Roberts v. Fleet Bank (R.I.)

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

8-27-2003

Roberts v. Fleet Bank

Precedential or Non-Precedential: Precedential

Docket No. 01-4420P

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PRECEDENTIAL

Filed August 27, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-4420

DENISE ROBERTS, individually and

for all others similarly situated

v.

FLEET BANK (R.I.), National Association,

A Nationally Chartered Bank; FLEET CREDIT

CARD SERVICES, L.P., A Rhode Island Limited

Partnership

DENISE ROBERTS, on behalf of herself

and all others similarly situated,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court Judge: The Honorable John P. Fullam

(D.C. Civ. No. 00-cv-06142)

Argued on September 12, 2002

Before: ALITO, FUENTES and OBERDORFER,*

Circuit Judges

(Opinion Filed: August 27, 2003)

*Honorable Louis F. Oberdorfer, Senior District Judge for the District of

Columbia, sitting by designation.

2

Ira Neil Richards [Argued]

Gary M. Goldstein

Trujillo Rodriguez & Richards

The Penthouse

226 W. Rittenhouse Square

Philadelphia, PA 19103

Roberta D. Liebenberg

Mary L. Russell

Fine Kaplan & Black

1845 Walnut Street, 23rd Floor

Philadelphia, PA 19103

Marc H. Edelson

Hoffman & Edelson

45 W. Court Street

Doylestown, PA 18901

Counsel for Appellant

Alan S. Kaplinsky

Burt M. Rublin [Argued]

Ballard Spahr Andrews &

Ingersoll, LLP

1735 Market Street, 51st Floor

Philadelphia, PA 19103-7599

Counsel for Appellees

OPINION OF THE COURT

FUENTES, Circuit Judge:

This Truth in Lending Act case concerns a credit card

solicitation that Fleet Bank (R.I.), N.A. and Fleet Credit

Card Services, L.P. (collectively “Fleet”) sent to Appellant,

Denise Roberts, encouraging her to open an account with

Fleet based on a promise of a “7.99% Fixed” annual

percentage rate (“APR”). The solicitation stated that the

interest rate was “NOT an introductory rate” and that “[i]t

won’t go up in just a few short months.” The solicitation

also stated that “[w]ith an extraordinary 7.99% Fixed APR

. . . the Fleet Titanium MasterCard goes beyond all

expectations.” Sometime after Roberts opened her Fleet

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account, the bank sent her a letter stating that it was

increasing the 7.99% fixed APR to 10.5%. Roberts brought

this class action claiming that Fleet violated the federal

Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq.,

when it failed to clearly and conspicuously disclose that the

fixed-rate APR that it was offering was limited in duration

and subject to its asserted contractual right to change the

interest rate at any time. The District Court granted

summary judgment to Fleet, concluding that the materials

Fleet sent to Roberts allowed it to change the rate.

We agree with Roberts that Fleet’s solicitation materials

could cause a reasonable consumer to be confused about

the temporal quality of the offer. We therefore believe that

a material question of fact exists as to whether the bank

made any misleading statements in the mailings to Roberts

and failed to disclose information required under the TILA

“clearly and conspicuously.” Accordingly, we reverse the

entry of summary judgment and remand for further

proceedings.

I. Background

A. Factual

In May 1999, Roberts received a packet of solicitation

materials from Fleet urging her to apply for its new

“Titanium MasterCard.” The packet included an

introductory flyer, a solicitation letter, a “Pre-Qualified . . .

Invitation,” and an Initial Disclosure Statement (“IDS”). The

introductory flyer indicated that the card would have a

“7.99% Fixed APR” on both purchases and balance

transfers. Under the heading “FINANCIAL ADVANTAGES,”

the flyer again stated that the fixed APR was 7.99%.

In addition to the flyer, the solicitation letter emphasized

that the card would carry a “7.99% Fixed APR.” The letter

further stated that the “exceptionally low 7.99%” would

apply not only to any purchases made with the card but

also to any balance transfers from existing credit card

accounts to the Titanium account. The letter twice claimed

that the 7.99% fixed APR was “NOT an introductory rate,”

and promised that “[i]t won’t go up in just a few short

months.”

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In order to obtain the “Titanium MasterCard,” the

recipient was required to complete the “Pre-Qualified . . .

Invitation” form. The front side of the invitation indicated

that the credit card carried a “7.99% Fixed APR on

purchases and balance transfers.” On the back of the

invitation Fleet listed the “TERMS OF PRE-QUALIFIED

OFFER” and the “CONSUMER INFORMATION” sections.

