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Silva v. Barclays Bank Delaware

United States District Court, D. Oregon

October 14, 2014

RICHARD SILVA, Plaintiff,
v.
BARCLAYS BANK DELAWARE, Defendant.

RECOMMENDATION

THOMAS M. COFFIN, Magistrate Judge.

Pro se plaintiff, Richard Silva, initiated this action by filing a complaint with the Small Claims Department of the Circuit Court of the State of Oregon for the County of Marion on April 7, 2014. In the initial complaint, plaintiff asserted that defendant, Barclaycard (aka Barclays Bank), "owe[s] him the sum of $5, 000 damages because of actions by the defendant in disregard of the Fair Credit Reporting Act and the Fair Debt Collection Practices Act." Small Claim and Notice of Small Claim at p. 1 attached Notice ofRemoval (#1-1). On April18, 2014, defendant removed to this court asserting federal question jurisdiction as plaintiffs claims arise under Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, and the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692.

This court recommended dismissal ofthe FCRA claim, without prejudice, and FDCP A claim, with prejudice, on May 23, 2014. The District Court adopted the F&R on June 19, 2014, and gave plaintiffleave to file an amended complaint. On July 2, 2014, plaintiff filed an amended complaint that, liberally construed, asserts claims for violation of: the Fair Credit Billing Act (FCBA), 15 U.S.C. § 1666, et seq.; the Oregon Unfair Debt Collections Practices Act (UDCPA), O.R.S. § 646.639; and the FDCPA. Plaintiff also asserts a claim for intentional infliction of emotional distress. Plaintiff is no longer pursuing a claim under the FCRA. Defendant again moves to dismiss.[1]

A. FCBA

A credit card provider such as defendant must acknowledge, investigate, and explain its decision regarding a disputed charge, after a credit card holder provides written notice, to the address designated for billing inquiries, that:

(1) sets forth or otherwise enables the creditor to identify the name and account number (if any) of the obligor,
(2) indicates the obligor's belief that the statement contains a billing error and the amount of such billing error, and
(3) sets forth the reasons for the obligor's belief (to the extent applicable) that the statement contains a billing error....

15 U.S.C. 1666(a).

Plaintiff alleges he sent an email to "Barcleycard US, Card Services" with a copy to Ms. Elizabeth Christopher, Barclays Bank Delaware Executive Office, that his account was at issue (stemming from an apparent compromise of the account noted by Barclay card) and that he would not make any further payments until the issue was resolved. Plaintiff alleges that he did not state an amount at issue because he wanted the investigation to determine such information. Plaintiff does not allege that he sent written correspondence to the appropriate designated address for such disputes.

Moreover, plaintiff failed to identify any particular charge or amount and only states that "the balance seems excessively high." Response (#19) at p. 6. Indeed, plaintiff acknowledges that he is not aware of any actual billing error only that one may be possible. See Response to Reply (#21) at p. 2 ("the billing statement could have a billing error due to a compromised debt balance yet to be determined."). Plaintiffs communications with defendant were insufficient to trigger any obligation under the FCBA because they did not identify any particular billing error, [2] the amount, or legitimate explanation of why he believed the billing was in error. Accordingly, the FCBA claim should be dismissed.

B. UDCPA

As noted above, plaintiff alleges that defendant violated the FCBA by asserting that defendant engaged in collection activities before sending its explanation in response to the dispute. First Amended Complaint (# 15) at p. 10. Plaintiff further alleges that such activity also violated the UDCPA, Id. at p. 11, because O.R.S. § 646.639(2)(k) prohibits attempts to collect debts via threats of rights or remedies that the debt collector lmows does not exist. In other words, because, as plaintiff alleges, defendant could not collect on the debt until it investigated plaintiffs vague claim of billing error and provided its explanation, the UDCPA prohibited actions taken by defendant assigning the debt to collections. However, as noted above, plaintiffs correspondence with ...


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