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The parties’ respective requests that their out-of-state counsel be allowed to appear

telephonically at the hearing are hereby DENIED as moot. The Court notes, however, that

it is not the practice of the Court to conduct hearings on contested motions by telephone.

United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

DAVID LEVIN,

Plaintiff,

 v.

CITIBANK, N.A.,

Defendant /

No. C-09-0350 MMC

ORDER GRANTING DEFENDANT’S

MOTION TO DISMISS; DISMISSING

COUNTS II AND VI; VACATING

HEARING

Before the Court is defendant Citibank, N.A.’s (“Citibank”) “Motion to Dismiss Claims

II and VI in Plaintiff’s First Amended Complaint,” filed November 23, 2009. Plaintiff David

Levin (“Levin”) has filed opposition, to which Citibank has filed. Having read and

considered the papers filed in support of and in opposition to the motion, the Court deems

the matter suitable for decision on the parties’ respective written submissions, VACATES

the hearing scheduled for February 26, 2010,1 and rules as follows:

1. Levin’s second cause of action, titled “Count II,” by which Levin alleges Citibank

failed to provide notice of the reduction of his credit limit within the time set forth in 12

C.F.R. § 226.9(c)(3), is, for the reasons stated by Citibank, subject to dismissal. 

Specifically, § 226.9(c)(3) allows for notice of a reduction to be mailed to the affected

person “not later than three business days after the action is taken,” see 12 C.F.R.

§ 226.9(c)(3); Levin alleges Citibank reduced his credit limit on March 17, 2008 and sent

him written notice of such reduction on the following day, March 18, 2008 (see First

Case 3:09-cv-00350-MMC Document 77 Filed 02/23/10 Page 1 of 2
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Indeed, Levin has alleged his entitlement to recover the early termination fee as

part of his damages in the event he establishes the reduction of his credit was improper

(see FAC ¶ 52), and Citibank has not challenged such allegation at the pleading stage.

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Amended Complaint (“FAC”) ¶ 14). Although Levin argues that his contract with Citibank

requires he in fact receive notice no later than three days after the date of a reduction, and

that he has alleged he did not actually receive the notice until four days after the date on

which Citibank reduced his credit limit, Levin’s argument is unavailing as Count II is based

solely on an alleged violation of § 226.9(c)(3), and not on an alleged breach of contract.

2. Levin’s sixth cause of action, titled “Count VI,” by which Levin alleges Citibank

engaged in an unfair business practice in violation of § 17200 of the California Business &

Professions Code by charging him an “early termination fee” when he closed his account,

is, for the reasons stated by Citibank, subject to dismissal. Count VI is based on the theory

that the imposition of the early termination fee was wrongful for the reason that Levin

closed his account in response to Citibank’s reduction of the credit limit, which reduction,

Levin alleges, constituted a breach of contract by Citibank. As explained in the Court’s

September 17, 2009 order, however, Citibank had the express contractual right to charge

the fee upon Levin’s closing the account. (See Order, filed September 17, 2009, at 10:6-

21.) Consequently, as the Court noted, although Levin may be entitled to recover the early

termination fee as part of his damages if he establishes Citibank improperly reduced his

credit limit,2 Levin has not alleged any basis for a finding that the imposition of the early

termination fee is itself an unfair business practice.

CONCLUSION

For the reasons stated above, Citibank’s motion is hereby GRANTED, and Counts II

and VI are hereby DISMISSED.

IT IS SO ORDERED.

Dated: February 23, 2010 

MAXINE M. CHESNEY

United States District Judge

Case 3:09-cv-00350-MMC Document 77 Filed 02/23/10 Page 2 of 2