Scholinder v. First National Def ( 2004 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1195
STAN SCHOLINDER,
Plaintiff, Appellant,
v.
FIRST NATIONAL DEFENDANTS,
Defendants.
____________________
CAPITAL ONE DEFENDANTS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr and Stahl, Senior Circuit Judges.
Stan Schuldiner on brief pro se.
Darrell Mook, Andrew P. Botti, John E. Matosky, and Donovan
Hatem LLP, on brief for appellees Capital One Defendants.
February 19, 2004
Per Curiam. Pro se plaintiff-appellant Stan Schuldiner
("Schuldiner"),1 an attorney, appeals from the grant of summary
judgment in favor of defendants-appellees Capital One Services,
Inc., Capital One Financial Corporation, Capital One Bank, Capital
One FSB, Capital One, and People First, Inc. (the "Capital One
Defendants"). We review summary judgment decisions de novo,
examining the record independently and drawing any factual
inferences in the light most favorable to the non-moving party.
Rosenberg v. City of Everett, 328 F.3d 12, 17 (1st Cir. 2003).
After carefully reviewing the parties' briefs and the record on
appeal, we affirm the lower court's judgment. We briefly address
Schuldiner's claims of error.
Schuldiner argues that the district court erred in
granting summary judgment for the defendants without first
addressing whether the court had personal jurisdiction over all of
them. His contention is unavailing. Having willingly chosen the
forum, and not having asked the court below to pass first on the
jurisdictional issue, Schuldiner cannot now be allowed to escape an
adverse judgment by asserting rights belonging not to him but to
his litigation adversaries. Feinstein v. Resolution Trust Corp.,
942 F.2d 34, 40 (1st Cir. 1991).
1
The record contains at least three variations of the
plaintiff's last name, which the plaintiff explained as
typographical errors. We use the correct spelling.
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Schuldiner next argues that the court erred in ruling
that Capital One Bank's credit card solicitation constituted a
permissible "firm offer of credit" under the Fair Credit Reporting
Act, 15 U.S.C. § 1681 et seq. ("FCRA"). A "firm offer of credit"
is defined 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 . . . ." Id. § 1681a(l). The
offer may be further conditioned on the consumer meeting additional
requirements, including "specific criteria bearing on
creditworthiness." Id. § 1681a(l)(1). The FCRA does not define or
limit the criteria that may be used in making a "firm offer of
credit," as long as the criteria are established "before selection
of the consumer for the offer" and "for the purpose of determining
whether to extend credit . . . pursuant to the offer." Id. §
1681a(l)(1)(A) & (B). Having reviewed the documents at issue, we
agree with the district court that Capital One Bank's solicitation
fell squarely within the definition of a "firm offer of credit"
under the FCRA.
Schuldiner also argues that the court erred in finding
that the conditional status of Capital One Bank's credit offer was
conspicuous. The district court made no such ruling, as Schuldiner
did not make this complaint against any Capital One Defendant in
the court below. Rather, Schuldiner raised this claim against the
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First National Defendants, which the district court considered and
rejected. Schuldiner cannot assert this claim now against the
Capital One Defendants. See United States v. Bongiorno, 106 F.3d
1027, 1034 (1st Cir. 1997) (noting that arguments not raised in
lower court cannot be advanced on appeal).
Schuldiner further argues that the court erred in finding
that Capital One Bank's solicitation provided adequate notice under
15 U.S.C. § 1681m(d)(1)(D) of his right to prevent his credit
information from being disclosed for an offer of credit unless
initiated by him. Specifically, Schuldiner contends that, by
providing contact information for only three out of the four
national credit reporting agencies, Capital One Bank's "opt out"
notice was defective. Schuldiner adds that the defendant's use of
the phrase "your credit report" instead of the plural form "your
credit reports" compounded the error. The district court correctly
found that Capital One Bank's notice complied with the FCRA.
Schuldiner provides no support for his contention that the term
"your credit report" refers to a report from only one reporting
agency. Also, Capital One Bank's statement complies with the
Federal Trade Commission's model notice provision. See 16 C.F.R.
Pt. 601, App. C (Prescribed Notice of User Responsibilities),
Section V (Obligations of Users of "Prescreened" Lists).
Schuldiner's final argument is that the court erroneously
denied as moot his motions to amend his complaint, without
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considering whether the proposed amendments would survive a motion
to dismiss. The record belies his claim. The district court
considered, and ultimately rejected, Schuldiner's motions to amend
his complaint. We need not reach the issue of whether leave to
amend should have been given, because Schuldiner has not presented
any developed argument on that point. See Bongiorno, 106 F.3d at
1034 (noting that issues raised in perfunctory manner are deemed
waived).
The judgment of the district court is affirmed. See 1st
Cir. R. 27(c).
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