Jeffrey Bello v. Capital One Bank USA NA

• Court: Court of Appeals for the Third Circuit
• Decided: May 31, 2024
• Docket: 23-2758
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-2758 __________

JEFFREY M. BELLO, Appellant

v.

CAPITAL ONE BANK USA N.A.; CAPTITAL ONE FINANCIAL CORP. ________________________________

On Appeal from the United States District Court for the District of New Jersey (D.N.J. Civil Action No. 1:20-cv-01218) District Judge: Honorable Christine P. O’Hearn ____________________________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) May 16, 2024 Before: KRAUSE, MATEY, and CHUNG, Circuit Judges

(Opinion filed: May 31, 2024) ___________

OPINION * ___________

PER CURIAM

Pro se Appellant Jeffrey Bello appeals the District Court’s orders dismissing

various claims pursuant to 28 U.S.C. § 1915(e)(2), denying his motion to amend his

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. complaint, and granting summary judgment in favor of the Defendants, Capital One Bank

USA N.A. and Capital One Financial Corporation (collectively, “Capital One”). For the

reasons that follow, we will affirm the judgment of the District Court.

I.

In August 2006, Bello opened a joint personal and business credit card account

with Capital One. According to Bello, Capital One converted the card to a purely

personal account in January 2016. 1 In December 2017, after Bello failed to timely pay

his November credit card bill, Capital One increased the interest rate to above 30%.

Bello attempted to resolve the issue with Capital One, and his rate was lowered by the

end of 2018. In February 2020, Bello filed a civil action in forma pauperis against

Capital One claiming that they charged him an illegal interest rate and fees, falsely

reported to credit agencies that he made late payments on his credit card, and falsely

billed and called him for debts that were not owed.

The District Court screened the complaint pursuant to 28 U.S.C. § 1915(e)(2),

broadly construing it to allege violations of the Fair Credit Reporting Act (“FCRA”), 15

U.S.C. § 1681 et seq., the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq., as

amended by the Credit CARD Act of 2009, and the Fair Debt Collection Practices Act

(“FDCPA”), 15 U.S.C. § 1692 et seq. The District Court determined that Bello had

sufficiently asserted a claim under the CARD Act but dismissed his remaining allegations

without prejudice for failure to state a claim.

Capital One maintained that Bello’s card was never converted to a personal card 1

and always remained a small business account. See, e.g., D.Ct ECF No. 85-5 at 2.

2 After Capital One filed an answer to the surviving CARD Act claim, Bello moved

to amend his complaint and provide additional support for claims pursuant to the FCRA,

the FDCPA, 12 U.S.C. § 86 (Usurious Interest), 41 U.S.C. § 6503 (Breach or Violation of

Required Contract), and the New Jersey Consumer Fraud Act. The District Court denied

the motion to amend as futile, finding that Bello’s proposed amended complaint still

failed to state a claim for the alleged violations. Bello’s FCRA, FDCPA, 41 U.S.C. §

6503, and Fraud Act claims were dismissed with prejudice. Bello’s claim under 12

U.S.C. § 86 was dismissed without prejudice.

At the conclusion of protracted discovery proceedings, the parties filed cross-

motions for summary judgment. Finding Bello’s sole remaining CARD Act claim to be

barred by the statute of limitations, the District Court granted summary judgment in favor

of Capital One. Bello filed a timely notice of appeal.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291, 2 and exercise plenary review

over both the District Court’s sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)

and subsequent grant of summary judgment. See Allah v. Seiverling, 229 F.3d 220, 223

(3d Cir. 2000); Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014).

Summary judgment is appropriate “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.

2 Although the District Court dismissed Bello’s 12 U.S.C. § 86 claim without prejudice, it nevertheless constitutes a “final” decision under § 1291 as the statute of limitations would prevent refiling. See Green v. Humphrey Elevator & Truck Co., 816 F.2d 877, 878 n.4 (3d Cir. 1987).

3 Civ. P. 56(a). The denial of leave to amend a pleading, meanwhile, is reviewed for abuse

of discretion, though we review de novo any determination that amendment would be

futile. See U.S. ex rel. Schumann v. AstraZeneca Pharms. L.P., 769 F.3d 837, 849 (3d

Cir. 2014).

