United States District Court, D. New Mexico
JOHN R. BOYD, Plaintiff,
JP MORGAN CHASE BANK, Defendant.
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
C. YARBROUGH, UNITED STATES MAGISTRATE JUDGE
2005, Plaintiff John R. Boyd received a brochure for a credit
card Defendant Chase Bank offered which advertised an
introductory APR of 0% for 15 months and a 7.99% fixed APR
after that. In a footnote attached to the word APR, the
brochure advised that the APR was subject to change at
Chase’s discretion. Plaintiff asserts he did not read
the footnote. He applied for the card, was approved, and
continued using it for decades. Chase eventually advised him
that it was changing the APR to a variable rate and
Plaintiff, believing he was entitled to a fixed APR of 7.99%
forever, sued. Plaintiff’s claim to an enduring 7.99%
APR is undermined by contracts accompanying Plaintiff’s
credit card that reserved Chase’s right to change the
APR and by the notice Chase sent to Plaintiff about the
change to the APR. Because this contractual language and
notice also fulfills Chase’s obligations under federal
law, the Court grants Chase summary judgment on all claims in
received a solicitation to sign up for a credit card from
Defendant Chase Bank USA, N.A. (“Chase”) in 2005.
Affidavit of Ronald Boyd (“Boyd Aff.”), Doc. 20-1
at 1 ¶ 2; Exhibit E to Boyd Aff., Doc. 20-1 at 11-12.
That solicitation advised him he was pre-approved for a
credit card at an introductory rate of 0% APR until February
1, 2007. Doc. 20-1 at 11. “Keep saving, ” the
solicitation advised, “after the introductory period
with a 7.99% fixed APR3 on purchases and balance transfers.
Still lower than most cards.” Id. (superscript
in original). The text of footnote 3 appears on the following
page. It states:
You understand that the terms of your account, including the
APRs, are subject to change. This means that the APRs for
this offer are not guaranteed; APRs may change to higher
APRs, fixed APRs may change to variable APRs, or variable
APRs may change to fixed APRs. We reserve the right to change
the terms (including the APRs) at any time for any reason, in
addition to APR increases that may occur for failure to
comply with the terms of your account. Any changes will be in
accordance with your Cardmember Agreement. Please read very
carefully the “Rate, Fee and Other Cost
Information” section included with this offer.
Doc. 20-1 at 12. Plaintiff noticed that there was a footnote
3, but didn’t read it. Boyd Aff., Doc. 20-1 at 1-2
applied for the credit card and was approved. Boyd Aff., Doc.
20-1 at 1 ¶ 4. The Cardmember Agreement that accompanied
the credit card (hereinafter “Original Cardmember
We can change this agreement at any time, regardless of
whether you have access to your account, by adding, deleting,
or modifying any provision. Our right to add, delete, or
modify provisions includes financial terms, such as the APRs
and fees, and other terms such as the nature, extent, and
enforcement of the rights and obligations you or we may have
relating to this agreement. Modifications, additions, or
deletions are called “Changes” or a
Mot. for Summary Judgment, Fact #12,  Doc. 30 at 5-6; Def’s
Exhibit 1-C, Doc. 26-3 at 4.
2010, Chase notified Plaintiff that it was increasing the APR
on the card. Boyd Aff., Doc. 20-1 at 2 ¶ 6. Plaintiff
filed suit in state court in May 2010, bringing counts for
fraud, unfair trade practices, bad faith, and a putative
class action. Boyd Aff., Exhibit E, Doc. 20-1 at 4-10.
Plaintiff and Chase settled that lawsuit, agreeing to return
Plaintiff’s card to a fixed APR of 7.99% and providing
Plaintiff with a certain sum of money. Boyd Aff., Doc.
20-1 at 2 ¶ 8. The APR remained 7.99% from that time
until early 2018. Boyd Aff., Doc. 20-1 at 2 ¶ 9.
unspecified time prior to 2018, Chase sent Plaintiff a new
Cardmember Agreement amending the terms governing his
account. Def’s Mot. for Summary Judgment, Fact # 13,
Doc. 30 at 6. The new agreement (hereinafter “the New
Cardmember Agreement”) similarly stated:
We may change the terms of this agreement including APRs and
fees from time to time. We may also add new terms or delete
terms. APRs or other terms may also change without amendment,
for example when the Prime Rate changes.
Exhibit 1-G, Doc. 26-7 at 6. Plaintiff does not dispute this
fact, but points out that “If the change from a fixed
to a variable APR is rejected Plaintiff loses his credit
card.” Doc. 37 at 2.
an unspecified time, but after issuing the New Cardmember
Agreement, Chase sent Plaintiff a change-in-terms
notification to inform him that, as of January 22, 2018, the
APR for his account would change from a fixed APR to a
variable APR at a base rate of 12.99%. Boyd Aff., Doc. 20-1
at 2 ¶ 9; Def’s Exhibit 1-E, Doc. 26-5. The notice
stated that Plaintiff could reject the change by contacting
Chase by January 21, 2018. Def’s Exhibit 1-E, Doc. 26-5
at 1. If contacted, Chase would close the credit card
account. Id. Plaintiff did not contact Chase until
March 8, 2018. Boyd Aff., Exhibit F, Doc. 20-1 at 13. In his
March 8 letter, Plaintiff did not request his account be
closed, but stated he would sue Chase unless they restored
the APR to 7.99%. Id. Chase responded to the letter,
pointing to the language in the New Cardmember Agreement
permitting such changes. Boyd Aff., Exhibit D, Doc. 20-1 at
14-15. Chase accordingly refused to restore the APR to 7.99%
on his card. Id. at 14.
filed this case in state court on June 12, 2018. Doc. 1-1. He
then filed a First Amended Complaint and a Second Amended
Complaint. Docs. 1-2 & 1-3. The Second Amended Complaint
alleges that Defendant violated “Truth In Lending and
Regulation Z” by “unilaterally changing the rate
of interest on this account.” Doc. 1-3 ¶ 6.
Defendant removed the case to federal court on August 6,
2018, explaining that the Truth in Lending Act
(“TILA”) and Regulation Z are both federal laws,
thus conferring original jurisdiction on federal district
courts pursuant to 28 U.S.C. § 1331. Doc. 1 at
¶¶ 6-7. Plaintiff did not file a motion to remand
and has subsequently argued in his briefing that Defendant
violated federal law by changing the APR on his credit card.
E.g., Doc. 21 at 1 (citing TILA and Regulation Z);
Doc. 37 at 3. Thus, the Court finds that it has original
jurisdiction over this matter.
pending before the Court are three motions: (1) Motion for
Judgment on the Pleadings, filed by Defendant on March 20,
2019 (Doc. 19); (2) Motion for Partial Summary Judgment,
filed by Plaintiff on March 28, 2019 (Doc. 20); and (3)
Motion for Summary Judgment, filed by Defendant on May 3,
2019 (Doc. 30). On September 10, 2019, the parties consented
to the undersigned to “conduct any and all proceedings
and enter a final order as to each motion.” Doc. 47.
Under 28 U.S.C. § 636(c)(3), appeal of this order lies
to the Tenth Circuit Court of Appeals.
Court grants Chase’s Motion for Summary Judgment and
denies Plaintiff’s Motion for Partial Summary Judgment.
Chase’s Motion for Judgment on the Pleadings is
accordingly denied as moot.