IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

Jeff Foster

 

Plaintiff,

vs. No. 12 CV 3130

PNC Bank, National Association; Honorable Joan B. Gottschall

 

Defendants.

PNC BANK, NATIONAL ASSOCIATION’S MEMORANDUM IN SUPPORT OF 

MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................................................................................................iii

STANDARD OF REVIEW............................................................................................................................1

I. PNC IS ENTITLED TO SUMMARY JUDGMENT ON ALL OF 

FOSTER’S CLAIMS ON THE FLORIDA LOAN ........................................................1

A. Foster Executed A Release That Bars any Claims For Conduct 

Relating to the Florida Loan that Occurred Before May 20, 2010.................1

B. Foster’s Claims for Breach of Contract and Breach of the Implied 

Covenant of Good Faith and Fair Dealing Regarding Lender Placed 

Insurance Fail As a Matter of Law......................................................................3

C. PNC Serviced the Florida Loan in Accordance with the Florida 

Note, Mortgage, and Modification......................................................................7

D. PNC Did Not Violate The Fair Credit Reporting Act...................................14

E. PNC Did Not Make Any False Statement Regarding A Specific 

Material Fact Nor Did Foster Rely In Any Way On Any Statement 

By PNC..................................................................................................................16

F. PNC Received No Benefit in Connection with Obtaining Lender 

Placed Insurance and Foster’s Claim for Unjust Enrichment and 

Disgorgement Fails as a Matter of Law............................................................17

G. PNC and Foster’s Relationship is that of an Ordinary Borrower and 

Lender....................................................................................................................18

II. FOSTER’S CLAIMS REGARDING THE ILLINOIS PROPERTY AND 

LOAN FAIL .........................................................................................................................19

A. Foster Cannot Escape His Obligations Under The Illinois Loan and 

Mortgage By Claiming, Years After Accepting Its Benefits, That He 

Did Not Sign It ....................................................................................................19

B. PNC Complied with the Illinois Loan Documents and Foster’s Claim 

for Breach of Contract Fails...............................................................................21

C. Foster Did Not Comply With the Requirements of The Fair Credit 

Billing Act and his Claim Fails as a Matter of Law.........................................22

D. Foster’s Claim Under The Fair Credit Reporting Act For The Illinois 

Loan Fails..............................................................................................................25

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III. FOSTER’S CLAIMS ON THE FLORIDA AND ILLINOIS LOAN FAIL 

BECAUSE HE HAS NO EVIDENCE HE SUFFERED ANY DAMAGES 

AS A RESULT OF ANY CONDUCT OF PNC...........................................................25

IV. PNC IS ENTITLED TO SUMMARY JUDGMENT ON ITS 

COUNTERCLAIMS...........................................................................................................26

A. Foster Is In Default On The Florida Loan and PNC is Entitled To 

Summary Judgment on its Counterclaim for Foreclosure .............................26

B. Foster Is In Default On The Illinois Loan and PNC is Entitled To 

Foreclose ..........................................................Error! Bookmark not defined.

V. CONCLUSION ...................................................................................................................29

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TABLE OF AUTHORITIES

Page

Cases

BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936 (Fla. 2d DCA 

2010).....................................................................................................................................................28

Barille v. Sears Roebuck & Co., 289 Ill. App. 3d 171, 682 N.E.2d 118, 224 Ill Dec. 557 (1997).............22

Brown v. Trans Union LLC, No. 03 C 5774, 2005 U.S. Dist. LEXIS 44524 (N.D. Ill. Feb. 23, 

2005).....................................................................................................................................................16

Butler v. Encyclopedia Britannica, Inc., 41 F.3d 285 (7th Cir. 1994)................................................................20

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ....................................................................................................1

Centurion Air Cargo v. United Parcel Service Co., 420 F.3d 1146 (11th Cir. 2005)..........................................6

Crabill v. Trans Union, L.L.C., 259 F.3d 662 (7th Cir. 2001).......................................................................16

Curtis v. Cenlar FSB, 2014 U.S. Dist. LEXIS 157172 (N.Y.S.D. Nov. 5, 2014) ........................................4

