White v. Chase Bank USA, N.A.

Filing 27

ORDER granting in part and denying in part #14 Motion to Dismiss. Signed by Senior Judge W. Earl Britt on 3/24/2017. (Marsh, K)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:16-CV-00176-BR
MARGARET H. WHITE,
Plaintiff,
v.
CHASE BANK USA, N.A.,
Defendant.

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ORDER

This matter is before the court on the partial motion to dismiss filed by defendant Chase
Bank USA, N.A. (“Chase”). (DE # 14.) The motion has been fully briefed and is therefore ripe
for disposition.
I. FACTS
In 2010, plaintiff opened a credit card account with Chase. (Am. Compl., DE # 8, ¶ 10.)
After the account was open, plaintiff used the credit card for personal purposes, and received
monthly credit card statements from Chase. (Id. ¶¶ 11-12.) At some point, plaintiff noticed
several unauthorized charges on her credit card statements. (Id. ¶ 13.) The unauthorized charges
appeared on her statements as “PP *FACEBOOKPAY,” and plaintiff believed the transactions
originated from an internet bot that wrongfully charged her credit card. (Id. ¶ 14.) Plaintiff
claims that she “promptly notified” Chase to alert it of the fraudulent transactions, but Chase
failed to take timely and reasonable measures to address the issue. (Id. ¶¶ 15-18.) According to
plaintiff, the unauthorized transactions resulted in her being improperly assessed the principal
amount of $272,640.55. (Id. ¶¶ 30-31.)

Plaintiff acknowledges that Chase ultimately did undertake an investigation of her
allegations of billing errors. (Id. ¶¶ 32-34.) The investigation concluded that the challenged
charges were fraudulent, and Chase issued a long line of credits to plaintiff’s credit card account
totaling $209,587.69. (Id. ¶¶ 32-33.) In May 2015, Chase issued plaintiff a credit card statement
showing a credit to her account for a fraud claim and a total credit balance of $59,403.39. (Id. ¶
35; see also Ex. A, DE # 8-1.) The statement stated, in pertinent part, “You have a credit
balance, so no payment is required. You may make charges against the credit or request a refund
by contacting Cardmember Service at the address above.” (Ex. A., DE # 8-1, at 3.) After
receiving the statement, plaintiff contacted Chase to request a refund of these funds. (Am.
Compl., DE # 8, ¶ 36.) Chase refused to tender the funds shown on the statement. (Id.)
The following month, in June 2015, Chase issued a credit card statement which plaintiff
claims showed two allegedly improper charges to her account for “fraud claim credits” totaling
$84,568.35. (Id. ¶ 38.) Plaintiff notified Chase of the billing error in the June 2015 statement,
and continued to request a refund of the credit balance shown on the May 2015 statement. (Id. ¶
39.) Plaintiff alleges that Chase ignored her notice of the billing error and used the credit
balance in her account to offset the new charges on her June 2015 statement. (Id. ¶¶ 41-42.)
According to plaintiff, Chase currently owes her the amount of $63,052.986 plus late fees and
interest. (Id. ¶ 43.)
On 9 March 2016, plaintiff initiated this action in the Superior Court of North Carolina,
Wake County, seeking recovery for the improperly assessed charges. (DE # 1-1.) Chase
subsequently removed the action to this court. (DE # 1.) Plaintiff later amended her complaint
on 6 June 2016. (DE # 8.) The amended complaint asserts claims under the Fair Credit Billing
Act (“FCBA”), 15 U.S.C. § 1693 et seq., and the Electronic Funds Transfer Act (“EFTA”), 15

