Frederick v. FIA Card Services, N.A. (Case No. CV 09-3419-AG (RNBx)) 



Augustine v. FIA Card Services, N.A. (Case No. 07-16751)

Plaintiffs Noel Frederick, Michelle Pingol and Ken Adler (“Plaintiffs”) filed a lawsuit against FIA alleging that it improperly assessed on the credit card accounts of certain customers increased interest rates due to delinquency or default, which increase was calculated as of the beginning of the billing cycle in which the default or delinquency occurred. In addition, a fourth Plaintiff, Mary Jane Augustine (“Augustine”), had previously filed a lawsuit against FIA challenging the same business practices. That suit was dismissed by the trial court with prejudice and is presently pending on appeal. FIA has denied all allegations of wrongdoing and liability and has affirmatively maintained that cardmembers were provided with all legally and contractually required notices in connection with interest rate increases on their credit card accounts. 

The Settlement Class includes all persons who, between July 27, 2002 and October 18, 2010, had a credit card account with FIA Card Services, N.A. or its predecessors Bank of America, N.A. (USA) and MBNA America Bank, N.A., and who, after a default or delinquency, were assessed and paid a higher rate of interest on their credit card account, which higher rate of interest was calculated as of the beginning of the billing cycle in which the default or delinquency occurred.

Plaintiffs have been designated by the Court as the Settlement Class representatives for purposes of the settlement approval process. The Court has appointed Barry L. Kramer, Law Offices of Barry L. Kramer, as Class Counsel to represent the interests of the members of the Settlement Class. Settlement Class Members also have the right to consult with their own attorney, at their own expense.

The deadline to submit a claim form has passed.

If you meet the criteria for membership in the Settlement Class as described in question 2 above, you do not need to do anything to remain a member of the Settlement Class. You will remain a member of the Settlement Class unless you took steps to exclude yourself.

The deadline to request exclusion from the settlement has passed.

Once the Settlement becomes effective, the following release will be deemed to apply to and bind all Settlement Class Members (who did not request exclusion in accordance with the requirements of the Settlement):

Upon the date that the Judgment becomes Final, each and all Settlement Class Members, for themselves and their respective heirs, executors, administrators, representatives, agents, attorneys, partners, successors, predecessors in interest, assigns and any authorized users of their accounts will be deemed to have fully released and forever discharged FIA (including, without limitation, Bank of America, N.A. (USA) and MBNA America Bank, N.A.) and each and all of its present, former and future direct and indirect parent companies, affiliates, subsidiaries, agents, successors, predecessors in interest, and/or any financial institutions, corporations, trusts, or other entities that may hold or have held any interest in any account or any receivables relating to any account, or any receivables or group of receivables, or any interest in the operation or ownership of FIA, and all of the aforementioneds’ respective officers, directors, employees, attorneys, shareholders, agents, vendors (including, without limitation, processing facilities), attorneys, insurers and assigns, from any and all rights, duties, debts, obligations, claims, actions, causes of action, remedies or liabilities, whether arising under local, state or federal law (including without limitation under any state consumer-protection and/or unfair and deceptive practices acts, the Truth in Lending Act, 15 U.S.C. § 1601 et seq., and Regulation Z, 12 C.F.R. pt. 226), whether by Constitution, statute, contract, common law or equity, whether known or unknown, suspected or unsuspected, asserted or unasserted, foreseen or unforeseen, actual or contingent, liquidated or unliquidated, that they have or may have, as of the date of entry of the Final Judgment in this Action: (1) that arise out of or relate in any way to any or all of the acts, omissions, facts, business practices, matters, transactions or occurrences that were or could have been directly or indirectly alleged, asserted, described, set forth or referred to in this Action (or in the above-referenced appeal of Mary Jane Augustine), and are related to the allegations therein; or (2) that arise out of or relate in any way to the calculation, assessment, amount, notice or disclosure of increased interest rates or finance charges imposed following a default or delinquency (including, without limitation, the effective date of such increased interest rates or finance charges) on or in connection with any FIA credit card account; or (3) that arise out of or relate in any way to the administration of the settlement.

Without in any way limiting the foregoing, the Released Claims specifically extend to and include claims that Plaintiffs and the Settlement Class Members do not know or suspect to exist in their favor at the time the Judgment becomes Final. This paragraph constitutes a release and waiver of, without limitation as to any other applicable law, section 1542 of the California Civil Code and any and all similar laws of other states. Section 1542 of the California Civil Code provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

Plaintiffs understand and acknowledge, and each member of the Settlement Class shall be deemed to understand and acknowledge, the significance of these releases and of this waiver of California Civil Code section 1542 and of any and all similar laws of other states relating to limitations on releases, including, without limitation, limitations on releases of unknown or unliquidated claims. In connection with such releases, waiver and relinquishment, Plaintiffs acknowledge, and all members of the Settlement Class shall be deemed to acknowledge, that they are aware that they may hereafter discover facts in addition to, or different from, those facts which they now know or believe to be true with respect to the subject matter of the Settlement and releases, but that it is their intention to release fully, finally and forever all Released Claims, and in furtherance of such intention, the releases of the Released Claims will be and will remain in effect notwithstanding the discovery or existence of any such additional or different facts.

If you want further information about the Settlement, or would like copies of the operative Complaint or the papers filed in support of the proposed settlement, please send your request by email to kramerlaw@aol.com. Copies of the settlement documents are available on the Court Documents page of this website.
For more detailed information, you may review the papers on file in the lawsuit, which may be inspected during regular business hours at the Clerk’s Office / Records Department, Ronald Reagan Federal Building and U.S. Courthouse, 411 West Fourth Street, Room 1053, Santa Ana, California 92701-4516.

DO NOT CALL OR WRITE TO THE COURT OR THE CLERK OF THE COURT. DO NOT CONTACT BANK OF AMERICA OR FIA CARD SERVICES ABOUT THE SETTLEMENT. TELEPHONE REPRESENTATIVES ARE NOT AUTHORIZED TO CHANGE THE TERMS OF THE SETTLEMENT OR THIS NOTICE.