Fiorito v. JP Morgan Chase Bank, Nat’l Ass’n, 174 So. 3d 519 (Fla. 4th DCA 2015) .................................28

Fla. Power Corp. v. City of Winter Park, 887 So. 2d 1237 (Fla. 2004) ...........................................................18

Fowler v. Bank of Am., No. 10 C 3944, 2011 U.S. Dist. LEXIS 9080 (N.D. Ill. Jan. 28, 2011)..............25

Gordon v. Chase Home Fin. LLC, No. 8:11-cv-2001, 2013 U.S. Dist. LEXIS 15461 (M.D. Fla. 

Feb. 5, 2013)........................................................................................................................................19

Gracey v. Eaker, 837 So. 2d 348 (Fla. 2002)...................................................................................................19

Gulley v. Pierce & Assocs., P.C., 436 F. App'x 662 (7th Cir. 2011) ..............................................................15

Heritage Pullman Bank v. Am. Nat’l Bank and Trust, 164 Ill. App. 3d 680, 518 N.E.2d 231 (1st 

Dist. 1988).................................................................................................................................... 29, 30

Hill v. Chase Bank USA, N.A., No. 2:07-CV-82 RM, 2010 U.S. Dist. LEXIS 1262 (N.D. 

Ind. Jan. 6, 2010) ......................................................................................................................... 24, 25

Hold v. Manzini, 736 So.2d 138 (Fla. Dist. Ct. App. 1999) ...........................................................................2

Hurt v. Leatherby Ins. Co., 380 So. 2d 432 (Fla. 1980).....................................................................................2

Ihebereme v. Capital One, N.A., 933 F. Supp. 2d 86, 110 (N.D. Ill. 2013) ..................................................15

Int'l Expositions, Inc. v. City of Miami Beach, 274 So. 2d 29 (Fla. 3d Dist. Ct. App. 1973) ..........................3

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iv

Kiefert v. Nationstar Mortg., LLC, 153 So. 3d 351 (Fla. 1st DCA 2014)......................................................27

Knowles v. C.I.T. Corp., 346 So. 2d 1042 (Fla. Dist. Ct. App. 1977) .............................................................8

Konsulian v. Busey Bank, N.A., 61 So. 3d 1283 (Fla. 2d Dist. Ct. App. 2010).............................................3

Lopez-Infante v. Union Cent. Life Ins. Co., 809 So.2d 13 (Fla. Dist. Ct. App. 2002) ..................................17

Maxwell v. First United Bank, 782 So. 2d 931 (Fla. Dist. Ct. App. 2001)...................................................19

McCulloch v. PNC Bank, Inc. 298 F.3d 1217 (11th Cir. 2002)....................................................................19

Neiman v. Chase Bank, USA N.A., No. 13 C 8944, 2014 U.S. Dist. LEXIS 101553 (N.D. Ill. 

July 25, 2014).......................................................................................................................................25

Nelson v. Chase Manhattan Mortg. Corp., 282 F.3d 1057 (9th Cir. 2002)......................................................15

Northern Trust Co. v. Oxford Speaker Co., 109 Ill. App. 3d 433, 440 N.E.2d 968, 65 Ill. Dec. 

113 (1982)............................................................................................................................................21

Okeechobee Resorts, LLC v. E Z Cash Pawn, Inc., 145 So. 3d 989 (Fla. 4th Dist. Ct. App. 2014)...............3

Osuna v. Equifax Credit Info. Servs., No. : 02-CV-6465, 2004 U.S. Dist. LEXIS 17124 (N.D. 

