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Abuel v. U.S. Bank Nat'l Assoc.

December 4, 2006

RE: ABUEL
v.
U.S. BANK NAT'L ASSOC., ND



The opinion of the court was delivered by: William J. Martini Judge

MARTIN LUTHER KING JR. FEDERAL BLDG. & U.S. COURTHOUSE 50 WALNUT STREET, P.O. BOX 419 NEWARK, NJ 07101-0419 (973) 645-6340

LETTER OPINION

Dear Litigants:

This case comes before the Court both on pro-se Plaintiff's July 17, 2006 motion for a default judgment and Defendant's August 28, 2006 cross-motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Plaintiff failed to respond to the cross-motion. Plaintiff, a credit-card holder, filed the Complaint on April 24, 2006 under an unspecified "Consumer Credit Protection Act" against Defendant, his issuing bank, for alleged improper charges and both changes to his credit reports and harassment related to those charges. Plaintiff seeks damages of $100,000, punitive damages of $100,000 and "moral damages" of an additional $100,000. The Court adjudicates this matter on the papers. Fed. R. Civ. P. 78. For the reasons outlined below, the Court will DENY Plaintiff's motion for default and GRANT Defendant's Motion to Dismiss.

BACKGROUND

Plaintiff was a member of America Online ("AOL") paying a monthly fee automatically charged to his U.S. Bank Visa card. On May 23, 2003, Plaintiff closed his AOL account; the closure was confirmed in a May 24, 2003 letter from AOL. Despite having closed the AOL account, Plaintiff continued to receive the monthly AOL charge on his Visa bill. According to the Complaint, Plaintiff closed his U.S. Bank Visa card account on March 22, 2004 because of this continuing charge; he notified U.S. Bank by letter on April 29, 2004 that any further charges to the card should be considered unauthorized. On May 17, 2004, Defendant received a letter from Defendant's "Cardmember Services" informing Plaintiff that the bank would be unable to stop any continuing AOL charges to his card and he should contact AOL to resolve his dispute. The letter further outlined that U.S. Bank was closing the dispute and Plaintiff would remain liable for any charges.

On June 18, 2005, U.S. Bank notified Plaintiff by letter that he had an outstanding balance on his card of $230.03, an amount due of $149.00, and that he must arrange to pay the amount due immediately in order to avoid possible legal action. The letter further outlined that Plaintiff had ignored repeated requests to pay the delinquent account.

In an October 19, 2005 letter, Citibank informed Plaintiff that his Citibank credit card limit had been decreased on July 15, 2005 based on "derogatory references from other creditors." There was no explanation as to the content of these negative references. The letter went on to explain, however, that because his Trans Union credit bureau report no longer reflected such "derogatory information," his credit line was being reinstated to $15,500.00

In a separate October 19, 2005 correspondence, Defendant explained to Plaintiff that he was responsible for any charges made by AOL before he canceled his AOL service. The letter went on to state that, as a courtesy, interest and fees in the amount of $100.82 were reversed; but the remainder of Plaintiff's account was unpaid and "charged off" on July 29, 2005.

On December 8, 2005, Plaintiff was informed by letter from MBNA America that his application for an MBNA American Express card was denied because they determined he had "current or past delinquency with one or more of [his] creditors" on his Trans Union credit report.

On December 27, 2005, Plaintiff received a letter from Capital One denying his application because he was "not eligible since you applied with us in the last ninety days." The letter says that Capital One did not request or review a copy of Plaintiff's credit report.

Plaintiff filed the Complaint on April 24, 2006; and on May 1, 2006, Lisa M. Bessler of U.S. Bank signed a waiver of service on May 1, 2006. On May 22, 2006, Defendant's paralegal, Marilyn J. Doyle, then sent correspondence to Plaintiff analyzing his Complaint and exhibits and asking him to call Ms. Doyle to discuss the allegations in the Complaint. Plaintiff responded by letter on May 31, 2006 that he received the letter and waiver of service. Defendant then replied on June 12, 2006 and again on June 23, 2006 outlining that, in addition to the action taken in October 19, 2005:

Steps were taken so your U.S. Bank account . . . now has a zero balance. The slate is clear and you owe nothing to U.S. Bank on [this] account. U.S. Bank updated your credit bureau. There is no reporting by U.S. Bank. Any adverse/derogatory references which may have been attributed to U.S. ...


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