In Marino v. PNC Bank, N.A., 2018 WL 5114136, at *1 (D.Nev., 2018), Judge Du dismissed an FCRA claim by a homeowner against a creditor based on the creditor’s obtaining a consumer report post-bankruptcy. The facts were as follows:
Marino obtained a mortgage with PNC. Thereafter, in 2013, she filed for bankruptcy. The bankruptcy court “discharge[d] her in personam liability for … any debt owed to PNC.” (Id. at 2.) Marino alleges that following the discharge she had “no other in personam relationship established or [newly] created” with PNC, nor did she make any requests for credit from PNC. Id. Nonetheless, without new authorization from Marino, PNC obtained her consumer report information on more than one occasion. Marino particularly takes issue with PNC’s alleged contention that it had a legitimate purpose for accessing her credit information because her account was in default and subject to collection. Marino contends that without additional authorization, or any credit requests, PNC had no legitimate purpose for accessing her credit information because she no longer owed any debt to PNC after the discharge. In sum, Marino claims PNC violated her the FCRA by accessing her consumer report without a permissible purpose under 15 U.S.C. § 1681b, and that PNC’s conduct constitutes a willful or negligent violation of the FCRA. She insists PNC’s conduct was a breach of her privacy, and that she felt vulnerable and suffered distress as a result.
The District Court dismissed the case.
Here, the Court finds that Marino’s pleadings forecloses her FCRA claim, by revealing that as a matter of law PNC had a permissible purpose for obtaining her consumer credit information. The FAC specifically alleges that PNC’s stated “permissible purpose” was to obtain Marino’s credit information because her PNC account was in default and subject to collection. (ECF No. 44 at 4.) Under § 1681b(a)(3)(A), a permissible purpose includes the use of credit information “in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit, or review or collection of an account of, the consumer ….” The FAC also provides that Marino obtained discharge of only her in personam liabilities. Marino’s apparent belief that PNC no longer had a claim against her related to the collection of her PNC account after the discharge is therefore unavailing. See, e.g., Johnson v. Home State Bank, 501 U.S. 78, 84 (1991) (“[A] bankruptcy discharge extinguishes only one mode of enforcing a claim—namely, an action against the debtor in personam—while leaving another—namely, an action against the debtor in rem.”); Vanamann v. Nationstar Mortgage, LLC (“Vanamann I”), No. 2:15-cv-00906-KJD-NJK, 2017 WL 1097189, *3–4 (D. Nev. Mar. 22, 2017), aff’d sub nom. Vanamann v. Nationstar Mortgage, LLC (“Vanamann II”), 735 F. App’x 260, 262 (9th Cir. May 18, 2018) (discussing § 1681b(a)(3)(A) in case with similar facts and recognizing that neither the FCRA’s plain language nor any Ninth Circuit precedent prohibits a mortgage servicer from obtaining a consumer’s credit report after discharge of the consumer’s mortgage debt). While Vanamann II expressly assumed that the defendant there “lacked a permissible purpose for checking [the plaintiff’s] credit[,]” and therefore appeared to side-step the permissible purpose issue, Vanamann II‘s analysis nonetheless persuasively, even if unintentionally, decides the issue. 735 F. App’x at 262. Ultimately, in deciding only whether the defendant willfully violated the FCRA, Vanamann II‘s rationale almost entirely focuses on what is a permissible procurement of a consumer’s report by a mortgage servicer after a bankruptcy discharge related to the consumer’s mortgage debt. Id. Vanamann II indicates that, under § 1681b(a)(3)(A), it was permissible for PNC to obtain Marino’s credit report for collection purposes after discharge of her in personam liability to the bank. Because, Marino in effect alleges PNC obtained her consumer report information for a permissible purpose—i.e., for collection on the mortgage Marino obtained from PNC, where PNC maintained the right to so collect in rem—PNC is entitled to dismissal. Accordingly, the Court grants PNC’s Motion and dismisses Marino’s FAC.