The first two sentences of the “TERMS OF PRE-QUALIFIED

OFFER” stated the following:

I request a Fleet Titanium MasterCard account upon

acceptance of my request by Fleet Bank (RI), National

Association in Rhode Island. I agree to the terms of the

Cardholder Agreement mailed with my Card, including

those which provide that the Cardholder Agreement

and my account will be governed by Rhode Island and

Federal law and that my Agreement terms (including

rates) are subject to change.

The “CONSUMER INFORMATION” section contained the

“Schumer Box,” the table of basic credit card information

required under the TILA, 15 U.S.C. § 1601 et seq., as

amended by the Fair Credit and Charge Card Disclosure

Act of 1988.1 The Schumer Box contained a column with

the heading “Annual Percentage Rate (APR) for Purchases

and Balance Transfers.” The box beneath that heading

indicated “7.99% APR” was the applicable rate. Inside the

Schumer Box, Fleet listed two specific circumstances under

which that rate could change: (1) if the prospective

cardholder failed to meet any repayment requirements; or

(2) upon closure of the account. Fleet listed no other

circumstances under which the 7.99% APR could be

changed.

The IDS instructed the pre-approved applicant to

1. Although the statute contains no reference to a “Schumer Box,” the

tabular chart required under the TILA has become popularly referred to

as the “Schumer Box” in honor of the principal sponsor of the House bill,

Congressman, now Senator, Charles Schumer. See Joseph W. Gelb &

Peter N. Cubita, Credit Card Application and Solicitation Disclosure

Legislation: An Alternative to the Rate Ceiling Approach, 43 Bus. Law.

1557, 1561 (1988); Cara Schwarzkopf, Credit-Ability, Newsday, Mar. 23,

2001.

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“[p]lease read this together with the TERMS OF PRE-

QUALIFIED OFFER and the CONSUMER INFORMATION

enclosed.” Under the heading “Rate Information,” the IDS

indicated that the APR for the Fleet Titanium Card would

be 7.99% for any purchases or balance transfers. Like the

Schumer Box, the IDS noted two specific circumstances

under which Fleet could change the fixed rate: (1) failure of

the prospective cardholder to meet any repayment

requirements; or (2) closure of the account. Fleet included

no other circumstances in the IDS under which it could

change the 7.99% APR.

Roberts completed and returned the invitation to Fleet. In

June 1999, she received her Fleet Titanium MasterCard,

along with the Cardholder Agreement. Section 10 of the

Agreement, titled “Annual Percentage Rate,” indicated that

the APR would be 7.99%. In this section Fleet also

reiterated that it reserved the right to change the rate

under the circumstances described above. However, in

Section 24 of the Cardholder Agreement, titled “Change in

Terms,” Fleet stated that:

We have the right to change any of the terms of this

Agreement at any time. You will be given notice of a

change as required by applicable law. Any change in

terms governs your Account as of the effective date,

and will, as permitted by law and at our option, apply

both to transactions made on or after such date and to

any outstanding Account balance.

Fleet later sent Roberts a letter notifying her that Fleet

would be increasing the fixed-rate APR on the Titanium

MasterCard. In July 2000, thirteen months after Roberts

had received her card, Fleet increased the fixed rate APR to

10.5%.

B. Procedural

On December 5, 2000, Roberts filed this class action,

asserting a claim pursuant to the TILA and claims under

Rhode Island law for violation of the Unfair Trade Practices

and Consumer Protection Act, R.I. Gen. Laws § 6-13.1-1 et

seq., breach of contract, and unjust enrichment. Fleet

moved to dismiss the TILA claim on February 12, 2001,

submitting as exhibits to the motion documents that Fleet

6

asserted the District Court could consider as incorporated

into the Complaint. On June 5, 2001, the District Court,

stating that “[s]ince all parties rely on matters outside the

pleadings, the motion will be treated as a motion for partial

summary judgment under FED. R. CIV. P. 56,” granted

Fleet’s motion based on its conclusion that Fleet had not

violated the disclosure requirements of the TILA. Roberts v.

Fleet Bank (R.I.), No. 00-6142, 2001 WL 892846, at *1 (E.D.

Pa. June 5, 2001). The District Court added that Roberts

was “at liberty to pursue the remaining counts of her

complaint.” Id.