Ill. Jan. 28, 2004).................................................................................................................................16

Patel v. Specialized Loan Servicing, LLC, 04 F.3d 1314 (11th Cir. 2018) ................................................... 6, 7

Plumpton v. Cont’l Acreage Dev.Co., 830 So. 2d 208 (Fla. Dist. Ct. App. 2002) ............................................2

Rogers v. First Nat’l Bank of St. George, 297 F. Supp. 641 (D.S.C. 1969) aff’d and remanded on 

other grounds, 410 F.2d 579 (4th Cir. 1969).......................................................................................28

Rollins, Inc. v. Butland, 951 So. 2d 860 (Fla. Dist. Ct. App. 2006).................................................................8

Rosa v. Deutsche Bank Nat’l Tr. Co., 191 So. 3d 987 (Fla. 2d Dist. Ct. App. 2016)...................................27

Sanders v. Mt. Am. Fed. Credit Union, 689 F.3d 1138 (10th Cir. 2012) .......................................................15

Seagall v. Wachovia Bank, 192 So. 3d 1241 (Fla. 4th Dist. Ct. App. 2016).................................................28

Shockley v. Ryder Truck Rental, Inc., 74 Ill. App. 3d 89, 392 N.E.2d 675, 30 Ill. Dec. 20 (1978) .............21

Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 732 (Fla. 2002)..................................................................4

Wachovia Mortgage, F.S.B. v. Goodwill, 199 So. 3d 346 (Fla. 4th Dist. Ct. App. 2016)..............................28

Wells Fargo Bank, N.A. v. Tom Roberts Const. Co. Inc., 629 F. App’x 877 (11th Cir. 2015)......................28

Westra v. Credit Control of Pinellas, 409 F.3d 825 (7th Cir. 2005) .......................................................... 15, 16

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v

Whiting v. Harley-Davidson Fin. Servs., 534 F. Supp. 2d 823 (N.D. Ill. 2008) .............................................16

Wilson v. EverBank, N.A., 77 F. Supp. 3d 1202 (S.D. Fla. 2015)...............................................................18

Zarrella v. Pac. Life Ins. Co., 755 F. Supp. 2d 1218 (S.D. Fla. 2010) ...........................................................18

Statutes

12 U.S.C. § 215a(e)...........................................................................................................................................28

15 U.S.C. § 1640(e) ..........................................................................................................................................25

15 U.S.C. § 1666........................................................................................................................................ 24, 25

15 U.S.C. § 1666(a) ................................................................................................................................... 24, 25

15 U.S.C. § 1666(a)(3)(A)................................................................................................................................24

15 U.S.C. § 1666(a)(3)(B)................................................................................................................................24

15 U.S.C. § 1666(a)-(b)....................................................................................................................................24

15 U.S.C. § 1681i(a)(1).....................................................................................................................................15

15 U.S.C. § 1681i(a)(1)-(2) ..............................................................................................................................15

15 U.S.C. § 1681s-2(b)(1)................................................................................................................................15

Fair Credit Billing Act ........................................................................................................................24, 25, 26

Fair Credit Reporting Act........................................................................................................................ 15, 26

Fla. Stat. § 627.712.............................................................................................................................................4

Fla. Stat. § 673.3011(1)....................................................................................................................................27

Rules

12 C.F.R. § 226.13(b)(1)........................................................................................................................... 24, 25

16 C.F.R. § 660.2(c) .........................................................................................................................................15

Fed. R. Civ. P. 302 ...........................................................................................................................................20

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INTRODUCTORY STATEMENT

Jeff Foster (“Foster”), a self-described real estate professional attempts to blame PNC Bank, 

National Association (“PNC”) for his personal financial problems and his failure to repay his loans

on two million dollar plus residences in Chicago and Fort Lauderdale. Foster alleges a litany of 

claims related to these two properties, but none of the claims have any merit in law or in fact. 

Foster also has no evidence that he has suffered any damages as a result of any conduct of PNC. 

Further, because Foster is in default on both the Florida and Illinois loans, PNC is entitled to 

judgment in its favor on the notes evidencing these loans to the equitable remedy of foreclosure

with respect to the mortgage securing the Illinois property. 

