MCINTOSH v. CAPITAL ONE BANK (USA), N.A

Filing 27

OPINION. Signed by Chief Judge Renee Marie Bumb on 8/28/2024. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
MARCELLA MCINTOSH
Plaintiff,
Civil No. 23-3144 (RMB-AMD)
v.
CAPITAL ONE BANK (USA), N.A,

OPINION

Defendant.

RENÉE MARIE BUMB, Chief United States District Judge:
When a consumer disputes charges on her credit card bill, the Fair Credit Billing
Act (“FCBA”) requires creditors to investigate the validity of those charges upon
written notice from the consumer. 15 U.S.C. § 1666. No other type of notice is
sufficient. Plaintiff Marcella McIntosh (“Plaintiff”) is a customer of Defendant Capital
One Bank (“Defendant” or “Capital One”). She alleges that Capital One failed to
reasonably investigate two allegedly bogus charges on her Walmart-branded Capital
One credit card in accordance with the FCBA. [Docket No. 1 (“Compl.”) ¶¶ 8–9, 18–
19, 21.] Because Plaintiff only gave Capital One oral notice of the disputed charges
over the phone, her FCBA claim fails as a matter of law. In any case, Capital One did
voluntarily investigate Plaintiff’s disputed charges and concluded that Plaintiff
authorized both charges. That voluntary investigation did not waive the FCBA’s

written-notice requirement. Accordingly, the Court will GRANT Defendant’s Motion
for Summary Judgment. 1
I.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that she incurred two unauthorized charges on her Walmart-

branded Capital One credit card for cleaning supplies totaling $732.95. [SOMF ¶ 2;
RSOMF ¶ 2.] She called Capital One to dispute the charges. [SOMF ¶ 3; RSOMF
¶ 3.] She admits that she never disputed the charges in writing. [SOMF ¶ 3, Ex. A (Pl.’s
Responses to Def.’s RFAs).]
Capital One issued Plaintiff a new credit card over the phone and provided her
a provisional credit for the disputed amount. [SOMF ¶ 4; RSOMF ¶ 4.] The bank
followed up with Plaintiff via letter informing her that it was investigating the disputed
charges. [CSOMF ¶ 1; RCSOMF ¶ 1.] Capital One closed its investigation one month
later informing Plaintiff by letter that it had concluded that Plaintiff authorized the two
charges. [SOMF ¶ 5; RSOMF ¶ 5.] Capital One reversed the provisional credit and
reinstated the charges on Plaintiff’s account. [Id.]

The parties’ submissions are referred to herein as follows: (i) Defendant’s Brief in
Support of Summary Judgment, [Docket No. 24-3 (“Def.’s Br.”)]; its Statement of
Undisputed Material Facts, [Docket No. 24-1 (“SOMF”)]; its Reply Brief in Further
Support of its Motion for Summary Judgment, [Docket No. 26 (“Def.’s Reply”)]; and
its Response to Plaintiff’s Counterstatement of Undisputed Material Facts, [Docket
No. 26-1 (“RCSOMF”)]; (ii) Plaintiff’s Brief in Opposition to Defendant’s Motion for
Summary Judgment, [Docket No. 25 (“Pl.’s Br.”)]; her Response to Defendant’s
Statement of Undisputed Material Facts, [Docket No. 25-1 at 1–2 (“RSOMF”)]; and
her Counterstatement of Undisputed Material Facts, [Docket No. 25-1 at 2–3
(“CSOMF”)].
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Plaintiff filed this action under the FCBA alleging that Capital One failed to
conduct a reasonable investigation of the disputed charges upon receiving notice of the
alleged billing error over the phone. [Compl. ¶¶ 18–19.] Defendant moved for
summary judgment. [Docket No. 24.] It argues that the plain text of the FCBA requires
consumers to provide creditors with written notice—not oral or any other kind of
notice—to dispute a billing error. [Def.’s Br. at 4 (citing 15 U.S.C. § 1666(a)).] Because
it is undisputed that Plaintiff only raised the billing error over the phone, Defendant
argues that the protections of the FCBA never triggered. In opposition, Plaintiff argues
that Defendant waived the FCBA’s written notice requirement by acknowledging and
investigating the dispute she lodged over the phone. [Pl.’s Br. at 4.]
II.

