of Joseph A. Bahgat in opposition to Defendants' summary judgment motions (ECF No. 80). For the reasons stated herein, Defendants are entitled to summary judgment except on Plaintiffs claim for declaratory judgment, on which HESAA concedes that Plaintiff is entitled to his day in court, and Plaintiffs FCRA negligence claim against HESAA.


         Plaintiff is a member of the New Brunswick Police Department. (Amended Complaint, ECF No. 22, at ¶ 2). Plaintiff was married to Amber Pagliere from July 18, 2006, until their divorce on September 2, 2011. (Goldman's Statement of Undisputed Material Facts, ¶ 2; Declaration of Ann F. Kiernan (Kiernan Decl.), Ex. A, Deposition of Amber Pagliere (Pagliere Dep.) at 9:25 to 25; Kiernan Decl., Ex. D, Final Judgment of Divorce). During their relationship, Pagliere took out student loans from Defendant HESAA to finance her education at Rutgers University. (Pagliere Dep. at 11:5 to 20; Kiernan Decl., Ex. B, Deposition of Michael V. Yurkovic (Yurkovic Dep.) at 10:20 to 16:17). Plaintiff purportedly co-signed at least two of those loans. (Pagliere Dep. at 11:5 to 20; Yurkovic Dep. at 10:20 to 16:17). Those loans were for $5, 500, signed on August 7, 2004, and for $7, 250, signed on January 11, 2005, respectively.[1] (Pagliere Dep. at 11:5 to 20; Yurkovic Dep. at 10:20 to 16:17).

         On May 1, 2007, just before graduating, Pagliere consolidated her loans with HESAA. (Pagliere Dep. at 12:7 to 13:3). Pagliere signed her husband's name on the document, but claims he gave her permission to do so. (Pagliere Dep. at 13:4 to 21). Plaintiff admits that he discussed the loan consolidation with Pagliere at the time; but denies giving her permission to sign his name. (Yurkovic Dep. at 25:7 to 21).

         Pagliere eventually failed to make payments on the loan, and the loan defaulted. (Pagliere Dep. at 17:1 to 19). As a result, the HESAA servicing system forwarded the necessary information about the defaulting parties to the New Jersey Department of the Treasury. In turn, Yurkovic's 2011 state income tax refund was reduced by the outstanding loan balance.[2] (Kiernan DecL, Ex. J, Deposition of Russell Archer[3] (Archer Dep.) at 33:7 to 35:13). HESAA also reported the defaulted consolidated loan to the major credit reporting bureaus. (Archer Dep. at 42:22 to 43:23). HESAA retained Goldman, a New Jersey attorney, to represent it in collection activities. (Kiernan DecL, Ex. C, Deposition of Russell P. Goldman (Goldman Dep.) at 15:16 to 18).

         In March 2012, as set forth above, Plaintiff learned that HESAA had garnished his state income tax refund. Plaintiffs counsel contacted HESAA and was referred to Goldman. Goldman provided Plaintiff with a copy of the promissory note. By fax dated May 24, 2012, Plaintiffs then attorney contacted Goldman to notify him that Plaintiff claimed his May 1, 2007 signature on the consolidated loan had been forged. (Goldman Dep. 52:5 to 19). That day, Goldman forwarded HESAA's fraud/forgery packet to the attorney with instructions that Plaintiff should complete same. (Goldman Dep. 52:5 to 19, 61:19 to 62:17). Plaintiffs attorney acknowledged receipt of the packet on May 8, 2012 and indicated that he had forwarded the materials to Plaintiff. (Goldman Dep. at 52:20 to 21; Yurkovic 13). Plaintiff, however, failed to complete the packet. (Goldman Dep. 53:6 to 13). When asked about the packet during his deposition, Yurkovic stated he did not recall receiving an affidavit of forgery packet. (Yurkovich Dep. at 61:8 to 64:1).

         Goldman initiated a state court action on behalf of HESAA against Pagliere and Yurkovic in July 2012. (Goldman Dep. at 77:11 to 18). That case, however, was dismissed or stayed because Pagliere filed for chapter 13 bankruptcy. (Goldman Dep. 80:13 to 18). Plaintiff claims that in 2014, HESAA falsely reported to three credit reporting agencies that Plaintiff had defaulted on the student loans. (Amended Complaint at ¶ 25).

         On December 8, 2013, Plaintiff contacted Defendant Trans Union to request his consumer disclosure. (Declaration of Shameek Dennis[4] (Dennis Decl.), ECF No. 62-3, at ¶ 4). On March 14, 2014, Plaintiffs attorney filed a consumer dispute with Trans Union regarding the appearance of the HESAA loan on his credit file. (Dennis Decl. at ¶ 6; Yurkovic Dep. at 181:22 to 183:2). Trans Union claims this was its first notice of any potential inaccuracy relating to Plaintiffs account. (Dennis Decl. at ¶ 8). On March 19, 2014, Trans Union initiated a reinvestigation of the dispute by contacting HESAA. (Dennis Decl. at ¶ 10). On March 20, 2014, HESAA stated that a bankruptcy remark should be added to the account but that the account should continue to be reported. (Dennis Decl. at ¶ 12). Instead, on March 21, 2014, Trans Union permanently deleted the account from Plaintiffs Trans Union credit file. (Dennis Decl. at ¶ 13). On the same day, Trans Union sent Plaintiff notice that the account was deleted, but the notice was returned as undeliverable. (Dennis Decl. ¶¶ 16-17; Yurkovic Dep. at 183:13 to 184:11).

