1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GARETH J. KNOWLES, : Civil Action No. 4:11-CV-1257

:

:

Plaintiff, : (Judge Brann)

:

v. :

:

CAPITAL ONE BANK (USA), N.A :

and CAPITAL ONE SERVIVCES, :

LLC, :

:

Defendants. :

MEMORANDUM

May 26, 2015

Pending before this Court are two Motions for Summary Judgment on 

Plaintiff’s Complaint and Defendants’ Counterclaim, one filed by Plaintiff Gareth 

J. Knowles (ECF No. 51) and the other filed by Defendants Capital One Bank 

(USA), N.A. and Capital One Services, LLC (ECF No. 53). Plaintiff’s Complaint 

seeks recovery for unauthorized charges on his credit card billing statement and the 

damage to his credit rating based on Defendants’ report to credit agencies that his 

account was delinquent. He makes these claims pursuant to the Fair Credit Billing 

Act (hereinafter “FCBA”), the Fair Credit Reporting Act (hereinafter “FCRA”), 

Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (hereinafter 

“UTPCPL”), and the Virginia Consumer Protection Act (hereinafter “VCPA”). 

Defendants’ Counterclaim seeks damages for breach of contract or, in the 

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alternative, unjust enrichment based on Plaintiff’s alleged failure to pay for charges 

he undisputedly incurred but for which he did not pay. The matter has been fully 

brief and is now ripe for disposition.

In accordance with the following reasoning, summary judgment is denied in 

its entirety on Plaintiff’s FCRA claim, but is granted in favor of Defendants on 

Plaintiff’s FCBA, UTPCPL and VCPA claims. Additionally, summary judgment 

is granted in favor of Defendants on their breach of contract counterclaim; 

however, because of the Court’s inability to verify the requested amount of 

damages, the Court will defer a determination of damages pending a more 

thorough exposition of the evidence supporting the enumerated amount.

I. BACKGROUND1

In 1999, Plaintiff applied for and was issued a credit card account by 

Defendant Capital One. Pl.’s Statement of Facts ¶ 1-2, August 25, 2014, ECF No. 

51-3 (hereinafter “Pl.’s SOF”). Plaintiff’s customer agreement for the credit card 

contains the following language:

You promise individually and jointly to pay us all amounts due on your 

Account. . . . You must inspect each Statement you receive and tell us about 

any errors or questions you have as described in the “Billing Rights 

Summary” part of your Statement and other Truth in Lending Disclosures. 

 

1 Many of Plaintiff’s assertions in his statement of facts do not contain citations to any portion of the record. 

According to the local rules, a motion for summary judgment must be accompanied by a separate statement of 

material facts which must include references to the parts of the record that support the statements. L.R. 56.1; see 

also U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in 

briefs.”). Accordingly, this Court will only give credence to those facts in Plaintiff’s Statement of Facts which cite 

to a portion of the record.

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If you do not notify us as provided in those disclosures, we may assume that 

all information in the Statement is correct.

Defs.’ Statement of Facts ¶ 3, August 25, 2014, ECF No. 55 (hereinafter “Defs.’ 

SOF”). Further, the Billing Rights Summary alluded to in Plaintiff’s customer 

agreement stated:

If you think your bill is wrong, or if you need more information on a 

transaction or bill, write to us on a separate sheet as soon as possible on the 

address for inquiries shown on the front of this statement. We must hear 

from you no later than 60 days after we sent you the first bill on which the 

error or problem appeared. You can call our Customer Relations number or 

notify us by email or website, but doing so will not preserve your rights. In 

your letter, give us the following information: your name and account 

number, the dollar amount of the suspected error, a description of the error 

and an explanation, if possible, of why you believe there is an error; or if 

you need more information, a description of the item you are unsure about. 

You do not have to pay any amount in question while we are investigating it, 

but you are still obligated to pay the parts of your bill that are not in 

question. While we investigate your question, we cannot report you as 

delinquent or take any action to collect the amount you question.

Id. ¶ 5.

From January 2010 to March 2010, Plaintiff received a billing statement 

each month showing different unauthorized charges on his account. Pl.’s SOF ¶ 3, 

6, 8. He called Defendants’ customer service representatives several times in an 

attempt to rectify the illegitimate charges and to receive a corrected billing 

statement, although he had a difficult time getting through to the customer service 

representatives who he claims did not speak fluent English and could not 

adequately address his problem. Id. ¶ 5, 7; Def.’s SOF ¶ 7. Beginning in May 

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2010, Plaintiff allegedly began directing written correspondence to Defendants. 

