1

REVISED

United States Court of Appeals,

Fifth Circuit.

No. 96-60598

Summary Calendar.

Michael Stuart DAWKINS, Plaintiff-Appellant,

v.

SEARS ROEBUCK AND COMPANY, Defendant-Appellee.

April 8, 1997.

Appeal from the United States District Court for the Southern

District of Mississippi.

Before SMITH, DUHÉ and BARKSDALE, Circuit Judges.

PER CURIAM:

This appeal arises from a dispute regarding a Sears Roebuck

and Company ("Sears") charge account in the name of the Appellant,

Michael Stuart Dawkins ("Dawkins"), and actions taken by Sears when

that account was in default. The district court dismissed all of

Dawkins's claims by summary judgment. We affirm.

BACKGROUND

Sears sent Dawkins billing statements on the account for

charges allegedly incurred by Dawkins's now ex-wife Jacquelinn

Hawkins ("Hawkins"). Dawkins asserts that he is not liable for

these charges, contending that Hawkins added Dawkins's name to her

preexisting Sears charge account while the couple was married.

Dawkins maintains that he was unaware that his name had been added

to the charge account, that he did not make the disputed charges,
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and that he first became aware of the account in the summer of

1991—after the couple had separated—when he received a billing

statement from Sears.

Upon receiving this statement, Dawkins contacted an attorney

who wrote to Sears, requesting verification of the debt. Sears

eventually conducted an internal investigation of Dawkins's claim

and decided not to absolve Dawkins from liability. Sears wrote the

account off as an uncollectible debt, and in early 1992, informed

a credit bureau that the account was delinquent. In late 1993 and

early 1994, Dawkins was denied credit on various occasions.

Thereafter, he sent a written request to Equifax, a credit bureau,

requesting that they determine whether Sears had correctly reported

Dawkins's credit information. Equifax contacted Sears, which

confirmed the credit report that it had previously sent Equifax.

On May 19, 1995, Dawkins sued in Mississippi state court,

alleging violations of state and federal law. Sears removed the

case to federal court, and Dawkins amended his complaint to allege

violations of the Truth-in-Lending Act, 15 U.S.C. § 1601 et seq.,

defamation, and intentional infliction of emotional distress. The

district court granted Sears's motion for summary judgment.

Dawkins appeals.

STANDARD OF REVIEW

We apply the same standard of review as did the district

court. Cockerham v. Kerr-McGee Chemical Corp., 23 F.3d 101, 104

(5th Cir.1994). Summary judgment is appropriate if the record

discloses "that there is no genuine issue as to any material fact
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and that the moving party is entitled to a judgment as a matter of

law." Fed.R.Civ.P. 56(c). The pleadings, depositions, admissions,

and answers to interrogatories, together with the affidavits, must

demonstrate that no genuine issue of material fact remains.

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d

265 (1986).

ANALYSIS

I. THE TRUTH-IN-LENDING ACT

The district court held, inter alia, that Dawkins's Truth-inLending Act claims were barred by the one-year statute of

limitations. See 15 U.S.C. § 1640(e). On appeal, Dawkins contends

that limitations was tolled because Sears has been in continuous

violation of the Truth-in-Lending Act. Specifically, Dawkins

maintains that Sears continues to run afoul of § 1666(a) of the

Act, which details procedures that a creditor such as Sears must

follow to resolve alleged billing errors. Dawkins's assertion,

however, is not persuasive because Sears is not, and has never

been, in violation of 15 U.S.C. § 1666(a).

To trigger a creditor's obligation to investigate and verify

the disputed billing statement, a consumer must send written notice

to a creditor of the alleged error. 15 U.S.C. § 1666(a). This

notice must be received by the creditor within 60 days of the

creditor's transmission of the statement containing the alleged

error. See 15 U.S.C. § 1666(a). Further, the applicable

regulation (known as "Regulation Z") specifies that the 60-day

period begins to run "after the creditor [has] transmitted the
 

1Dawkins contends on appeal that he complied with the Act's

60-day period because he sent a second letter to Sears, dated

December 31, 1991, which was received by Sears within 60 days of

Dawkins's receipt of a second statement sent by Sears, dated

December 5, 1991, containing the alleged billing error. Dawkins

asserts that the Act itself does not require, on its face, that the

creditor receive notice within 60 days of sending the first

statement containing the alleged error. He concedes, however, that

§ 226.13(b)(1) of Regulation Z does specify that the first

statement containing the alleged error is the triggering event.

