893456.2

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CLAUDIA D. DIPRINZIO, :

: Civil Action

Plaintiff, :

:

v. : No. 04-872

:

MBNA AMERICA BANK, N.A., :

: (Smith, J.)

Defendant. :

_______________________________________ :

DEFENDANT MBNA AMERICA BANK, N.A.’S

AMENDED TRIAL BRIEF

I. Introduction

Defendant MBNA America Bank, N.A. (“MBNA” or “Defendant”) submits this

Trial Brief to provide this Honorable Court with MBNA’s analysis of certain factual and legal

issues that may be presented at trial.

1

II. Facts

In July 1999, Ms. DiPrinzio and her then-husband, Richard Previdi, jointly

applied for a credit card account with First Union. Amended Joint Pretrial Stipulation (“Stip.”),

§ I.1; Exhibit D-1.

2 Ms. DiPrinzio admits that her signature appears on the First Union joint

credit card application. Deposition of Ms. DiPrinzio, 10/21/04 (“DiPrinzio Dep.”), 51:21-24,

1 Defendant’s Trial Brief is “Amended” because a prior version was submitted to

the Court when the matter was pending before Judge Ludwig. This Amended version accounts for the

Court’s dismissal of Count III of the Complaint and Plaintiff’s voluntary dismissal of Counts II and V,

and also accounts for Defendant’s requested bifurcation of Plaintiff’s punitive damages claims.

2 All “Exhibit D-_” references are to the documents contained in MBNA’s trial

exhibit binder, which has been submitted to the Court. The depositions in this matter have also been

submitted to the Court.
893456.2 - 2 -

52:23-53:3; Exhibit D-1. In 2001, First Union sold Ms. DiPrinzio’s and Mr. Previdi’s joint

credit card account to MBNA. Stip., § I.3.

Ms. DiPrinzio admitted that she used the MBNA joint credit card account on a

number of occasions during her marriage to Mr. Previdi. Stip., § I.5. For example, she

apparently used the MBNA account on at least seven occasions from February 2000 through

April 2001 for purchases from her employer, Varsity Spirit Fashions, for which she worked from

1998 until recently. DiPrinzio Dep., 13:13-14:3, 14:22-20:19, 59:2-62:21, 64:24-65:14; Exhibits

D-6, D-7, D-10, D-14, D-19, D-20.

Ms. DiPrinzio and Mr. Previdi legally separated on or about April 23, 2001, after

which time Mr. Previdi moved to Colorado. Stip., § I.6. Although Ms. DiPrinzio had used the

MBNA joint credit card account only a few weeks before, she did not contact MBNA, either at

the time of her separation or immediately thereafter, to close the jointly-held MBNA account, to

seek to have herself removed from the account, or to notify MBNA of her separation. Stip., §

I.7; Exhibit D-20.

More than four months later, on August 28, 2001, Mr. Previdi took a cash

advance of approximately $15,000 on the MBNA joint credit card account.

3

Stip., § I.8; Exhibit

D-23. As noted above, at that point, MBNA still had not been notified by Ms. DiPrinzio that she

had separated from her husband, nor had it been asked by Ms. DiPrinzio to terminate her joint

responsibility for the account. Stip., § I.7. Since that time, neither Ms. DiPrinzio nor Mr.

Previdi has provided any funds to MBNA at any point as repayment for the cash advance taken

on the joint credit card account. Stip., § I.9.

3 Ms. DiPrinzio has not filed suit against her former husband or otherwise

attempted to recover any funds from him through litigation.
893456.2 - 3 -

Months later, the Court of Common Pleas of Delaware County entered a divorce

decree on April 22, 2002, ending the marriage of Ms. DiPrinzio and Mr. Previdi. Stip., § I.10.

After an extended period of time had elapsed without payment on the joint

account, MBNA “charged off” the account on or about October 30, 2002, and reported that status

to the credit reporting agencies (“CRAs”)—Trans Union, Equifax and Experian—as applicable

to the credit files of both Ms. DiPrinzio and Mr. Previdi.

Several months later, Ms. DiPrinzio, invoking the FCRA dispute procedure

through the CRAs, claimed that she was not responsible for the MBNA account and therefore

asserted that the “charged off” account status should not appear on her credit reports. Stip., §

I.11. MBNA was notified of Ms. DiPrinzio’s disputes through only two of the national credit

bureaus, Equifax and Experian. Deposition of Denise English, 10/20/04 (“English Dep.”),

90:18-91:16; Exhibits D-65, D-66. MBNA was not notified of a dispute through the third

national credit bureau, Trans Union. English Dep., 90:18-91:16.

