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Pletz v. MBNA America

February 15, 2007


The opinion of the court was delivered by: Herndon, District Judge


I. Introduction and Background

Pending before the Court is MBNA's Motion to Dismiss Pletz's Second Amended Complaint (Doc. 74). Specifically, MBNA argues that Pletz's Second Amended Complaint is time barred by the statute of limitations contained in 15 U.S.C. § 1681p. Pletz opposes the motion (Doc. 78). Based on the pleadings and case law, the Court denies the motion.

On June 27, 2006, Plaintiff Joan Pletz ("Pletz") filed this Second Amended Complaint against Defendants MBNA America, NA, d/b/a Bankcard Services; Hilco Receivables, LLC; Lake Cook Partners, LLC; and Creditors Financial Group, LLC; ("MBNA") under the Fair Credit Reporting Act, 15 U.S.C. § 1681p, and 28 U.S.C. § § 1331, 1332, 1337, and 1367, requesting declaratory and injunctive relief stating that Pletz is not obligated on the account pursued against her by MBNA. (Doc. 73).*fn1

Specifically, the Second Amended Complaint alleges that MBNA reported to various credit bureaus that Pletz owed MBNA money related to a debt that originally belonged solely to her husband and which was discharged in his bankruptcy proceedings. Pletz was not aware that the credit card existed until MBNA began attempting to collect the debt from her in 2003 after the debt was discharged. Pletz and her husband, Albert Pletz, were married in 1953. In 1977, Mr. Pletz opened a credit card account with Union Planter's Bank, MBNA's predecessor in interest on Mr. Pletz's credit card account. Pletz was not present when the account was opened, and she never signed any documents obligating her on the account.

After Albert Pletz's bankruptcy, MBNA began sending Pletz account statements in her name only and harassing her by telephone demanding payment of the account's balance. In response, Pletz demanded proof that she was obligated on the account and she refused to pay the balance. Between September 22, 2003, and October 16, 2003, MBNA sold the account to a third party collection agency. Over the course of the next two years, at least four collection agencies attempted to collect the account balance from Pletz despite the Pletz's repeated letters disputing the debt and demanding that such activity cease. Around July 2005, Pletz wrote to three consumer reporting agencies requesting that her delinquency on the account be deleted because the debt was not hers. When these agencies contacted MBNA to verify that Pletz was obligated to pay the debt, MBNA informed the agencies that the debt was in fact that of Pletz. As a result, the agencies declined to remove the reported delinquency from Pletz's credit report. Pletz alleges that MBNA's verification statements in 2005 were false, and that MBNA knew the statements to be false.

On July 17, 2006, MBNA filed a Motion to Dismiss Pletz's Second Amended Complaint as time-barred by 15 U.S.C. § 1681p.(Doc. 74).Pletz opposes the motion (Doc. 78). The Court now turns to address the motion.

II. Analysis

When reviewing a motion to dismiss for failure to state a claim, the court must determine whether "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court must accept all well-pleaded allegations of the complaint as true. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Such latitude "is necessary to give plaintiffs the benefit of the broad standard for surviving a Rule 12(b)(6) motion . . ." Cushing v. City of Chicago, 3 F.3d 1156, 1160 (7th Cir. 1993).

MBNA argues that most of Pletz's allegations in the Second Amended Complaint, including all assertions of harassment by MBNA and correspondence between MBNA and the Pletz's, occurred more than two years before Pletz filed her original Complaint. Therefore, MBNA contends that Pletz's claim is precluded by 15 U.S.C. § 1681p'sstatute of limitations. 15 U.S.C. § 1681p provides:

An action to enforce any liability created under this subchapter may be brought in any appropriate United States district court, without regard to the amount in controversy, or in any other court of competent jurisdiction, not later than the earlier of--

(1) 2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability; or

(2) 5 years after the date on which the violation that is the basis for ...

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