Dawkins nevertheless argues that this Court should disregard

Regulation Z, which was promulgated by the Federal Reserve Board,

because it is "demonstrably irrational." See Ford Motor Credit Co.

v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 796-97, 63 L.Ed.2d

22 (1980) ("Unless demonstrably irrational, Federal Reverse Board

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first periodic statement that reflects the alleged billing error."

12 C.F.R. § 226.13(b)(1) (emphasis added); see also Pinner v.

Schmidt, 805 F.2d 1258, 1264 (5th Cir.1986) (holding that the 60-

day notice period begins to run "when a disputed statement is first

received"), cert. denied, 483 U.S. 1022, 1032, 107 S.Ct. 3267,

3276, 97 L.Ed.2d 766, 780 (1987). Upon the timely receipt of the

consumer's written notice, the creditor must investigate and verify

the disputed statement pursuant to 15 U.S.C. § 1666(a). See

American Express Co. v. Koerner, 452 U.S. 233, 236, 101 S.Ct. 2281,

2283-84, 68 L.Ed.2d 803 (1981). Dawkins contends that Sears has

been in continuous violation of § 1666(a) because it has not taken

the appropriate action set forth in that section.

 Dawkins's contention is not persuasive, however, because he

did not provide Sears notice within the 60-day period; he received

the first statement containing the alleged error on August 17,

1991, and he responded on November 13, 1991. Therefore, Dawkins

failed to trigger Sears's obligations under § 1666, and Sears

cannot be held liable for violations of that section.1 Because
staff opinions construing [the Truth-in-Lending Act] or Regulation

should be dispositive...."). Because we reject Dawkins's

contention that § 226.13(b)(1) of Regulation Z is "demonstrably

irrational," we conclude that Dawkins failed to trigger Sears's

duties under § 1666. 

 

2Dawkins has alleged more than one violation of the Act. 

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Sears is not, and has never been in violation of § 1666, the

statute of limitation was not tolled.

The statute of limitations on Dawkins's Truth-in-Lending Act

claims2 began to run sometime in late 1991 when Dawkins first

learned of Sears's actions and when he initially hired an attorney.

Because Dawkins did not file his complaint until May 19, 1995, the

statute of limitations has long since run.

II. DEFAMATION

 Dawkins alleges that the district court erred in dismissing

his defamation claim. The first two elements of a defamation claim

in Mississippi are: "(1) a false and defamatory statement

concerning the plaintiff; (2) an unprivileged publication to a

third party." Blake v. Gannett Co., Inc., 529 So.2d 595, 602

(Miss.1988). A statement is qualifiedly privileged if it is

made in good faith on any subject matter in which the person

communicating has an interest, or in reference to which he has

a duty, if made to a person having a corresponding interest or

duty, even though it contains a matter which, without the

privilege, would be actionable.

Burris v. South Cent. Bell Tel. Co., 540 F.Supp. 905, 910

(S.D.Miss.1982) (applying Mississippi law); accord J.C. Penney Co.

v. Cox, 246 Miss. 1, 148 So.2d 679, 682 (1963). No evidence

suggests that Sears acted in bad faith, and Sears's statements to

Equifax fit the above definition of qualified privilege. As such,
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Dawkins has failed to prove the second element of defamation, and

his claim must therefore fail.

III. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Finally, Dawkins alleges that he is entitled to recovery for

intentional infliction of emotional distress because Sears

"spitefully" continues to report to the credit reporting agencies

that Dawkins has a delinquent account. Although the district

court, in its Memorandum Opinion, did not provide reasons for

dismissing Dawkins's intentional infliction of emotional distress

claim, the court's Final Judgment makes it clear that the court

granted Sears's summary judgment motion in its entirety, thus

necessarily encompassing the intentional infliction of emotional

distress claim.

To recover for intentional infliction of emotional distress,

a plaintiff must prove that the defendant's conduct was "wanton or

willful and that it would evoke outrage or revulsion." Peoples

Bank and Trust Co. v. Cermack, 658 So.2d 1352, 1365 (Miss.1995)

(emphasis omitted). Dawkins presents no evidence to create an

issue of fact that Sears acted "spitefully" or even unreasonably in

light of the facts of the instant case, and it cannot be said that

Sears's conduct evokes outrage or revulsion. Thus, his claim for

intentional infliction of emotional distress must also fail.

CONCLUSION

For the above reasons, the district court's order granting

summary judgment in favor of Sears is AFFIRMED.