United States District Court, E.D. California
MICHAEL N. ANHAR, Plaintiff,
CITIBANK, N.A., subsidiary of bank holding company Citigroup Inc., Defendant.
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS
ACTION PROCEED ON PLAINTIFF’S CLAIMS FOR BREACH OF
CONTRACT AND CIVIL VIOLATIONS OF THE TRUTH IN LENDING ACT AND
THE FAIR CREDIT BILLING ACT; AND THAT THE CLAIMS FOR CRIMINAL
VIOLATIONS BE DISMISSED WITH PREJUDICE (ECF NO. 1)
S. Lasnik, United States District Judge
Michael N. Anhar, is proceeding pro se and in
forma pauperis, in this action alleging claims against
Defendant, Citibank, N.A., for breach of contract, violations
of the Truth in Lending Act, and violations of the Fair
Credit Billing Act. (ECF No. 1.) Plaintiff filed the
complaint commencing this action on April 17, 2019.
reasons described below, the Court recommends finding that,
viewing the facts alleged in the Complaint liberally and in
the light most favorable to Plaintiff, and for purposes of
screening only, Plaintiff has stated claims against Defendant
for civil violations of the Truth in Lending Act, for civil
violations of the Fair Credit Billing Act, and for breach of
contract. The Court recommends dismissing with prejudice the
claims for criminal violations of the Truth in Lending Act
and the Fair Credit Billing Act because Plaintiff does not
have standing to pursue these claims.
28 U.S.C. § 1915(e)(2), in any case in which a plaintiff
is proceeding in forma pauperis, the Court must
conduct a review of the complaint to determine whether it
“state[s] a claim on which relief may be granted,
” is “frivolous or malicious, ” or
“seek[s] monetary relief against a defendant who is
immune from such relief.” If the Court determines that
the complaint fails to state a claim on which relief may be
granted, it must be dismissed. Id. Similarly, if the
Court determines the complaint is frivolous or malicious, it
must be dismissed. Id. An action is deemed to be
frivolous if it is “of little weight or importance:
having no basis in law or fact” and malicious if it was
filed with the “intention or desire to harm
another.” Andrews v. King, 398 F.3d 1113, 1121
(9th Cir. 2005). Leave to amend may be granted to the extent
that the deficiencies of the complaint can be cured by
amendment. Cato v. United States, 70 F.3d 1103, 1106
(9th Cir. 1995).
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief . .
. .” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Plaintiff must set forth “sufficient factual matter,
accepted as true, to ‘state a claim that is plausible
on its face.’” Iqbal, 556 U.S. at 663
(quoting Twombly, 550 U.S. at 555). While factual
allegations are accepted as true, legal conclusions are not.
Id. at 678.
determining whether a complaint states an actionable claim,
the Court must accept the allegations in the complaint as
true, Hosp. Bldg. Co. v. Trs. of Rex Hospital, 425
U.S. 738, 740 (1976), construe pro se pleadings
liberally in the light most favorable to the Plaintiff,
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000),
and resolve all doubts in the Plaintiff’s favor.
Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
Pleadings of pro se plaintiffs “must be held
to less stringent standards than formal pleadings drafted by
lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010) (holding that pro se complaints
should continue to be liberally construed after
SUMMARY OF PLAINTIFF’S ALLEGATIONS
Complaint (ECF No. 1) alleges that on August 25, 2018,
Plaintiff attempted four times to make a cash payment of $120
on his Citibank credit card at Citibank ATMs, but his payment
was refused, and the message on the ATM stated: “I
can’t do that right now. For assistance, please call
Customer Service.” Plaintiff contacted Citibank
customer service about his inability to make a cash payment
and was eventually informed that his credit card account had
been suspended because, when Citibank applied the August 2018
interest charge to Plaintiff’s credit card account,
that interest charge caused the account to exceed the credit
limit by $24.93.
had a second credit card with Citibank that had also exceeded
the credit limit as a result of Citibank’s application
of the August 2018 interest charge, yet that second account
was not suspended, and Plaintiff was able to make a cash
payment on that account. Further, Citibank’s charging
of interest on both of Plaintiff’s Citibank credit card
accounts had, on 35 previous occasions, caused the credit
cards to exceed the credit limit, and Citibank had not on
those previous occasions suspended Plaintiff’s credit
card accounts. If Citibank had accepted the $120 cash payment
Plaintiff attempted to make on the suspended account, the
account would have gone back under the credit limit.
closed both of his credit card accounts and promptly filed a
complaint. Citibank responded to the CFPB complaint as
The error you received when attempting to make your payment
at the ATM for your account ending in 1276 was due to the
amount of the balance that exceeded your credit limit, which
resulted in the suspension of your account. Although your
account ending in 2471 also exceeded the credit limit, this
account was not suspended at the time your $40.00 payment was
(ECF No. 1 at 7.)
alleges that this refusal to accept the payment violated the
terms of the agreement between Plaintiff and Defendant:
Citibank’s refusal to accept and credit Mr.
Anhar’s conforming payment was in direct contravention
of its revised cash-payment policy as established in its
05/08/18 Update and reaffirmed in its 06/22/18 June
Statement, 07/23/18 July Statement, and 09/17/18 Account
Update. When read concurrently with the governing 10/23/16
Card Agreement, the revised cash-payment policy serves to
amend the agreement. Under these combined and undisputed
contractual elements and written provisions, Mr.
Anhar’s repeatedly proffered $120 cash payment
constituted a conforming payment. Thus, Citibank’s
refusal to accept and credit that payment constitutes
intentional failure to perform, which means Citibank
materially breached its own agreement. Once Citibank breached
the contract, it became void, and the debt thereunder became
(ECF No. 1 at 8-9.)
alleges that, over the next seven months, Defendant continued
to treat the debt as valid and committed nearly 25 Truth in
Lending Act and Fair Credit Billing Act violations:
[Citibank] has made prohibited collections calls to Mr.
Anhar’s home, sent him barred dunning letters,
issued fraudulent monthly billing statements, manufactured
hundreds of dollars in finance charges, and created lasting
harm to his creditworthiness by falsely reporting to the
credit bureaus that his account is seriously delinquent.
Citibank’s willful, knowing, and persistent wrongful
billing on, dunning of, and third-party reporting of an
account that’s closed, a debt that’s invalid, and
a contract that’s void, amounts to fraud and
(ECF No. 1 at 9 (footnote added); see ECF No. 1 at
10-18 (providing detailed allegations).)
brings claims against Citibank for breach of contract (Claim
1); criminal and civil violations of the Truth in Lending Act
(Claims 2 through 9), and criminal and civil violations of
the Fair Credit Billing Act (Claims 10 through 25).
Claims for Civil Violations of the Truth in Lending Act
claims 2 through 8, Plaintiff alleges that Defendant
committed civil violations of sections 127(b)(3) and (7) of
the Truth in Lending Act (“TILA”),  15 U.S.C. §
1637(b)(3) and (7), which provide:
(b) Statement required with each billing cycle.
The creditor of any account under an open end consumer credit
plan shall transmit to the obligor, for each billing cycle at
the end of which there is an outstanding balance in that
account or with respect to which a finance charge is imposed,
a statement setting forth each of the following items to the
. . . .
(3) The total amount credited to the account during the