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U.S.C. § 1601 et seq., as well as state law claims for breach of contract, unfair and deceptive
trade practices under North Carolina’s Unfair and Deceptive Trade Practices Act (“UDTPA”),
N.C. Gen. Stat. § 75-1 et seq., and declaratory judgment. (Id.) On 5 July 2016, Chase filed a
motion for partial dismissal of the amended complaint. (DE # 14.) Plaintiff subsequently filed a
memorandum in opposition, (DE # 17), to which Chase replied, (DE # 21).
II. ANALYSIS
Chase seeks partial dismissal of plaintiff’s amended complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6). Chase concedes that plaintiff has alleged the existence of a valid
contract, as well as a cognizable claim for breach of that contract. (Def.’s Mem. in Support, DE
# 15, at 4.) However, Chase contends that “the remaining causes of action in the Amended
Complaint should be dismissed because they fail to state claims upon which relief can be
granted.” (Id. at 1-2.)
The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint, not to
“resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”
Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 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’s “[f]actual allegations must be
enough to raise a right to relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact)[.]” Id. at 555-56 (internal citations
omitted). In determining a motion to dismiss, “a court may consider documents attached to the

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complaint or the motion to dismiss so long as they are integral to the complaint and authentic.”
Kensington Volunteer Fire Dep’t, Inc. v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012)
(internal quotation marks and citation omitted).
A. Fair Credit Billing Act Claim
In her amended complaint, plaintiff alleges that Chase committed three violations of the
FCBA: (1) a violation of the billing dispute resolution procedures in 15 U.S.C. § 1666; (2) a
violation of the treatment of credit balances provision in 15 U.S.C. § 1666d; and (3) a violation
of the prohibition on offsets in 15 U.S.C. § 1666h. (Am. Compl., DE # 8, ¶¶ 68-72.) Chase
argues that this claim should be dismissed because plaintiff’s amended complaint merely states
legal conclusions instead of alleging facts plausibly demonstrating that Chase violated any of the
obligations the FCBA imposes on creditors who extend consumer credit. (Def.’s Mem. in
Support, DE # 15, at 8.)
Plaintiff first alleges that Chase violated the billing dispute procedures contained in the
FCBA because it failed to conduct a reasonable investigation of the alleged billing errors and
correct the billing errors as required by 15 U.S.C. § 1666. (Am. Compl., DE # 8, ¶¶ 68-69.) The
FCBA, which is enforced by the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601, and
implemented through Regulation Z, 12 C.F.R. § 1026, “provides an avenue by which a debtor
may challenge perceived billing errors on any credit card account statement and procedures that
a creditor must follow in responding to properly raised billing errors.” Esquibel v. Chase
Manhattan Bank USA, N.A., 487 F. Supp. 2d 818, 825 (S.D. Tex. 2007) (citing 15 U.S.C. §
1666). “To succeed on a claim under § 1666, plaintiff must show (1) the existence of a billing
error, (2) timely notification of the billing error, and (3) failure of the bank issuing the card to
comply with the procedural requirements of Section 1666.” Cunningham v. Bank One, 487 F.

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Supp. 2d 1189, 1191-92 (W.D. Wash. 2007) (citation omitted). With respect to the requisite
timely notice of a billing error:
Section 1666(a) provides that if, within sixty days after having sent an obligor a
statement of his or her account, the creditor receives a written notice from the
obligor indicating his or her belief that the statement contains a billing error, the
amount of the error, and the reason for believing there is an error, the creditor
must make corrections in the account or investigate and explain why the account
is correct prior to taking any action to collect the amount.
Middleton v. Rogers Ltd., Inc., 804 F. Supp. 2d 632, 637 (S.D. Ohio 2011) (citing 15 U.S.C. §
1666(a)). It follows that a creditor’s statutory duties under §1666 are triggered when a credit
card holder sends a creditor written notice “no later than 60 days after the creditor transmitted the
first periodic statement that reflects the alleged billing error.” 12 C.F.R. § 1026.13(b)(1).
Chase seeks dismissal of this claim, arguing that plaintiff has not alleged that she
provided proper written notice of any of the alleged billing errors within the timeframe required
by 15 U.S.C. § 1666(a). In the amended complaint, plaintiff alleges that the “[unauthorized]
transactions continued for months and months on end.” (Am. Compl., DE # 8, ¶ 30.) However,
plaintiff identifies only one specific statement that reflects an alleged billing error—the June
2015 statement. Moreover, even though plaintiff asserts that she had been in regular telephone
contact with Chase’s fraud department, there are no allegations in the amended complaint that
suggest that plaintiff sent written notice of any of the billing errors to Chase.1 Rather, the
complaint states in a conclusory manner that plaintiff “timely provided notice of billing errors

