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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JOHN CUNNINGHAM, )

) CASE NO. C05-2104RSM

Plaintiff, )

) ORDER GRANTING DEFENDANT’S 

v. ) MOTION FOR SUMMARY JUDGMENT

) AND DENYING PLAINTIFF’S MOTION FOR

BANK ONE, ) SUMMARY JUDGMENT

)

Defendant. )

____________________________________)

I. INTRODUCTION

 This matter comes before the Court on the parties’ motions for summary judgment. (Dkts.

#13 and #22). Plaintiff asserts that defendant is liable for violations of the Truth in Lending Act

(“TILA”), 15 U.S.C. §1601, arising from defendant’s failure to investigate plaintiff’s allegations of a

billing error. Defendant disagrees, and argues that plaintiff’s letters to defendant, on their face, do not

constitute valid written notices of billing error under the Fair Credit Billing Act (“FCBA”), 15 U.S.C.

§1666. Defendant further argues that plaintiff’s letters were not timely under the FCBA, and that

plaintiff’s claims are barred by the statute of limitations. For the reasons set forth below, the Court

agrees with defendant, GRANTS defendant’s motion for summary judgment, and DENIES plaintiff’s

motion for summary judgment.

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ORDER

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II. BACKGROUND

Plaintiff, John Cunningham, brought this action against defendant, Bank One, on December 20,

2005 for violations of TILA, 15 U.S.C. §1601. (Dkt. #1 at 1). Plaintiff held two credit card accounts

with defendant – one opened in July 1996 and the other opened in January 2000. Plaintiff stopped

making payments on both accounts after August 2004. At that time, each account carried a balance in

excess of ten thousand dollars. (Dkt. #13 at 2). On November 25, 2004, plaintiff sent defendant

letters notifying it of “billing errors” on the two accounts, pursuant to the FCBA – Part D of TILA.

(Dkt. #22 at 10-11). Defendant did not recognize plaintiff’s letters as proper notice of billing error,

and instead charged off and closed the accounts on November 30, 2004. (Dkt. #13 at 2). 

Following discovery, defendant filed a motion for summary judgment on December 26, 2006.

(Dkt. #13). Plaintiff then filed his own motion for summary judgment on January 9, 2007. (Dkt. #22). 

Both parties agree that this matter should be dealt with on summary judgment as a matter of law, as

there are no genuine issues of material fact for the Court to consider. (Dkts. #13 at 24 and #22 at 5).

III. DISCUSSION

A. Defendant’s Motion to Strike

As an initial matter, the Court addresses defendant’s motion to strike. Defendant argues that

plaintiff failed to sign his declaration, as required by 28 U.S.C. §1746 and Part III. K. of the U.S.

District Court, Western District of Washington Electronic Filing Procedures, and therefore the Court

should strike the declaration. Court rules regarding non-attorney electronic signatures state “If the

original document requires the signature of a non-attorney, the filing party may scan the entire

document, including the signature page, or attach the scanned signature page to an electronic version

of the filing.” U.S. DISTRICT COURT, WESTERN DISTRICT OF WASHINGTON, ELECTRONIC CASE FILING

(ECF) USER’S MANUAL (MAY 2005), http://wawd.uscourts.gov/documents/ecf_usersmanual.pdf.

Plaintiff did not comply with that rule. However, the Court declines to strike the declaration. Since

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both parties agree that there are no disputes of material fact, the validity of plaintiff’s signature on his

declaration is moot. In any event, the Court notes that exhibits attached to plaintiff’s declaration are

essentially duplicates of those contained in defendant’s own sworn declarations. (Compare Dkt. #21,

Ex. A-P with Dkt. #14, Ex. 1- 12 and Dkt.#15, Ex. 1-5). Accordingly, the Court DENIES

defendant’s motion to strike and now turns to the motions for summary judgment.

B. Summary Judgment Standard

Summary judgment is proper where “the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no genuine issue of

material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The Court must draw all

reasonable inferences in favor of the non-moving party. See F.D.I.C. v. O’Melveny & Meyeres, 969

F.2d 744, 747 (9th Cir. 1992), rev’d on other grounds, 512 U.S. 79 (1994). The moving party has the

burden of demonstrating the absence of a genuine issue of material fact for trial. See Anderson, 477

U.S. at 257.