On July 3, 2001, Fleet moved for summary judgment on

the pendent state law claims. On August 22, 2001, Roberts

responded to the motion and moved for relief from the June

5, 2001 Order pursuant to FED. R. CIV. P. 60(b). In a

Memorandum and Opinion dated November 20, 2001, the

District Court treated Roberts’ motion under Rule 60(b) as

a motion for reconsideration, and declined to change its

decision on the TILA claim. The District Court also entered

summary judgment against Roberts on her state law

claims. Roberts appealed.

II. Jurisdiction and Standard of Review

The District Court exercised jurisdiction over Roberts’

TILA claim pursuant to 28 U.S.C. § 1331 and supplemental

jurisdiction over Roberts’ state law claims pursuant to 28

U.S.C. § 1367. We have appellate jurisdiction pursuant to

28 U.S.C. § 1291.

We exercise plenary review over a district court’s grant of

summary judgment and review the facts in the light most

favorable to the party against whom summary judgment

was entered. Brooks v. Kyler, 204 F.3d 102, 105 n.5 (3d

Cir. 2000). Summary judgment is proper if there is no

genuine issue of material fact and if, viewing the facts in

the light most favorable to the non-moving party, the

moving party is entitled to judgment as a matter of law. See

FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986). At the summary judgment stage, the judge’s

function is not to weigh the evidence and determine the

truth of the matter, but to determine whether there is a

7

genuine issue for trial. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986).

III. Discussion

A. The Truth in Lending Act

Congress enacted the TILA in 1969. The stated purpose

of the TILA is “to assure a meaningful disclosure of credit

terms so that the consumer will be able to compare more

readily the various credit terms available to him and avoid

the uninformed use of credit, and to protect the consumer

against inaccurate and unfair credit billing and credit card

practices.” 15 U.S.C. § 1601(a). In 1988, concerned that

consumers were still not receiving accurate information

about the potential costs of credit cards, Congress

strengthened the TILA’s protections for credit card

consumers through enactment of the Fair Credit and

Charge Card Disclosure Act, “a bill to provide for more

detailed and uniform disclosure by credit and charge card

issuers, at the time of application or solicitation, of

information relating to interest rates and other costs which

may be incurred by consumers through the use of any

credit or charge card.” S. Rep. No. 100-259, at 1 (1988),

reprinted in 1988 U.S.C.C.A.N. 3936, 3937.

In particular, Congress determined that consumers were

being inundated with credit card solicitations that failed to

disclose basic cost information about the cards being

promoted. Prior to the passage of the Fair Credit and

Charge Card Disclosure Act, the TILA did not require

issuers to provide such information until the consumer

actually received the card. Congress decided that

demanding early disclosure of relevant cost information

from credit card companies would enable consumers to

shop around for the best cards. See S. Rep. No. 100-259,

at 2-3 (1988), reprinted in 1988 U.S.C.C.A.N. 3936, 3937-

38.

Congress delegated the responsibility of “prescrib[ing]

regulations to carry out the purposes of ” the TILA to the

Federal Reserve Board. 15 U.S.C. § 1604(a). In response to

this mandate, the Board promulgated “Regulation Z,” 12

C.F.R. § 226, and it also published a comprehensive

8

“Official Staff Interpretation,” 12 C.F.R. Pt. 226 Supp. 1.

Both of these measures were published in accordance with

“the broad powers that Congress delegated to the Board to

fill gaps in the statute.” Ortiz v. Rental Management, Inc.,

65 F.3d 335, 339 (3d Cir. 1995). In light of Congress’

explicit delegation of authority, we defer quite broadly to

the Board’s interpretation. See Ford Motor Credit Co. v.

Milhollin, 444 U.S. 555, 565 (1980) (noting that because

TILA is a complicated act, such deference is necessary). See

generally Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

et al., 467 U.S. 837, 844-45 (1984).

The TILA requires a credit card provider to disclose

certain information in “direct mail applications and

solicitations,” including “annual percentage rates.” 15

U.S.C. § 1637(c)(1)(A)(i). The Board’s regulations also

require “[a] credit card issuer” to disclose the applicable

“annual percentage rate.” 12 C.F.R. § 226.5a(b)(1) (requiring

disclosure of “[e]ach periodic rate that may be used to

compute the finance charge on an outstanding balance for

purchases . . . expressed as an annual percentage rate.”).

The TILA requires that information described in 15 U.S.C.

