United States District Court, E.D. Pennsylvania
January 29, 2004.
DEMISE ROBERTS, individually and for all others similarly situated
FLEET BANK (R.I.), NATIONAL ASSOCIATION, a nationally chartered bank, and FLEET CREDIT CARD SERVICES, L.P., a Rhode Island limited partnership
The opinion of the court was delivered by: JOHN FULLAM, Senior District Judge
MEMORANDUM AND ORDER
Plaintiff was solicited to obtain a credit card issued by the
defendant. The solicitation materials asserted that the interest rate
(APR) was not just an introductory rate, and would not go up in a few
months. The credit card agreement itself, however, made clear that, upon
specified notice, the defendant could change the interest rate at any
time. The interest rate did remain constant during the first year, but
eventually was raised, triggering this lawsuit (brought on behalf of a
putative class of similarly-situated persons). The class action complaint
asserted claims under the Truth in Lending Act, a Rhode Island consumer
protection statute, and a common law claim for breach of contract. I
granted summary judgment to the defendant on all of these claims. On
appeal, the Third Circuit affirmed the dismissal of all of the claims
except those brought under the Truth in Lending Act. The court ruled that
a disputed issue of fact existed as to whether the disclosures required
by that statute had been made in a sufficiently "clear and conspicuous"
manner (i.e., in the so-called "Shumer box"), and thus reinstated the
After remand, plaintiff now seeks to file an amended complaint, adding
a claim for common law fraud, and a claim for negligent
misrepresentation. Defendant objects, on the grounds that the amendments
would be futile, since the only claim found potentially viable by the
Court of Appeals was the TILA claim. I agree. The entire thrust of the
appellate court's opinion is that while defendant did disclose that the
interest rate could be changed at any time, it did not do so adequately
in the Shumer box, or otherwise conspicuously, as required by the TILA
and implementing regulations under that statute. Thus, as to all issues
other than conformity to the requirements of the TILA, plaintiff cannot
An Order follows.
AND NOW, this day of January 2004, upon consideration of Plaintiff's
Motion for Leave to File an Amended Class Action Complaint, and
defendant's response, IT IS ORDERED:
1. To the extent that plaintiff seeks to amend her complaint to include
Counts II (common law fraud) and III (negligent misrepresentation) the
motion is DENIED.
2. In all other respects, the motion is GRANTED, and the amended
complaint (other than its addition of Counts II and III) is deemed filed.
Defendant need not file a response.
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