In Rigby v. FIA Card Services, N.A., 2012 WL 4123389 (11th Cir. 2012), the Court of Appeals for the 11th Circuit found that an origination dispute regarding the sale of a time share could lead to an FCBA claim against Bank who issued the credit card that paid for the transaction. The Plaintiff had attended a sales presentation for a travel club membership that was hosted by Grand Design, an agent of Outrigger Vacation Club. At the conclusion of the presentation, Rigby purchased a membership for the vacation club, signing a Retail Installment Contract and agreeing to pay a lump sum of $4,995.00. At the same time that he signed the Contract, Rigby initialed a document entitled “Acknowledgment and By–Laws,” which stated that Outrigger would provide him a username and password within two weeks after the membership application and the paperwork were executed. The amount of $4,995.00 was charged to Rigby’s Bank of America credit card the same day. After the Contract was signed, Plaintiff received the Membership Kit mentioned in the Contract’s Description of Goods and Services. The Kit contained disclaimers and explanations of limitations and fees associated with club membership that Rigby did not expect based on the representations made at the Grand Design presentation. After reviewing the Kit, and becoming aware of the fees and limitations associated with the benefits, Plaintiff decided to cancel his purchase. The following day, on May 2, 2010, Plaintiff wrote and faxed a letter to Grand Design stating his desire to cancel the purchase of the membership. Grand Design did not recognize the cancellation. Though Plaintiff ‘s request to cancel the Contract was denied, Plaintiff was never provided the username and password referred to in the “Acknowledgment and ByLaws” document. The username and password offered the only means by which to access vacation club membership benefits. On May 28, 2010, Plaintiff notified BOFA that there was a dispute surrounding the $4,995.00 charge on his account. BOFA initially removed the charge, but reinstituted the charge on July 21, 2010. On August 3, 2010, Plaintiff wrote to BOFA again and provided additional information relating to the vacation club membership charge. In particular, Plaintiff presented BOFA with a June 2010 letter in which Outrigger explained that it never received from Grand Design any information or paperwork about Rigby’s membership, that Plaintiff ‘s name was not in Outrigger’s member database, and that it would be “impossible” for Plaintiff to use any of the vacation club services. BOFA continued to decline Rigby’s request to remove the charge. Plaintiff sued BofA under the FCBA, alleging that alleged that BofA failed to comply with the requirements of the FCBA because the $4,995.00 charge was a “billing error” within the meaning of 15 U.S.C. § 1666 and BofA “[f]ailed to remove [the billing error] … after receipt of information which demonstrated that [Rigby] … had not received the benefits bargained for in connection with the charge.” The 11th Circuit found that these facts stated a claim against BofA under the FCBA:
Enforced as part of the Truth and Lending Act, and implemented by Regulation Z, the FCBA gives a consumer the right, upon proper written notice, to request correction of “billing errors” by its creditors. See 15 U.S.C. § 1666; 12 C.F.R. § § 226.1–226.36. Under the FCBA, a consumer who believes there is a billing error on his statement has sixty days, from receiving the statement, to notify the creditor of that error. See 15 U.S.C. § 1666(a); 12 C.F.R. § 226.13(b). If the consumer gives proper and timely notice, then the creditor is required to provide, within thirty days, written acknowledgment that it received the notice; and, within ninety days, or two complete billing cycles, whichever is shorter, the creditor must investigate the matter, either correcting the billing error or sending a written explanation of why the original statement was correct. 15 U.S.C. § 1666(a); 12 C.F.R. § 226.13(c), (e), (f). ¶ The statute defines a “billing error” as, among other things, “[a] reflection on a statement of goods and services not accepted by the obligor or his designee or not delivered to the obligor or his designee in accordance with the agreement made at the time of the transaction.” 15 U.S.C. § 1666(b)(3). The commentary on the implementing regulations, to which we generally defer, Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 797 (1980), places an additional restriction on this type of billing error claim, clarifying that § 1666(b)(3) “does not apply to a dispute relating to the quality of property or services that the consumer accepts.” 12 C.F.R. § 226.13, Supp. I. cmt. 13(a)(3)(1)(ii). ¶ Under the regulations, “[w]hether acceptance occurred is determined by state or other applicable law.” 12 C.F.R. § 226.13, Supp. I. cmt. 13(a)(3)(1)(ii). In this case, then, Alabama law dictates whether acceptance of the membership occurred. See Ala.Code § 7–2–606 (1975) (outlining the ways in which “acceptance” of goods occurs). . . ¶ In order to state a claim under § 1666, the plaintiff must allege: (1) the existence of a billing error; (2) plaintiff’s timely notification of the billing error; and (3) failure of the card issuer to comply with the procedural requirements of Section 1666. Beaumont v. Citibank (S.D.) N.A., No. 01 Civ. 3393, 2002 WL 483431 at *3 (S.D.N.Y. Mar. 28, 2002). ¶ . . .By alleging that he did not accept the membership, and alternatively that the membership was never delivered, Rigby has pleaded facts constituting a “billing error” under 15 U.S.C. § 1666(b)(3). ¶ Having concluded this, we must also decide whether Rigby alleged facts that, taken as true, show he timely notified BofA of this error, and that BofA failed to investigate and remove the charges for the travel membership in accordance with its obligations under the FCBA. See Beaumont, 2002 WL 483431, at *3. We conclude that Rigby has adequately pleaded those facts. ¶ . . . Rigby does not dispute that BOA conducted an investigation of his claim, and resolved his claim within the statutory deadline. Instead, Rigby disputes the adequacy of that investigation. Specifically, Rigby alleges that he provided BOA with the August 3, 2010, letter, in which Outrigger acknowledged that it would be “impossible” for Rigby to use the membership. That fact renders plausible the claim that BOA failed to follow-up when presented with information that could have conclusively demonstrated non-delivery. Or, alternatively, the letter allows the reasonable inference that BofA’s initial investigation, which led it to reinstate the charge on July 21, 2010, was inadequate. As a result, Rigby has pleaded facts that, taken as true, allow the reasonable inference that BofA’s investigation was not “reasonable” and that BOA’s disposition of the billing error claim did not rest on a determination that the club membership was “actually delivered.” See 12 C.F.R. § 226 .13, Supp. I. cmt. 13(f)(3)(ii). ¶ In sum, Rigby has set forth in his complaint the factual allegations necessary to render plausible his FCBA claim against BOA.