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Lang v. TCF National Bank

December 1, 2008


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


Steven Lang has sued TCF National Bank (TCF) and JP Morgan Chase Bank, N.A., formerly known as Washington Mutual Bank FA (Washington Mutual),*fn1 for alleged violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681n, 1681o, & 1681s-2. All three parties have moved for summary judgment. TCF has also moved for discovery sanctions against Lang. For the reasons set forth below, the Court denies Lang's motions for summary judgment, grants TCF's motion for summary judgment, and grants Washington Mutual's motion for summary judgment. TCF's motion for discovery sanctions is denied as moot.


On cross-motions for summary judgment, the Court construes facts and draws inferences "in favor of the party against whom the motion under consideration is made." In re United Air Lines, Inc., 453 F.3d 463, 469 (7th Cir. 2006).*fn2

On October 14, 2003, Lang opened a checking account at Washington Mutual. Washington Mutual closed Lang's account on November 23, 2004. At the time, Lang's account had a negative or "overdraft" balance of $1,224.97. Washington Mutual retained a collection agency, ER Solutions, to recover the negative balance. In September 2005, ER Solutions entered into a settlement with Lang, pursuant to which Lang paid eighty percent of the outstanding debt. In return, the debt was deemed satisfied, and Lang was excused from paying the remaining balance.

Lang also had two personal accounts at TCF. The first was the '154 account. TCF closed the '154 account for overdraft activity; it had a negative balance of $124. In July 2005, Lang opened a second personal account at TCF, the '806 account. In August 2006, the '806 account had a negative balance of $425.53. TCF did not, however, close the '806 account at that time. Instead, the October 2006 account statement sent to Lang stated "YOUR ACCOUNT BALANCE IS NOW ZERO AND YOUR ACCOUNT WILL BE CLOSED AUTOMATICALLY IN 182 DAYS IF THERE IS NO ADDITIONAL ACCOUNT ACTIVITY. PLEASE MAKE A DEPOSIT OR FUNDS TRANSFER AT ANY TCF BRANCH LOCATION TO AVOID AUTOMATED ACCOUNT CLOSURE." Washington Mutual Rule 56.1 Statement, Ex. 10 at 4.*fn3 Washington Mutual continued to send Lang statements for the '806 account at least as late as January 9, 2007.

ChexSystems, Inc. (Chex) is a consumer reporting agency (CRA) within the meaning of the FCRA. It maintains files on consumers' check-writing history. On September 29, 2005, Lang sent Chex a request for reinvestigation of the Washington Mutual account and the TCF '154 account. In the reinvestigation request, Lang claimed that "[t]he information on your report is inaccurate and should be removed. I owe no money to any of the institutions listed above. Please correct your information." Id., Ex. 8. Chex sent notices of Lang's request for reinvestigation to TCF and Washington Mutual on September 30, 2005; those notices, however, did not include a copy of Lang's request and did not convey the full substance of the request. The notice from Chex to Washington Mutual stated only that Lang disputed that Washington Mutual had reported "OVERDRAFTS" to Chex. Id., Ex. 4. The notice from Chex to TCF stated only that Lang disputed that TCF had reported "NON-SUFFICIENT FUNDS (NSF) ACTIVITY" to Chex. TCF Rule 56.1 Statement, Ex. B. Neither of the notices referenced Lang's specific complaint that he did not owe either bank money.

On October 2, 2005, Washington Mutual responded to Chex that, based on its investigation, its report regarding overdraft activity was correct. On October 5, 2005, TCF responded to Chex that, based on its investigation, its report regarding non-sufficient funds activity was correct. It is undisputed that Lang had engaged in overdraft activity on his Washington Mutual account and non-sufficient funds activity on his TCF '154 account. Lang has not submitted any evidence of additional requests for reinvestigation to Chex that were passed on to Washington Mutual or TCF. Exhibit B to Lang's cross-motion for summary judgment against Washington Mutual contains a January 31, 2006 request to Chex for reinvestigation that appears to pertain to the Washington Mutual account, in which Lang claims that information is incorrect without providing any further detail. Lang has not submitted any evidence, however, that Chex sent this request for reinvestigation to Washington Mutual or TCF.

In addition to working through Chex, Lang contends he complained to TCF and Washington Mutual directly about the information they provided to Chex. Lang says he brought alleged errors to Washington Mutual's attention but that Washington Mutual "tried to cover it up and continued to report inaccurate information causing damage to the Plaintiff." Lang Mem. in Supp. of Mot. for Summ. J. at 6. The exhibit Lang cites, however, does not support this contention. That exhibit is a letter from ABC Bank Chicago to Lang in which the bank declines to open an account for him. The letter indicates that ABC made its decision based, at least in part, on a report from Chex. Nothing in this letter, however, points to any cover-up or wrongdoing by Washington Mutual. Nor does any other evidence submitted by Lang support his theory of a cover-up or his allegation that Washington Mutual conspired to hide information from the Court. Similar allegations against TCF are also without support in the record. The Court has reviewed all of the exhibits submitted by Lang in support of these claims. The exhibits Lang relies on involve rejections of applications for accounts at various banks and reports prepared by Chex that contained information from Washington Mutual and/or TCF.

Lang claims he has suffered myriad damages as a result of Washington Mutual's and TCF's alleged violations of the FCRA. He seeks compensatory and punitive damages.


Summary judgment is appropriate 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 judgment as a matter of law." Fed. R. Civ. P. 56(c). To determine whether a genuine issue of material fact exists, the Court must view the record in the light most favorable to the nonmoving party and draw reasonable inferences in that party's favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002). A genuine issue of triable fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. "The fact that plaintiff and defendants have filed cross-motions for summary judgment does not change the applicable standard. The Court must consider each motion independently and must deny both motions if there is a genuine issue of material fact." Egan Marine Corp. v. Great Am. Ins. Co. of N.Y., 531 F. Supp. 2d 949, 953 (N.D. Ill. 2007) (citations omitted). As required by the Seventh Circuit and this District's local rules, both defendants sent notices to Lang regarding how to respond to a motion for summary judgment because he is representing himself pro se.

The FCRA was enacted, in part, to protect consumers by ensuring "fair and accurate credit reporting." 15 U.S.C. § 1681(a)(1). Section 1681s-2 deals specifically with the duties the imposed on "furnishers," i.e., companies (including TCF and Washington Mutual) that furnish information to CRAs (like Chex). Id. § 1681s-2. Subparagraph (a) of section 1681s-2 imposes on furnishers a number of requirements and restrictions regarding the accuracy of information, producing certain types information, and correcting erroneous information. Id. § 1681s-2(a).

Subparagraph (b) deals with a furnisher's obligations after it receives notice of a dispute regarding "the completeness or accuracy" of information it had provided to a CRA. Id. § 1681s-2(b). A direct consumer complaint to a furnisher does not trigger the furnisher's obligations under section 1681s-2(b); rather, those obligations begin when the furnisher receives notice from a CRA that a consumer disputes a reported item. Id. §§ 1681i(a)(2), 1681s-2(b). The notice a CRA provides to a furnisher "shall include all relevant information regarding the dispute that the agency has received from the consumer or reseller." Id. § 1681i(a)(2)(A). Once a furnisher receives notice from a CRA, it must conduct an investigation, "review all relevant information provided by the consumer reporting agency," report the results ...

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