We turn first to Bello’s assertion that the District Court “erred by removing five

[of] Plaintiff’s six counts prior to discovery and without review of supporting documents;

pursuant to 28 U.S.C. § 1915(e)(2).” 3d Cir. ECF No. 13 at 1. However, beyond mere

disagreement and conclusory assertions of error, Bello’s opening brief fails to address

any of the specific rationales noted by the District Court in its opinion or to develop any

specific argument or cite any case law demonstrating how the District Court erred in the

screening of his complaint. He has thus forfeited any issues concerning the dismissal

without prejudice of his various claims. See In re Wettach, 811 F.3d 99, 115 (3d Cir.

2016) (“[B]ecause they fail to develop [two] argument[s] in their opening brief, the Court

holds that the [appellants] have forfeited these claims.”); Mala v. Crown Bay Marina,

Inc., 704 F.3d 239, 245 (3d Cir. 2013) (noting that pro se litigants “must abide by the

same rules that apply to all other litigants”). 3

Bello also argues that the District Court erred in denying him leave to amend his

complaint. Although leave to amend “shall be freely given when justice so requires,” see

Fed. R. Civ. P. 15(a), that leave may be denied if amendment would be futile. See

3 Even if we were to construe Bello’s briefing as adequate to challenge the District Court’s order, we discern no error. For the reasons stated in the District Court’s opinion, we agree that Bello’s initial complaint was insufficient to make out any claim beyond the surviving CARD Act claim.

4 Foman v. Davis, 371 U.S. 178, 182 (1962). As the District Court explained, Bello’s

proposed amended complaint failed to cure the pleading deficiencies previously

identified in the original complaint, 4 and failed to adequately allege a claim under 12

U.S.C. § 86. 5 Accordingly, granting Bello’s motion to amend would have been futile,

and the District Court did not abuse its discretion in denying such relief and dismissing

certain claims with prejudice. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108

(3d Cir. 2002).

4 Notably, we agree that Bello’s proposed amended complaint failed to adequately plead a claim under the FCRA. See SimmsParris v. Countrywide Fin. Corp., 652 F.3d 355, 358 (3d Cir. 2011). Nothing in the proposed amended complaint, or in Bello’s many attachments thereto, addressed one of the deficiencies noted as to the original complaint – “the failure to allege that Capital One failed to undertake a reasonable investigation.” D.Ct. ECF No. 37 at 5. Bello has made no argument on appeal challenging that finding. Further, his conclusory assertion that he was billed for debts that were not owed was insufficient to state a claim under the FDCPA. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Finally, Bello’s opening brief makes no discernable arguments challenging the District Court’s denial of leave to amend as to his claims alleging violations of 41 U.S.C. § 6503 and the New Jersey Consumer Fraud Act. Nonetheless, we have reviewed the District Court’s reasoning and find no abuse of discretion in its decision as to those claims. 5 Although Bello’s claim under 12 U.S.C. § 86 was dismissed without prejudice, Bello failed to seek further amendment. To the extent that Bello’s opening brief can be read as challenging the dismissal of that claim, we agree with the District Court that the allegations contained in the proposed amended complaint failed to state a plausible claim for relief. Section 86 prohibits national banks from charging a rate of interest greater than that allowed by 12 U.S.C. § 85. Bello’s proposed amended complaint failed to allege that the rate charged by Capital One exceed the greater of the two maximum allowable rates contemplated by that provision. Bello attempts to present further support for his claim for the first time on appeal by asserting that New Jersey caps personal credit card interest rates at 29.9%. Even were it proper for this Court to consider evidence not presented to the District Court, Bello still fails to state a claim, as he has not alleged that such a rate is the greater of the two rates contemplated by 12 U.S.C. § 85.

5 Finally, the District Court did not err in granting summary judgment in favor of

Capital One on Bello’s CARD Act claim. Bello alleged that Capital One violated TILA,

as amended by the CARD Act, by increasing the interest rate on his outstanding credit

card balance in December 2017 without appropriate notice. See 15 U.S.C. §§ 1666i-1(a)

and 1637(i)(1). Such claims are subject to TILA’s one-year limitations period, see 15

U.S.C. § 1640(e), which may be equitably tolled in appropriate cases, see Ramadan v.