Equifax conveyed Ms. DiPrinzio’s dispute to MBNA by providing MBNA only

with a single-page Automated Customer Dispute Verification form (“ACDV”)

4

dated March 27,

2003. Exhibit D-65. The Equifax ACDV concerned the account number ending in “4815” and

stated: “Consumer claims true identity fraud account fraudulently opened.” Exhibit D-65.

Notwithstanding the fact that this statement was patently incorrect in light of the facts set forth

above, MBNA responded to Equifax on April 12, 2003 with a request that Equifax delete that

account number from Ms. DiPrinzio’s Equifax credit file because that was the prior, “open”

account number associated with the MBNA account before the “charge off.” Exhibit D-65;

4 These single-page forms are normally the only documents sent by the CRAs to

the credit furnishers in processing a dispute. See, e.g., Evantash v. G.E. Capital Mortg. Services, Inc.,

2003 WL 22844198, *1-*2 (E.D. Pa. 2003).
893456.2 - 4 -

English Dep., 68:4-20, 71:18-72:5, 120:4-121:4; Stip., § II.5. Concurrently with its request to

Equifax, MBNA, through an automated system known as “E-Oscar,” sent carbon-copies of this

request to both Trans Union and Experian. English Dep., 102:16-103:4, 116:21-117:21; Exhibit

D-70.

Regarding the other CRA dispute, Experian conveyed Ms. DiPrinzio’s dispute to

MBNA by providing MBNA solely with a single-page ACDV dated March 27, 2003. Exhibit D66. The Experian ACDV concerned the account number ending in “5018.” Exhibit D-66.

MBNA conducted an investigation of this dispute. English Dep., 49:13-50:14. Since the “5018”

account number was (and still is) the “charge off” account number associated with Ms.

DiPrinzio’s MBNA credit card account, MBNA responded to Experian on or about April 15,

2003 by stating: “Account information accurate as of date reported.” Exhibit D-66; English

Dep., 88:5-22; Stip., § I.13. Because MBNA did not report to Experian that the information

respecting account number “5018” was either incomplete or inaccurate, it did not send carboncopies of this response to Trans Union and Equifax. Stip., § I.14. As of this date, MBNA

continues to report the MBNA account, via account number “5018,” to the three reporting

agencies. English Dep., 88:5-22.

MBNA believed at the time of the disputes, and continues to believe, that it is

accurately reporting the joint credit card account to the CRAs because Ms. DiPrinzio was jointly

responsible for the charges on the account. As previously explained, MBNA had not been

requested to close the account, had not been requested to remove Ms. DiPrinzio from the

account, and/or had not been notified of the separation at the time the cash advance was taken on

the joint account.
893456.2 - 5 -

III. Anticipated Issues at Trial

A. Count I: Plaintiff’s FCRA Claim

1. Legal Standards

Plaintiff’s Fair Credit Reporting Act (“FCRA” or “Act”) claim arises solely under

subsection “s-2(b)” of the Act. Such is the case because FCRA only allows for a civil action against

a credit furnisher like MBNA under that specific subsection.

5

See 15 U.S.C. § 1681s-2(b), (c), &

(d); Evantash v. G.E. Capital Mortg. Services, Inc., 2003 WL 22844198, *7 (E.D. Pa. 2003)

(“[t]here is no private right of action for a violation of Section 1681s-2(a)”); Sheffer v. Experian

Information Solutions, Inc., 249 F. Supp. 2d 560, 562 (E.D. Pa. 2003) (“the negative inference of

explicitly precluding a consumer’s right of action for violations of § 1681s-2(a) is that they are

preserved in § 1681s-2(b)”). Subsection “s-2(b)” provides as follows:

(b) Duties of furnishers of information upon notice of dispute

(1) In general

After receiving notice pursuant to section 1681i(a)(2) of

this title of a dispute with regard to the completeness or

accuracy of any information provided by a person to a

consumer reporting agency, the person shall--

(A) conduct an investigation with respect to the

disputed information;

(B) review all relevant information provided by the

consumer reporting agency pursuant to section

1681i(a)(2) of this title;

