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James W. Dabney v. Total Relocation Services

January 8, 2013


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4749-10.

Per curiam.


Argued December 18, 2012

Before Judges Yannotti, Harris, and Hoffman.

Proceeding pro se, plaintiff James W. Dabney appeals from the December 3, 2010 order that dismissed, pursuant to Rule 4:6-2(e), his defamation cause of action against defendant T.D. Bank, N.A. on the ground that the Fair Credit Reporting Act (FCRA), 15 U.S.C.A. §§1681 to 1681x, entirely preempts his intentional tort claim. We affirm.


Because the defamation action was dismissed for failure to state a claim upon which relief can be granted, we "review [Dabney's] factual allegations indulgently." Cornett v. Johnson & Johnson, 211 N.J. 362, 388 (2012). "[O]ur inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint," Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989), and our analysis is conducted de novo, following the same standard employed by the motion court. Scheidt v. DRS Techs., Inc., 424 N.J. Super. 188, 193 (App. Div. 2012).


These are the relevant facts, gleaned from Dabney's complaint. In November 2008, Dabney hired co-defendant Total Relocation Services, LLC (TRS) to move furniture and household goods from one apartment (on 87th Street) to another (on Barrow Street) in New York City, and to his residence in Ridgewood, New Jersey. Dabney alleged that during the move, TRS damaged the "then-new pine floor" of the Barrow Street apartment.

Notwithstanding the damage, Dabney paid for the moving services with his credit card issued by Commerce Bank.*fn1 He provided his credit card information to TRS, which completed the transaction. Later, after receiving a written estimate of $1500 to repair the damaged floor, Dabney notified Commerce Bank that he was disputing TRS's bill in that amount.

After an exchange of email communications with TRS, it was agreed that TRS would absorb the $1500 for the floor damage. In February 2009, Commerce Bank credited Dabney's credit card account in the amount of $1500. Thereafter, in April 2009, TRS's president asked Dabney to sign a general release, but Dabney would not agree to the proposed language of the instrument, rendering the settlement incomplete.

On June 30, 2009, TRS prevailed upon Commerce Bank to debit Dabney's credit card account for the $1500 and transfer that amount to "a TRS-controlled account." Commerce Bank advised Dabney of its action, informing him that the previous credit to his account had been removed, and instead a debit of $1500 would be applied. Dabney challenged the debit and did not pay the bank the contested $1500.

While these events were happening, a separate series of events occurred. In April 2009, TD Bank,*fn2 apparently as successor to Commerce Bank, sent Dabney a letter informing him that the terms and conditions of the 2002 credit card agreement would be "radically changed." The letter provided a mechanism for Dabney to "opt-out of the changes," which would close the account, but "the terms of [his] existing agreement will continue to apply to the outstanding balance." On April 21, 2009, Dabney sent a letter to TD Bank informing it that he did not accept the new terms, but requested that the bank "reconsider and withdraw the threat," otherwise he would be "forced to review [his] entire relationship with the bank."

In May 2009, the credit card arrangement that had existed between Commerce Bank and Dabney was extinguished. According to the complaint, "subsequent to May 9, 2009, Commerce Bank d/b/a 'TD Bank' reported to credit rating agencies that [Dabney's] COMMERCE BANK credit card accounts were 'closed by customer.'"

In July 2009, Dabney received a demand from defendant TD Bank, N.A. for the payment of $1500, which was the result of the "transaction dated June 30, 2009, in which [TD Bank, N.A.] had purportedly transferred monies to a third-party on the basis of some purported instrument, draft, or document that referred to [the] number of [Dabney's] former COMMERCE BANK credit card account." Without saying so directly, Dabney's allegation related to the same $1500 that was at stake in his dispute with TRS.

Dabney denied ever having a credit card account with TD Bank, N.A. He claimed that his Commerce Bank credit card arrangement had been terminated in May 2009, at least one month before TD Bank, N.A. asserted that monies were due it. He alleged that TD Bank, N.A. "began making reports to credit rating agencies that [Dabney] purportedly was in default under some extant credit agreement between [Dabney] and [TD Bank, N.A.] (the Default ...

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