STANDARD OF REVIEW

The standard for summary judgment is well-settled. Summary judgment is appropriate where 

there is no genuine issue as to any material fact and the moving party is entitled to judgment as a 

matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 

LAW AND ARGUMENT

I. PNC IS ENTITLED TO SUMMARY JUDGMENT ON ALL OF FOSTER’S 

CLAIMS ON THE FLORIDA LOAN (Counts 2, 4, 5, 7, 8, 10)

A. Foster Executed A Release That Bars any Claims For Conduct Relating to the 

Florida Loan that Occurred Before May 20, 2010

Foster released all claims, defenses, and causes of action related to the Florida Note, Florida 

Mortgage, Florida Loan, and Florida Property which are based on conduct that occurred before May 

20, 2010. When Foster fell behind on his payments due on the Florida Loan, PNC agreed to modify 

the Florida Loan to reduce Foster’s monthly payment obligations. (SOF ¶ 8.) PNC extended the 

term of the Florida Loan and reduced the interest rate. (SOF ¶ 9.) As part of PNC’s agreement to 

modify the terms of the Florida Loan, Foster agreed to a general release of PNC. (SOF ¶ 10.) 

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Foster does not dispute that he executed the Florida Modification, which contains the following 

release:

(SOF ¶ 10.)

Florida courts have held that releases of counterclaims, defenses, and claims are valid 

contracts. Under Florida law, “a general release ‘will ordinarily be regarded as embracing all claims 

or demands which had matured at the time of its execution... .” Hold v. Manzini, 736 So.2d 138 (Fla. 

Dist. Ct. App. 1999). In construing the terms of a general release, courts are guided by principles of 

contract construction. Plumpton v. Cont’l Acreage Dev.Co., 830 So. 2d 208, 210 (Fla. Dist. Ct. App. 

2002). Where the terms and language of a release are clear and unambiguous, courts cannot 

construe or interpret its plain meaning. See Hurt v. Leatherby Ins. Co., 380 So. 2d 432, 433 (Fla. 1980).

The release in the Florida Modification is unambiguous and unequivocal. Foster waived any 

claims, demands, or causes of action against PNC related to the Florida Loan that occurred up to 

the date of its signing on May 20, 2010. Only those acts which occurred after May 20, 2010 are 

relevant for evaluating Foster’s claims on the Florida Loan. 

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B. Foster’s Claims for Breach of Contract and Breach of the Implied Covenant of 

Good Faith and Fair Dealing Regarding Lender Placed Insurance Fail As a 

Matter of Law (Counts 4 and 5)

Foster complains that PNC’s actions regarding obtaining lender placed comprehensive wind 

insurance and lender placed flood gap insurance breached the Florida Loan Documents. In his 

Third Amended Complaint (“Complaint”) Foster specifies the following conduct as the basis for his 

claim:

 requirement that Foster obtain Comprehensive Wind Coverage; and 

 charging of escrow amounts to Foster that were for the purpose of providing 

additional profits to PNC rather than to preserve Bank’s interest in the property. 

(Compl. ¶ 234.) Foster also alleges a claim for breach of the implied covenant of good faith and fair 

dealing based on alleged inflated premiums charged in connection with PNC obtaining lender placed 

comprehensive wind insurance. For the reasons below, these claims, based on PNC’s contractual 

right to procure lender placed insurance, fail as a matter of fact and law. 

1. The Florida Mortgage requires Foster to maintain insurance on the 

Florida Property sufficient to secure PNC’s interest in the collateral

The Florida Mortgage permits PNC, as the lender, to specify the types and amounts of 

insurance a borrower must have for the protection of its collateral. Under Florida law, which 

governs this dispute, “contracts are construed in accordance with their plain language, as bargained 

for by the parties.” Konsulian v. Busey Bank, N.A., 61 So. 3d 1283, 1285 (Fla. 2d Dist. Ct. App. 2010)

(applying this principle to the language of a mortgage). A Court may not “rewrite, alter, or add to 

the terms of a written agreement between the parties...” Int'l Expositions, Inc. v. City of Miami Beach, 

274 So. 2d 29, 30-31 (Fla. 3d Dist. Ct. App. 1973). “Rather, it is a court's duty to enforce the 

contract as plainly written.” Okeechobee Resorts, LLC v. E Z Cash Pawn, Inc., 145 So. 3d 989, 993 (Fla. 