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In responding to Chase’s motion to dismiss, plaintiff includes additional allegations that “[i]n June 2015, [she]
provided written notice to Chase which identified the billing errors contained on that month’s statement” and “that
the notice specifically drew attention to the June 2015 ‘Fraud Claim Credits’ identified in the Amended Complaint.”
(DE # 17, at 4.) However, a plaintiff may not amend her complaint through argument in briefing. See Bratcher v.
Pharm. Prod. Dev., Inc., 545 F. Supp. 2d 533, 542 (E.D.N.C. 2008) (finding plaintiff “cannot use her brief to amend
her complaint”) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) (“[I]t is axiomatic
that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”)); accord Barclay White
Skanska, Inc. v. Battelle Mem’l Inst., 262 F. App’x 556, 563 (4th Cir. 2008) (“A plaintiff may not amend her
complaint through argument in a brief opposing summary judgment.” (unpublished) (internal citations and
quotations omitted)). Therefore, the court will not consider the additional allegations.

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pursuant to 15 U.S.C. § 1666.” (Id. ¶ 70). Without factual detail as to the time, substance, and
form of the notice, the court cannot infer that plaintiff provided Chase with requisite written
notice of a billing error. See Middleton, 804 F. Supp. 2d at 638 (finding consumer’s failure to
plead that she provided the creditor with notice of disputed charges within 60 days of a statement
barred claim under the FCBA); Camacho v. J.P. Morgan Chase, No. 14-30042-MGM, 2015 WL
3872332, at *5 (D. Mass. June 23, 2015) (holding “the court need not delve into the alleged
violations of the procedural requirements of Section 1666 because Plaintiff has not included
sufficient factual detail to support an inference that he timely notified Defendant of each billing
error, an element of all Section 1666 claims”). Accordingly, plaintiff has failed to state a claim
under the billing error provisions of the FCBA, and this claim must be dismissed. Plaintiff may
reassert this claim if she is able to further amend her complaint to allege the necessary facts.
Plaintiff also alleges a violation of the FCBA based on Chase’s refusal to grant her
request for a refund of the credit balance shown on her May 2015 statement. (Am. Compl., DE #
8, ¶ 70.) The FCBA provision at issue, 15 U.S.C. § 1666d, requires a creditor to treat credit
balances in excess of $1 as follows:
Whenever a credit balance in excess of $1 is created in connection with a
consumer credit transaction through (1) transmittal of funds to a creditor in excess
of the total balance due on an account, (2) rebates of unearned finance charges or
insurance premiums, or (3) amounts otherwise owed to or held for the benefit of
the obligor, the creditor shall—
(A) credit the amount of the credit balance to the consumer’s account;
(B) refund any part of the amount of the remaining credit balance, upon request of
the consumer; and
(C) make a good faith effort to refund to the consumer . . . the amount of the
credit balance remaining in the account for more than six months . . . .