Pl.’s SOF ¶ 10-11. Defendants dispute that any written correspondence was 

directed to them prior to July 18, 2010. Def.’s SOF ¶ 9.

Plaintiff ceased making any payments on his account on February 25, 2010. 

Def.’s SOF ¶ 23. Even though at the time Plaintiff only specifically disputed 

several charges on his account, he now insists that he disputed the entire account 

because he was unaware of the correct balance. Pl.’s SOF ¶ 3,6,8; Def.’s SOF ¶ 9-

12; Pl.’s Counter Statement of Facts ¶ 20, September 12, 2014, ECF No. 57-1

(hereinafter “Pl.’s Counter SOF”). Because of this failure to pay the account 

balance, Defendants began to charge him interest and late payment fees. Pl.’s SOF 

¶ 8, 13.

By the end of April 2010, Defendants had credited all but one disputed 

charge to Plaintiff’s account. Def.’s SOF ¶ 14-16, 18.2 They also adjusted the 

interest, past due fees, and late payment fees in accordance with the credited 

amounts. Id. ¶ 17. Several months later, Plaintiff’s billing statement for the period 

of October 29, 2010 – January 27, 2011 reflected a credit for the final disputed 

charge. Id. ¶ 18.

Around the time that Defendants credited the final charge to Plaintiff’s 

account, they reported his account as delinquent to consumer reporting agencies. 

 

2 This includes one charge for $234.25, which was credited back to Plaintiff’s account and then subsequently 

rebilled when the merchant also credited Plaintiff’s account that same amount for the same unauthorized purchase. 

Def.’s SOF ¶ 9, 12.

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Id. ¶ 24. Subsequently, Plaintiff filed credit reporting dispute information with 

several of those agencies regarding his account. Pl.’s SOF ¶ 43. Those filings 

generated several Automated Credit Dispute Verifications (hereinafter “ACDVs”) 

from the agencies to the Defendants. Id. ¶ 44; Def.’s SOF ¶ 27. Defendants 

responded to the ACDVs shortly thereafter and indicated that the account was 

correctly reported as delinquent and that there was no dispute. Def.’s SOF ¶ 28; 

Pl.’s SOF ¶ 51, 53, 55. Plaintiff denies that Defendants ever conducted any 

investigation into his allegations of dispute. Pl.’s SOF ¶ 50. The instant lawsuit 

followed.

II. LEGAL STANDARD

Summary judgment is appropriate where “the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” where it “might affect 

the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (1986). A dispute is “genuine” where “the evidence is such that 

a reasonable jury,” giving credence to the evidence favoring the nonmovant and 

making all inferences in the nonmovant’s favor, “could return a verdict for the 

nonmoving party.” Id. 

The burden of establishing the nonexistence of a “genuine issue” is on the 

party moving for summary judgment. In re Bressman, 327 F.3d 229, 237 (3d Cir. 

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2003) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986) (Brennan, J., 

dissenting)). The moving party may satisfy this burden by either (i) submitting 

affirmative evidence that negates an essential element of the nonmoving party’s 

claim; or (ii) demonstrating to the Court that the nonmoving party’s evidence is 

insufficient to establish an essential element of the nonmoving party’s case. Id. at 

331. 

Where the moving party’s motion is properly supported, the nonmoving 

party, to avoid summary judgment in his opponent’s favor, must answer by setting 

forth “genuine factual issues that properly can be resolved only by a finder of fact 

because they may reasonably be resolved in favor of either party.” Anderson, 477 

U.S. at 250. For movants and nonmovants alike, the assertion “that a fact cannot 

be or is genuinely disputed must” be supported by “materials in the record” that go 

beyond mere allegations, or by “showing that the materials cited do not establish 

the absence or presence of a genuine dispute, or that an adverse party cannot 

produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1); see also 

Anderson, 477 U.S. at 248–50. 

“When opposing summary judgment, the non-movant may not rest upon 

mere allegations, but rather must ‘identify those facts of record which would 

contradict the facts identified by the movant.’” Port Auth. of N.Y. and N.J. v. 

Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003). Furthermore, “[i]f a 

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party fails to properly support an assertion of fact or fails to properly address 

another party’s assertion of fact as required by Rule 56(c), the court may . . . 

consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e)(2).

In deciding the merits of a party’s motion for summary judgment, the 

Court’s role is not to evaluate the evidence and decide the truth of the matter, but 

to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. 

Credibility determinations are the province of the factfinder, not the district court. 

