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Kowalkowski v. Francois Sales and Services, Inc.

United States District Court, W.D. Wisconsin

May 20, 2019

CONNER KOWALKOWSKI, Plaintiff,
v.
FRANCOIS SALES AND SERVICES, INC., LANDMARK CREDIT UNION and ALLY FINANCIAL INC., Defendants.

          OPINION AND ORDER

          STEPHEN L. CROCKER, MAGISTRATE JUDGE

         In this civil suit brought under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (FCRA), and Wis.Stat. 995.50 (invasion of privacy), plaintiff Conner Kowalkowski alleges that defendants Francois Sales and Services, Inc., Landmark Credit Union, and Ally Financial Inc. obtained a copy of his credit report without his permission or a permissible purpose, causing him to have a lower credit score. Before the court is Ally's motion for judgment on the pleadings under Fed.R.Civ.P. 12[c], in which it argues that Kowalkowski's allegations show that Ally had a permissible purpose for obtaining the credit report and that the FCRA preempts the state law invasion of privacy claim. Dkt. 29. For the reasons stated below, I am granting the motion and dismissing all of Kowalkowski's claims against Ally.

         Solely for the purposes of deciding the motion for judgment on the pleadings, I find that Kowalkowski has fairly alleged the following facts in his second amended complaint:

         FACTUAL ALLEGATIONS

         After purchasing two vehicles from Francois Sales, a car dealership, in May 2018, Kowalkowski gave the dealer permission to pull his credit report on August 14, 2018. (Although it is not clear from the allegations in the second amended complaint, Kowalkowski explains in his response brief that an additional transaction occurred in August 2018, during which he allegedly traded in one of the vehicles he had purchased in May for a third vehicle.) When giving Francois permission to obtain his credit report to secure financing, Kowalkowski specifically asked the dealer (apparently in a text message) to “start by only sending my credit application to people you think may approve me” because “[l]ast time we applied it hit our credit at 18 different banks and hurt my credit a lot.” Dkt. 14 at 3. Francois allegedly submitted Kowalkowski's credit application to five lenders, including Ally and Landmark, but submitted the application to Ally and Landmark on two consecutive days. According to Kowalkowski, “[d]efendants should have known that if these companies did not approve Conner for credit on one day, they would also not approve him the very next day.” Id. ¶ 18.

         OPINION

         I. Legal Standard

         The parties agree that motion for judgment on the pleadings under Fed.R.Civ.P. 12[c] is subject to the same standard as a motion to dismiss under Rule 12(b)(6), which “challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). In deciding such a motion, the court views the complaint in the light most favorable to the non-movant, accepts all well-pleaded factual allegations as true and draws all reasonable inferences in the non-movant's favor. Vesely v. Armslist LLC, 762 F.3d 661, 664 (7th Cir. 2014). A claim should survive a motion to dismiss “if the complaint contains well-pled facts-that is, not just legal conclusions-that permit the court to infer more than the mere possibility of misconduct.” Olson v. Champaign Cty., 784 F.3d 1093, 1099 (7th Cir. 2015) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

         II. FCRA Claim

         Kowalkowski has brought a claim under the FCRA, 15 U.S.C. § 1681b, alleging that Ally (and the other defendants) obtained his consumer credit report without a permissible statutory purpose. See § 1681b(f) (“A person shall not use or obtain a consumer report for any purpose unless- (1) the consumer report is obtained for a purpose for which the consumer report is authorized to be furnished under this section. . .”). Section 1681b(a) provides:

         Any consumer reporting agency may furnish a consumer report under the following circumstances and no other:”

(3) To a person which it has reason to believe -
(A) intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension ...

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