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15 U.S.C. § 1666d. “A credit balance arises whenever the creditor receives or holds funds in an
account in excess of the total balance due from the consumer on that account.” 12 C.F.R. §
1026.21, sup. 1 at ¶ 21(a).
Here, Chase does not dispute that the May 2015 credit card statement reflects that
plaintiff’s account had a credit balance in the amount of $59,403.39. (See Def.’s Mem. in
Support, DE # 15, at 8.) Instead, Chase appears to argue that the credit balance shown on the
May 2015 statement was inaccurate because it reflected credits that were mistakenly applied to
plaintiff’s account following its internal investigation. Chase therefore contends that it did not
violate § 1666d because “none of the generalized factual allegations in the [a]mended
[c]omplaint demonstrate that [plaintiff] was actually entitled to the credit and refund of the credit
balance shown on the May 2015 statement.” (Id. at 8.) Chase does not refer to any attached
materials from which the court could determine whether or not the credits at issue were
warranted. Therefore, accepting plaintiff’s allegations that she was “owed” the credits and
requested a refund of the credit balance as true, plaintiff has plead sufficient facts to support a
claim under § 1666d.
Plaintiff’s third FCBA claim alleges that Chase “wrongfully and without authorization
applied funds held on deposit by Chase for plaintiff to the unauthorized charges.” (Am. Compl.,
DE # 8, ¶ 71.) Plaintiff premises this claim on 15 U.S.C. § 1666h, which prohibits offsets by the
card issuer as follows:
A card issuer may not take any action to offset a cardholder’s indebtedness arising
in connection with a consumer credit transaction under the relevant credit card
plan against funds of the cardholder held on deposit with the card issuer unless—
(1) such action was previously authorized in writing by the cardholder in
accordance with a credit plan whereby the cardholder agrees periodically to
pay debts incurred in his open end credit account by permitting the card issuer

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periodically to deduct all or a portion of such debt from the cardholder's
deposit account, and
(2) such action with respect to any outstanding disputed amount not be taken by
the card issuer upon request of the cardholder.
15 U.S.C. § 1666h. This provision on offsets “is presented as an absolute bar preventing a card
issuer from taking action to offset credit card debt against funds held on deposit with the card
issuer.” Martino v. Am. Airlines Fed. Credit Union, 121 F. Supp. 3d 277, 283 (D. Mass. 2015)
(citing § 1666h(a)). “The sole exception to the no-offset rule is when a cardholder agrees in
writing to periodic deductions[.]” Id. (citing § 1666h(a)(1)).
Chase argues that plaintiff cannot state a claim pursuant to § 1666h because the
allegations in her amended complaint do not sufficiently demonstrate that Chase ever properly
held funds on deposit for plaintiff or that it misapplied any such funds. (Def.’s Mem. in Support,
DE # 15, at 8.) Chase once again bases its argument on its assertion that the credits giving rise to
the credit balance on the May 2015 statement were mistakenly issued. As noted above, at this
stage of this case it cannot be determined whether or not Chase actually owed plaintiff the credit
balance shown on the May 2015 statement. Taking plaintiff’s allegation that she was entitled to
the credit balance as true, the FCBA permitted Chase to use the credit balance to offset new
account charges only in the limited circumstance where plaintiff agreed to the offset. Given
plaintiff’s allegation that she repeatedly requested a refund of the credit balance, the amended
complaint supports an inference that Chase did not have plaintiff’s consent to use the credit
balance to pay off amounts due on the credit card. Therefore, the court finds that plaintiff has
asserted a plausible claim under § 1666h.

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B. Electronic Funds Transfer Act Claim
Plaintiff also claims that Chase violated various provisions of the EFTA by failing to
follow the proper procedure for resolving errors associated with electronic fund transfers. (Am.
Compl., DE # 8, ¶¶ 73-77.) Chase argues that this claim should be dismissed because the EFTA
excludes credit card transactions from its coverage. (Def.’s Mem. in Support, DE # 15, at 8.)
The EFTA was enacted “to provide a basic framework establishing the rights, liabilities,
and responsibilities of participants in electronic fund and remittance transfer systems.” 15
U.S.C. § 1693(b). An “electronic fund transfer” is defined as “any transfer of funds . . . which is
initiated through an electronic terminal, telephonic instrument, or computer or magnetic tape so
as to order, instruct, or authorize a financial institution to debit or credit an account.” Id. §
1693a(7). The EFTA applies to electronic fund transfers involving a consumer’s “account,”
which in turn is defined as a “demand deposit, savings deposit, or other asset account (other than
an occasional or incidental credit balance in an open end credit plan as defined in section 1602(i)
of this title). . .” Id. § 1693a(2), (6). “Importantly, because the EFTA deals with electronic
funds transferred directly from bank accounts, it applies to debit cards, but not credit cards.”
Walker v. JPMorgan Chase Bank, N.A., No. 13:2100-JDT-dkv, 2013 WL 2151713, at *5 (W.D.
Tenn. May 16, 2013) (citations omitted); see also Sanford v. MemberWorks, Inc., 625 F.3d 550,
560 (9th Cir. 2010) (noting the EFTA does not apply to credit based transactions).
Plaintiff argues that the implementing regulation for the EFTA, Regulation E, 12 C.F.R. §
1005.12, extends the EFTA’s coverage to transactions involving both credit and electronic fund
transfer aspects. (Pl.’s Resp. in Opp’n, DE # 17, at 5-6.) She insists that the challenged credit
card transactions fall within the protection of the EFTA because it appears they were initiated

