Alston v. Citibank, N.A.

Filing 16

MEMORANDUM OPINION (c/m to Plaintiff 5/11/15 sat). Signed by Judge Deborah K. Chasanow on 5/11/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
THOMAS ALSTON
Individually and on Behalf
of a Class of Persons
Similarly Situated

:
:

v.

:

Civil Action No. DKC 14-3199

:
CITIBANK, N.A.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this consumer
case is the motion to dismiss filed by Defendant Citibank, N.A.
(“Citibank” or “Defendant”) (ECF No. 11).

The issues have been

fully briefed, and the court now rules, no hearing being deemed
necessary.

Local Rule 105.6.

For the following reasons, the

motion to dismiss will be granted in part and denied in part.
I.

Background
A.
The

Factual Background
following

facts

are

alleged

in

the

complaint.

Plaintiff asserts that he applied for a Citi Diamond Preferred
MasterCard

account

consumer purchases.
upon

information

with

Citibank

in

February

(ECF No. 2 ¶¶ 4-5).
and

belief,

application for a credit card.

Citibank

2013

to

make

Plaintiff states that
did

(Id. ¶ 6).

not

accept

his

Plaintiff avers that

Citibank obtained and reviewed his credit report in denying his
application

for

a

credit

card.

(Id.

¶

8).

According

to

Plaintiff, he did not receive any notice from Citibank that his
application was denied.
Plaintiff

(Id. ¶ 9).

believes

that

Citibank

regularly

accepts

applications for consumer credit cards, regularly uses consumer
credit scores in evaluating such applications, and denies the
applications without providing notice to the applicants.
¶¶ 11-13).
matters

(Id.

He contends that “[a]t all times relevant to the

alleged

in

this

Complaint,

Citibank’s

policy

and

practice regarding credit scores and credit reports were similar
for

all

its

applications.”
B.

consumer

applicants

denied

credit

card

(Id. ¶ 14).

Procedural Background

On August 1, 2014, pro se Plaintiff Thomas Alston filed a
complaint, on behalf of himself and a class of persons similarly
situated, against Defendant Citibank, N.A. in the Circuit Court
for Prince George’s County, Maryland.

(ECF No. 2).

Plaintiff

asserted violations of the Fair Credit Reporting Act (“FCRA”),
15 U.S.C. § 1681 et seq., and the Equal Credit Opportunity Act
(“ECOA”), 15 U.S.C. § 1691 et seq.
seeks,

inter

alia,

statutory

In the complaint, Plaintiff
and

punitive

damages,

and

certification of the proposed class.
On October 10, 2014, Defendant filed a notice of removal,
citing federal question as the jurisdictional basis.
1).

(ECF No.

Defendant moved to dismiss the complaint on October 24,
2

2014.

(ECF No. 11).

Plaintiff was provided with a Roseboro

notice (ECF No. 12), which advised him of the pendency of the
motion

to

dismiss

and

his

entitlement

to

respond

seventeen (17) days from the date of the letter.
Garrison,

528

F.2d

309,

310

(4th

Cir.1975)

within

Roseboro v.

(holding

pro

se

plaintiffs should be advised of their right to file responsive
material to a motion for summary judgment).

Plaintiff opposed

the motion (ECF No. 13), and Defendant replied (ECF No. 14).
II.

Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is

to test the sufficiency of the complaint.

Presley v. City of

Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

A complaint

need only satisfy the standard of Rule 8(a), which requires a
“short and plain statement of the claim showing that the pleader
is entitled to relief.”

Fed.R.Civ.P. 8(a)(2).

“Rule 8(a)(2)

still requires a ‘showing,’ rather than a blanket assertion, of
entitlement to relief.”
544, 555 n.3 (2007).

Bell Atl. Corp. v. Twombly, 550 U.S.

That showing must consist of more than “a

formulaic recitation of the elements of a cause of action” or
“naked

assertion[s]

devoid

of

further

factual

enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations
omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
3

268 (1994), and all factual allegations must be construed in the
light

most

favorable

to

the

plaintiff.

See

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).

In evaluating the complaint, unsupported legal

allegations

not

need

be

accepted.

Revene

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).

v.

Charles

Cnty.

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events.

