Forrest, Mary v. Universal Savings

In the

United States Court of Appeals

For the Seventh Circuit

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No. 06-4337

MARY FORREST,

Plaintiff-Appellant,

v.

UNIVERSAL SAVINGS BANK, F.A.,

Defendant-Appellee.

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Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 06 C 445—Aaron E. Goodstein, Magistrate Judge.

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ARGUED SEPTEMBER 11, 2007—DECIDED OCTOBER 25, 2007

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Before RIPPLE, MANION, and WOOD, Circuit Judges.

MANION, Circuit Judge. Mary Forrest filed suit on behalf

of herself and a putative class against Universal Savings

Bank, N.A. (“Universal”) asserting that Universal had

violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.

§ 1681 et seq., by obtaining her credit information for an

impermissible purpose. The parties consented to proceed

before a magistrate judge, and Universal then filed a

motion to dismiss. The magistrate judge granted Univer-

sal’s motion before a class was certified, and the case

was dismissed. Forrest appeals, and we AFFIRM.

2 No. 06-4337

I.

Universal Savings Bank, N.A. (“Universal”) sent Mary

Forrest a letter with other materials notifying her that

she was prequalified for a Visa credit card with a 10.99%

variable annual percentage rate, no annual fee, and a

credit line up to $15,000. The letter also stated that Forrest

was qualified to receive a DellTM DimensionTM 3000 desktop

computer, or a comparable or upgraded model, with the

card when she “transfer[ed] $5,000 of qualifying balances”

and “maintained a balance of $3,500 for at least 18 months”

on the card. In the case that Forrest did not have $5,000 to

transfer to the credit card, she could request up to $2,500

in cash advances to meet the $5,000 minimum balance.

Failure to maintain a $3,500 balance for the designated

time period would result in a one-time $500 fee.

In addition to the specific information regarding fees

and rate information set out in the letter, the enclosed

printed materials also detailed the proposal:

Upfront RewardsTM and Balance Transfer Information.

To establish an account and be eligible for an Upfront

RewardTM, you must transfer qualifying balances of at

least $5,000. You may also combine qualifying balance

transfers of at least $2,500 with a special account

opening advance of up to $2,500 to bring your bal-

ances up to $5,000. If your balance falls below $3,500

at any time during the first 18 months after your

account is open, you will be in default and your

account will be assessed a one-time fee of $500 (early

pay-down fee). See also the TERMS OF OFFER below.

Finally, the printed material stated that “[i]n making this

offer to you, we used credit information about you” to

determine that “you satisfied the credit eligibility require-

No. 06-4337 3

ments for the credit product offered in this mailing. If we

determine at the time you respond to the offer that you no

longer satisfy the credit eligibility requirements that we

previously established and you previously met, we may

not extend credit to you.”

Forrest did not submit an application to receive Univer-

sal’s Visa card; rather, she filed suit alleging that Univer-

sal willfully violated the FCRA by obtaining her credit

information without a permissible purpose because its

letter did not make a firm offer of credit. Forrest attached

to her complaint a copy of Universal’s letter and materials.

In response to Forrest’s complaint, Universal filed a mo-

tion to dismiss pursuant to Federal Rule of Civil Proce-

dure 12(b)(6) asserting that it had provided Forrest with a

firm offer of credit because the letter disclosed the mini-

mum opening credit line of $5,000, offered something of

value, and permissibly conditioned the offer of credit on

the consumer meeting pre-established credit and income

criteria. Forrest responded that her complaint stated a

claim under the FCRA because Universal’s letter did not

set forth a minimum amount of credit. The district court

granted Universal’s motion concluding that Universal

had extended a firm offer of credit for the reason that the

letter clearly stated that it was offering a line of credit, the

FCRA does not require that a minimum credit amount

must be offered, and the card itself had value. The case

was dismissed, and Forrest appeals.

II.