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electronically via PayPal or a similarly modeled transaction.2 (Id.) Plaintiff is correct that
Regulation E covers “[t]he addition to an accepted credit card . . . , of the capability to initiate
electronic fund transfers[.]” 12 C.F.R. § 1005.12(a)(1)(i). However, regardless of the
capabilities of a credit card, coverage under the EFTA depends on the nature of the challenged
transaction. See id. § 1026.12(g) (stating that Regulation Z, the implementing regulation for the
FCBA, “applies to the credit aspects of combined credit/electronic fund transfer transactions”).
“If the unauthorized use of a combined access device-credit card solely involves an extension of
credit . . . and does not involve an EFT, for example, when the card is used to draw cash
advances directly from a credit line, only the error resolution provisions of Regulation Z will
apply.” Id. § 1005.6. Thus, in order for the challenged transactions to fall within the EFTA’s
coverage, plaintiff must show that the electronic fund transfers involved a credit or debit to a
consumer account. See Walker, 2013 WL 2151713, at *5 (“Electronic fund transfers covered by
the Act have three components: 1) a transfer of funds, 2) initiation by electronic means, and 3) a
debit or credit to a consumer account.”).
Here, plaintiff alleges that the challenged transactions involved unauthorized charges to
her credit card account. Thus, even assuming the unauthorized charges were initiated via
PayPal, the challenged transactions were credit based transactions and did not involve an
electronic funds transfer within the meaning of the EFTA. Accordingly, the court finds that the
EFTA is inapplicable to the challenged transactions and plaintiff’s EFTA claim must be
dismissed.

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PayPal is an internet payment service provider that allows users to make payments and accept payments
electronically. (Pl.’s Resp. in Opp’n, DE # 17, at 5.)

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C. UDTPA Claim
Chase also moves to dismiss plaintiff’s claim under the UDTPA. Plaintiff’s allegations
supporting this claim are that Chase refused to return multiple messages, failed to investigate and
correct the unauthorized charges, and wrongfully used funds credited to her account following its
internal investigation into the unauthorized charges. (Am. Compl., DE # 8, ¶¶ 20-27, 20-42.)
Chase contends that plaintiff’s factual allegations constitute, at most, a breach of contract, and
that plaintiff has not plausibly alleged substantial aggravating factors that would support an
independent UDTPA claim. (Def.’s Mem. in Support, DE # 15, at 11.) Plaintiff responds that
her UDTPA claim is predicated on Chase’s violations of the FCBA and EFTA provisions on
unfair credit and billing practices. (Pl.’s Resp. in Opp’n, DE # 17, at 7.) She further asserts that
she has sufficiently pled that Chase engaged in unfair and deceptive trade practices because
violation of either of these statutes constitutes a per se violation of the UDTPA, citing In re Fifth
Third Bank, N.A., 719 S.E.2d 171, 176 (N.C. Ct. App. 2011). (Id.)
In North Carolina, “violation of a consumer protection statute may, in some instances,
constitute a per se violation of the UDTPA.” Id. at 176; see also Walker v. Fleetwood Homes of
N.C., Inc., 653 S.E.2d 393, 398 (N.C. 2007) (“[A] violation of a regulatory statute which governs
business activities may also be a violation of N.C. Gen. Stat. 75-1.1.”) (internal citation and
quotation marks omitted). Although violation of a regulatory statute can form the basis of a
UDTPA claim, such a violation does not constitute a per se UDTPA violation unless the
regulation “specifically designate[s] that a violation of the [regulation] is also a violation of [the
UDTPA]” or “specifically defines and proscribes conduct which is unfair or deceptive within the
meaning of the UDTPA.” Noble v. Hooters of Greenville (NC), LLC, 681 S.E.2d 448, 452
(N.C. Ct. App. 2009) (emphasis in original). In this case, neither the FCBA nor the EFTA

