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March 7, 1996


Appeal from the Circuit Court of Cook County. No. 91-CH-11695. Honorable Aaron Jaffe, Judge Presiding.

The Honorable Justice Theis delivered the opinion of the court: Hoffman, P.j., and O'brien, S., J., concur.

The opinion of the court was delivered by: Theis

The Honorable Justice THEIS delivered the opinion of the court:

Plaintiff, Stella Saunders (Saunders), appeals from the trial court's order granting defendant's motion to dismiss her third amended complaint. Saunders sued defendant, Michigan Avenue National Bank (Bank), after the Bank charged her over $200 for an overdraft of approximately $4.61. Saunders brought the action on behalf of herself and others similarly situated.

On appeal, Saunders argues that the trial court erred in dismissing her complaint, claiming that she stated the following causes of action: (1) violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act); (2) the imposition of an unenforceable penalty; (3) breach of the duty of good faith and fair dealing; and (4) the Bank's overdraft policy was unconscionable. In addition to its contention that Saunders fails to state a claim, the Bank argues that Federal banking laws preempt Saunders' claims. Finally, the Bank contends that Saunders waived review of certain counts by failing to address them in her notice of appeal. We affirm.

In February of 1988, Saunders opened a checking account with the Bank. At the time she opened her account, the Bank provided Saunders with written information describing the services and charges associated with the account. Specifically, Saunders received a pamphlet which stated that the Bank charged $20 per day for overdrafts. The pamphlet, however, did not define the term "overdraft."

On October 31, 1990, a check in the amount of $8.10 was presented to the Bank against Saunders' account, which had a balance of only $3.49. The Bank honored the check and charged Saunders the $20 overdraft fee. When a second check was presented against Saunders' overdrawn account on November 14, 1990, the Bank returned it for insufficient funds (NSF). The Bank refused to honor the second check when it was returned again for payment on November 20, 1990.

As a result of the first check, the Bank imposed the $20 overdraft charge against Saunders' account on 11 separate occasions. This resulted in a negative balance of $244.61. Finally, on December 20, 1990, Saunders deposited the $244.61 and closed her account.

On February 19, 1993, Saunders filed a second amended complaint, alleging the following counts: (I) violation of the Consumer Fraud Act (815 ILCS 505/2 (West 1992)); (II) the charges constituted an unenforceable penalty; (III) the charges were unconscionable; and (IV) the Bank violated the Illinois Interest Act (815 ILCS 205/4a (West 1992)), respectively. On July 1, 1993, the trial court granted the Bank's motion to dismiss on counts I, II and IV with prejudice. The court struck count III of the second amended complaint, the unconscionability claim, with leave to replead.

In August of 1993, Saunders filed her third amended complaint, alleging that the Bank breached the covenant of good faith and fair dealing and that the charges were unconscionable. The trial court dismissed Saunders' third amended complaint on March 21, 1994. Without leave of court, Saunders filed her appendix and exhibits to the third amended complaint on March 29, 1994. Included in this filing was Saunders' second amended complaint which was referenced in, but omitted from, the third amended complaint. That same day, Saunders filed her notice of appeal from the order entered on March 21, 1994. For the reasons stated below, we affirm.

The standard of review of appeal from a motion to dismiss is whether the complaint sufficiently states a cause of action. Commerce Bank, N.A. v. Plotkin, 255 Ill. App. 3d 870, 627 N.E.2d 746, 194 Ill. Dec. 409 (1994). We do not consider the merits of the claim. Commerce Bank, N.A. All well-pleaded facts are accepted as true. Bel-Grade, Inc. v. Etheridge, 229 Ill. App. 3d 624, 593 N.E.2d 91, 170 Ill. Dec. 549 (1992). With these principles in mind, we turn to the issues at hand.

The Bank contends that the National Bank Act preempted Saunders' arguments concerning the propriety of the overdraft charges. 12 U.S.C.A. § 1 (1992). Specifically, the Bank argues that Saunders' claims were preempted by section 7.8000 of the Federal Regulations which provides that:

"A national bank may establish any deposit account service charge *** notwithstanding any state laws which prohibit the charge assessed or limit or restrict the amount of that charge. Such state laws are preempted by the comprehensive federal statutory scheme governing the deposit-taking function of national banks." 12 C.F.R. § 7.8000(c) (1994).

In response, Saunders claims that the Bank waived this issue by raising it for the first time on review. While the Bank argues that jurisdictional questions may be raised at any time, Saunders correctly notes that preemption ...

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