Alston v. Citibank, N.A.
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
Individually and on Behalf
of a Class of Persons
Civil Action No. DKC 14-3199
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
Local Rule 105.6.
For the following reasons, the
motion to dismiss will be granted in part and denied in part.
Plaintiff asserts that he applied for a Citi Diamond Preferred
(ECF No. 2 ¶¶ 4-5).
application for a credit card.
Plaintiff states that
(Id. ¶ 6).
Plaintiff avers that
Citibank obtained and reviewed his credit report in denying his
Plaintiff, he did not receive any notice from Citibank that his
application was denied.
(Id. ¶ 9).
applications for consumer credit cards, regularly uses consumer
credit scores in evaluating such applications, and denies the
applications without providing notice to the applicants.
He contends that “[a]t all times relevant to the
practice regarding credit scores and credit reports were similar
(Id. ¶ 14).
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).
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.
In the complaint, Plaintiff
certification of the proposed class.
On October 10, 2014, Defendant filed a notice of removal,
citing federal question as the jurisdictional basis.
Defendant moved to dismiss the complaint on October 24,
(ECF No. 11).
Plaintiff was provided with a Roseboro
notice (ECF No. 12), which advised him of the pendency of the
seventeen (17) days from the date of the letter.
plaintiffs should be advised of their right to file responsive
material to a motion for summary judgment).
the motion (ECF No. 13), and Defendant replied (ECF No. 14).
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).
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.”
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
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
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
Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
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).
“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
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
No Civil Actions
Sections 1681n and 1681o of this title shall
not apply to any failure by any person to
comply with this section.
This section shall be enforced exclusively
under section 1681s of this title by the
Federal agencies and officials identified in
Sections 1681n and 1681o generally establish
civil liability for willful and negligent noncompliance with the
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
Corp., 423 F.Supp.2d 1053, 1061-62 (N.D.Cal. 2006) (“While §
1681n and § 1681o of the FCRA generally establish a private
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
[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.
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
considered to have been drafted at the same
(ECF No. 13, at 3).
Plaintiff’s arguments are unavailing.
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
violations of section 1681m in its entirety.”).
Based on the foregoing, the FCRA claim will be dismissed.
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
(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
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
15 U.S.C. § 1691(d)(1)-(2).
Defendant argues that the ECOA claim should be dismissed
notice, yet the notice was provided.”
(ECF No. 11-2, at 5).
Defendant attaches as an exhibit to its motion to dismiss a
informing him that Citibank is “unable to approve [his] request
(ECF No. 11-4).
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).
opposition to the motion to dismiss, Plaintiff argues that the
letter cannot be considered on a motion to dismiss and disputes
“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
To be “integral,” a document must be
one “that by its ‘very existence, and not the mere information
Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC,
794 F.Supp.2d 602, 611 (D.Md. 2011) (citation omitted) (emphasis
“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
(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
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
analyst reports attached to the defendants’ motion to dismiss
plaintiffs did not challenge the reports’ authenticity).
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
For the foregoing reasons, Defendant’s motion to dismiss
will be granted in part and denied in part.
A separate order
DEBORAH K. CHASANOW
United States District Judge
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