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BELMONT v. ASSOCIATES NAT. BANK
August 18, 2000
PETER BELMONT, PLAINTIFF,
ASSOCIATES NATIONAL BANK (DELAWARE), DEFENDANT.
The opinion of the court was delivered by: Trager, District Judge.
Plaintiff Peter Belmont, an attorney licensed to practice in
the State of New York, but acting pro se in this matter, brought
this suit against Associates National Bank (Delaware)
("Associates") under the Truth in Lending Act ("TILA" or the
"Act"), 15 U.S.C. § 1601 et seq., and Regulation Z thereunder,
12 C.F.R. § 226.13, for failure to properly respond to a notice
of billing error and for having threatened to make adverse credit
reports while the billing error remained unresolved.
Associates has moved for dismissal of, or in the alternative,
for summary judgment on, all claims brought by Peter Belmont.
Peter Belmont filed a cross-motion for summary judgment in
Associates alleges that its records indicate that on September
21, 1987, Peter Belmont and his son, Jeremy Belmont, opened a
Boatmen's Bank of St. Louis ("Boatmen's") MasterCard credit card
account which was later purchased by Associates. See Def.'s
Notice of Mot., Affidavit of Kenneth L. Gellhaus dated January 6,
2000 [hereinafter Gellhaus Aff.], Ex. G.*fn1 Peter Belmont
acknowledges that in September 1987 he did co-sign for a credit
card account with his son, but does not recall doing so with
either Boatmen's or Associates and states that he no longer has a
copy of the credit card application. See Pl.'s Notice of
Cross-Mot. at 7; Pl.'s Decl. Opp'n Def.'s Mot. Dismiss at 8
[hereinafter Pl.'s Decl. Opp'n].
On April 6, 1992, Peter Belmont sent a letter entitled "NOTICE
OF REVOCATION OF CO_SIGNER_SHIP" to Consumer Loan Center, P.O.
Box 9101, Boston, MA 02209-9101, regarding a MasterCard account
numbered 5417-6710-0001-9848, in which he stated that he wished
to be removed as a co-signer on his son's account.*fn2 See
Gellhaus Aff., Ex. J. In the letter, Peter Belmont noted that the
account was "in arrears in the amount of $48.00 and going into a
30-day late status." Id. He further stated: "I no longer wish
to guarantee borrowing against this account or to have my
credit-worthiness affected by the failure of the account's
holder, Mr. Jeremy Belmont, to pay his bills in timely fashion."
Id. With the letter, Peter Belmont sent a check, dated April 5,
1992, for $48.00 to "The Massachusetts Co." with "Jeremy Belmont
5417 6710 0001 9848 M/C" specified on the check's memo line. See
id. On the canceled check, cashed at the Texas Commerce
Bank-Dallas on April 11, 1992, the account number was
crossed-off on the memo line and replaced by the account number
"5419312700002648," see Gellhaus Aff., Ex. J, the Associates
account number held by Jeremy Belmont from January 1993 until
October 1995, see supra note 1.
Associates denies ever having received Peter Belmont's April
1992 letter and avers that the Consumer Loan Center address
specified in the letter was never an address used by Associates.
See Mitchell Aff. ¶¶ 9-10. Associates, however, offers no
explanation of how its account number came to be placed on the
check Peter Belmont enclosed with the letter.
At any rate, the Associates statements on the account sent to
Jeremy Belmont at his addresses in Massachusetts and California
from January 1993 through April 1998 continued to list Peter
Belmont as an addressee.*fn3 The elder Belmont, however, has
resided at 166 Columbia Heights, Brooklyn, N.Y. 11201-2105 since
September 1992. See Reply Decl. Supp. Pl.'s Cross-Mot. ¶ 3.
The monthly statement for the billing period ending January 5,
1998, indicates that Jeremy Belmont made his last payment on the
account on December 29, 1997. See Mitchell Aff., Ex. A. The
February, March, and April statements show that no payments were
made in, and finance and late charges were assessed for, those
months. See id. The March and April statements also advised
that the account had been suspended and was in danger of closure
if no payment was made. See id.
Then, on April 28, 1998, Associates removed Jeremy Belmont from
the account when he filed for bankruptcy. See Pl.'s Notice of
Cross Mot., Ex. 3. Associates claims that his son's default made
Peter Belmont the primary cardholder on the account and thus,
solely responsible for payment of the debt. See id. As a
result, Associates sent the next monthly statement, dated May 5,
1998, to "Peter A Belmont, 166 Columbia Heights, Brooklyn, N Y
11201-2105." See id., Ex. 1. This statement showed that the
account had been assessed finance charges and a late charge that
brought the balance owed to $1,895.49 and stated that a minimum
payment of $413.49 was due on May 30, 1998. See Pl.'s Decl.
Opp'n, Ex. 1.
On May 15, 1998, Peter Belmont sent Associates a six-page
letter (dated May 13, 1998) by certified mail, return receipt
requested, with the caption "NOTICE OF BELIEVED BILLING ERROR AND
REQUEST FOR DOCUMENTARY EVIDENCE OF CONSUMER INDEBTEDNESS." See
Gellhaus Aff., Ex. E [hereinafter Notice of Billing Error].
Associates received the letter on May 19, 1998. See Pl.'s Decl.
Opp'n, Ex. 2 (return receipt card). In the letter, Peter Belmont
stated that he did not admit to being an obligor on the account
and believed the bill for $1,898.49 was in error because he had
no contractual obligation to pay any amount borrowed under the
account.*fn4 See id. at 2.
Specifically, Peter Belmont wrote: "The listing on this BILL of
my name and address is, I believe, a computational or similar
billing error of an accounting nature." Id. Further, Peter
Belmont stated that if he were proven to be obligated in some
way, he would continue to challenge the amount due as a billing
error, because he had never had prior correspondence from
Associates, such as billing statements or other documents
detailing the charges. See id. at 2-3. Finally, Peter Belmont
demanded that Associates provide him with documentary evidence,
including contracts, agreements and applications executed by him
for the account, as well as copies of any written communications
sent to him by Associates or any other lender pertaining to the
account. See id. at 4.
On June 23, 1998, Peter Belmont sent by certified mail, return
receipt requested, a second letter to Associates, see Pl.'s
Decl. Opp'n, Ex. 2, that was "substantially identical" to his May
13, 1998 letter, Am. Compl. ¶ 8. Associates received this second
letter on June 30, 1998. See Pl.'s Decl. Opp'n, Ex. 2 (return
On June 25, 1998 — thirty-seven days after Peter Belmont's
first letter was received — Associates sent Peter Belmont a
letter (signed by "Ebe, J"), "Re: Associates National Bank
(Delaware), Account No.: 5457150050246016, Amount Due: $266.00,"
Pl.'s Decl. Opp'n Def.'s Mot. Dismiss, Ex. 3, which stated:
We have made several attempts to reach you
[apparently not in writing] but have been
unsuccessful. Our goal is to work out a solution for
your delinquent balance and help bring your account
to a current status. . . . Do not allow this
situation to become more serious. Protecting your
credit is important to you both today and in the
Id. Enclosed with the letter was another billing statement
showing that the account balance was now $1,959.88, with a total
amount due of $266.00. See id.
On July 20, 1998 — sixty-two days after Peter Belmont's first
letter was received and twenty days after his second letter was
received — Associates sent Peter Belmont a letter, "Re: THE
ASSOCIATES MASTERCARD, Account Number: 5457 1500 5024 6016," in
which Patrick Wilson ("Wilson") of Associates's Customer
Relations department wrote: "We have received your recent
correspondence regarding the above-referenced account. We have
ordered additional information in order to respond to your
correspondence properly." Gellhaus Aff., Ex. F.
Associates sent Peter Belmont a second letter signed by Wilson,
also dated July 20, 1998, stating that the account had been
opened on September 21, 1987 in the names of Peter Belmont and
Jeremy Belmont, and adding that plaintiff became the primary
cardholder on the account when Jeremy Belmont filed for
bankruptcy. See Gellhaus Aff., Ex. G. The letter stated that
Associates was unable to find a copy of the original application
and further advised Peter Belmont that if he wanted a copy of the
original application, he would have to contact Boatmen's. See
On July 22, 1999, Associates sent Peter Belmont another letter
(signed by "V. Maxey") which was identical to its June 25th
letter, except that the amount due was specified as $316.00 and
the account balance had risen to $2,024.29. See Pl.'s Decl.
Opp'n, Ex. 3. This letter also included the same warning
regarding Peter Belmont's credit. See id.
On July 29, 1998, Peter Belmont sent Associates a third letter
bearing the caption "NOTICE OF BELIEVED BILLING ERROR AND REQUEST
FOR DOCUMENTARY EVIDENCE OF CONSUMER INDEBTEDNESS." See
Gellhaus Aff., Ex. I. In the letter, Peter Belmont wrote that he
believed the entire balance on the account — $1,959.88 (which
included the $1,895.49 he had previously contested, as well as
$29.00 in additional late charges and $35.39 in finance charges
which were newly billed on the statement for the period ending
June 5, 1998) — was
erroneously billed. See id. Peter Belmont referenced his
previous letters to Associates and stated that the July 20, 1998
letter signed by Patrick Wilson "failed to satisfy [his] demand
for documentation in any respect." Id. Finally, Peter Belmont
stated that he believed that his April 6, 1992 letter to Consumer
Loan Center absolved him of responsibility for Jeremy Belmont's
credit card debts. See id.
On August 5, 1998, Associates sent Peter Belmont another
monthly billing statement for the MasterCard account. See Pl.'s
Notice of Cross-Mot., Ex. 1. The statement showed that no payment
had been made, but a finance charge of $37.79 and a late charge
of $18.00 had been assessed, raising the balance to $2,080.08,
with a minimum payment of $748.08 due on August 30, 1998. See
id. Finally, this statement advised: "Your account is seriously
past due. Send in the total amount due immediately." Id.
On August 10, 1998, Associates sent Peter Belmont another
letter signed by Wilson, which reiterated information from the
second July 20th letter, and again asserted that Peter Belmont
was the sole obligor on the account because of his son's
bankruptcy filing. See Gellhaus Aff., Ex. H. The letter also
responded to Peter Belmont's belief that his 1992 request to be
removed as a joint cardholder applied to the Associates account
[O]ur records do not indicate that your name was ever
removed as a primary cardholder on this account.
Please forward supporting documentation from
Boatmen's . . . confirming that your name was removed
from this account . . . and we will adjust our
records accordingly. Unfortunately, we are not
legally obligated to provide you a copy of your
original application. In order to obtain a copy of
your original application, you will need to contact
Boatmen's. . . .
On August 13, 1998, a consumer credit report for Peter Belmont,
issued by Trans Union, a credit reporting firm, included an
Associates credit card account 5457-1500-5024-6016 opened in
September of 1987 in Peter Belmont's name, closed in February of
1998, and updated in June of 1998.*fn5 See Pl.'s Decl. Opp'n,
Ex. 4. The Trans Union report also contained the following
adverse credit information: (1) $218 was past due; (2) the
account was 120 days past due when it was closed in February
1998; and (3) in the twelve months before closing, the account
had been up to 120 days late. See id.
On June 18, 1999, Peter Belmont filed his original complaint in
this action, seeking relief under 15 U.S.C. § 1640(a)(2)(A),
1640(a)(3) and 1666(e). On that same day, Associates sent Peter
Belmont a letter, signed by Todd Mitchell, an Associates vice
president, which advised that Associates had deleted the
"tradeline from all credit reporting agencies. Nothing is due."
Gellhaus Aff., Ex. C.
On July 16, 1999, Peter Belmont filed an amended complaint
which was substantially similar to the original except that it
added a request for attorney's fees. Defendant served their
answer on September 27, 1999. See Gellhaus Aff., Ex. B. Initial
discovery proceeded in accord with Fed. R.Civ.P. 26, and on
January 6, 2000, Associates moved to dismiss or, in the
alternative, for summary judgment in its favor. On February 28,
2000, Peter Belmont filed a cross-motion for summary judgment.
Summary judgment shall be granted when "there is no genuine
issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
On a motion for summary judgment, the court must consider
"whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91
L.Ed.2d 202 (1986). In making this determination, all factual
inferences must be drawn in favor of the party against whom
summary judgment is sought, viewing the factual assertions in
materials such as affidavits, exhibits, and depositions in the
light most favorable to the party opposing the motion. See, id.
at 255, 106 S.Ct. at 2513; Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). However,
"conclusory statements, conjecture, or speculation" by the
non-moving party will not defeat the Summary judgment shall be
granted when "there is no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter
of law." Fed.R.Civ.P. 56(c). On a motion for summary judgment,
the court must consider "whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). In making
this determination, all factual inferences must be drawn in favor
of the party against whom summary judgment is sought, viewing the
factual assertions in materials such as affidavits, exhibits, and
depositions in the light most favorable to the party opposing the
motion. See, id. at 255, 106 S.Ct. at 2513; Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265
(1986). However, "conclusory statements, conjecture, or
speculation" by the non-moving party will not defeat the motion.
Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
Peter Belmont brought this action under 15 U.S.C. § 1640,
alleging that Associates failed to comply with the billing-error
correction provisions of TILA, 15 U.S.C. § 1666-1666a. See Am.
Compl. ¶¶ 3-4, 17-19. Peter Belmont claims that defendant made a
billing error when it sent him the May 5, 1998 billing statement
for the MasterCard account numbered 5457-1500-5024-6016 because
he had never borrowed on the account, and because he believed
that his 1992 letter released him of responsibility for his son's
debts. Peter Belmont further claims that Associates's response to
his May 13, 1998 Notice of Billing Error did not comply with the
provisions of TILA.
Section 1666 provides that if an obligor responds, within sixty
days, to a creditor's statement of account pertaining to a
consumer line of credit by properly notifying the creditor that
he or she believes a billing error has occurred, the creditor
must comply with the provisions of the Act. See
15 U.S.C. § 1666. A written notice of a billing error complies with the
requirements of § 1666 when it:
(1) sets forth or otherwise enables the creditor to
identify the name and account number (if any) of the
obligor, (2) indicates the obligor's belief that the
statement contains a billing error and the amount of
such billing error, and (3) sets forth the reasons
for the obligor's belief (to ...