4th Dist. Ct. App. 2014) (citation omitted); see also Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 

732, 735 (Fla. 2002) (An unambiguous contract “must be given effect as written.”). 

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The language of the Florida Mortgage is clear and unambiguous. 

(SOF ¶ 12.) (emphasis added). The Florida Mortgage specifically allows PNC, as the lender, to: 

 Determine the types and amounts of coverage necessary to protect its 

interest in the Florida Property. 

 Require Foster to maintain insurance in those amounts it deems necessary. 

 Change the types and amounts of insurance required during the period of the 

Florida Loan. 

Wind insurance is encompassed by both the “extended coverage” and “hazard” 

requirements in the Florida Mortgage. See Curtis v. Cenlar FSB, 2014 U.S. Dist. LEXIS 157172 *11-

12 (N.Y.S.D. Nov. 5, 2014) (interpreting identical mortgage provision under Florida law and finding 

that mortgage permitted lender to require wind insurance on property located in Florida). There is 

no doubt that wind is a peril, particularly in Florida. See Fla. Stat §627.712 (requiring wind insurance 

as part of a homeowner’s policy unless the property is located in an excluded area.) Foster even 

recognized the benefit of having coverage against wind events because he had comprehensive wind 

insurance on the Florida Property when the Florida Loan closed in 2004 and from 2009 until the 

policy was cancelled in 2010. (SOF ¶ 14.) In fact, PNC requires wind insurance coverage on all real 

estate–secured loans. (SOF ¶ 13.) 

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2. PNC had authority to obtain lender placed insurance where Foster 

failed protect PNC’s interest in the Florida Property. 

The Florida Mortgage is unambiguous that PNC may obtain lender placed insurance if 

Foster failed to maintain insurance to adequately protect PNC’s collateral. Section 5 of the Florida 

Mortgage describes the circumstances in which a lender may obtain lender placed insurance and the 

effects of obtaining such coverage on the borrower. (SOF ¶ 12.) 

By signing the Florida Mortgage, Foster acknowledged that: (1) PNC may obtain insurance 

at his expense if he failed to do so, (2) the cost of any lender-placed insurance might be significantly 

more than insurance he could have obtained independently, and (3) any amounts disbursed for 

lender placed insurance would become additional debt due and owing by Foster. (SOF ¶ 12.) 

When PNC was forced to obtain lender placed insurance to protect its collateral, PNC 

requested in writing, on two separate occasions that Foster provide proof of comprehensive wind 

insurance and flood gap insurance. (SOF ¶ 15-23.) Despite PNC’s requests, Foster failed to provide 

such proof of this coverage or sufficient flood insurance. (Id.) When PNC obtained lender placed 

insurance, it advised Foster, in writing of its actions and that the coverage it was obtaining could be 

substantially more expensive than coverage Foster could obtain on his own. (Id.) Foster cannot 

point to anything in the Florida Mortgage that would prevent PNC from obtaining lender-placed 

comprehensive wind insurance or flood gap insurance, even if it was at an increased cost to Foster. 

3. PNC did not receive any commissions or reinsurance in connection 

with obtaining lender placed comprehensive wind insurance or lender 

placed flood gap insurance

Foster’s claim for breach of the implied duty of good faith and fair dealing also fails because 

PNC did not receive any reinsurance or kickbacks in connection with obtaining the comprehensive 

wind insurance or flood gap insurance. Florida law provides that every contract contains an implied 

covenant of good faith and fair dealing. This covenant requires parties to follow standards of good 

faith and fair dealing designed to protect the parties’ reasonable contractual expectations. See 

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Centurion Air Cargo v. United Parcel Service Co., 420 F.3d 1146, 1151 (11th Cir. 2005) (citation omitted). 

Foster can offer no evidence that PNC breached this covenant.

Foster has no evidence that PNC acted in bad faith in obtaining comprehensive wind 

insurance or flood gap insurance. Unlike other lender placed insurance cases that were decided at 

the motion to dismiss stage, in this case, at the summary judgment stage, the undisputed evidence 

demonstrates that PNC did not receive any “kickback,” “commission” or “reinsurance” in 

connection with obtaining the lender placed insurance. PNC advanced the full lender placed 

insurance premium to the entity which provided the lender placed insurance coverage. (SOF ¶ 24.) 