BWM, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

III. DISCUSSION

A. Fair Credit Billing Act

Both parties first request summary judgment on Plaintiff’s claim under the 

FCBA. Defendant contends that Plaintiff’s claim must fail because he did not 

comply with the express terms of the statute; that is, he did not provide them with 

written notice within sixty days of the issuance of even the last incorrect billing 

statement. Plaintiff responds that Defendants consented to notice by telephone 

and, further, that he did notify Defendants in writing within sixty days. He makes 

an additional argument that Defendants violated the FCBA by adversely reporting 

his account as delinquent to consumer reporting agencies without noting that it was 

disputed.

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1. Obligations under 15 U.S.C. § 1666

The Fair Credit Billing Act was designed by Congress to protect consumers 

from inaccurate and unfair credit practices. See Fairley v. Turan-Foley Imports, 

Inc., 65 F.3d 475, 477 (5th Cir. 1995). It requires a creditor to correspond with a 

consumer and resolve billing differences in certain situations. See Pinner v. 

Schmidt, 805 F.2d 1258, 1264 (5th Cir. 1986); see also Monica v. MBNA America 

Bank, N.A., Civil Action Nos. 06-cv-281 (PGS), 06-cv-761(PGS), 2006 WL 

2040380, *3 (D.N.J. July 20, 2006). 

The statute provides for several procedural requirements which must be 

followed in order to assert a claim. To that end, the FBCA requires creditors to 

investigate and correct any charges erroneously billed to a consumer’s account if 

the creditor receives written notice from the consumer of the alleged errors within 

sixty (60) days of the issuance of the statement containing those charges. 15 U.S.C. 

§ 1666(a); Burrell v. DFS Services, LLC, 753 F.Supp.2d 438, 451 (D.N.J. 2010). 

The statute further requires that the written notice contain the name and account 

number of the obligor, the obligor’s belief that the statement contains a billing 

error and the amount of that error, and the reasons for the obligor’s belief that a 

billing error exists. 15 U.S.C. § 1666(a)(i)-(iii).

In this case, the charges that Plaintiff disputes appeared on three billing 

statements; the last of those statements was the March 1, 2010 – March 28, 2010 

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billing statement. Defendants claim that this March billing statement would have 

been transmitted to Plaintiff by April 2, 2010. Consequently, they contend that 

Plaintiff needed to provide written notice by or around June 2, 2010 in order to 

comport with the terms of the statute. They further argue that they received no 

written notice from Plaintiff regarding the billing errors prior to July 18, 2010. 

Plaintiff does not dispute that April 2, 2010 is approximately when he 

received his March billing statement. He makes two arguments, however, with 

which he attempts to counter Defendants’ contentions. First, he argues that he 

provided written notice to Defendants prior to July 18, 2010, an assertion that he 

supports with a certified mail receipt dated on June 1, 2010 and a statement from 

his own deposition in which he states that he did send written notice of the billing 

disputes to Defendants. Second, he claims that Defendants consented to notice by 

telephone, thereby negating the need that he provide them with written notice. 

Plaintiff has, in fact, attached to his motion copies of certified mail receipts 

that he sent to Defendants. However, he provides no evidence other than his word 

that the mail contained notice of billing errors and that it comported with the 

requirements of § 1666(a) regarding the substance of that notice. Plaintiff has not 

attached the actual letters which were sent to Defendants and therefore this Court 

has no way of knowing what those letters contained and if they even discussed the 

billing inaccuracies. Furthermore, Plaintiff’s unsupported statement in his 

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deposition that he did in fact provide written notice of the billing disputes in a 

timely manner is insufficient to create a genuine dispute of material fact. Again, 

Plaintiff has not satisfied his burden of proving what was in the writings that he 

sent to Defendants, and his own self-serving statement is insufficient on its own to 

create a genuine dispute. With regard to Plaintiff’s second argument, that 

Defendants’ consented to notice by telephone, he has not cited to any law or any 

portion of the record which would support this claim and, consequently, this Court 

need not consider it.3

2. Obligations under 15 U.S.C. § 1666a

Plaintiff also argues that Defendants have violated § 1666a of the FCBA by 

adversely reporting his account as delinquent to consumer reporting agencies

(hereinafter “CRAs”) and failing to note that the account was disputed. This 

argument necessitates little discussion. 15 U.S.C. § 1666a(a) states, in relevant 

part, “After receiving a notice from an obligor as provided in section 1666(a) of 

this title, a creditor or his agent may not directly or indirectly threaten to report to 

any person adversely on the obligor’s credit rating or credit standing because of the 

obligor’s failure to pay . . . and such amount may not be reported as delinquent. . . 