§ 1637(c)(1)(A), such as “annual percentage rates,” must be

“clearly and conspicuously disclosed” in a “tabular format.”

15 U.S.C. § 1632(a) and (c). Likewise, the Board’s

regulations mandate that disclosures required under 12

C.F.R. § 226.5a(b)(1) through (7) “be provided in a

prominent location on or with an application or a

solicitation, or other applicable document, and in the form

of a table with headings, content, and format substantially

similar to any of the applicable tables found in Appendix

G.” 12 C.F.R. § 226.5a(a)(2). The Board’s regulations also

dictate that a “creditor shall make the disclosures required

by this subpart clearly and conspicuously in writing.” 12

C.F.R. § 226.5(a)(1). Hence, both the TILA and Board-

promulgated regulations require a credit card issuer to

disclose the applicable annual percentage rate clearly and

conspicuously in a table, commonly referred to as the

Schumer Box.

1. Schumer Box

Roberts asserts that Fleet failed to clearly and

conspicuously inform consumers that the 7.99% APR was

9

subject to change at any time. The IDS and the Schumer

Box included in Fleet’s solicitation materials stated only two

conditions under which Fleet could raise Roberts’ APR: (1)

failure of the cardholder to meet any repayment

requirement; or (2) upon closure of the account. Roberts

argues that, because a reasonable consumer could read

this list as exhaustive and conclude that the 7.99% APR

could be raised only under those two described

circumstances, this disclosure was neither clear nor

conspicuous.

Because the purpose of the TILA is to assure meaningful

disclosures, “the issuer must not only disclose the required

terms, it must do so accurately.” Rossman v. Fleet Bank

(R.I.) Nat’l Ass’n, 280 F.3d 384, 390-91 (3d Cir. 2002). “The

accuracy demanded excludes not only literal falsities, but

also misleading statements.” Id. (citing Gennuso v.

Commercial Bank & Trust Co., 566 F.2d 437, 443 (3d Cir.

1977)). As “the TILA is a remedial consumer protection

statute, we have held it ‘should be construed liberally in

favor of the consumer.’ ” Rossman, 280 F.3d at 390

(quoting Ramadan v. Chase Manhattan Corp., 156 F.3d

499, 502 (3d Cir. 1998)). See also Begala v. PNC Bank,

Ohio, N.A., 163 F.3d 948, 950 (6th Cir. 1998) (“We have

repeatedly stated that TILA is a remedial statute and,

therefore, should be given a broad, liberal construction in

favor of the consumer.”); Fairley v. Turan-Foley Imps., Inc.,

65 F.3d 475, 482 (5th Cir. 1995) (“The TILA is to be

enforced strictly against creditors and construed liberally in

favor of consumers . . . .”).

Construing the TILA strictly against the creditor and

liberally in favor of the consumer, as we must, we believe

that the TILA disclosures in this case, read in conjunction

with the solicitation materials, present a material issue of

fact as to whether Fleet clearly and conspicuously disclosed

its right to change the APR. We therefore conclude that the

District Court erred in granting summary judgment to Fleet

on Roberts’ TILA claim.

In the Schumer Box, Fleet stated that the 7.99% APR

could change in the event of nonpayment or closure of the

account. Fleet listed no other conditions under which the

7.99% APR could change. We believe that it would be just

10

as reasonable, if not more reasonable, for a consumer to

conclude from the information contained in the Schumer

Box that the 7.99% APR could be changed only under the

two listed circumstances as it would be for a consumer to

conclude that Fleet could change the APR at any time.

Roberts has raised a genuine issue of material fact as to

the adequacy of Fleet’s disclosures and should have been

permitted to proceed to trial on the matter.

Fleet argues that it adequately disclosed the necessary

information in the Schumer Box and that the Board’s

regulations prevent it from including a “change in terms”

provision in the Schumer Box. We rejected a similar

argument in Rossman. The dispute in Rossman arose from

solicitation materials Fleet sent to potential customers

indicating that its Platinum MasterCard carried no annual

fee. 280 F.3d at 387. Despite the fact that Fleet indicated

in the Schumer Box that it would not charge an annual fee,

Fleet instituted an annual fee within the first year of

Rossman’s receipt of the credit card. See id. at 388-89.