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designates the regulated conduct as a violation of the UDTPA, nor do they specifically define
and proscribe unfair or deceptive conduct within the meaning of the UDTPA. Therefore, in
order for this claim to survive, plaintiff must show that Chase’s alleged violations of the FCBA
and the EFTA independently satisfy the elements of a UDTPA claim. See Noble, 681 S.E.2d at
455 (“[T]he violation of a regulatory scheme may be a violation of the UDTPA where the
violation satisfies the three elements of a UDTPA claim.”).
To state a claim under the UDTPA, a plaintiff must demonstrate: “(1) an unfair or
deceptive act or practice, (2) in or affecting commerce, and (3) which proximately caused actual
injury to plaintiff[].” Walker, 653 S.E.2d at 399; see also N.C. Gen. § 75-1.1. “A practice is
unfair when it offends established public policy as well as when the practice is immoral,
unethical, oppressive, unscrupulous, or substantially injurious to customers,” while a “practice is
deceptive if it has the capacity or tendency to deceive.” Walker, 653 S.E.2d at 399 (citation and
quotation marks omitted). Although the North Carolina courts have construed the UDTPA
liberally, “only practices that involve ‘[s]ome type of egregious or aggravating circumstances’
are sufficient to violate the [UDTPA].” S. Atl. Ltd. P’ship of Tenn., L.P. v. Riese, 284 F.3d 518,
535 (4th Cir. 2002) (alteration omitted) (quoting Dalton v. Camp, 548 S.E.2d 704, 711 (N.C.
2001)).
Plaintiff first claims that Chase’s violations of the error resolution procedures in the
FCBA and EFTA constitute UDTPA violations. (Am. Compl., DE # 8, ¶¶ 18, 81.) For the
reasons discussed above, the EFTA does not apply to the challenged credit card transactions.
Therefore, plaintiff cannot rely on violation of this statute to support a claim for unfair trade
practices. As to the part of plaintiff’s UDTPA claim that is premised on Chase’s failure to
follow the billing dispute procedures set forth in the FCBA, plaintiff has not alleged sufficient

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facts demonstrating that she complied with the notice requirement that would trigger Chase’s
statutory obligations under the statute. Accordingly, Chase’s alleged violation of the FCBA’s
billing error provisions cannot form the basis of plaintiff’s UDTPA claim. Cf. Gilbert v.
Residential Funding LLC, 678 F.3d 271, 280 (4th Cir. 2012) (recognizing that where it was held
that certain claims of violations of the TILA should go forward and are supported by a sufficient
factual basis for these claims, the UDTPA claims should be allowed to proceed as well).
Plaintiff’s UDTPA claim is also based on her claim regarding Chase’s failure to comply
with the FCBA’s provisions on refunds and offsets. (Pl.’s Resp. in Opp’n, DE # 17, at 6.)
Plaintiff asserts that Chase’s “wrongful seizing” of the funds credited to her account was an
“inequitable assertion” of power that North Carolina deems to be an unfair trade practice. (Id. at
7-8.) As plaintiff notes in her responsive brief, conduct is considered unfair or deceptive within
the meaning of the UDTPA “where a party engages in conduct manifesting an inequitable
assertion of power or position[.]” Gray v. North Carolina Ins. Underwriting Ass’n, 529 S.E.2d
676, 681 (N.C. 2000). Taking plaintiff’s allegations as true, Chase violated the FCBA’s
provisions on refunds and offsets by refusing to follow the results of its investigation and
wrongfully withholding funds owed to plaintiff so that it could offset fraudulent charges to
plaintiff’s account without her authorization. (Id. ¶¶ 40-42.) Such conduct is unfair or deceptive
within the meaning of the UDTPA. See Faucette v. 6303 Carmel Rd., 775 S.E.2d 316, 324 (N.C.
Ct. App. 2015) (finding that defendant’s use of its position of power to wrongfully withhold
funds that were legally owed to plaintiff in order to pressure resolution of an ongoing dispute
between the parties was unfair and deceptive within the meaning of the UDTPA). Accordingly,
the court finds that plaintiff has alleged sufficient facts to support a UDTPA claim predicated on
the refund and offset provisions of the FCBA.

