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John D. Pettineo v. Ge Money Bank

March 29, 2011

JOHN D. PETTINEO, PLAINTIFF,
v.
GE MONEY BANK,
DEFENDANT.



The opinion of the court was delivered by: Schiller, J.

MEMORANDUM

Defendant GE Money Bank ("GE") sent Plaintiff John Pettineo a letter denying his application for a credit card. Pettineo alleges that this denial and a disclosure at the bottom of the GE form letter he received violate the Equal Credit Opportunity Act ("ECOA"). GE's motion to dismiss and Pettineo's response are presently before the Court. For the reasons that follow, GE's motion will be granted in part and denied in part.

I. BACKGROUND

Pettineo tried to use his ShopNBC credit card in October of 2008. (Am. Compl. ¶ 9.) The card was denied. (Id.) Pettineo called ShopNBC and discovered that the card had been canceled for inactivity. (Id.) He could not reopen his account, but had to apply for a new credit card. (Id.)

GE underwrote Pettineo's ShopNBC card. (Id.) Pettineo applied over the phone with GE's customer service department for another ShopNBC credit card. (Id. ¶ 10.) He received a written denial from GE on December 23, 2008. (Id. ¶ 11.) In this letter, GE offered three reasons for the denying Pettineo credit: (1) past due bankcards; (2) revolving trades with past due balances; and (3) bank revolving accounts with past due balances. (Am. Compl. Ex. A [GE Letter].) Pettineo alleges he was qualified for credit, but that GE denied his application because he previously sued under various federal statutes, including the Fair Debt Collection Practices Act, the Fair Credit Reporting Act, and the ECOA. (Am. Compl. ¶¶ 25-26.)

GE's letter to Pettineo features a disclosure reciting non-discrimination policies the ECOA requires creditors to observe. The text of this disclosure reads:

ALL PERSONS TO WHOM THIS LETTER IS ADDRESSED:

The federal equal credit opportunity act prohibits creditors from discriminating against credit applicants on the basis of race, color, religion, national origin, sex, marital status, age (provided the applicant has the capacity to enter into a binding contract), because all or part of the applicant's income derives from any public assistance program, or because the applicant has in good faith exercised any right under the Consumer Protection Act. The federal agency that administers compliance with the Equal Credit Opportunity Act for the creditor identified on the front page of this letter is shown below. (GE Letter.) The letter provides contact information for the different government agencies which oversee the ECOA compliance of GE, GE Capital Financial, Inc., and General Electric Capital Corporation. (Id.) A paragraph at the top of the letter states that "[r]equests for a copy of your credit report should be sent to the credit reporting agency listed in the bottom portion of this notice." (Id.) The letter includes contact information for Equifax Credit Information Services, which it identifies as the source of information used by GE in reaching its decision to deny Pettineo credit. (Id.)

The disclosure and federal agency contacts are located toward the bottom of the letter, typed in "a type set of eight (8) point or smaller," rendering them "practically illegible" to Pettineo. (Am. Compl. ¶ 18.) Pettineo claims he ultimately had to use "magnification" to read the disclosure. (Id. ¶ 23.) However, at the time he received the letter, he did not read the disclosure because he assumed it was "meaningless print that had no bearing or significance" due to its small size. (Id. ¶ 22.) This section of the letter includes a notice informing Pettineo that he had the right to request a free copy of Equifax's report within sixty days of his receipt of GE's letter. (GE Letter.)

Pettineo claims he was unaware of his right to request a free credit report because of the notice's small type. (Am. Compl. ¶ 24.) When he realized he had a right to request a free credit report, the deadline had passed. (Id.) Pettineo also alleges he was "unaware that he was a member of a protected class" under the ECOA because he initially did not read the disclosure. (Id. ¶ 22.)

Pettineo seeks over $150,000 to compensate him for "severe anxiety attacks" he suffered due to GE's conduct. (Id. ¶ 45.) He also seeks an injunction barring GE from issuing "any further correspondence which fails to clearly and conspicuously reveal the disclosure language" at issue, punitive damages, and costs. (Id.) Additionally, Pettineo requests "the opportunity to discuss potential class action status, remedy and treatment with competent counsel and [to] amend [his] Complaint accordingly under FRCP 23." (Id.)

In addition to the letter Pettineo received from GE in December of 2008, Pettineo attaches a second letter to his Amended Complaint. This letter, dated October 14, 2008, informs Pettineo that GE and Wal-Mart had reduced the available credit on his Wal-Mart account. (Am. Compl. Ex. B. [Wal-Mart Letter].) This letter does not include the disclosures in fine print on its face, but recites them in a uniform font size on its reverse. (Id.) Pettineo asserts that this second letter complies with the ECOA's notice requirement, and speculates that GE's apparent use of compliant and non-compliant form letters simultaneously demonstrates that GE may continue to use letters that do not effectively convey the ECOA disclosure. (Am. Compl. ¶¶ 38, 40-41.)

II. STANDARD OF REVIEW

The Federal Rules of Civil Procedure mandate dismissal of complaints which fail to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The Court accepts "as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom," viewing them in the light most favorable to the non-moving party. See Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The Court will construe Pettineo's complaint liberally, as he brings ...


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