LEGAL STANDARD
Summary judgment is appropriate if the record shows “that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). A district court considers the facts drawn from the
“materials in the record, including depositions, documents, electronically stored
information, affidavits ... or other materials” and must “view the inferences to be
drawn from the underlying facts in the light most favorable to the party opposing the
motion.” FED. R. CIV. P. 56(c)(1)(A); Curley v. Klem, 298 F.3d 271, 276–77 (3d Cir.
2002) (internal quotation marks omitted). The Court must determine “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty
Lobby, 477 U.S. 242, 251–52, (1986). “More precisely, summary judgment should only
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be granted if the evidence available would not support a jury verdict in favor of the
nonmoving party.” S.M. v. Marlboro Twp. Bd. of Educ., 2013 WL 2405438, at *3 (D.N.J.
May 31, 2013) (citing Anderson, 477 U.S. at 248–49). “[T]he mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson, 477 U.S. at 247–48 (emphases removed).
III.

DISCUSSION
The FCBA “requires a creditor to comply with particular obligations when a

consumer has asserted that [her] billing statement contains an error[.]” Krieger v. Bank
of Am., N.A., 890 F.3d 429, 433 (3d Cir. 2018) (citation omitted). Those obligations
include investigating a properly submitted billing dispute, which requires the creditor
to set forth the reasons why it believes that the consumer’s account “was correctly
shown in the statement.” 15 U.S.C. § 1666(a)(B)(ii). But the protections of the
FCBA only trigger when a consumer submits written notice of the alleged billing
error to a specific address identified by the creditor within 60 days after receiving the
statement that contains the alleged billing error. 15 U.S.C. § 1666(a); see also Krieger,
890 F.3d at 437. The written notice must: (1) set forth or otherwise enable the creditor
to identify the name and account number of the consumer; (2) indicate the consumer’s
belief that a billing error has occurred and the amount of the billing error; and (3) set
forth the reasons that the consumer believes that the billing statement contains an
error. 15 U.S.C. § 1666(a)(1)–(3).

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“Written notice” means exactly what it says. Geisinger Cmty. Med. Ctr. v. Sec’y
U.S. Dep’t of Health & Hum. Servs., 794 F.3d 383, 391 (3d Cir. 2015) (courts must
presume that “Congress expresses its intent through the ordinary meaning of the words
it uses”). Notice of a consumer’s billing error under the FCBA must be submitted to a
creditor in writing to a specific address identified by the creditor. It cannot be
submitted any other way. United States v. Nasir, 17 F.4th 459, 472 (3d Cir. 2021) (“the
expression of one thing is the exclusion of the other”). That includes, as here, disputing
a billing error orally over the phone. Plaintiff admits that she never provided written
notice to Defendant of her billing dispute. [SOMF ¶ 3, Ex. A (Pl.’s Responses to Def.’s
RFAs).] Thus, her sole failure-to-investigate claim under the FCBA fails as a matter of
law. See Krieger, 890 F.3d at 437 (calculating sixty-day FCBA period from written
submission to creditor as opposed to from earlier dates consumer orally disputed
alleged billing error).
Notwithstanding the plain language of the statute, Plaintiff argues that her oral
notice of the billing error to Capital One was sufficient to trigger the protections of the
FCBA. First, she argues that her account agreement states that the cardholder could
call in lieu of a written dispute. [Pl.’s Br. at 4, 8.] Not so. The account agreement states
unequivocally—and consistent with the FCBA—that a consumer “must notify
[Capital One] of any potential [billing] errors in writing.” [Docket No. 25-5, Pl’s Br.,
Ex. 4 at 3 (emphases added).] The account agreement states that a consumer “may
call” Capital One regarding a billing dispute but clarifies that Capital One is “not