.” 15 U.S.C. § 1666a(a). As this Court has already discussed, Plaintiff did not 

comport with the requirements of 15 U.S.C. § 1666(a), which is a statutory 

 

3 Though Defendants provided a telephone contact number for customers to utilize, this does not change the explicit 

requirements of the statute, as Plaintiff appears to suggest.

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requirement for liability under 15 U.S.C. § 1666a. Consequently, summary 

judgment is granted in favor of Defendants on Plaintiffs FCBA claims.

B. Fair Credit Reporting Act

Both parties next request summary judgment on Plaintiff’s claim under the 

FCRA. Plaintiff contends that Defendants had a duty to conduct a reasonable 

investigation into the accuracy and completeness of the information that they 

provided to consumer reporting agencies following his report to the CRAs of a 

dispute. In support of his summary judgment request, he argues that it is beyond 

question that Defendants’ investigation into his reported disputes was unreasonable 

because they conducted no such investigation. He further argues that Defendants’ 

failure to report to the CRAs that his account was in dispute following their 

investigation constitutes an additional violation of the FCRA. 

Defendants, on the other hand, argue that they correctly reported Plaintiff’s 

account as delinquent, both in the first instance and following Plaintiff’s reports to 

the CRAs of a dispute, because he had failed to pay charges on his account that he 

had undisputedly incurred. Moreover, they contend that they had no obligation to 

report Plaintiff’s account as disputed following their investigation because his 

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disputes were meritless and failing to report a meritless dispute does not give rise 

to a violation of the FCRA.4

The FCRA is intended “to protect consumers from the transmission of 

inaccurate information about them, and to establish credit reporting practices that 

utilize accurate, relevant, and current information in a confidential and responsible 

manner.” Cortez v. Trans Union, LLC, 617 F.3d 688, 706 (3d Cir. 1996). Under 

the FCRA, CRAs collect consumer credit data from “furnishers,” from which they 

create credit reports that are used to assess an individual’s creditworthiness. See 

Seamans v. Temple University, 744 F.2d 853, 860 (3d Cir. 2014). Although the 

FCRA has several provisions which create liability for violations of the Act, only § 

1681s-2(b) provides for a private citizen to recover damages caused by a furnisher 

of information. See 15 U.S.C. § 1681o; see also SimmsParris v. Countrywide 

Financial Corp., 652 F.3d 355, 358 (3d Cir. 2011); Seamans, 744 F.3d at 864 

(“Although furnishers . . . are obligated to provide complete and accurate 

information to CRAs even in the first instance, i.e., before a dispute, under 15 

U.S.C. § 1681s-2(a), FCRA explicitly precludes private suits for failure to comply 

with that statutory duty . . . and instead provides for enforcement of that provision 

by federal and state officials.”). That section states, in relevant part:

 

4 Defendants do make an additional argument that the claim should be dismissed because Plaintiff identified it in his 

complaint as “credit damage.” They cite to no law for this proposition and this Court is aware of none, so the Court 

will not discuss the argument in this decision.

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(b) Duties to 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;

(C) report the results of the investigation to the consumer 

reporting agency; 

(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; and

(E) if an item of information disputed by a consumer is found to 

be inaccurate or incomplete or cannot be verified after any 

reinvestigation under paragraph (1), for purposes of reporting to 

a consumer reporting agency only, as appropriate, based on the 

results of the reinvestigation promptly –

(i) modify that item of information; 

(ii) delete that item of information; or 

(iii) permanently block reporting of that item of 

information.

15 U.S.C. § 1681s-2(b). The duties under this subsection are implicated only after 

a defendant furnisher has received notice of a dispute from a CRA with regard to 

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the completeness or accuracy of any information provided by a person to that or 

any CRA. See SimmsParris, 652 F.3d at 358.

Seamans v. Temple University, a case recently decided by the United States 

Court of Appeals for the Third Circuit, correlates almost entirely to the facts and 

arguments in the case currently pending before this Court. The plaintiff in 

Seamans argued that the defendant had violated the FCRA in two ways: first, by 

failing to conduct a reasonable investigation into his alleged dispute and second, by 

failing to report his account as disputed following that investigation. The Plaintiff 

in the instant case makes the same two arguments and the Court will address each 

in turn.

1. Failure to Conduct Reasonable Investigation

First, the court discussed the possibility that a plaintiff could prove an FCRA 

violation by demonstrating that the defendant had failed to conduct a reasonable 

post-dispute investigation. Seamans, 744 F.3d at 864. The Third Circuit has held 

that a furnisher’s post-dispute investigation into a consumer’s complaint must be 

reasonable. See SimmsParris, 652 F.3d at 359. “[A] reasonable procedure is one 

that a reasonably prudent person would undertake under the circumstances.” 