United Black Firefighters v. Hirst,

604 F.2d 844, 847 (4th Cir. 1979).
III. Analysis
A.

FCRA Claim

Plaintiff

asserts

that

Citibank

violated

the

FCRA

by

“fail[ing] to provide Plaintiff and the class members with the
oral, written or electronic notice of denial or adverse action
as required by the FCRA, 15 U.S.C. § 1681m.”

(ECF No. 2 ¶ 24).

Plaintiff alleges willful violations of Sections 1681m(a)(2) and
1681n or negligent violations of Sections 1681m(a)(2) and 1681o.
Defendant argues that the FCRA claim should be dismissed because
there is no private right of action for an alleged violation of
Section 1681m of the FCRA.
15 U.S.C. § 1681m addresses the “[d]uties of users taking
adverse

actions

on

[the]

basis
4

of

information

contained

in

consumer

reports.”

An

adverse

action

under

Section

1681m

includes “a denial or revocation of credit, a change in the
terms of an existing credit arrangement, or a refusal to grant
credit in substantially the amount or on substantially the terms
requested.”

See

15

U.S.C.

§

1681m.

Section

§

1681m(h)(8)

states:
(A)

No Civil Actions

Sections 1681n and 1681o of this title shall
not apply to any failure by any person to
comply with this section.
(B)

Administrative enforcement

This section shall be enforced exclusively
under section 1681s of this title by the
Federal agencies and officials identified in
that section.
(emphasis added).

Sections 1681n and 1681o generally establish

civil liability for willful and negligent noncompliance with the
FCRA.
Majority of courts that have interpreted Section 1681m have
concluded that no private cause of action exists for violations
of this section in its entirety.

See, e.g., Bartlett v. Bank of

America, NA, Civ. Action No. MJG-13-975, 2014 WL 3773711, at *4
n.11

(D.Md.

July

29,

2014);

Putkowski

v.

Irwin

Home

Equity

Corp., 423 F.Supp.2d 1053, 1061-62 (N.D.Cal. 2006) (“While §
1681n and § 1681o of the FCRA generally establish a private
right

of

action

for

certain

5

violations

of

the

FCRA,

§

1681m(h)(8) (added by FACTA) now expressly provides that there
is no private right of action for violations of § 1681m.”);
Farrow v. Capital One Auto Fin., Inc., No. CCB-06-2324, 2007 WL
4707634,

at

favorably).

*2

n.2

(D.Md.

Nov.

9,

2007)

(citing

Putkowski

Plaintiff argues:

[A]n ambiguity arises as to whether the term
“section,” as used in the amendments, was
intended to refer only to the amendments
themselves, or intended to refer to the
“section” of the FCRA into which those
amendments would ultimately be codified.
The
courts
that
have
considered
this
argument have failed to apprehend the import
of the drafting history through which this
language was added, and have erroneously
concluded that Congress must have used the
word “section” consistently throughout 15
U.S.C.
§
1681m
without
ever
analyzing
whether
those
provisions
should
be
considered to have been drafted at the same
time.
(ECF No. 13, at 3).
Plaintiff’s arguments are unavailing.
disagreement

with

the

interpretation

of

Despite Plaintiff’s
Section

1681m

by

a

majority of courts, violations of Section 1681m do not give rise
to a private cause of action under Sections 1681n and 1681o.
See, e.g., Bourdelais v. J.P. Morgan Chase, Civ. No. 3:10CV670HEH, 2011 WL 1306311, at *6 (E.D.Va. Apr. 1, 2011) (citing cases
and noting that “[v]irtually every federal district court and
the only federal court of appeals to interpret § 1681m(h)(8) has
found it to be clear and unambiguous: the word ‘section’ means

6

‘section,”

and

thus

no

private

right

of

action

exists

for

violations of section 1681m in its entirety.”).
Based on the foregoing, the FCRA claim will be dismissed.
B.

ECOA Claim

The

ECOA

claim

is

also

premised

on

Citibank’s

alleged

failure to notify Plaintiff that his credit card application was
denied in violation of 15 U.S.C. § 1691(d).