Fleet argued to the Court that a clear and conspicuous

statement of its authority to change the annual fee at any

time was unnecessary because the change-in-terms

provision of the agreement is not among the terms that

must be disclosed in tabular format under the TILA. See id.

at 394. In rejecting this argument, the Court stated that the

issue was “not Fleet’s obligation to disclose the change-in-

terms provision, but its obligation to disclose annual fees.”

Id.

Similarly, in this case, the issue is not Fleet’s obligation

to disclose the change-in-terms provision, but its obligation

to disclose the APR. Our inquiry focuses on whether Fleet’s

disclosures in the Schumer Box provided “an accurate

representation of the legal obligation of the parties . . .

when the relevant solicitation was mailed.” Id. at 391. As

we explained above, we believe Roberts raised a question of

material fact as to whether Fleet clearly and conspicuously

provided an accurate representation of the APR.

2. Solicitation Materials

Roberts claims that Fleet’s representations in the

solicitation letter that the APR would be an “extraordinary,”

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“low” fixed APR of 7.99% and that the rate was neither

“introductory,” nor would it rise “in just a few short

months” further support her position that Fleet failed to

comply with the TILA. Before addressing this argument, we

must first decide whether the TILA permits a Court to

analyze the solicitation materials, in addition to the

information contained in the Schumer Box, in determining

whether a reasonable consumer would comprehend the

required disclosures.

Fleet does not specifically argue that we are not

permitted to consider information outside of the Schumer

Box in determining whether a credit card company has

complied with the requirements of TILA. Fleet does argue,

however, that the “clear and conspicuous” standard only

applies to required disclosures in the Initial Disclosure

Statement and the Schumer Box. While we agree with the

premise of this argument, we reject its broader implications.2

When Congress decided to require credit card issuers to

disclose required terms in a clear and conspicuous manner,

we doubt that it intended for us to ignore other statements

made by those issuers in their credit card solicitation

materials. Because “[t]he purpose of the TILA is to assure

‘meaningful’ disclosures,” we have recognized that “[t]he

accuracy demanded excludes not only literal falsities, but

also misleading statements.” Rossman, 280 F.3d at 390

(citations omitted). As detailed above, Congress amended

TILA with the Fair Credit and Charge Card Disclosure Act

in order to grant consumers better access to information

and to allow consumers to more easily compare the terms

of various credit cards. Congress created the Schumer Box

to assist consumers in accessing such information, not to

shield credit card companies from liability for information

placed outside of the Schumer Box. As a result, while we

recognize that the TILA only applies the “clear and

conspicuous” standard to required disclosures, we conclude

that the TILA permits us to consider materials outside of

2. When questioned at oral argument about whether the phrase “rates

are subject to change” would more clearly and conspicuously disclose

the contractual terms than the phrase “won’t go up in just a few short

months,” which appeared in the solicitation letter, counsel for Fleet

responded that the solicitation letter is not the TILA disclosure.

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the Schumer Box in determining whether the credit issuer

disclosed the required information clearly and

conspicuously.

With that background established, we agree with Roberts

that the claims in the introductory letter that the “fixed

7.99% APR”3 is “NOT an introductory offer” and “won’t go

up in just a few short months” could cause a reasonable

consumer to be confused about the temporal quality of the

offer. Fleet argues that the phrase “my Agreement terms

(including rates) are subject to change,” which is included

in the Terms of Pre-Qualified Offer section of the Invitation,

makes clear that the 7.99% APR is not permanent.

However, read in conjunction with information contained in

the Schumer Box right below it, that statement could lead

a consumer to conclude that the rates are subject to

change only for the two reasons outlined in the Schumer

Box.

In its defense, Fleet relies on Paragraph 24 of the

Cardholder Agreement that states “[w]e have the right to

change any of the terms of this Agreement at any time.”

This provision, however, fails to cure any of the TILA

defects in the initial mailing. To begin with, Fleet only mails

the Cardholder Agreement after a consumer has accepted

the invitation. Thus, a consumer will not learn, until after

the acceptance of the invitation, that the APR can be

changed by Fleet at any time. Indeed, Fleet’s practice of

mailing the Cardholder Agreement containing important

rate change information, after the consumer accepts the

card, is contrary to the TILA mandate that credit card

solicitations disclose all required information. See S. Rep.

3. We recognize that a fixed rate is not necessarily permanent. See “Shop

— The Credit Card You Pick Can Save You Money,” http://

www.federalreserve.gov/pubs/shop at “Glossary of Credit Terms.” (“The

interest rate on fixed-rate credit card plans, though not explicitly tied to

changes in other interest rates, can also change over time. The card

issuer must notify you before the ‘fixed’ interest rate is changed.”). The

potential problem in this case is not that Roberts could have concluded

that the rate was permanent solely based on the use of the word “fixed.”