         In 2015, Plaintiff applied for and was granted credit at Freehold Jeep. (Yurkovic Dep. at 50:23 to 53:1, 124:46 to 125:22). However, in his deposition, Plaintiff said the "the guy who was setting up the finances questioned [him] on [the loan]." (Id. at 51:19-24). He stated that he suffered some embarrassment from having to explain his negative credit score. (Id. at 52:14-17).

         In the spring of 2016, Plaintiff claims he applied for a mortgage with Wells Fargo. (Yurkovic Dep. 54:22 to 59:8). However, he admitted that he did not complete the application because the process was too lengthy. (Yurkovic Dep. 55:14 to 59:8, 188:14 to 189:23). He received a mortgage from another unknown lender. (Yurkovic Dep. 55:14 to 59:8, 188:14 to 189:23). With regard to both loans, Plaintiff was unable to identify which consumer reporting agency provided a credit report and was not able to state that he received any worse mortgage terms because of information on his credit report. (Yurkovic Dep. 51:16 to 53:1, 52:6 to 53:1, 57:23 to 57:25, 59:6 to 13, 189:24 to 191:13). Plaintiff admitted there are no other credit applications that may have been affected by Trans Union's credit reporting. (Yurkovic Dep. 59:14 to 19).

         Plaintiff then commenced this action in state court in July 2016. (See Notice of Removal, ECF No. 1, Ex. B, Verified Complaint). Defendant Experian removed the case to this Court on August 31, 2016. (Notice of Removal). Plaintiff filed an amended complaint on December 7, 2016, alleging five counts for: (1) declaratory judgment that Plaintiff did not sign the consolidation loan, cannot be held liable for repayment, and other relief (Count One); (2) willful violation of The Fair Credit Reporting Act; (3) negligent violation of The Fair Credit Reporting Act; (4) defamation; and (5) invasion of privacy. (Amended Complaint, ECF No. 22).

         Thereafter, HESAA and Goldman each filed a motion to dismiss the amended complaint. (ECF No. 27, 28). On September 29, 2017, the Court partially granted both motions, dismissing counts four and five as against HESAA and dismissing counts one, two, and three as against Goldman. (ECF No. 40). On January 8, 2019, Plaintiff filed a notice of settlement and stipulation of dismissal as to Defendant Experian. (ECF No. 72). Therefore, the remaining claims are for declaratory judgment against HESAA and Trans Union (Count one); willful and negligent violation of the FCRA against HESAA and Trans Union (Counts two and three); defamation against Goldman and Trans Union (Count four); and invasion of privacy against Goldman (Count five).

         HESAA concedes that Plaintiff "is entitled to his day in court" to try to prove that his signature was a forgery (count one - declaratory judgment). However, HESAA, Trans Union, and Goldman seek summary judgment on the remaining counts.

         Legal Standard

         Summary judgment is appropriate under Fed.R.Civ.P. 56(c) when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Lnc, 411 U.S. 242, 248 (1986). In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 411 U.S. at 255).

         Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment cannot rest on mere allegations and instead must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). "[Unsupported allegations ... and pleadings are insufficient to repel summary judgment." Schoch v. First Fidelity Bancorp. , 912 F.2d 654, 657 (3d Cir. 1990); see also Fed. R. Civ. P. 56(e) (requiring nonmoving party to set forth specific facts showing that there is a genuine issue for trial"). Moreover, only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48. If a court determines, after drawing all inferences in favor of [the non-moving party] and making all credibility determinations in his favor "that no reasonable jury could find for him, summary judgment is appropriate." Alevras v. Tacopina, 226 Fed.Appx. 222, 227 (3d Cir. 2007).

         Legal Analysis

         HESAA's Answer

         At the outset, the Court notes that HESAA never filed an answer to Plaintiffs amended complaint. Under Federal Rule of Civil Procedure 15(a)(3), "Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later." HESAA is directed to file an answer within fourteen days of the date of this opinion.

         Statute of Limitations

         Trans Union contends Plaintiffs FCRA claims are barred by the applicable statute of limitations. The FCRA provides a two-year statute of limitations, providing that claims brought thereunder must be commenced "not later than the earlier of (1) 2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability; or (2) 5 years after the date on which the violation that is the basis for such liability occurs." 15 U.S.C. § 1681p. In the context of a federal statute of limitations, '"[d]iscovery' refers ... to a plaintiffs actual discovery of certain facts." Merck & Co. v. Reynolds,559 U.S. 633, 644-46 (2010). "[T]he discovery of the actual facts, and not the knowledge that those facts give rise to a cause of action, is what causes the statute ...

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