Seamans, 744 F.3d at 864-65 (citations omitted). “The burden of showing the 

investigation was unreasonable is on the plaintiff.” Noel v. First Premier Bank, 

Civil Action No. 3:12-CV-50, 2012 WL 832992, * 6 (M.D.Pa. Mar. 12, 2012) 

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(Conaboy, J.) (citing Chiang v. Verizon New England Inc., 595 F.3d 26, 35 (1st 

Cir. 2010)).

In this case, Plaintiff has argued that Defendants conducted no investigation 

at all into his allegations of dispute. He has not cited to any portion of the record 

to support this assertion. Defendants, on the other hand, contend that their 

investigation was unquestionably reasonable. However, they have made only 

vague allegations as to what they did following the report of Plaintiff’s disputes. 

The issue of reasonableness “is normally a question for trial unless the 

reasonableness or unreasonableness of the procedures is beyond question.” Cortez, 

Without knowing more specifically how the Defendants responded to Plaintiff’s 

allegations of dispute or, in Plaintiff’s version of events, how he can prove that 

they did nothing to investigate his claims, the Court cannot determine at this 

juncture that the reasonableness or unreasonableness of the Defendants’ 

investigation is beyond dispute. 

2. Failure to Report Account as Disputed Following Investigation

The Seamans court also discussed, for the first time, “whether a furnisher’s 

continuing failure to flag an account as disputed also constitutes a violation of 15 

U.S.C. § 1681s-2(b), which . . . requires complete and accurate post-dispute 

reporting of debts.” Seamans, 744 F.3d at 866-67. The court ultimately concluded 

in the affirmative, holding that “the fact that a furnisher is affirmatively obligated 

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to flag an account as disputed under § 1681s-2(a) does not undermine the 

conclusion that a failure to flag the account as disputed also constitutes a material 

inaccuracy under § 1681s-2(b).” Id. at 867.

However, in order to establish that a defendant furnished an incomplete or 

inaccurate report by failing to report an account as disputed after such a report to a 

CRA, a plaintiff must prove that the dispute of which the defendant was aware was 

a meritorious dispute. Id. To that end, it is appropriate to use the requirements set 

out in § 1681s-2(a)(8)(D) and (F)(i) to determine whether a plaintiff’s dispute was 

bona fide or meritless. See Noel, 2012 WL 832992 at * 9. The former section 

contains guidelines for a consumer’s submission of a dispute to a furnisher, stating:

A consumer who seeks to dispute the accuracy of information shall provide 

a dispute notice directly to such person at the address specified by the person 

for such notices that – (i) identifies the specific information that is being 

disputed; (ii) explains the basis for the dispute; and (iii) includes all 

supporting documentation required by the furnisher to substantiate the basis 

of the dispute.

15 U.S.C. § 1681s-2(a)(8)(D). The latter section clarifies that the defendant need 

not report a dispute “if the person receiving a notice of a dispute from a consumer 

reasonably determines that the dispute is frivolous or irrelevant, including – (I) by 

reason of a failure of a consumer to provide sufficient information to investigate 

the disputed information; or (II) the submission by a consumer of a dispute that is 

substantially the same as a dispute previously submitted by or for the consumer . . . 

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with respect to which the person has already performed the person’s duties under 

this paragraph or subsection (b).” 15 U.S.C. § 1681s-2(a)(8)(F)(i).

In this case, Plaintiff alleges that Defendants failed to report his account as 

in dispute to CRAs, even after he filed a report of that dispute with the CRAs and 

after Defendants were required to investigate his claim. The question, then, is 

whether Plaintiff’s dispute was bona fide or meritless. Defendants make two 

arguments in support of their contentions that Plaintiff’s dispute was meritless and 

that it was therefore unnecessary for them to report the dispute to the CRAs. First, 

they claim that under the provided definition of a frivolous or irrelevant dispute, 

they had already considered the dispute and there is no evidence that Plaintiff had 

raised any new issues. This argument is tenuous. Under § 1681s-2(a)(8)(F)(i)(II), 

a dispute is frivolous or irrelevant if the consumer has already submitted the same 

or substantially similar dispute under § 1681s-2(b). That subsection requires that 

the dispute be submitted through a CRA and not directly to the defendant 

furnisher. There is no doubt that Plaintiff submitted notice of a dispute through the 

CRAs only once; notice of a dispute given directly to a furnisher is inapplicable 

under this definition of frivolous or irrelevant.