We review a district court’s grant of a motion to dis-

miss de novo. Payton v. County of Carroll, 473 F.3d 845, 847

(7th Cir. 2007) (citations omitted). Taking all facts pleaded

4 No. 06-4337

in the complaint as true and construing all inferences in the

plaintiff’s favor, we review the complaint and all exhibits

attached to the complaint. Massey v. Merrill Lynch & Co.,

Inc., 464 F.3d 642, 645 (7th Cir. 2006) (citations omitted).

Where an exhibit and the complaint conflict, the exhibit

typically controls. Id. A court is not bound by the party’s

characterization of an exhibit and may independently

examine and form its own opinions about the document.

McCready v. eBay, Inc., 453 F.3d 882, 891 (7th Cir. 2006)

(citation omitted). “A complaint should only be dis-

missed if there is no set of facts, even hypothesized, that

could entitle a plaintiff to relief.” Massey, 464 F.3d at 645.

On appeal, Forrest claims that Universal’s letter is not a

firm offer of credit under the FCRA because it does not

offer a minimum line of credit. She therefore concludes

that Universal accessed her credit information in viola-

tion of the FCRA.

Under the FCRA, a lender may access and use credit

information “in connection with any credit or insurance

transaction that is not initiated by the consumer only if . . .

the transaction consists of a firm offer of credit or in-

surance.” 15 U.S.C. § 1681b(c)(1)(B)(I). A “firm offer of

credit” is “any offer of credit or insurance to a consumer

that will be honored if the consumer is determined, based

on information in a consumer report on the consumer,

to meet the specific criteria used to select the consumer

for the offer except that the offer may be further condi-

tioned . . . .” 15 U.S.C. § 1681a(l). Those conditions include

a consumer’s eligibility based on the information in his

application, verification of continued eligibility, and the

consumer furnishing any required collateral for the

extension of credit which is disclosed to the consumer

in the offer. Id.

No. 06-4337 5

In order for an offer of credit to constitute a firm offer, its

terms “must have sufficient value for the consumer to

justify the absence of the statutory protection of his

privacy.” Id. at 726. In sum, in ascertaining whether a

letter is a firm offer of credit, we “must determine wheth-

er the offer has value as an extension of credit alone.”

Murray v. GMAC Mortgage Corp., 434 F.3d 948, 955 (7th Cir.

2006). To determine whether a letter has value,

a court must consider the entire offer and the effect of

all the material conditions that comprise the credit

product in question. If after examining the entire

context, the court determines that the offer was a

guise for solicitation rather than a legitimate credit

product, the communication cannot be considered a

firm offer of credit.

Cole, 389 F.3d at 728. The amount of credit, including the

minimum credit amount, extended by the offer is an

important term for courts to evaluate in conjunction with

the other terms in ascertaining whether a firm offer has

been presented. Id. These other terms are also important

because they create conditions that establish whether it

is advantageous for the creditor to extend or for the

consumer to accept an offer, in other words, whether

the card has value for the consumer. Id.

The sole basis on which Forrest challenges Universal’s

letter is her claim that it does not constitute a firm offer

of credit because it does not contain a minimum amount

of credit offered. In response, Universal contends that

the minimum amount of credit is $5,000 because the

letter indicates that a consumer could not obtain the

credit card nor could he receive the free computer with-

out transferring indebtedness of at least $5,000 to the

account.

6 No. 06-4337

Reviewing its letter and accompanying materials, we

conclude that Universal extended Forrest a firm offer

of credit. Universal’s materials state: “To establish an

account and be eligible for an Upfront Reward, you must

transfer qualifying balances of at least $5,000.” (emphasis

added). To reach this $5,000 minimum, the card permits

the consumer to obtain up to $2,500 cash back to apply

to reaching the minimum, and exempts from fees the

initial transactions to set up the account. Thus, as set

forth in terms of Universal’s materials, the $5,000 balance

is a condition precedent to establishing a Universal

Visa account, and this necessitates that the card have a

$5,000 minimum credit line to cover the transferred debt.