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D. Declaratory Judgment Claim
Plaintiff also requests declaratory relief under the North Carolina Uniform Declaratory
Judgment Act (“Declaratory Judgment Act”), N.C. Gen. Stat. § 1-253 et seq. (Am. Compl., DE
# 8, ¶ 86.) Specifically, plaintiff requests the court enter an order declaring “the present balance
on the credit card maintained by [Chase].” (Id. at 9.) Chase argues that this claim should be
dismissed because “[t]he declaratory judgment that White is seeking would serve no purpose
because her alleged damages, if any, should be determined under the [p]arties’ undisputed
contractual agreement and through the [c]ourt’s adjudication of the breach of contract claim.”
(Def.’s Mem. in Support, DE # 15, at 13.)
The Declaratory Judgment Act “permits a litigant to seek a declaration of the rights or
obligations of parties to a written contract when there is some dispute among the parties
concerning those respective rights or obligations.” Perry v. Bank of America, N.A., No.
COA16-234, 2017 WL 491220, at *2 (N.C. Ct. App. Feb. 7, 2017). “[I]ts purpose is to settle and
afford relief from uncertainty and insecurity with respect to rights, status, and other legal
relations[.]” N.C. Gen. Stat. § 1-264. “‘[C]ourts have jurisdiction to render declaratory
judgments only when the pleadings and evidence disclose the existence of an actual controversy
between parties having adverse interests in the matter in dispute.’” Ocracomax, LLC v. Davis,
788 S.E.2d 664, 668 (N.C. Ct. App. 2016) (quoting Gaston Bd. of Realtors v. Harrison, 316
S.E.2d 59, 61 (N.C. 1984)).
Here, plaintiff alleges that there is an actual controversy between the parties “relating to
the appropriate amount of credit card balance which should be shown on the credit card
account.” (Am. Compl., DE # 8, ¶ 85.) The Declaratory Judgment Act “exists to permit courts
to declare rights, status and other legal relations, not to serve as arbiters of routine fact disputes

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that arise in people’s dealings with one another.” Perry v. Bank of Am., N.A., No. COA16-234,
2017 WL 491220, at *2 (N.C. Ct. App. Feb. 7, 2017). Consequently, “resolving a dispute over
the balance in a bank account, or the amount due on a loan, is not the type of controversy that
can be resolved using the Declaratory Judgment Act.” Id. Because plaintiff seeks declaration
only of the amount she owes to Chase, the court finds that plaintiff’s request is not suitable for
resolution under the Declaratory Judgment Act. Accordingly, this claim will be dismissed.
III. CONCLUSION
For the reasons set forth above, Chase’s partial motion to dismiss the amended complaint,
(DE # 14), is GRANTED IN PART and DENIED IN PART. Plaintiff’s claims against Chase for
declaratory judgment and for violation of the EFTA are DISMISSED. With respect to plaintiff’s
claims under the FCBA and UDTPA based on Chase’s alleged failure to follow the proper
procedure for resolving billing errors, these claims are DISMISSED WITHOUT PREJUDICE.
Plaintiff’s FCBA and UDTPA claims based on Chase’s alleged wrongful seizing of funds
credited to plaintiff’s account remain.
This 24 March 2017.

__________________________________

W. Earl Britt
Senior U.S. District Judge

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