Genuine factual issues are those for which the evidence is such that “a reasonable jury could

return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. Material facts are those which

might affect the outcome of the suit under governing law. See id. In ruling on summary judgment, a

court does not weigh evidence to determine the truth of the matter, but “only determine[s] whether

there is a genuine issue for trial.” Crane v. Conoco, Inc., 41 F.3d 547, 549 (9th Cir. 1994) (citing

O’Melveny & Meyers, 969 F.2d at 747). As stated above, both parties agree that there are no genuine

issues of material fact in this action.

C. Truth in Lending Claims

Plaintiff’s action is based on defendant’s alleged violation of the billing dispute procedures

contained in the Fair Credit Billing Act (“FCBA”), 15 U.S.C. §1666, which is part of the Truth In

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Lending Act (“TILA”), 15 U.S.C. §1601. The FCBA was enacted to help consumers make informed

decisions about the use of credit and to protect consumers against unfair and inaccurate credit billing

practices. GAC Finance Corp. of Spokane v. Burgess, 16 Wash.App. 758, 760 (1977). In order to

effect this purpose, courts have held that the FCBA is to be liberally construed and the requirements

strictly enforced. Id.; see also Grant v. Imperial Motors, 539 F.2d 506, 510 (5th Cir. 1976)(“Once the

court finds a violation no matter how technical it has no discretion with respect to imposition of

liability.”). To succeed on a claim under 15 U.S.C. §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. Beaumont v. Citibank (South Dakota) N.A.

and Chase Bank, 2002 U.S. Dist. LEXIS 5276, *8 (S.D.N.Y. March 28, 2002). 

In this action, plaintiff obtained two credit cards from defendant. On or about November 24,

2005, plaintiff sent two identical letters to defendant referencing each of the respective accounts and

titled “Notice of Billing Error” (Dkt. #14, Ex. 5 and Ex. 12). The letters state:

Pursuant to 15 U.S.C. 1666, I am writing you at the address on my billing statements to

be used for billing inquiries within 60 days of receiving a statement of my account dated

November 5, 2004 in connection with extensions of consumer credit. I hereby provide you

notice that I believe said statement contains errors in the total amount you allege to be

due, and other more specific items, as laid out more completely below. My belief that the

statements contain billing errors under 15 U.S.C. 1666(b)(1)(2) and (5) is based on my

belief that you failed to give all the proper disclosures required by law to me prior to

opening this account and additional disclosures since then. Because you failed to provide

these disclosures, the account could not legally be opened and I should not be responsible

for the payment of interest, fees or other finance charges. 

Id. Defendant asserts that plaintiff’s letters do not, on their face, constitute valid written notice of

billing error. However, the statute itself, and the liberal construction of the statute in favor of

consumers, result in a broader reading than defendant suggests.

The FCBA defines “billing error” as one of the following:

(1) A reflection on a statement of an extension of credit which was not made to the obligor

or, if made, was not in the amount reflected on such statement.

(2) A reflection on a statement of an extension of credit for which the obligor requests

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additional clarification including documentary evidence thereof.

(3) A reflection on a statement of goods or services not accepted by the obligor or his

designee or not delivered to the obligor or his designee in accordance with the agreement

made at the time of a transaction.

(4) The creditor’s failure to reflect properly on a statement a payment made by the obligor

or a credit issued to the obligor.

(5) A computation error or similar error of an accounting nature of the creditor on a

statement.

(6) Failure to transmit the statement required under section 1637(b) of this title to the last

address of the obligor which has been disclosed to the creditor, unless that address was

furnished less than twenty days before the end of the billing cycle for which the statement

is required.

(7) Any other error described in regulations of the Board.

 15 U.S.C. §1666(b).

Further, the TILA implementing regulation (“Regulation Z”), 12 C.F.R. §226.13(b), defines a

consumer’s written notice of billing error as one that “To the extent possible, indicates the consumer’s

belief and the reasons for the belief that a billing error exists, and the type, date, and amount of the

error.” Both the statute and regulation contemplate that a consumer may not possess all of the

information necessary to precisely identify the extent of a claimed billing error and even a “request for

clarification may itself constitute a ‘billing error’.” Burnstein v. Saks Fifth Avenue & Co. 208

F.Supp.2d 765, 774 (E.D. Mich. 2002). The plaintiff’s “belief” need not be in good faith, rather, even

a plaintiff’s “bad-faith nit-picking” may constitute a notice of billing error. Kurz v. Chase Manhattan

Bank 273 F.Supp.2d 474 (S.D.N.Y. 2003). Thus, plaintiff’s statement in his letters of his belief, and

his reasons to believe, that his October and November 2004 billing statements “contain billing errors

under 15 U.S.C. 1666(b)(1)(2) and (5),” is sufficient to constitute valid written notice of billing error. 