PNC did not charge Foster any additional fees or interest charges beyond the actual premium due 

and owing to the insurer. (Id.) PNC did not receive any commissions or reinsurance from any entity 

when it obtained the lender placed insurance for the Florida Property. (Id.) Because PNC acted in 

good faith in connection with the Florida Loan Documents, Foster’s claim fails. 

4. The filed rate doctrine bars Foster’s claim for breach of contract and 

breach of the complied covenant of good faith and fair dealing related 

to the reasonableness of rates of lender placed insurance.

The Eleventh Circuit’s decision in Patel v. Specialized Loan Servicing, LLC, 04 F.3d 1314 (11th 

Cir. 2018) is dispositive of Foster’s claims for breach of contract and breach of the implied covenant 

of good faith and fair dealing based on the allegation that Foster was charged inflated premiums in 

connection with the flood gap insurance PNC obtained in 2011 and comprehensive wind insurance 

PNC obtained in 2015. In Patel, borrowers filed a class action complaint alleging that their loan 

servicers received kickbacks and charged inflated premiums when obtaining lender placed insurance 

coverage. Id. at 1320. The plaintiffs’ mortgages required them to maintain certain insurance on the 

property securing their loans. When the insurance coverage lapsed, and no proof of coverage was 

received, the loan servicer purchased lender placed insurance on the property. The plaintiffs sued 

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the loan servicer and the insurer claiming that the loan servicer and the insurer colluded to charge 

inflated premiums. 

The Court held that the plaintiffs’ claims based on allegations of kickbacks were attempts to 

challenge the rates for lender placed insurance and were barred by the filed-rate doctrine, which

prohibits a regulated entity from charging rates “for its services other than those properly filed with 

the appropriate regulatory authority.” Patel at 1321. Where a charge for a product is filed with and 

approved by a regulator, rate-payers cannot claim that the rate is improper or unlawful in a civil 

action, and only the regulator can take action against the company over an improper rate.

Like the plaintiffs in Patel, Foster challenges the rates for the lender placed flood gap and 

comprehensive insurance. American Security Insurance Company, an insurance company licensed 

to operate in Florida, filed its rates with and secured the approval of the Florida Office of Insurance 

Regulation (“OIR”). (SOF ¶ 25.) Because the OIR reviewed and approved the rates, the filed rate 

doctrine prohibits Foster from challenging those rates, or any components of those rates, including 

the resulting premiums. 

C. PNC Serviced the Florida Loan in Accordance with the Florida Note, 

Mortgage, and Modification (Count 4) 

None of Foster’s alleged grievances about the Florida Loan evidence a breach of any 

agreement between PNC and Foster. To state a breach of contract claim under Florida law, Foster 

must prove: (1) the existence of a contract, (2) a breach of the contract, and (3) damages resulting 

from the breach. See Knowles v. C.I.T. Corp., 346 So. 2d 1042, 1043 (Fla. Dist. Ct. App. 1977); see also

Rollins, Inc. v. Butland, 951 So. 2d 860, 876 (Fla. Dist. Ct. App. 2006). The contracts at issue are the 

Florida Note, the Florida Mortgage, and the Florida Modification (the “Florida Loan Documents”). 

Foster does not dispute that he signed these documents. (SOF ¶¶ 6, 8.) 

In his Complaint Foster alleges the following acts as the basis of his breach of contract claim 

on the Florida Loan:

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 Failure to acknowledge Foster’s proof of hazard insurance;

 Failure to provide proper documentation to Foster;

 Unilateral changes to the Agreement, including increased payments without 

notice; and

 Failure to accept Foster’s timely payments.

(Compl. at ¶ 234.) None is supported by any evidence. 