In addition, the letter provides value to the consumer

through the offer of a Visa credit card; the card may be

used anywhere Visa is accepted and is not restricted to

the purchase of a particular product. Cf. Cole, 389 F.3d at

728 (concluding that there was no firm offer where the

“relatively small amount of credit combined with the

unknown limitations of the offer—that it must be used

to purchase a vehicle—raises questions of whether the

offer has value to the consumer.”). The letter and accompa-

nying materials set forth the card’s terms, including

the annual percentage rate, balance calculation method,

finance charges, and fees, so that a consumer is able “to

determine whether it is advantageous . . . to accept the

offer.” Id. Further, there is no annual fee, and none of

the fees and rates is a significant amount.

Forrest contends that other language negates the view

that $5,000 was the credit minimum. Specifically, Forrest

points to the passage in Universal’s letter which stated,

“Supplies are limited—act now before someone beats you

to this valuable $600 reward” and “P.S. LIMITED AVAIL-

No. 06-4337 7

ABILITY.” However, the offer of a free computer was a

bonus above and beyond the offer of the card itself, and

the availability of the computer did not affect the value of

the card to the consumer. While there are numerous

references to the $5,000 transfer requirement to receive

the computer, these references do not conflict with or

rebut the same initial requirement to transfer $5,000 to

open an account with Universal for a Visa card. Therefore,

we conclude Universal’s “offer has value as an extension

of credit alone,” Murray, 434 F.3d at 955, and “offers

value to the consumer,” Perry v. First Nat’l Bank, 459 F.3d

816, 826 (7th Cir. 2006).

Forrest also points to Universal’s statement that the

consumer’s “initial credit limit will depend on whether

you meet our established income and credit standards.”

Forrest asserts that this statement would lead a reason-

able consumer to believe that Universal is not offering

a minimum line of credit. Universal stated that the “initial

credit limit,” not the credit minimum, will be dependent

on this verification, and this verification does not modify

the $5,000 minimum credit line necessitated by the open-

ing of an account. Moreover, the FCRA specifically per-

mits that a firm offer be conditioned upon verification that

the consumer continues to meet the qualifications of the

offer “by using information in a consumer report on the

consumer, information in the consumer’s application for

the credit or insurance, or other information bearing on

the credit worthiness or insurability of the consumer.”

15 U.S.C. § 1681a(l)(2)(a). The FCRA also permits verifica-

tion “of the information in the consumer’s application

for the credit or insurance, to determine that the con-

sumer meets the specific criteria bearing on credit worthi-

ness or insurability.” 15 U.S.C. § 1681a(l)(2)(b).

8 No. 06-4337

Forrest also contends that the district court made imper-

missible inferences by supplying a minimum line of credit

which is not offered in the letter when ruling on Univer-

sal’s motion to dismiss. The district court permissibly re-

viewed Universal’s letter and materials which were

attached to Forrest’s complaint and ultimately decided that

“[t]here is no ambiguity in the fact that Universal was

offering a line of credit.” Because this determination was

based on the language of the cover letter and the other

materials in the mailing, we conclude that the district

court did not run afoul of the section 12(b)(6) standard in

granting Universal’s motion. See Local 15, Int’l Bhd. of Elec.

Workers, AFL-CIO v. Exelon Corp., 495 F.3d 779, 782 (7th Cir.

2007) (“Any written instrument, such as an arbitration

award, that is attached to a complaint is considered part of

that complaint.”) (citations omitted). Moreover, because

in cases such as this we review questions of law de novo,

any inferences the district court made are irrelevant

because we conclude for the aforementioned reasons that

Universal’s mailing constitutes a firm offer of credit.

III.

Considering the entirety of Universal’s offer, including

its minimum credit line, we conclude that it presented

Forrest with an offer of value. Accordingly, Universal

properly accessed Forrest’s credit information in provid-

ing Forrest with a firm offer of credit, and the district

court properly granted Universal’s motion to dismiss.

We AFFIRM.

No. 06-4337 9

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—10-25-07