Nonetheless, as stated above, to succeed on a TILA claim, plaintiff’s written notice of billing

error must not only be valid, it must also be timely. Beaumont v. Citibank (South Dakota) N.A. and

Chase Bank, 2002 U.S. Dist. LEXIS 5276 *8. To trigger a creditor’s obligation to investigate a

disputed billing statement, a consumer must send written notice within 60 days of the creditor’s

transmission of the statement containing the alleged error. 15 U.S.C. §1666(a). Regulation Z specifies

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that the 60-day period begins to run “after the creditor [has] transmitted the first periodic statement

that reflects the alleged billing error.” 12 C.F.R. §226.13(b)(1)(emphasis added). See Dawkins v. Sears

Roebuck and Company, 109 F.3d 241, 243 (5th Cir. 1997); see also Pinner v. Schmidt, 805 F.2d

1258, 1264 (5th Cir. 1986)(holding that 60-day notice period begins to run “when a disputed

statement is first received”), cert. denied, 483 U.S. 1022, 1032 (1987). Here, the Court finds that

defendant’s obligations under TILA were not triggered because plaintiff’s November 24, 2004 letters

were not sent within 60 days of the first statement reflecting the alleged billing errors. 

Plaintiff argues that his letters were timely because defendant received the letters within 60

days of the particular disputed billing statements. Plaintiff further argues that “a billing error under

Section 1666(b)(2) occurs for the first time on a statement necessarily by definition upon the

requesting of clarification and or documentary evidence.” (Dkt. #20 at 8). The Court finds plaintiff’s

reasoning illogical and unsupported by legal authority. Plaintiff ignores the full language of 

§1666(b)(2), which reads: “A reflection on a statement of an extension of credit for which the obligor

requests additional clarification including documentary evidence thereof.”15 U.S.C. §1666(b)(2)

(emphasis added).

Here, plaintiff states: 

“[T]he amount of indebtedness is called into question. Therefore I request the

documentary evidence of indebtedness detailed below. The statement contains billing

errors under 15 U.S.C. §1666(b)(2) in that the statement contains inaccuracies through

their individual items, the entire balance due, finance charges and all extensions of

consumer credit for which you claim I am indebted to you, and I request clarification

regarding all such extensions of consumer credit, including all documentary evidence

thereof you posses or are able to obtain, specifically including, but not limited to the

following: . . .” 

(Dkt. #14, Ex. 5 at 2). 

From the record, the Court finds that the only “extension of credit” to which plaintiff could

object is the original extension of consumer credit. Plaintiff’s accounts with defendant were opened in

1996 and 2000, and the 60 day period for disputing defendant’s extensions of credit has long since

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passed. With respect to plaintiff’s argument that finance charges are an extension of credit under

1666(b)(2), plaintiff fails to provide legal support for that theory, and the Court rejects his argument. 

Finally, plaintiff’s assertion that he need only provide written notice within 60 days of the latest

statement containing the finance charges was rejected in Dawkins, where the court held that a creditor

could not be in “continuous violation” when disputed charges unquestionably appeared on statements

more than 60 days before plaintiff sent notice of billing error. Dawkins v. Sears Roebuck & Co., 109

F.3d at 243. Plaintiff provides no legal authority to the contrary. 

Accordingly, plaintiff’s allegations that defendant failed to comply with FCBA procedure

following receipt of his letters are moot because defendant’s obligations under the statute were never

triggered. The Court finds that defendant had no duty to acknowledge or investigate alleged billing

errors and plaintiff’s motion fails as a matter of law. 

IV. CONCLUSION

The Court has reviewed the parties’ briefing on their motions for summary judgment, along

with the remainder of the record, and hereby finds and ORDERS:

(1) Defendant’s Motion for Summary Judgment (Dkt. #13) is GRANTED, and this case is

DISMISSED.

(2) Plaintiff’s Motion for Summary Judgment (Dkt. #22) is DENIED. 

(3) The Clerk SHALL send a copy of this Order to all counsel of record.

DATED this 12 day of March, 2007.

A

RICARDO S. MARTINEZ

UNITED STATES DISTRICT JUDGE 

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