In Gilchrist v. First National Bank of Omaha, 2018 WL 317267, at *2–3 (W.D.Wash., 2018), Judge Pechman dismissed a federal TCPA claim because it was compulsory to a debt collection action filed in the state court.
There is no question in the Court’s mind that there is a logical relationship between (1) the credit agreement between the Bank and Plaintiff, (2) the Bank calling Plaintiff to collect on the debt, (3) the Bank’s suit against Plaintiff based on the debt and (4) Plaintiff suing the Bank for violations of the TCPA on the basis of the calls. Plaintiff was clearly aware of the calls – he even sued the Bank for TCPA violations in small claims court. Despite that awareness, Plaintiff did not include a TCPA counterclaim in the answer and counterclaims document he filed in the state court case. Nor does Plaintiff allege that such a counterclaim would have required an additional party over whom the superior court could not have acquired jurisdiction. All of the elements are present for a finding of a compulsory counterclaim under Rule 13(a). . . .This Court is bound by Ninth Circuit precedent and as such is constrained to find that Plaintiff’s TCPA cause of action should have been brought as a compulsory counterclaim in the state court action and therefore cannot be raised in a separate lawsuit (such as this one). Plaintiff’s motion to dismiss that claim will be granted.
The Court also dismissed the Plaintiff’s FCRA case based on the claim that the debt collection attorney had impermissibly obtained the debtor’s consumer report even for litigation purposes.
Plaintiff concedes that these claims arise out of Patenaude’s obtaining of his credit report on February 10, 2016 “while in litigation with the Plaintiff.” (Dkt. No. 27, Response at 2-3.) That litigation involved the collection of a debt from Plaintiff, and the case authority in both Washington State and the Ninth Circuit is clear: when a debt collector obtains a consumer’s credit report in the process of collecting a debt (including a lawsuit for that purpose), there is no FCRA violation. The circumstances in § 1681b of the FCRA under which it is permissible for consumer reporting agencies to furnish credit reports include “the use of consumer reports for debt collection purposes, as long as the obligation owed by the consumer stems from a credit transaction involving the consumer.” Rodriguez v. Experian Info. Solutions, Inc., 2016 WL 3976563 at *3 (W.D. Wash. July 25, 2016). Plaintiff’s authority to the contrary is distinguishable on this basis: none of Plaintiff’s cases involve credit reports obtained by a creditor’s attorney collecting on a debt. [Fn 2: Duncan v. Handmaker, 149 F.3d 424 (6th Cir. 1998)(negligence suit); Rice v. Montgomery Ward, 450 F.Supp. 668 (M.D. N.C. 1978)(Equal Opportunity Act claims); Bakker v. McKinnon, 152 F.3d 1007 (8th Cir. 1998)(dental malpractice); Auriemma v. Montgomery, 860 F.2d 273 (7th Cir. 1988)(discrimination lawsuit); Mone v. Dranow, 945 F.2d 306 (9th Cir. 1991)(unfair competition lawsuit); and so on.] A debt collector (including a collector’s attorney) who obtains a credit report for purposes of collecting a debt has not violated the FCRA. See Landaker v. Bishop, White, Marhall & Weibel, P.S. (2012 WL 6025741 at *6 (W.D. Wash. Dec. 4, 2012). Plaintiff’s FCRA claims must be dismissed on that basis.