Rather, the concern is that Fleet may have misled potential consumers

by indicating that the rate could only change in the instances it specified

in the solicitation materials.

13

No. 100-259, at 1 (1988), reprinted in 1988 U.S.C.C.A.N.

3936, 3937. Nonetheless, Fleet argues that it is prohibited

from including “change in terms” information in the

Schumer Box. However, as we previously stated, this

argument avoids the central issue in this case, which is

whether the APR was adequately disclosed. Additionally, we

note that the “right to change” language in Paragraph 24

contradicts the statement in the introductory letter that

this APR “won’t go up in just a few short months.”4

In sum, after reading the materials together as a whole,

we believe that a question of fact exists as to whether Fleet

made any misleading statements in the mailing and failed

to disclose information required under the TILA “clearly and

conspicuously.”

B. State Law Claims

1. Unfair Trade Practices and Consumer Protection Act

Roberts next claims that the District Court erred in

granting Fleet’s summary judgment motion with respect to

her claim under the Rhode Island Unfair Trade Practices

and Consumer Protection Act (“UTPCPA”). See R.I. Gen.

Laws § 6-13.1-1 et seq. Specifically, based on the authority

provided by the Office of the Comptroller of the Currency

(“OCC”),5 the District Court concluded that “plaintiff cannot

pursue a claim for violation of the UTPCPA” because “this

case falls within [the] exemption” of the UTPCPA. Roberts v.

Fleet Bank (R.I.), No. 00-6142, 2001 WL 1486226, at *2

(E.D. Pa. Nov. 20, 2001).

The UTPCPA provides that “[u]nfair methods of

competition and unfair or deceptive acts or practices in the

conduct of any trade or commerce are hereby declared

4. When questioned about this contradictory language at oral argument,

counsel for Fleet admitted that “arguably there is an inconsistency.” By

acknowledging this “arguable” inconsistency in language, Fleet

essentially conceded that a reasonable consumer could find the

materials to be confusing and misleading.

5. The Office of the Comptroller of the Currency is the primary regulator

of national banks pursuant to authority granted by the National Bank

Act, 12 U.S.C. §§ 1, et seq.

14

unlawful.” R.I. Gen. Laws § 6-13.1-2. The UTPCPA provides

for both a public and a private right of action to enforce its

provisions. However, the Act specifically states that

“[n]othing in this chapter shall apply to actions or

transactions permitted under laws administered by the

department of business regulation or other regulatory body

or officer acting under statutory authority of this state or

the United States.” R.I. Gen. Laws § 6-13.1-4.

The Rhode Island Supreme Court has instructed that,

based on the plain meaning of § 6-13.1-4, “the Legislature

clearly exempted from the Act all those activities and

businesses which are subject to monitoring by state or

federal regulatory bodies or officers.” State v. Piedmont

Funding Corp., 382 A.2d 819, 822 (R.I. 1978). The Rhode

Island Supreme Court has thus upheld the rejection of

claims under the UTPCPA where it has found regulation by

a state or federal agency. See Kelley v. Cowesett Hills

Assocs., 768 A.2d 425, 432 (R.I. 2001) (affirming grant of

summary judgment partially due to the fact that “the

Asbestos Act preempts the action” and “[t]he plaintiff is not

therefore entitled to a remedy under § 6-13.1-2.”); Doyle v.

Chihoski, 443 A.2d 1243, 1244 (R.I. 1982) (ruling that

“[s]ince the real estate brokerage industry is regulated by

the Department of Business Regulation, the trial justice

quite properly rejected defendant’s reliance on the

Deceptive Trade Practices Act.”).

Our inquiry must then focus on whether the OCC has

the authority to regulate Fleet’s activity of soliciting

prospective card members. Section 5 of the Federal Trade

Commission Act (“FTC Act”) proscribes “unfair or deceptive

acts or practices in or affecting commerce.” 15 U.S.C.

