Not For Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc.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,

(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.,

(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.

-2- 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,

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 . . . ."

§ 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

-3- 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,

(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

-4- 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,

(noting that issues raised in perfunctory manner are deemed

waived).

The judgment of the district court is affirmed. See 1st

Cir. R. 27(c).

-5-