5 The parties have essentially stipulated to this point. Specifically, the parties

agree that Ms. DiPrinzio may not introduce evidence regarding, or recover under FCRA based upon, any

alleged failure of MBNA to properly respond to disputes lodged by Plaintiff directly to MBNA (not

through any of the credit bureaus). See Stip., § VII.A (citing 15 U.S.C. § 1681s-2(a)(1)(B), § 1681s-2(c),

§ 1681s-2(d)). The parties have also stipulated that Ms. DiPrinzio may not introduce evidence regarding,

or recover under FCRA based upon, any alleged failure of MBNA to note or otherwise mark Plaintiff’s

account as “disputed.” See Stip., § VII.B (citing 15 U.S.C. § 1681s-2(a)(3), § 1681s-2(c), § 1681s-2(d)).
893456.2 - 6 -

(C) report the results of the investigation to the

consumer reporting agency; and

(D) if the investigation finds that the information is

incomplete or inaccurate, report those results to all

other consumer reporting agencies to which the

person furnished the information and that compile

and maintain files on consumers on a nationwide

basis.

15 U.S.C. § 1681s-2(b).

6

The “investigation” referred to in subsection “s-2(b)(1)(A)” is a

“reasonable investigation.” Evantash, 2003 WL 22844198, *6.

In the credit reporting industry, the “notice pursuant to section 1681i(a)(2)”

referenced above is the ACDV form submitted by a credit bureau to the credit furnisher. See

supra n. 4. Thus, a credit furnisher’s FCRA duties do not begin, for purposes of civil liability,

until it receives an ACDV form from a credit bureau. Accordingly, a credit furnisher is not

liable under FCRA based on evidence of direct contacts by a customer to the furnisher, and

cannot be held liable based on any actual inaccuracies it may have provided in its credit

reporting. Rather, a credit furnisher’s duty is limited to investigation and reporting under

subsection “s-2(b).”

The duty of investigation imposed on a credit furnisher is limited. Indeed, in this

Court’s recent decision in Farren v. RJM Acquisition Funding, LLC, 2005 WL 1799413 (E.D.

Pa. July 26, 2005), the Court relied on Westra v. Credit Control Of Pinellas, 409 F.3d 825 (7

th

Cir. 2005), which “explicitly rejects the argument that a data furnisher needs to contact every

debtor disputing a debt or go beyond a verification of the relevant information provided.”

Farren, 2005 WL 1799413, at *6. Further, the Farren court explained:

6 This case arises under the former version of subsection “s-2(b),” as the FACT Act

changes to the subsection did not take effect until after relevant events in this case. See 15 U.S.C. § 1681s-2

(credits).
893456.2 - 7 -

[FCRA] does not require [the defendant] or any data furnisher to

take extraordinary means to investigate and discover disputed

information but rather calls for a more passive investigation where

the data furnisher is determining only that the information

provided to it matches the information in its records. The Court

will not impose duties upon a data furnisher that Congress did not

see fit to impose.

Farren, 2005 WL 1799413, at *7.

2. Required Proof and Evidentiary Issues

In this case, Ms. DiPrinzio must show that MBNA, upon receipt of the ACDVs from

Equifax and Experian, failed to conduct a reasonable investigation, failed to report its results, and

failed to provide those results to the other bureaus if a change was required. As stated previously,

MBNA maintains that a reasonable investigation was conducted and that it complied with FCRA.

Any investigation under the circumstances would have confirmed Ms. DiPrinzio’s responsibility for

the account, as she was a joint account holder with her former husband and therefore was

responsible for all charges on the account. See Janney Montgomery Scott, Inc. v. Shepard Niles,

Inc., 11 F.3d 399, 405 (3d Cir. 1993) (citing Morrison v. American Sur. Co., 224 Pa. 41, 73 A.

10, 11 (1909)) (co-signers or co-obligors on a contract are jointly and severally responsible

where the agreement evidences such intent); see also State Savings Bank v. Watts, 1997 WL

101658, *1-*2 (Ohio App. 10

th Dist. 1997) (holding defendant liable for debt on joint credit card

because she was a co-applicant on the account with her former husband); FCC Nat’l Bank v.

Blake, 1992 WL 379378, *2 (Ohio App. 12

th Dist. 1992) (same).