§ 45(a)(1). “The FTC Act prohibits ‘unfair methods of

competition,’ including advertisements containing false or

misleading representations or material omissions.” Sandoz

Pharmaceuticals Corp. v. Richardson-Vicks, Inc., 902 F.2d

222, 226 (3d Cir. 1990). Section 1818(b)(1) of the Financial

Institutions Supervisory Act of 1966 authorizes the

“appropriate Federal banking agency” to take enforcement

actions against national banks for violations of “a law, rule,

or regulation.” 12 U.S.C. § 1818(b)(1). This Court has

recognized the OCC’s power to bring cease and desist

15

proceedings against national banks under Section

1818(b)(1). See National State Bank v. Long, 630 F.2d 981,

988 (3d Cir. 1980).

As a result of the OCC’s authority to bring enforcement

actions against national banks for violations of laws or

regulations, the OCC has the power to regulate false and

misleading advertising proscribed under Section 5 of the

FTC Act. Consequently, the District Court properly granted

summary judgment to Fleet on Roberts’ UTPCPA claim.

2. Breach of Contract

Roberts next asserts that the District Court erred in

granting summary judgment to Fleet on her breach of

contract claim. Roberts alleges that Fleet entered into a

contract with her providing a Fleet Titanium MasterCard

that carried a 7.99% APR on purchases, and Fleet breached

the contract by raising the APR to 10.5%.

After signing and returning the invitation to Fleet,

Roberts received her Fleet Titanium MasterCard along with

the Cardholder Agreement. Paragraph 2 of the Cardholder

Agreement, “Agreement to Terms,” states that “your

retention of the Card, and/or your use of the Account in

any way means you agree to the terms of this Agreement

and the provisions of the Card itself.” By retaining and

using the card, Roberts thus agreed to the terms of the

Cardholder Agreement. Fleet argues that the Cardholder

Agreement specifically informed cardholders that their rates

were subject to change.

Based on ambiguities in the solicitation materials and the

Cardholder Agreement, Roberts claims that a reasonable

fact finder could conclude that Fleet’s interpretation of the

Cardholder Agreement is wrong. “[A] court must find that a

contract is ambiguous before it can exercise judicial

construction of the document. If the court finds that the

terms of an agreement are clear and unambiguous, the

task of judicial construction is at an end and the agreement

must be applied as written.” W.P. Associates v. Forcier, Inc.,

637 A.2d 353, 356 (R.I. 1994) (citing Aetna Casualty &

Surety Co. v. Graziano, 587 A.2d 916, 917 (R.I. 1991)). We

have already determined that, by retaining and using the

16

Fleet Titanium MasterCard, Roberts agreed to the terms of

the Cardholder Agreement. As a result, the solicitation

materials do not factor into our interpretation of the

Cardholder Agreement unless we conclude that the

document’s terms are unclear or ambiguous.

In Paragraph 24 of the Cardholder Agreement, Fleet

reserves “the right to change any of the terms of this

Agreement at any time.” We find nothing ambiguous in this

statement and conclude that Fleet clearly had the right to

change the APR under the terms of the Cardholder

Agreement. The District Court properly granted summary

judgment to Fleet on Roberts’ claim for breach of contract.

3. Unjust Enrichment

Finally, Roberts argues that the District Court erred in

granting summary judgment to Fleet on her unjust

enrichment claim. An unjust enrichment claim cannot be

maintained where a contract governs the relationship

between the parties. See Marshall Contractors v. Brown

University, 692 A.2d 665, 669 n.3 (R.I. 1997) (“It is well

settled that where there is an express contract between the

parties referring to a subject matter, there can be no

implied contract arising by implication of law governing the

same subject matter.”) Because we have determined that

the Cardholder Agreement constitutes an unambiguous,

written agreement between the parties in this case, Roberts’

unjust enrichment claim must fail as a matter of law and

the District Court properly granted summary judgment to

Fleet on the claim.6

6. Roberts also argues that the District Court erred in granting summary

judgment to Fleet on her state law claims given the early state of

discovery. “We review a claim that the district court has prematurely

granted summary judgment for abuse of discretion.” Pastore v. Bell Tel.

Co., 24 F.3d 508, 510 (3d Cir. 1994). The District Court properly granted

summary judgment to Fleet on Roberts’ state law claims as a matter of

law. Any additional facts gleaned in discovery would not have changed

the District Court’s analysis or its ultimate conclusion. Consequently, we

conclude that the District Court did not abuse its discretion by denying

additional discovery to Roberts before granting summary judgment to

Fleet on the state law claims.

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IV. Conclusion

Accordingly, for the reasons stated above, we reverse the

judgment of the District Court on the TILA claim and affirm

the grant of judgment on the state law issues.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit