Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jolly v. JPMorgan Chase & Co.

United States District Court, N.D. Texas, Dallas Division

August 2, 2019

KENNETH JOLLY, Plaintiff,
v.
JPMORGAN CHASE & CO. and CHASE BANK USA, N.A., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Defendant Chase Bank USA, N.A.'s Motion for Summary Judgment (the “Motion”) (ECF No. 25). For the reasons stated, the District Court should GRANT the Motion.

         Background

         Plaintiff Kenneth Jolly sued JPMorgan Chase & Co. (JPMorgan) and Chase Bank USA, N.A. (Chase) in the 191st Judicial District Court of Dallas County, Texas, for alleged violations of the Truth in Lending Act, 15 U.S.C. §§ 1601-1667f (TILA). Original Pet. at 7-8, ¶¶ 32-35 (ECF No. 1-1). After Jolly filed his state court petition, JPMorgan and Chase timely removed the case to federal court on the basis of federal question jurisdiction. Removal Notice (ECF No. 1). Jolly then filed an Amended Complaint dropping JPMorgan as a defendant and proceeding only against Chase. Am. Compl. (ECF No. 8).

         Jolly's claim arises out of his ex-fiancée's alleged unauthorized use of his credit card. As alleged in the Amended Complaint, Jolly and his father shared a Chase credit card account (the “Chase Account”) until Jolly became sole owner of the Chase Account after his father passed away in 2013. Id. at 2, ¶ 8. Prior to July 2014, Jolly was engaged to Elena Diamante, who owned a hair salon in Naples, Florida, called Coastal Hair Design of Naples (Coastal Hair). Id. at 2, ¶ 9. Jolly visited Diamante in Naples from July 21, 2014, to August 5, 2014. Id. at 2, ¶ 10. Jolly alleges Diamante stole the Chase credit card from his briefcase without his knowledge or consent and used the card to make charges at Coastal Hair for $4, 550.00 on August 2, 2014, and for $2, 850.00 on August 5, 2014. Id. at 3, ¶¶ 11-12. Jolly pleads he discovered these two charges when he received his Chase Account statement dated August 27, 2014. Id. at 3, ¶ 12. When he confronted Diamante about the charges, she stated she knew nothing about them. Id. At the time, he believed her. Id.

         Charges continued to accrue on the Chase Account. On September 27, 2014, Jolly received another statement listing the following charges:

August 22, 2014

$4, 550.00

August 25, 2014

$2, 850.00

August 27, 2014

$2, 850.00

August 28, 2014

$4, 550.00

September 1, 2014

$4, 550.00

September 6, 2014

$4, 550.00

September 6, 2014

$2, 850.00

September 12, 2014

$2, 850.00

         Id. at 3, ¶ 13. When Jolly again asked Diamante to explain the charges, she attributed them to a computer error at Coastal Hair. Id. at 3, ¶ 14. Indeed, Jolly avers Diamante provided many excuses for why the charges occurred and were not removed. Id. at 4, ¶ 15. He alleges he believed her because she was his fiancée. Id. Also, he was hesitant to accuse her of fraud and, as a result, faced difficulty in disputing the charges with Chase. Id.

         Jolly and Diamante ended their engagement on December 31, 2014, and throughout much of 2015, Jolly contacted Diamante hoping that she would admit she used his Chase card without his permission. Id. at 4, ¶¶ 16-17. Jolly avers that in August 2015 Diamante “essentially admitted” her responsibility for the charges. Id. at 4, ¶ 17. He then contacted Chase's fraud department, and Chase reversed the alleged unauthorized charges and credited the Chase Account on August 14, 2015. Id. at 4, ¶ 18. However, on December 7, 2015, Chase informed Jolly that they had overturned their reversal of all the charges and would reapply the principal amount of $37, 738.03 to the Chase Account.[1] Id. at 5, ¶ 20.

         In his summary judgment response, Jolly states that “he received a telephone call from Allison Wersal of Chase informing him that Chase had denied his fraud claim and that the total amount of the Coastal Hair charges would be re-billed to his account.” Pl.'s Resp. Br. at 7 (ECF No. 31). On the call, though, Wersal told Jolly that another department would review his case and that a final decision had yet to be made. Pl.'s App. at 6 (ECF No. 32).

         Through counsel, Jolly sent Chase a letter on August 2, 2016, providing additional information on events that had transpired since December 2015 and requesting again that Chase remove the unauthorized charges. Def.'s App. at 76 (ECF No. 27). In a response letter dated September 29, 2016, Chase listed the disputed charges by amount and transaction date and notified Jolly that “[o]ur latest review confirmed our previous findings that these charges are valid because we are unable to support that any billing errors have occurred on your account.” Id. at 86. Chase also notified Jolly that it had “exhausted all available avenues” to refund him for the disputed charges. Id. In another letter also dated September 29, 2016, Chase reiterated that it would not reimburse Jolly for the charges. Id. at 90-91.

         More than six months later, on April 6, 2017, Jolly sent another letter to Chase to contest Chase's September 29, 2016 letter and to provide Chase with a sworn statement Jolly gave to the sheriff of Collier County, Florida. Id. at 88. Because he did not receive a response, Jolly sent another letter on May 2, 2017, notifying Chase that Diamante had been arrested and charged with multiple felonies. Id. By a May 21, 2017 correspondence, Chase notified Jolly that it would not refund the disputed charges and would still hold him liable for $37, 738.03 plus interest. Am Compl. at 7, ¶ 29.

         Jolly filed this lawsuit against JPMorgan and Chase in state court on March 23, 2018. Original Pet. JPMorgan and Chase removed the case to federal court on March 20, 2018, and Jolly filed his Amended Complaint on May 18, 2019. Chase, the remaining defendant, filed the pending Motion arguing it is entitled to summary judgment on Jolly's sole claim under 15 U.S.C. § 1643 because (1) the claim is time-barred pursuant to the one-year statute of limitations period stated in 15 U.S.C. § 1640(e); and (2) even if § 1640(e) does not bar Jolly's claim, the evidence shows that the credit charges at issue were not “unauthorized” within the meaning of § 1643 and § 1602(o). Def.'s Br. at 1-2. Jolly filed a Response (ECF No. 30), and Chase filed a Reply (ECF No. 36). The Motion is fully briefed and ripe for adjudication.

         Legal Standard

         Summary judgment is proper when “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). A party seeking summary judgment bears the initial burden of showing the absence of a genuine issue for trial. Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995) (citation omitted). The movant's burden can be satisfied by demonstrating that there is an absence of evidence to support the nonmoving party's case, which the nonmovant bears the burden of proving at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets its initial burden, the nonmovant must show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The party opposing the summary judgment motion must identify specific evidence in the record and state the precise manner in which that evidence supports the party's claim. Esquivel v. McCarthy, 2016 WL 6093327, at *2 (N.D. Tex. Oct. 18, 2016) (citing Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1988)). But when a party seeks summary judgment with respect to an affirmative defense for which it will have the burden at trial, the summary judgment burdens are different. Rivers v. Graybill, 2008 WL 2548118, at *3 (N.D. Tex. June 24, 2008). When a party “who will have the burden of proof at trial concerning an affirmative defense seeks summary judgment based on that defense, he ‘must establish beyond peradventure all of the essential elements of the . . . defense.'” Id. (quoting Bank One, Tex., N.A. v. Prudential Ins. Co. of Am.,878 F.Supp. 943, 962 (N.D. Tex. 1995)) (internal quotation marks omitted). The beyond peradventure standard imposes a heavy burden on the movant to show there are no genuine material fact disputes and that the movant is ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.