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Schiavone v. Bank of America

United States District Court, D. Delaware

August 13, 2019

MICHAEL SCHIAVONE, Plaintiff,
v.
BANK OF AMERICA, et al., Defendants.

          Michael Schiavone, Northfield, New Jersey. Pro Se Plaintiff.

          Samuel Lee Moultrie and Steven T. Margolin, Greenberg Traurig, LLP, Wilmington, Delaware; Tonya L. Urps, McQuire Woods LLP, Charlotte, North Carolina. Counsel for Defendants.

          MEMORANDUM OPINION

          NOREIKA, U.S. DISTRICT JUDGE.

         Plaintiff Michael Schiavone (“Plaintiff”) appears pro se. He commenced this action on August 20, 2018 alleging violations of several federal statutes.[1] The Court has jurisdiction pursuant to 28 U.S.C. § 1331. Before the Court is Defendants' motion to dismiss and Plaintiff's opposition. (D. I. 7, 8, 12, 14, 15). Briefing is complete.

         I. BACKGROUND

         Plaintiff's father was issued a credit card in 2007 by Defendants Bank of America (“Bank of America”) as a franchise and subdivision of Bank of America, N.A. (“Bank of America, N.A.”) (together, “Defendants”). (D.I. 1 ¶¶ 2, 7). At the time his father was 87. (Id.). Plaintiff alleges that it was impossible for his father to understand the terms of the credit card contract/agreement. (Id.). He alleges that the terms increased the interest level and merchant fees more than the bank disclosed to consumers and the interest and fees were added to consumers' accounts. Plaintiff also alleges that loan/credit card is predatory because his father was induced to take the credit under the pretense of low interest which was later changed and higher than disclosed. Plaintiff alleges that on or about April 1, 2018, he and his father were unable to make payments and his father, who is now in his 90's, does not have the funds to pay back the debt. (Id. ¶ 8). Plaintiff alleges that at no time did Defendants disclose changes of terms, interest, fees, and other liabilities. (Id. ¶ 14). He alleges that at no time did Defendants inform Plaintiff that the loan was made by a franchise entity/bank for a European Corporation with no legal business address and that “Master Card” gave the franchise to Bank of America. (Id. ¶ 15).

         Plaintiff alleges violation of the False Claims Act, 31 U.S.C. § 3729; the Truth in Lending Act, 15 U.S.C. § 1601, the Consumer Credit Protection Act of 1988, the Fair Credit and Charge Card Disclosure Act of 1988, and the Credit Card Accountability Responsibility and Disclosure Act. (Id. ¶ 1). Plaintiff also alleges Defendants violated the usury laws of the State of Delaware. (Id. ¶¶ 10, 13). He seeks $500, 000 in compensatory damages. (Id. at 158).

         Defendants move to dismiss pursuant to Fed.R.Civ.P. 8(a), 9(b), and 12(b) on the grounds that: (1) Plaintiff does not have standing to assert any claim because he is not an obligor on the account about which he complains; (2) Plaintiff, who proceeds pro se, cannot represent his father; (3) the Complaint fails to meet the notice pleading standard of Rule 8; (4) the complaint fails to meet the heightened pleading standard of Rule 9; (5) the Delaware usury clam is preempted by federal law; and (6) the Truth in Lending Act and fraud claims are barred by the statute of limitations.

         II. LEGAL STANDARDS

         A. Fed.R.Civ.P. 8

         Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief, “in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

         B. Fed. R. Civ. R. 9

         Fraud claims are subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). United States ex rel. Whatley v. Eastwick Coll., 657 Fed.Appx. 89, 93 (3d Cir. 2016). Under Rule 9(b), plaintiffs must “state with particularity the circumstances constituting fraud or mistake.” “Rule 9(b) falls short of requiring every material detail of the fraud such as date, location, and time” but requires “alternative means of injecting precision and some measure of substantiation into their allegations of fraud.” In re Rockefeller Center Properties, Inc. Securities Litigation, 311 F.3d 198, 216 (3d Cir. 2002) (internal quotations omitted) (citing In re Nice Systems, Ltd. Securities Litigation, 135 F.Supp.2d 551, 577 (D.N.J. 2001)).

         C. ...


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