Chase Manhattan Corp., 156 F.3d 499, 504 (3d Cir. 1998). For the reasons stated by the

District Court, see D.Ct. ECF No. 90 at 3-5, we agree that Bello’s claim, which accrued

in December 2017, was barred by TILA’s statute of limitations. We further agree that

Bello was not entitled to equitable tolling to save his claim.

Bello asserts on appeal that the District Court “erred in deciding against Plaintiff

regarding the Credit CARD Act, as the basis for the District Court’s opinion was that the

Plaintiff’s Capital One credit card was not a ‘consumer card,’ when in fact it was from

January 20, 2016.” 3d Cir. ECF No. 13 at 11. This assertion is simply false. The

District Court specifically found “that there is a question of fact as to whether Plaintiff’s

account was an open-end consumer account and thus subject to the requirements under

the CARD Act and TILA.” D.Ct. ECF No. 90 at 3. That factual dispute, however, was

not material to the District Court’s grant of summary judgment. Rather, the District

Court accepted as true Bello’s disputed assertion that his credit card was a personal

account and that the Act – and hence its limitations period – applied to his claims. D.Ct.

ECF No. 90 at 3-4.

6 Bello also asserts that the District Court erred in concluding that he was not

entitled to equitable tolling of the limitations period because it “failed to include

Defendants’ continual statements made to the Plaintiff, and actions to imply a resolution

was forthcoming.” 3d Cir. ECF No. 13 at 13. We disagree.

Equitable tolling is to be “applied sparingly.” Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002). Its use is appropriate in three principal, though non-

exclusive, circumstances: “(1) where the defendant has actively misled the plaintiff

respecting the plaintiff’s cause of action; (2) where the plaintiff in some extraordinary

way has been prevented from asserting his or her rights; or (3) where the plaintiff timely

asserted his or her rights mistakenly in the wrong forum.” Oshiver v. Levin, Fishbein,

Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994), abrogated on other grounds by

Rotkiske v. Klemm, 890 F.3d 442, 428 (3d Cir. 2018) (en banc). We agree with the

District Court that Capital One’s attempts to work with Bello to resolve his complaints

did not amount to an attempt to actively mislead him as to his cause of action, or prevent

him in some extraordinary way from asserting his rights. D.Ct. ECF No. 90 at 5. This is

particularly true where, as here, Bello was aware of the claim and of his right to file suit

while pursuing an alternative resolution with Capital One.

Further, Bello’s assertion that his claim did not accrue until April 2019 lacks

merit. A cause of action under TILA must be brought “within one year from the date of

the occurrence of the violation.” 15 U.S.C. § 1640(e). Here, the alleged violation

occurred in December 2017, when Capital One raised Bello’s interest rate without

providing adequate notice as required by the Act. Bello admitted that he was aware in

7 December 2017 that his interest rate had increased, and represented to Capital One during

phone calls in February 2018 that he was going to file suit against them but had not yet

done so because he was involved in other unrelated disputes. D.Ct. ECF No. 90 at 4-5

(citing D.Ct. ECF No. 85-8 at 9:17-20). Bello clearly had knowledge of the potential

claim and was aware of his right to file suit. His assertion that a new statute of

limitations began to run as to the CARD Act claim because of additional disputed credit

reporting made by Capital One in 2019 simply lacks merit.

Accordingly, we will affirm the District Court’s judgment.6

6 To the extent that the scattered and passing references to discovery disputes and sanctions in Bello’s opening brief constitute an attempt to appeal the District Court’s discovery orders and denial of sanctions, they are not adequate to preserve any issue for appeal regarding those orders. See In re Wettach, 811 F.3d at 115. In any event, we discern no abuse of discretion in the District Court’s discovery rulings or its denial of sanctions. See Gallas v. Supreme Ct. of Pa., 211 F.3d 760, 778 (3d Cir. 2000) (discovery); DiPaolo v. Moran, 407 F.3d 140, 144 (3d Cir. 2005) (sanctions).