United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge.
For the reasons stated below, the Court grants the Motions for Summary Judgment [7, 9, 19] filed by Defendants. The Court will enter a separate final judgment in accordance with Rule 58.
In September 2009, Plaintiff received cash advances from each of the Defendant credit card companies - Discover, Bank of America, and Capital One. He claims that each Defendant's monthly statements failed to comply with the periodic statement provision of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1637(b), which requires consumer creditors to meaningfully disclose certain terms of the loan agreement. He also claims that Defendants committed usury in violation of the National Banking Act ("NBA"), 12 U.S.C. §§ 85, 86. Defendants filed motions to dismiss [7, 9, 19] under Rule 12(b)(6), which are ripe for review.
B. Standard of Review
Defendants presented exhibits with their motions. "If, on a motion under Rule 12(b)(6)..., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." FED. R. CIV. P. 12(d). The Court has discretion to either consider or exclude the matters outside the pleadings. Griffith v. Johnson, 899 F.2d 1427, 1432 n. 2 (5th Cir. 1990).
The Court provided notice  to Plaintiff that it intended to consider the exhibits and treat the motions as ones for summary judgment under Rule 56. Plaintiff's counsel notified the Court via e-mail that Plaintiff had no additional materials to submit to the Court.
Rule 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); see also Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). "An issue is material if its resolution could affect the outcome of the action." Sierra Club, Inc., 627 F.3d at 138. "An issue is genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Cuadra, 626 F.3d at 812.
The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding whether a genuine fact issue exists, "the court must view the facts and the inference to be drawn therefrom in the light most favorable to the nonmoving party." Sierra Club, Inc., 627 F.3d at 138. However, "[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial." Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
C. NBA Claims
Plaintiff conceded his NBA claims. Accordingly, the Court grants Defendants' Motions for Summary Judgment [7, 9, 19] as to those claims.
D. TILA Claims
Plaintiff alleged that Defendants violated 15 U.S.C. § 1637 by failing to "show the finance charge" and to "explain how an original cash advance... has become" his current balance. In briefing, Plaintiff clarified his claims, asserting that Defendants violated 15 U.S.C. § 1637(b)(7).
TILA requires that monthly account statements under an open end consumer credit plan - such as a credit card - include "[t]he balance on which the finance charge was computed and a statement of how the balance was determined." 15 U.S.C. § 1637(b)(7). The implementing ...