Second, Defendants argue that Plaintiff’s dispute is meritless because it was 

untimely under the FCBA. Defendants fail to recognize that there is no 

requirement of timing under § 1681s-2(b) of the FCRA similar to that under the 

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FCBA. Though Defendants need not have taken any action on Plaintiff’s untimely 

allegations of dispute under the FCBA, that does not necessarily dissolve their 

obligation to furnish to CRAs a report of Plaintiff’s dispute which, as the Court has 

already discussed, was neither frivolous nor irrelevant.

The Court therefore concludes that it does not have enough information at 

this time to determine whether Plaintiff’s dispute was meritorious or meritless. 

Specifically, neither party has clarified on what date Defendants credited the last

disputed charge of $134 to Plaintiff’s account; they have stated only that it was 

reported on the statement of October 29, 2010 – January 27, 2011. 5 However, 

because they responded to the ACDVs sometime during November 2010, the 

Court is unsure as to whether the dispute was still outstanding at that time. 

Moreover, even if Plaintiff can prove that his dispute was still outstanding, it is a 

factual issue as to whether Defendants’ failure to report the disputed charge to the 

CRAs caused his ultimate injury. Consequently, both parties’ motions for 

summary judgment on this claim are denied. 

 

5 The Court notes that Plaintiff has consistently stated in his deposition and arguments that he disputed the entire 

billing because Defendants would not provide him an updated billing statement. The Court is skeptical of this 

argument. In his discussions with the Defendants he made them aware of several charges which he believed were 

erroneous or the result of an internal processing error on Defendants part. However, there were additional charges 

on his account that he did not specifically dispute. Plaintiff cannot create a meritorious dispute as to his entire 

account by stating that he disputed some charges. See Klotz v. Trans Union, LLC, 246 F.R.D. 208, 214 (E.D.Pa. 

2007) (“A CRA must assume a consumer’s dispute is bona fide, unless there is evidence to the contrary. Such 

evidence may constitute receipt of letters from consumers disputing all information in their files without providing 

any allegations concerning the specific items in the files. . .”).

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C. Pennsylvania UTPCPL

Next, Defendants seek summary judgment on Plaintiff’s UTPCPL claim, 

arguing that Plaintiff has not established deceptive conduct, justifiable reliance, or 

causation, all of which are elements of a UTPCPL claim. Plaintiff responds that 

Defendants’ customer service mechanism is based on a “rules based question set” 

that was not only incapable of handling Plaintiff’s problems, but also thwarted and 

prevented resolution of Plaintiff’s dispute. Moreover, he argues that the alleged

violation is based upon telephonic conversations he had with customer service 

representatives of which no record was made by Defendants. However, Plaintiff 

does not cite to any case law or any portion of the record in support of his 

contentions, nor does he argue the relevance of these assertions as they relate to 

Defendants’ arguments.

The UTPCPL enumerates twenty “unfair methods of competition” and 

“unfair or deceptive acts or practices” that businesses are prohibited from engaging 

in. 73 P.S. § 201-2(4)(i)-(xx). There is, further, a catch-all provision that prohibits 

any “fraudulent or deceptive conduct which creates a likelihood of confusion or of 

misunderstanding.” 73 P.S. § 201-2(4)(xxi). It is under this catch-all provision that 

Plaintiff brings his UTPCPL claim against Defendants. 

“[T]he general purpose of the UTPCPL is to protect the public from fraud 

and unfair deceptive business practices.” Burke v. Yingling, 666 A.2d 288, 291 

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(Pa.Super. 1995). Accordingly, the act is to be construed liberally so as to 

effectuate that purpose. See Wilson v. Parisi, 549 F.Supp.2d 637, 666 (M.D.Pa. 

2008) (Vanaskie, J.); see also Keller v. Volkswagen of America, Inc., 733 A.3d 

642, 646 (Pa.Super. 1999). A 1996 amendment to the UTPCPL expanded the 

ambit of the catch-all provision to include not only fraudulent conduct, but also 

deceptive conduct. 73 P.S. § 201-2(4)(xxi). The Third Circuit has interpreted this 

expansion to suggest that a plaintiff can prove a violation of the catch-all provision 

without proving all of the elements of common law fraud; rather, a plaintiff need 

only prove deceptive conduct. See Belmont v. MB Inv. Partners, Inc., 708 F.3d 

470, 498 (3d Cir. 2013); see also Fazio v. Guardian Life Ins. Co., 62 A.3d 396, 

406 (Pa.Super. 2012). To that end, “[a] deceptive act is the act of intentionally 

giving a false impression or a tort arising from a false representation made 

knowingly or recklessly with the intent that another person should detrimentally 

rely on it.” Wilson, 549 F.Supp.2d at 666 (citing In re Patterson, 263 B.R. 82, 94 

(E.D.Pa. 2001)).

In addition to deceptive conduct, a UTPCPL plaintiff must also prove 

justifiable reliance on the defendant’s deceptive conduct; that is, he must prove that 

he justifiably bought the product or service in the first instance, or that he engaged 

in some other detrimental activity because of the deceptive conduct. See Hunt v. 

U.S. Tobacco Co., 538 F.3d 217, 222 (3d Cir. 2008); see also Weinberg v. Sun Co., 

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777 A.2d 442, 445 (Pa. 2001). Proving justifiable reliance requires that a plaintiff 

establish more than “simply a causal connection between the misrepresentation and 

the harm.” Id. at 222. Finally, a plaintiff must also prove that he suffered harm as a 

result of that reliance. See Johnson v. MetLife Bank, N.A., 883 F.Supp.2d 542, 548 

(E.D.Pa. 2012) (quoting Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 

438 (Pa. 2004)).

On this claim, it appears to the Court that Plaintiff is alleging Defendants 

caused to exist an inadequate customer service mechanism which obstructed rather 

than assisted his efforts to resolve the inaccurate charges on his account, despite 

having advertised a high level of customer service. It is this general advertisement 

that Plaintiff appears to allege was deceptive. Plaintiff has cited to no portion of 

the record in his brief; however, even the unsupported assertions that he makes 

regarding this customer service failure on Defendants’ part would not be 

considered deceptive conduct under the UTPCPL. Specifically, Plaintiff has not 

created a genuine dispute of material fact that Defendants intentionally gave him a 

false impression as to the quality of their customer service experience when they 

knew or should have known that impression to be false. In fact, even assuming 

Plaintiff did have a poor customer service experience,

6

he has presented no 

 

6 While Plaintiff insists that his customer service experience was horrible because he was forced to speak with 

foreigners who did not speak fluent English and consistently transferred his calls to different departments, the 

quality of his customer service experience is itself in doubt, given that Plaintiff’s account was, ultimately, credited 

for all of the charges that he disputed.

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evidence that Defendants knew that this would be the case when they advertised a 

high level of customer service. 

Moreover, even assuming that Plaintiff justifiably relied upon Defendants’

representations of high quality customer service, he has provided no genuine 

dispute of material fact that this reliance caused his ultimate injury.7 Specifically, 

this Court is unable to conceive of a situation in which reliance on customer 

service advertisements would cause Plaintiff to discontinue payment on his 

account and subsequently cause Defendants to report his account as delinquent to 

consumer reporting agencies.8 Consequently, summary judgment is granted in 

favor of Defendants on Plaintiff’s UTPCPL claim.

D. Virginia Consumer Protection Act

Defendants further seek summary judgment on Plaintiff’s claim under the 

VCPA, arguing first that banks are exempt from that Act and, moreover, that 

Plaintiff cannot demonstrate that the Defendant’s committed fraud, a necessary 

element of a VCPA claim. Plaintiff responds that only Defendant Capital One 

Bank (USA), N.A. is a bank; however, Defendant Capital One Services, LLC is 

not and therefore is not exempt under the Act.

 

7 Because all of the unauthorized charges on Plaintiff’s account were ultimately credited back to him, the only injury 

that the Court can discern that Plaintiff is arguing he suffered is the damage to his credit rating as a result of 

Defendants’ reports that he was delinquent in paying his account balance.

8 Again, while the Court understands that Plaintiff is alleging that his entire account balance was disputed and that is 

why he discontinued payment on his account, he has still provided no reasonable evidence or explanation as to how 

the advertisement caused this discontinued payment. It would be an exceedingly tenuous causal connection to claim 

that Defendants’ advertisement of quality customer service caused Plaintiff to think that his dispute would 

necessarily be resolved in his favor and that he could therefore stop paying for all of his purchases.

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To state a cause of action under the VCPA, Plaintiff must establish: (1) 

fraud; (2) by a supplier; (3) in a consumer transaction. See Enomoto v. Space 

Adventures, Ltd., 624 F.Supp.2d 443, 456 (E.D.Va. 2009). To demonstrate the 

first element, a plaintiff must prove each of the elements of actual fraud. See id. 

