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Brawley v. U.S. Bank

January 31, 2007

JOE R. BRAWLEY, PLAINTIFF,
v.
U.S. BANK, N.A., DEFENDANT.



The opinion of the court was delivered by: Gilbert, District Judge

MEMORANDUM AND ORDER

Before the Court is Plaintiff's amended complaint (Doc. 59). Upon review, plaintiff's amended complaint would be futile. As with the original complaint, as shown below, defendant is entitled to summary judgment on plaintiff's claims. Accordingly, plaintiff's amended complaint (Doc. 59) is STRICKEN. See Figgie International, Inc. v. Miller, 966 F.2d 1178, 1180-81 (7th Cir. 1992) (district court may deny leave to amend when amendment of complaint would be futile).

Also before the Court is defendant's motion for summary judgment (Doc. 37). Plaintiff has filed a response (Doc. 43). This motion is discussed below.

I. Background

The following facts are undisputed. On November 24, 2004, plaintiff was the payee on a counterfeit check for $60,800 and he deposited into a bank account that he had with defendant. (Doc. 38, Exh. A, pp. 127-128). Plaintiff had received the $60,800 check as a result of his communications with "Barrister Williams," and "John King, PhD," two individuals whom plaintiff suspected were involved in internet crime. (Doc. 38, Exh. A, pp. 116-121). Prior to depositing the check, plaintiff suspected that the check was counterfeit. (Doc. 38, Exh. A, pp. 214-215).

As a result of plaintiff's deposit of the check, the check was indeed discovered to be counterfeit. Defendant closed the three bank accounts that plaintiff had with defendant, and remitted plaintiff his account balances. (Doc. 38, Exh. A, pp. 133-134). Defendant also reported plaintiff's deposit of a counterfeit check to a consumer reporting agency called ChexSystems. (Doc. 38, Exh. C, ¶ 1). Specifically, defendant reported plaintiff's deposit of a counterfeit check as a transaction involving "items with irregular signature/endorsement." (Doc. 38, Exh. E, ¶ 9).

After defendant closed plaintiff's bank accounts, plaintiff attempted to open an account with Union Planters Bank. Plaintiff attempted to deposit an $80,000 check that he had received from "Peter Pan," and that he suspected was also counterfeit. (Doc. 38, Exh. A, pp. 141-142). Because Union Planters Bank had received a ChexSystems report that plaintiff had engaged in an irregular transaction, Union Planters denied plaintiff's request to open a bank account. (Doc. 38, Exh. G).

Plaintiff admits that defendant had the right to close his bank accounts. (Doc. 38, Exh. A, p. 196). He claims, however, that defendant's employee, Jackie Bien, told him to go ahead and deposit the $60,800 check, and if it was counterfeit, all defendant would do was charge him a $25.00 processing fee. Because defendant reported plaintiff's deposit as an irregular transaction to a credit reporting agency, plaintiff claims that he has suffered financial losses and damages to his reputation.

Plaintiff has sued defendant under the Illinois Consumer Fraud and Deceptive Practices Act (Count I), and for: Libel, (Count II), Punitive Damages, (Count III), and Negligent Misrepresentation (Count IV). Plaintiff originally filed suit in St. Clair County, and defendant has removed this action based on diversity of citizenship and an amount in controversy over $75,000. Plaintiff seeks in excess of $50,000 on each Count, plus costs and other relief as the Court deems proper.*fn1

II. Summary Judgment Standard.

Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). In considering a summary judgment motion, a court must review the entire record and draw all reasonable inferences in the light most favorable to the non-moving party. Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). In evaluating a motion for summary judgment, "[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).

III. Discussion

Plaintiff's consumer fraud claim cannot survive summary judgment. To recover under the Illinois Consumer Fraud and Deceptive Practices Act, plaintiff must show: "(1) a deceptive act or unfair practice by defendant, (2) an intent that plaintiff rely on the deception, (3) the deception occurred in the course of conduct involving trade or commerce, and (4) the consumer fraud proximately caused plaintiff's injury." Cruthis v. Firstar Bank, 822 N.E.2d 454, 465 (Ill. App. 5th Dist. 2005). Here, plaintiff's consumer fraud claim is based on Ms. Bien's alleged misrepresentation that if the check were returned as counterfeit, defendant would take no other action than to charge a $25.00 processing fee. Courts have routinely found, however, that such claims are nothing more than a breach of contract action and are not cognizable under the Consumer Fraud Act. See e.g., Skyline International Development v. Citibank, F.S.B., 706 N.E.2d 942, 946 (Ill.App. 1st Dist. 1998) (Consumer Fraud Act does not reach bank's isolated misstatement that it could cancel a wire transfer);Crowe v. Joliet Dodge, No. 00 C 8131, 2001 WL 811655, at *7 (N.D. Ill. Jul. 18, 2001) (Consumer Fraud Act does not recognize claim that defendant caused derogatory information to be placed on plaintiff's credit report because it was "merely a breach of contract action"); Bankier v. First Fed. Savings & Loan Association of Champaign, 588 N.E.2d 391, 396-98 (Ill. App. Ct. 4th Dist. 1992) (Consumer Fraud Act does not apply to a claim that a bank made false representations concerning pre-payment penalties). Accordingly, defendant is entitled to summary judgment on plaintiff's claim under the Illinois Consumer Fraud and Deceptive Practices Act.

Plaintiff's libel claim also cannot survive summary judgment, for several reasons. First, plaintiff is disputing defendant's practice of reporting an irregular transaction to a credit reporting agency, (i.e., ChexSytems). As such, ...


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