Opinion
No. 01 C 9921
April 10, 2002
MEMORANDUM OPINION AND ORDER
Defendant moves to dismiss for failure to state a claim. That motion is granted in part and denied in part.
Plaintiff contends that defendant violated the Equal Credit Opportunity Act (ECOA), 15 U.S.C. § 1691, and the Fair Credit Reporting Act (ECRA), 15 U.S.C. § 1681. She alleges that defendant regularly arranges for the extension of credit to consumers for the purchase of automobiles, that it selects creditors to whom it applies, that it attempted to arrange financing for plaintiff, and that it failed. She claims that defendant failed to notify her in writing about the adverse credit action, and that its failure violated 15 U.S.C. § 1691 (d). She also alleges that defendant took adverse action against her based on information contained in a credit report and did not provide the disclosure required by 15 U.S.C. § 1681m.
Defendant contends that a violation of ECOA requires discrimination, and plaintiff has failed to allege that she is a member of a protected class. Plaintiff responds by arguing that Swierkiewicz v. Sorema, 122 S.Ct. 992, 997 (2002), decides otherwise. But that is not so. InSwierkiewicz the plaintiff alleged national original discrimination; he did not have to allege how he expected to prove it. Here there is no allegation of discrimination. Plaintiff's only ECOA claim (despite some hints in her responsive memorandum about a black woman discrimination claim) is that defendant failed to provide her with a written statement of reasons for the adverse credit action. That notification requirement extends to all applicants. Jochum v. Pico Credit Corp., of Westbank, Inc., 730 F.2d 1041, 1048 (5th Cir. 1984). Does that duty extend to defendant who only attempted to arrange financing? Perhaps. Arguably, § 1691(d)(4) required defendant to at least pass through any adverse credit actions reported to it. At least we are not prepared to say otherwise in the absence of any discussion of the matter by the parties. But if plaintiff means to charge discrimination she will need to amend her complaint to specifically so allege. For now, though, the limited claim now alleged in count I survives the motion to dismiss.
We do, however, dismiss count II. Plaintiff claims that defendant attempted to arrange financing, but it failed. Perhaps the financing sources approached by defendant relied upon consumer credit reports or upon the information supplied by defendant or, perhaps, they had no good reason at all to refuse credit But the supplying of information does not make defendant a user of credit reports. Lema v. Citibank (South Dakota), N.A., 935 F. Supp. 695 (D. Md. 1996). Plaintiff suggests that maybe defendant relied on credit reports in deciding not to itself extend credit. But there is no such allegation and, before it could be made, Federal Rule of Civil Procedure 11 would appear to require some basis for a belief that defendant extends credit. Plaintiff comes up with another possibility as well, but that possibility cannot be gleaned from the present allegations.