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required to investigate any potential errors” if the dispute is orally lodged. [Id.
(emphasis added).] Thus, Plaintiff’s account agreement reinforces the statutory
requirements of the FCBA.
Second, Plaintiff argues that Defendant waived the FCBA’s written-notice
requirement because it voluntarily investigated the billing error following the oral
dispute she lodged over the phone. [Pl.’s Br. at 10–11]. The Court disagrees.
Defendant’s voluntary investigation of the dispute did not constitute a waiver of the
FCBA’s written-notice requirement. A waiver is an “intentional relinquishment or
abandonment of a known right,” United States v. Olano, 507 U.S. 725, 733 (1993),
which must be clearly and unmistakably established, United Steelworkers of Am., AFLCIO v. N.L.R.B., 536 F.2d 550, 555 (3d Cir. 1976). Capital One did not clearly and
unmistakably relinquish its statutory right to written notice under the FCBA. See
Andreae v. Capital One, 2024 WL 1579914, at *4 (S.D. Ohio Apr. 11, 2024) (concluding
that, because waiver is not to be found lightly, a defendant-bank voluntarily
investigating an orally lodged billing dispute did not waive bank’s FCBA right to
written notice). To the contrary, Capital One expressly reserved its right to written
notice under the FCBA in the account agreement by requiring Plaintiff to notify
Capital One of any potential billing errors in writing and stating that it would not
necessarily investigate alleged billing errors raised over the phone. [Docket No. 25-5,
Pl’s Br., Ex. 4 at 3 (“You must notify us of any potential errors in writing. You may
call us or notify us electronically, but if you do we are not required to investigate any

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potential errors and you may have to pay the amount in question.”) (emphases
added).]
Plaintiff cites only one case finding waiver under the FCBA where a defendantbank voluntarily undertook a billing error investigation upon oral notice by the
consumer. In Mitchell v. JPMorgan Chase Bank NA, 2023 WL 5590635 (D. Ariz. Aug.
29, 2023), the court denied a defendant-bank’s motion to dismiss, finding that it was
“reasonable to infer” that the defendant “waived the [FCBA’s] written-notice
requirement by acknowledging and investigating” the plaintiff’s orally submitted
dispute. 2023 WL 5590635, at *3. To hold otherwise, the court reasoned, “would be
to empower credit institutions to accept a [consumer’s] oral notice of an error, even
lull the person into a false sense of security that the [consumer] had timely and properly
notified the corporation of a perceived error, only to later claim that despite launching
an investigation into the alleged error, the credit institution was never properly notified
[] in writing []and thus, does not need to adhere to or honor the other portions of the
FCBA.” Id. (quoting Savitz v. Citizens Bank, N.A., 2020 WL 128573, at *4 (W.D. Pa.
Jan. 10, 2020) (similarly finding waiver)).
The Court declines to follow Mitchell and Savitz, both of which are not binding
on this Court. Neither case found that the defendant banks clearly and unmistakably
relinquished their statutory rights to written notice by voluntarily undertaking an
investigation of a billing dispute upon oral notice. The Court finds that there is
“nothing clearly or unmistakably inconsistent—let alone, inconsistent at all—about
Capital One’s [investigation of the alleged billing error upon oral notice] and the
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requirement that to raise a valid FCBA cause of action, a party must provide written
notice to the creditor of the bill [s]he disputes.” Andreae, 2024 WL 1579914, at *5.
Further, the Court expresses concern that a finding of waiver here could chill voluntary
investigations of billing errors by credit institutions. Consumers deserve to have billing
errors on their credit card statements promptly investigated. But if consumers want
that investigation to conform to the protections of federal law, they must submit their
notice of dispute in writing as required by the FCBA.
IV.

CONCLUSION
For the reasons set forth above, Defendant’s Motion for Summary Judgment

will be GRANTED. An accompanying Order shall issue separately.

DATED: August 28, 2024

s/Renée Marie Bumb
RENÉE MARIE BUMB
Chief United States District Judge

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