Section 1691(d) of

the ECOA provides that:
(1) Within thirty days (or such longer
reasonable time as specified in regulations
of the Bureau for any class of credit
transaction) after receipt of a completed
application for credit, a creditor shall
notify the applicant of its action on the
application.
(2) Each applicant against whom adverse
action is taken shall be entitled to a
statement of reasons for such action from
the creditor. A creditor satisfies this
obligation by —
(A) providing statements of reasons in
writing as a matter of course to applicants
against whom adverse action is taken; or
(B)
giving written notification of adverse
action which discloses (i) the applicant’s
right to a statement of reasons within
thirty days after receipt by the creditor of
a request made within sixty days after such
notification, and (ii) the identity of the
person or office from which such statement
may be obtained. Such statement may be given
orally if the written notification advises
the applicant of his right to have the
statement of reasons confirmed in writing on
written request.

7

15 U.S.C. § 1691(d)(1)-(2).
Defendant argues that the ECOA claim should be dismissed
because

“it

relies

entirely

on

the

absence

notice, yet the notice was provided.”

of

the

required

(ECF No. 11-2, at 5).

Defendant attaches as an exhibit to its motion to dismiss a
letter

to

Plaintiff

from

Citibank,

dated

February

19,

2013,

informing him that Citibank is “unable to approve [his] request
for

[the

time.”

Citi

Diamond

(ECF No. 11-4).

Preferred

MasterCard

account]

at

this

It states that the credit decision was

based in whole or in part on information obtained in a report
from Experian and that Plaintiff’s credit bureau report shows he
has no revolving accounts with a balance.

(Id. at 1).

In his

opposition to the motion to dismiss, Plaintiff argues that the
letter cannot be considered on a motion to dismiss and disputes
its authenticity.
“In deciding whether a complaint will survive a motion to
dismiss, a court evaluates the complaint in its entirety, as
well as documents attached or incorporated into the complaint.”
E.I. Du Pont de Nemours and Co. v. Kolon Industries, Inc., 637
F.3d 435, 448 (4th Cir. 2011); Phillips v. LCI Int’l Inc., 190
F.3d 609, 618 (4th Cir. 1999) (stating that “a court may consider
[a document outside the complaint] in determining whether to
dismiss the complaint” where the document “was integral to and
explicitly

relied

on

in

the

complaint”
8

and

there

was

no

authenticity challenge).

To be “integral,” a document must be

one “that by its ‘very existence, and not the mere information
it

contains,

gives

rise

to

the

legal

rights

asserted.’”

Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC,
794 F.Supp.2d 602, 611 (D.Md. 2011) (citation omitted) (emphasis
in original).

“Consideration of extrinsic documents by a court

during the pleading stage of litigation improperly converts the
motion to dismiss into a motion for summary judgment. . . .
This conversion is not appropriate when the parties have not had
an opportunity to conduct reasonable discovery.”

Zak v. Chelsea

Therapeutics Intern., Ltd., 780 F.3d 597, 606 (4th Cir. 2015).
Defendant asserts that the “[t]he notice of denial, or lack
thereof, is clearly integral to the Complaint and relied upon by
Plaintiff.”

(ECF No. 11-2, at 5).

This argument is misplaced.

In the complaint, Plaintiff asserts that he did not receive any
notice from Defendant denying his credit card application, which
he submitted in February 2013.

In other words, the ECOA claim

relies on the absence of a letter, not its issuance, and whether
or not Citibank indeed gave proper notice under ECOA creates a
factual dispute inappropriate for resolution at the motion to
dismiss stage.

Moreover, Plaintiff challenges the authenticity

of the letter attached as an exhibit to the motion to dismiss
purporting to give him notice.

Cozzarelli v. Inspire Pharms.

Inc., 549 F.3d 618, 625 (4th Cir. 2008) (considering investment
9

analyst reports attached to the defendants’ motion to dismiss
because

the

complaint

quotes

from

those

reports

and

plaintiffs did not challenge the reports’ authenticity).

the

In its

motion to dismiss, Defendant essentially seeks to refute the
allegation in the complaint giving rise to the ECOA claim using
the February 19, 2013 letter as evidence, but the facts alleged
in the complaint must be taken as true at this stage and the
court

cannot

rely

on

documents

whose

authenticity

Plaintiff

challenges.
Based

on

the

foregoing,

the

ECOA

claim

will

not

be

dismissed.
IV.

Conclusion
For the foregoing reasons, Defendant’s motion to dismiss

will be granted in part and denied in part.

A separate order

will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

10