B. Count IV: Plaintiff’s Negligence Claim

1. Legal Standards

The legal standards for negligence, including those relevant to MBNA’s defense

that Ms. DiPrinzio was contributorily negligent, are well-settled. See Pa. SSJI (Civ) 3.00, 3.01,
893456.2 - 8 -

3.03, 3.03A, 3.25. However, there is one particular nuance that applies to the negligence claim

in this case that is required by FCRA. Specifically, Ms. DiPrinzio must prove more than simple

negligence on the part of MBNA; she must show that MBNA furnished false information to the

CRAs with malice or willful intent to injure Ms. DiPrinzio. This heightened standard of proof is

required by force of subsection “h(e)” of FCRA, which provides that “no consumer may bring

any action . . . in the nature of . . . negligence with respect to the reporting of information against

. . . any person who furnishes information to a consumer reporting agency . . . except as to false

information furnished with malice or willful intent to injure such consumer.” 15 U.S.C. §

1681h(e) (emphasis added); see Farren v. RJM Acquisition Funding, LLC, 2005 WL 1799413,

*5, *8 (E.D. Pa. July 26, 2005) (dismissing state law claims based on subsection “h(e)”; “Courts

have generally interpreted [“h(e)”] to only permit claims where the actions of the furnisher of

information were willful. . . . Conversely, if the actions of the furnisher of information were not

willful, the state law claims are preempted by [“h(e)”] and the Court must dismiss those

claims.”).

2. Required Proof and Evidentiary Issues

MBNA asserts that Ms. DiPrinzio cannot show that MBNA furnished false

information to the CRAs with malice or willful intent to injure Ms. DiPrinzio. Respecting

contributory negligence, MBNA argues that Ms. DiPrinzio was contributorily negligent in failing to

close the MBNA account or notify MBNA of her separation at any time between her separation and

the time of the cash advance.
893456.2 - 9 -

C. Plaintiff’s Punitive Damages Claims

7

1. Legal Standards

Under Pennsylvania law, Punitive damages are permitted only “for conduct that is

outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of

others.” Hutchison v. Luddy, 870 A.2d 766, 770 (Pa. 2005) (citations omitted); see Modern

Federal Jury Instructions-Civil 77-5 & comment; Pa. SSJI (Civ) 14.00 & note; Pa. SSJI (Civ)

14.02. The FCRA punitive damages standard is nearly identical. See Cushman v. Trans Union

Corp., 115 F.3d 220, 226-27 (3d Cir. 1997) (a plaintiff “must show that [the defendant]

‘knowingly and intentionally committed an act in conscious disregard for the rights of others,’ . .

. . [W]e conclude that to justify an award of punitive damages [under FCRA], a defendant’s

actions must be on the same order as willful concealments or misrepresentations.”).

“As the name suggests, punitive damages are penal in nature and are proper only

in cases where the defendant’s actions are so outrageous as to demonstrate willful, wanton or

reckless conduct.” Hutchison, 870 A.2d at 770 (citations omitted). “The purpose of punitive

damages is to punish a tortfeasor for outrageous conduct and to deter him or others like him from

similar conduct.” Id. (citations omitted). In deciding whether to impose punitive damages,

“[t]he state of mind of the actor is vital. The act, or the failure to act, must be intentional,

reckless or malicious.” Id. (citations omitted; alteration in original).

2. Required Proof and Evidentiary Issues

MBNA contends that Ms. DiPrinzio cannot meet the burden imposed by the

foregoing punitive damages standards.

7 MBNA has moved for bifurcation regarding Plaintiff’s claims for punitive

damages.
893456.2 - 10 -

Respectfully submitted,

Dated: September 12, 2005 /s/ Karl S. Myers (VSC # KSM2012)

Paul M. Hummer, Esquire

Karl S. Myers, Esquire

Pa. Id. Nos. 46413 & 90307

SAUL EWING LLP

Centre Square West

1500 Market Street, 38

th

Floor

Philadelphia, PA 19102

(215) 972-7777

Attorneys for Defendant

MBNA America Bank, N.A.
893456.2

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CLAUDIA D. DIPRINZIO, :

: Civil Action

Plaintiff, :

:

v. : No. 04-872

:

MBNA AMERICA BANK, N.A., :

: (Smith, J.)

Defendant. :

_______________________________________ :

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Defendant MBNA America

Bank, N.A.’s Amended Trial Brief was served today upon counsel for the parties by hand delivery,

addressed as follows:

John Soumilas, Esquire

Francis & Mailman, P.C.

Land Title Building, 19

th

Floor

100 South Broad Street

Philadelphia, PA 19110

Counsel for Plaintiff

Dated: September 12, 2005 /s/ Karl S. Myers (VSC # KSM2012)