COUNSEL:   [*1]  For Lois Kudlicki, Plaintiff: Daniel A. Edelman, Cathleen M. Combs, Derek B Rieman, James O. Latturner, Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL.

For Farragut Financial Corporation, Defendant: Eugene Joseph Kelley, Jr., Anna-Katrina Saranti Christakis, Jeffrey D. Pilgrim, John L. Ropiequet, Arnstein & Lehr, Chicago, IL.

JUDGES: George W. Lindberg, Magistrate Judge.

OPINIONBY: George W. Lindberg

OPINION:

STATEMENT

Plaintiff Lois Kudlicki's class action complaint alleges that defendant Farragut Financial Corporation violated provisions of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §  1681b and 15 U.S.C. §  1681m(d). This Court previously granted defendant's motion for partial judgment on the pleadings on plaintiff's claim that defendant violated 15 U.S.C. §  1681m(d). Before the Court are the parties' cross-motions for summary judgment on plaintiff's claim that defendant obtained plaintiff's credit report for an impermissible purpose in violation of 15 U.S.C. §  1681b.

In deciding cross-motions for summary judgment, the Court must evaluate each party's motion on its [*2]  own merits. See Liberty Mut. Ins. Co. v. American Home Assurance Co., 348 F. Supp. 2d 940, 951 (N.D. Ill. 2004). Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with [any] affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The court must draw all reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The moving party bears the initial burden of demonstrating that no material issue exists for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has properly supported its motion, the nonmoving party must offer specific facts demonstrating that a material dispute exists, and must present more than a scintilla of evidence to support its position. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

The following facts are undisputed. Defendant sent plaintiff a mailer after "prescreening"  [*3]  her by obtaining information about her from a consumer reporting agency. The mailer directed plaintiff to contact defendant to refinance her vehicle, stating that "the experts at Farragut Financial have reviewed your auto loan and determined that we can do better! We can reduce your overall loan cost and lower your monthly payment!" The mailer further states:

Terms of Pre-Approved Offer: We used information on you that we obtained from a consumer reporting agency in connection with this offer. You were selected to receive this offer because you satisfied certain criteria for creditworthiness which we previously established. The offered credit may not be extended if, after you respond to this offer, we determine that you do not meet the criteria used to select you for the offer or any other applicable criteria bearing on creditworthiness or do not furnish any required collateral.

The mailer provided no specific details relating to the amount of credit or the repayment term, and describes interest rates only as being "as low as 5.5% APR."

Both parties seek summary judgment on plaintiff's claim that defendant's conduct in accessing her consumer report violated the FCRA [*4]  because the mailer did not constitute a "firm offer of credit." The FCRA allows the use of a consumer report obtained from a consumer reporting agency, without the consumer's authorization, only for certain limited purposes, including the extension of a "firm offer of credit." 15 U.S.C. §  1681b(f)(1), (c)(1)(B)(i). The FCRA defines a "firm offer of credit" as "any offer of credit . . . to a consumer that will be honored if the consumer is determined, based on information in a consumer report on the consumer, to meet the specific criteria used to select the consumer for the offer . . . ." 15 U.S.C. §   1681a(1). In addition to the requirement that the offer of credit be honored, an offer is not a "firm offer of credit" unless it has "sufficient value for the consumer to justify the absence of the statutory protection of his privacy." Cole v. U.S. Capital, Inc., 389 F.3d 719, 726 (7th Cir. 2004).

Plaintiff argues that defendant's offer could not be a "firm offer" because the mailer stated that rates and terms are subject to change at any time. This statement is part of a line in the mailer, in what appears to be bold-face [*5]  type, that states: "**All loans subject to approval. Only funded loans will qualify for any cash back promotion. Rates and terms subject to change at any time." Defendant argues that the language at issue pertains only to the immediately preceding sentence regarding a cash back promotion, and does not apply to the offer as a whole. The Court is not persuaded that this language is so limited, particularly since the first sentence in the same line relates to "all loans." The Court concludes that the statement in the mailer that rates and terms are subject to change at any time precludes defendant's offer from being a "firm offer of credit." This is true even if, as defendant argues, circumstances outside the contents of the mailer are relevant to a determination of whether defendant has extended a "firm offer of credit," a position with doubtful merit. See Murray v. GMAC Mortgage Corp., No. 05-8035, 2006 WL 90081, at *6 (7th Cir. Jan. 17, 2006) ("To decide whether [defendant] has adhered to the statute, a court need only determine whether the four corners of the offer satisfy the statutory definition (as elaborated in Cole), and whether the terms are honored [*6]  when consumers accept.").

Defendant argues that even if there was no "firm offer of credit," there is no evidence that defendant willfully failed to comply with the FCRA. Plaintiff seeks only statutory damages under Section 1681n of the FCRA; plaintiff offers no evidence of actual damages. Section 1681n provides:

Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of --

(1)(A) any actual damages sustained by the consumer as a result of the failure or damages of not less than $ 100 and not more than $ 1,000 ...

  15 U.S.C. §  1681n(a)(1)(A). "To act willfully, a defendant must knowingly and intentionally violate the Act, and it 'must also be conscious that [its] act impinges on the rights of others.'" Wantz v. Experian Info. Solutions, 386 F.3d 829, 834 (7th Cir. 2004) (quoting Phillips v. Grendahl, 312 F.3d 357, 368 (8th Cir. 2002)). It is not necessary to show malice or evil motive to satisfy Section 1681n. See Stevenson v. TRW Inc., 987 F.2d 288, 294 (5th Cir. 1993). [*7]

Defendant offers evidence that since approximately 2003, it has employed a compliance officer to review its mailers for compliance with the FCRA before they are sent out. In addition, defendant offers evidence that its mailers are reviewed and approved by the consumer reporting agency that provides the consumer reports to defendant, as well as by California state regulators.

Plaintiff observes that defendant's compliance officer is not an attorney, and there is no competent evidence that any attorney reviewed defendant's mailer. Plaintiff argues that because defendant's non-compliance with the FCRA is so evident on the face of defendant's mailer, the Court must conclude that a true compliance review process could not have existed.

The Court agrees with plaintiff. It is clear from the most cursory glance at defendant's mailer that no firm offer of credit is being extended, and no compliance examiner could conclude otherwise. Accordingly, the Court finds that defendant's failure to comply with the FCRA was willful. Plaintiff's motion for summary judgment on liability is granted.