Dawkins v. Sears Roebuck and Co., 96-60598

• Decision Date: 08 April 1997
• Docket Number: No. 96-60598,96-60598
• Parties: Michael Stuart DAWKINS, Plaintiff-Appellant, v. SEARS ROEBUCK AND COMPANY, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 241

109 F.3d 241

Michael Stuart DAWKINS, Plaintiff-Appellant, v. SEARS ROEBUCK AND COMPANY, Defendant-Appellee.

No. 96-60598

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

April 8, 1997.

Nicholas Van Wiser, Matthew G. Mestayer, Byrd & Wiser, Biloxi, MS, for Plaintiff-Appellant.

Fred J. Mannino, Thomas William Busby, Page, Mannino, Peresich, Dickinson & McDermott, Biloxi, MS, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before SMITH, DUHE and BARKSDALE, Circuit Judges.

PER CURIAM:

This appeal arises from a dispute regarding a Sears Roebuck and Company ("Sears") charge account in the name of the Appellant, Michael Stuart Dawkins ("Dawkins"), and actions taken by Sears when that account was in default. The district court dismissed all of Dawkins's claims by summary judgment. We affirm.

BACKGROUND

Sears sent Dawkins billing statements on the account for charges allegedly incurred by Dawkins's now ex-wife Jacquelinn Hawkins ("Hawkins"). Dawkins asserts that he is not liable for these charges, contending that Hawkins added Dawkins's name to her preexisting Sears charge account while the couple was married. Dawkins maintains that he was unaware that his name had been added to the charge account, that he did not make the disputed charges, and that he first became aware of the account in the summer of 1991--after the couple had separated--when he received a billing statement from Sears.

Upon receiving this statement, Dawkins contacted an attorney who wrote to Sears, requesting verification of the debt. Sears eventually conducted an internal investigation of Dawkins's claim and decided not to absolve Dawkins from liability. Sears wrote the account off as an uncollectible debt, and in early 1992, informed a credit bureau that the account was delinquent. In late 1993 and early 1994, Dawkins was denied credit on various occasions. Thereafter, he sent a written request to Equifax, a credit bureau, requesting that they determine whether Sears had correctly reported Dawkins's credit information. Equifax contacted Sears, which confirmed the credit report that it had previously sent Equifax.

On May 19, 1995, Dawkins sued in Mississippi state court, alleging violations of state and federal law. Sears removed the case to federal court, and Dawkins amended his complaint to allege violations of the Truth-in-Lending Act, 15 U.S.C. § 1601 et seq., defamation, and intentional infliction of emotional distress. The district court granted Sears's motion for summary judgment. Dawkins appeals.

STANDARD OF REVIEW

We apply the same standard of review as did the district court. Cockerham v. Kerr-McGee Chemical Corp., 23 F.3d 101, 104 (5th Cir.1994). Summary judgment is appropriate if the record discloses "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The pleadings, depositions, admissions, and answers to interrogatories, together with the affidavits, must demonstrate that no genuine issue of material fact remains. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

ANALYSIS

I. THE TRUTH-IN-LENDING ACT

The district court held, inter alia, that Dawkins's Truth-in-Lending Act claims To trigger a creditor's obligation to investigate and verify the disputed billing statement, a consumer must send written notice to a creditor of the alleged error. 15 U.S.C. § 1666(a). This notice must be received by the creditor within 60 days of the creditor's transmission of the statement containing the alleged error. See 15 U.S.C. § 1666(a). Further, the applicable regulation (known as "Regulation Z") specifies that the 60-day period begins to run "after the creditor [has] transmitted the first periodic statement that reflects the alleged billing error." 12 C.F.R. § 226.13(b)(1) (emphasis added); see also Pinner v. Schmidt, 805 F.2d 1258, 1264 (5th Cir.1986) (holding that the 60-day notice period begins to run "when a disputed statement is first received"), cert. denied, 483 U.S. 1022, 1032, 107 S.Ct. 3267, 3276, 97 L.Ed.2d 766, 780 (1987). Upon the timely receipt of the consumer's written notice, the creditor must investigate and verify the disputed statement pursuant to 15 U.S.C. § 1666(a). See American Express Co. v. Koerner, 452 U.S. 233, 236, 101 S.Ct. 2281, 2283-84, 68 L.Ed.2d 803 (1981). Dawkins contends that Sears has been in continuous violation of § 1666(a) because it has not taken the appropriate action set forth in that section.

were barred by the one-year statute of limitations. See 15 U.S.C. § 1640(e). On appeal, Dawkins contends that limitations was tolled because Sears has been in continuous violation of the Truth-in-Lending Act. Specifically, Dawkins maintains that Sears continues to run afoul of § 1666(a) of the Act, which details procedures that a creditor such as Sears must follow to resolve alleged billing errors. Dawkins's assertion, however, is not persuasive because Sears is not, and has never been, in violation of 15 U.S.C. § 1666(a).

Dawkins's contention is not persuasive, however, because he did not provide Sears notice within the 60-day period; he received the first statement containing the alleged error on August 17, 1991, and he responded on November 13, 1991. Therefore, Dawkins failed to trigger Sears's obligations under § 1666, and Sears cannot be held liable for violations of that section. ¹ Because Sears is not, and has never been in violation of § 1666, the statute of limitation was not tolled.

The statute of limitations on Dawkins's Truth-in-Lending Act claims ² began to run sometime in late 1991 when Dawkins first learned of Sears's actions and when he initially hired an attorney. Because Dawkins did not file his complaint until May 19, 1995, the statute of limitations has long since run.

II. DEFAMATION

Dawkins alleges that the district court erred in dismissing his defamation claim. The first two elements of a defamation claim in Mississippi are: "(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged publication to a third party." Blake v. Gannett Co., Inc., 529 So.2d 595, 602 (Miss.1988). A statement is qualifiedly privileged if it is

made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty, if made to a person having a corresponding interest or duty, even though it Burris v. South Cent. Bell Tel. Co., 540 F.Supp. 905, 910 (S.D.Miss.1982) (applying Mississippi law); accord J.C. Penney Co. v. Cox, 246 Miss. 1, 148 So.2d 679, 682 (1963). No evidence suggests that Sears acted in bad faith, and Sears's statements to Equifax fit the above definition of qualified privilege. As such, Dawkins has failed to prove the second element of defamation, and his claim must therefore fail.

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