United States District Court, N.D. Illinois, Eastern Division
JANICE K. NEIMAN, and KENNETH M. NEIMAN, Plaintiffs,
CHASE BANK, USA, N.A., Defendant.
MEMORANDUM OPINION AND ORDER
JAMES F. HOLDERMAN, District Judge.
On December 16, 2013, Janice K. Neiman and Kenneth M. Neiman (collectively, "Plaintiffs") filed a three-count complaint ("Complaint" or "Compl.") against Chase Bank, USA, N.A. ("Chase") purporting to allege violations by Chase of the Fair Credit Billing Act, 15 U.S.C. § 1666 et seq. (Count I, "FCBA") and the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (Counts II and III, "FCRA"). (Dkt. No. 1.)
Before the court is Chase's "Motion to Dismiss Plaintiffs' Complaint" (Dkt. No. 9, "Motion to Dismiss"), accompanied by a supporting memorandum (Dkt. No. 11, "Def's Mem."). Chase seeks dismissal under Rule 12(b)(6) and argues that Count I must be dismissed as being time-barred, or alternatively, for failing to allege billing errors under the FCBA. (Def's Mem. at 5-13.) Chase, additionally, asserts that Counts II and III must be dismissed, because Plaintiffs failed to allege that any credit reporting agency notified Chase of the alleged billing errors, as required under the FCRA. ( Id. at 13-14.)
For the reasons set forth below, Chase's Motion to Dismiss is granted in part and denied in part as follows: Count I's allegations concerning the failure to acknowledge, to investigate, and to provide an explanation and documentary evidence for the alleged $12, 000 charge billing error are time-barred and dismissed with prejudice; Count I's allegations concerning Chase's failure to send monthly statements are also dismissed but without prejudice; Count I's contentions concerning Chase's attempts to collect and close the account containing this billing error may remain pending; finally, Counts II and III are dismissed without prejudice as explained below.
THE COMPLAINT'S ALLEGATIONS
Plaintiffs "entered into a revolving credit card agreement for personal and/or familial purposes" with Chase on May 1, 2003. (Compl. ¶ 6, Ex. A.) On July 19, 2012, Plaintiffs incurred a $12, 000 charge from a private doctor's office in Fort Myers, Florida known as "Florida Incisionless" ("the Merchant"), which was reflected on Plaintiffs' monthly statement ending on August 10, 2012. ( Id. ¶ 11, Ex. B.) Although the Complaint alleges that Plaintiffs' "charge plate was never presented" to the Merchant ( Id. ¶ 14), the Complaint does not allege that Plaintiffs did not purchase services from the Merchant. The Complaint, instead, asserts that Plaintiffs notified the Merchant on August 15, 2012 and Chase on August 20, 2012 that the $12, 000 charge was a billing error. ( Id. ¶¶ 12, 15, 17.)
The Complaint alleges the following. Chase failed to acknowledge receiving Plaintiffs' notice ( id. ¶ 13), but later said it would investigate the charge and any payment by Plaintiffs would be considered without prejudice to Plaintiffs' rights ( id. ¶ 16). Chase additionally agreed that any payment by Plaintiffs in the meantime "would trigger a credit balance by the amount of the disputed payment." ( Id. ) Plaintiffs, relying on this agreement, paid $14, 765.16 to their account on August 30, 2012. ( Id. ¶ 18.)
On September 20, 2012, Plaintiffs, again, notified Chase of the same billing error on the monthly statement ending on September 10, 2012. ( Id. ¶ 21, Ex. C.) Despite Plaintiffs' $14, 765.16 payment, this September statement showed a due balance of $4.72, instead of a credit balance of $12, 000. ( Id. ) Chase, again, failed to acknowledge its receipt of this written notice and failed to provide copies of documentary evidence of the disputed charge. ( Id. ¶ 22.) Plaintiffs did not receive any monthly statements for the next two billing cycle periods, September 11, 2012 to October 10, 2012 and October 11, 2012 to November 10, 2012. ( Id. ¶ 23.)
On January 15, 2013, Plaintiffs notified Chase that the same billing error appeared on their monthly statement ending on December 10, 2012. ( Id. ¶¶ 28-29.) This December statement showed that Chase refunded the entire $14, 765.16 amount Plaintiffs previously paid on August 30, 2012 for the $12, 000 charge and debited $740.00 from Plaintiffs' bank account. ( Id. ¶¶ 30-34, Ex. D.) Chase continued to fail to investigate the underlying billing error and failed to provide the requested documentary evidence. ( Id. ¶¶ 35-39.) Chase, without notice to Plaintiffs, closed Plaintiffs' account containing the above billing errors after Chase collected the $740.00 and applied this amount toward the $12, 000 charge. ( Id. ¶¶ 40-41.)
Chase also provided incorrect credit information about Plaintiffs to credit reporting agencies which damaged and continues to damage Plaintiffs' credit ratings. ( Id. ¶¶ 49-50, 63-64.)
In ruling on a Rule 12(b)(6) motion, the court "construe[s] the... [c]omplaint in the light most favorable to Plaintiff, accepting as true all well-pleaded facts and drawing all possible inferences in his favor." Cole v. Milwaukee Area Tech. Coll. Dist., 634 F.3d 901, 903 (7th Cir. 2011). Furthermore, "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]'" Titus v. Ill. Dep't of Transp., 828 F.Supp.2d 957, 966 (N.D. Ill. 2011) (Castillo, J.) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). However, even under this liberal standard, "a pro se complainant can plead himself out of court by pleading facts that undermine the allegations set forth in his complaint." Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999) (citing Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1997)).
Under the Fed. R. of Civ. P. 8(a)(2), a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." The complaint must "give the defendant fair notice of what the... claim is and the grounds upon which it rests[.]" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Although "detailed factual allegations" are not required, "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. The complaint must "include sufficient facts to state a claim for relief that is plausible on its face.'" Cole, 634 F.3d at 903 (quoting Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
I. Count I: Alleged Violations of FCBA, 15 ...