(implicitly holding that the plaintiff had not pled a claim under the VCPA because 

he had not pled a claim of actual fraud). Under Virginia law, actual fraud requires: 

(1) a false representation; (2) of a material fact; (3) made intentionally and 

knowingly; (4) with intent to mislead; (5) reliance by the party misled; and (6) 

resulting damage to the party misled. See State Farm Mut. Auto. Ins. Co. v. 

Remley, 618 S.E.2d 316, 321 (Va. 2005).

For many of the same reasons that this Court has already determined that 

Plaintiff has failed to establish a genuine dispute of material fact regarding his 

UTPCPL claim, he has also failed to establish any evidence of fraud to support a 

claim under the VCPA. Accordingly, summary judgment is granted in favor of 

Defendants on this claim.

E. Breach of Contract

Finally, Defendants argue that they are entitled to summary judgment on 

their counterclaim for breach of contract or, in the alternative, unjust enrichment 

based on the credit card charges that Plaintiff legitimately incurred but has never

paid for. They seek $2,538.73, which they claim is the outstanding balance on 

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Plaintiff’s account and is inclusive of late fees and interest. In response Plaintiff 

argues, again without citing to any law, that Defendants forfeited their rights to 

collect any amounts from Plaintiff when they failed to send him a correct billing 

statement as he had requested.9 Defendants contend that Virginia law governs 

Plaintiff’s customer service agreement and therefore governs the instant breach of 

contract claim. Plaintiff has not disputed this in any way and, in fact, Plaintiff’s 

customer agreement explicitly states that the agreement will be interpreted using 

Virginia law. Consequently, this Court will apply Virginia law to Defendants’ 

breach of contract claim.

Under Virginia law, a breach of contract action requires that the plaintiff 

establish: (1) a legally enforceable obligation of a defendant to a plaintiff; (2) the 

defendant’s violation or breach of that obligation; and (3) injury or damage to the 

plaintiff caused by the breach of obligation. See Filak v. George, 594 S.E.2d 610, 

619 (Va. 2004); see also Brown v. Harms, 467 S.E.2d 805, 807 (Va. 1996). 

This is a very straightforward breach of contract case. In his customer 

agreement, Plaintiff agreed to pay all amounts due on his account, inclusive of 

interest charges and fees that could, at enumerated times, apply to his account such 

as membership fees, late payment fees, overlimit fees, stop payment fees, copying 

fees, cash advance fees, and transfer fees. That customer service agreement 

 

9

Importantly, Plaintiff does not argue that he did not make these charges.

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created a legally enforceable obligation to pay the Defendants for charges that he 

incurred with his credit card. He failed to pay those charges and therefore 

breached his obligation, leaving Defendants responsible for the merchandise that 

Plaintiff bought but never paid for.10 Plaintiff’s argument that Defendants forfeited 

their right to collect money for him when they failed to give him an updated billing 

statement has no basis in law or in the agreement that Plaintiff willingly signed. 

He cannot be permitted to make charges on a credit card and refuse to pay for them 

because he is unhappy with a customer service experience. Consequently, 

summary judgment is granted in favor of Defendants on their breach of contract 

claim. However, because the Court is unable to verify the amount requested by 

Defendants in their motion, the Court will defer judgment on the amount of 

damages pending a more thorough exposition of the evidence supporting 

Defendant’s requested amount.

IV. CONCLUSION

In accordance with the foregoing reasoning, summary judgment is denied in 

its entirety on Plaintiff’s FCRA claim, but is granted in favor of Defendants on 

 

10 It is true that Plaintiff was not required, pursuant to the explicit terms of his customer agreement, to pay any 

amount in dispute while Defendants were investigating his claims. However, under the terms of his agreement and 

the Billing Rights Summary, he was still obligated to pay for the charges he did not dispute. This Court has already 

rejected Plaintiff’s argument that his entire account was in dispute; while the total account balance may have been 

incorrect as a result of the erroneous charges, Plaintiff was still obligated to pay for the charges he incurred and 

which were not erroneous. Moreover, the Court finds Plaintiff’s argument that he did not know what to pay without 

an accurate statement to be disingenuous because as the person using the credit card, he was in the best position to 

know which charges were correct and which were incorrect; Defendants could only know of the errors of which 

Plaintiff had informed them. He cannot now state that he disputed the entire account as a reason why he was not 

required to pay his bill, when he only made Defendants aware of certain charges that he believed were incorrect. 

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Plaintiff’s FCBA, UTPCPL and VCPA claims. Additionally, summary judgment 

is granted in favor of Defendants on their breach of contract counterclaim; 

however, because of the Court’s inability to verify the requested amount of 

damages, the Court will defer a determination of damages pending a more 

thorough exposition of the evidence supporting the enumerated amount.

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

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