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DRAIMAN v. AMERICAN EXPRESS TRAVEL RELATED SERVS.

July 21, 1995

NACHSON DRAIMAN, etc., Plaintiff,
v.
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, Defendant.



The opinion of the court was delivered by: MILTON I. SHADUR

 Nachson Draiman ("Draiman") brings this three-count action, both on his own behalf and for a purported class of similarly situated individuals, against American Express Travel Related Services Company ("American Express"). Draiman contends that by reinstating his cancelled credit card ("Platinum Card") without his express permission and by then seeking to collect a debt for charges incurred on that resuscitated account, American Express violated the federal Truth-in-Lending Act ("TILA," 15 U.S.C. §§ 1642 and 1643) *fn1" (Count I), the Illinois Consumer Fraud Act (the "Illinois Act," 815 ILCS 505/2) (Count II) and New York General Business Law § 349 (Count III).

 Both because of the highly individualized nature of Draiman's situation vis-a-vis American Express (contraindicating its "typicality" as required by Fed. R. Civ. P. ("Rule") 23(a)(3), and perhaps also casting doubt on the adequacy of representation as required by Rule 23(a)(4)) and because Draiman's ability to show true "numerosity" under Rule 23(a)(1) is suspect at best, this action was particularly ill-suited to a prompt determination of its suitability for class-action treatment, as this Court normally pursues under Rule 23(c)(1). Instead this Court has entertained American Express' promptly-filed motion for summary judgment under Rule 56 as to all three counts of the Amended Complaint ("AC"). *fn2" Both sides have complied with this District Court's General Rule ("GR") 12(m) and 12(n), *fn3" and the motion is fully briefed and ready for decision. For the reasons stated in this memorandum opinion and order, American Express' motion is granted in its entirety.

 Facts4

 On several occasions between 1988 and 1992 Draiman used his American Express Platinum Card to purchase airline tickets through the Travel Dimensions travel agency. Draiman provided Travel Dimensions with his Platinum Card number, and when he needed tickets he would call and place an order. Travel Dimensions would send the tickets to Draiman and the bill to American Express. American Express would then secure payment from Draiman by including the cost of the tickets plus applicable financing charges in its periodic billing statement.

 On January 21, 1992 Draiman cancelled his Platinum Card. Sometime thereafter Draiman deposited an undisclosed sum of money with Travel Dimensions. On July 20, 1992 Draiman purchased four El Al tickets to Israel at $ 2,077 each, for a total cost of $ 8,308. Draiman instructed Travel Dimensions to pay for the El Al tickets by drawing upon his deposited funds. Travel Dimensions did not honor that request--instead it charged the amount against the number that it had for Draiman's Platinum Card. *fn5"

 American Express of course knew nothing of Draiman's deposit with, or his instructions to, Travel Dimensions. When American Express received the $ 8,308 charge from Travel Dimensions, that triggered its reinstatement policy, as set out in these terms in the cardholder agreement:

 American Express does not communicate with cardholders to confirm that it is in fact their desire to revive their accounts. In accordance with its written policy (and because the unwritten practice referred to in n.6 was inapplicable), American Express reinstated Draiman's Platinum Card on August 26, 1992 and billed him $ 8,308. Draiman later actually used the El Al tickets (each of which had his Platinum Card number printed on its face) to travel to Israel.

 On October 15, 1993 Draiman paid American Express $ 3,399.98 of the $ 8,308 total and threatened suit if it tried to collect the $ 4,908.02 balance, citing purported violations of the Fair Credit Billing Act, TILA and other applicable laws. When American Express attempted to collect the debt, the threatened legal action ensued on January 11, 1995 with one twist: Draiman filed not only on his own behalf but also on behalf of a purported class of similarly aggrieved persons.

 Section 1642

 Draiman first contends that by resuscitating his cancelled Platinum Card without express permission American Express issued an unsolicited credit card in violation of Section 1642:

 
No credit card shall be issued except in response to a request or application therefor. This prohibition does not apply to the issuance of a credit card in renewal of, or in substitution for, an accepted credit card.

 It is unnecessary to decide whether Draiman might at one time have had a valid Section 1642 claim against American Express, *fn7" for if so he lost it when he failed to ...


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