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Asher v. Bank One

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION


April 28, 2008

DONALD ASHER, PLAINTIFF,
v.
BANK ONE AND CAROL MACKENZIE, DEFENDANTS.

The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Donald Asher has filed a complaint against defendants Bank One Chase Bank USA, N.A. ("Chase") and Carol MacKenzie. Defendant Chase has moved for summary judgment on plaintiff's claim under the Truth in Lending Act ("TILA"), 15 U.S.C. § 1643, which I granted. The parties have now filed cross motions for summary judgment on plaintiff's breach of contract claim. For the following reasons, defendant's motion is granted.

I.

Chase moves for summary judgment on plaintiff's breach of contract claim on the grounds that it did not owe plaintiff any of the duties alleged in the complaint and because MacKenzie had apparent authority to incur the charges at issue.*fn1 With respect to the first ground, the complaint alleges that

[Chase] owed Plaintiff a duty to determine that the credit card application for payments and the charges thereon were signed and authorized by the Plaintiff. [Chase] owed the Plaintiff a duty, either personally or through its agents and representatives, to examine each charge and application for credit purchase to determine if the signature thereon was authentic and in accord with the authority set forth in the credit card agreements. (Compl. at ¶¶ 14-15.) Plaintiff concedes it has failed to provide copies of any agreement or other record to support the alleged contract. In the absence of any evidence of the terms of the allegedly breached agreements, plaintiff cannot prove breach of a contract. Accordingly, I need not decide the issue of apparent authority.

II.

For the foregoing reasons, defendant's motion for summary judgment is granted and plaintiff's motion for summary judgment is denied.


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