1. PNC never obtained lender placed general hazard insurance for the 

Florida Property 

PNC never obtained lender placed general hazard insurance for the Florida Property from 

2010 through 2017. (SOF ¶ 26.) From the time of the origination of the Florida Loan, even after

he executed the Florida Modification, Foster was responsible for obtaining and paying for his own 

hazard insurance coverage.1 (SOF ¶ 9.) The Florida Mortgage also required Foster to provide 

notice to PNC that he maintained hazard insurance, but does not require that PNC take any action 

with respect to receipt of the notices from Foster. (SOF ¶ 5.) Because there is no breach of the 

Florida Loan Documents by PNC, Foster’s claim fails. 

2. Nothing in the Florida Loan Documents Requires PNC to Provide 

Foster With Certain Documentation

There is no contractual provision of the Florida Note, Mortgage, or Modification that 

requires PNC to provide Foster with any specific documentation upon demand by Foster. Foster 

cannot point to any contractual provision that imposed any duty on PNC, and consequently there 

can be no breach. 

3. Changes to the monthly payment amounts due on the Florida Loan

were authorized by the Florida Loan Documents. PNC applied 

Foster’s payments as required by the Florida Loan Documents. 

PNC complied with the Florida Loan Documents in collecting and applying payments due 

under the Florida Loan. Any change in the monthly payment amount due was contemplated by and 

expressly permitted by the Florida Loan Documents. 

 

1 Hazard insurance coverage does not include flood insurance, which Foster was required to escrow with PNC 

because he had an escrow account for his property taxes. (SOF ¶ 7.) 

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a. After the 2010 Florida Loan Modification the Florida Loan was 

current through June 2010

As part of finalizing the Florida Modification Foster tendered a payment totaling $13,532.04

on June 3, 2010. (SOF ¶ 27.) This payment included amounts for the June 1, 2010 payment as well

as the modification closing costs. (Id.) PNC then updated its system to reflect the new terms of the 

modified Florida Loan. (SOF ¶ 28.) As of July 13, 2010, Foster’s Loan showed that he was due and 

owing for the July 1, 2010 payment. (SOF ¶ 30.) 

Under the Florida Modification, Foster’s monthly payment amount included funds for flood 

insurance and property taxes. (SOF ¶ 31.) Foster was responsible for separately paying and 

maintaining hazard insurance on the Florida Property. (SOF ¶ 9.) 

As of July 2010, the monthly payment amount due was $6,000.26. (SOF ¶ 28.) Foster 

made, and PNC applied, the following payments on the Florida Loan. (SOF ¶ 33.) As of December 

31, 2010, Foster was current on his payment obligations due under the Loan. (Id.) 

Payment Due Date Payment 

Amount Due

Amount 

Remitted By 

Foster

Date Payment 

Remitted by Foster

Application of Payment

July 1, 2010 $6,000.26 $6,001.00 July 30, 2010 Applied to Payment Due July 1, 

2010

August 1, 2010 $6,000.26 $6,000.26 August 31, 2010 Applied to Payment Due August 

1, 2010

September 1, 2010 $6,000.26 $6,000.26 September 30, 2010 Applied to Payment Due 

September 1, 2010

October 1, 2010 $6,000.26 $6,000.26 November 1, 2010 Applied to Payment Due October 

1, 2010

November 1, 2010 $6,000.26 $6,001.00 November 30, 2010 Applied to Payment Due 

November 1, 2010

December 1, 2010 $6,000.26 $6,001.00 December 31, 2010 Applied to Payment Due 

December 1, 2010

b. Effective March 1, 2011, the monthly payment amount increased to 

cover an escrow shortage determined in connection with an annual 

escrow account analysis

Foster’s payment due under the Florida Loan increased effective March 1, 2011 as a result of 

an analysis of Foster’s escrow account. (SOF ¶ 34.) Section 3 of the Florida Mortgage governs 

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funds for escrow items and requires that the lender account for the funds in the escrow account and 

notify Borrower of any shortages or deficiencies. (SOF ¶ 5.) PNC sent Foster an escrow analysis 

disclosure statement dated January 18, 2011, which advised Foster that he had a shortage in his 

escrow account of $2,348.44. (SOF ¶ 34.) Foster had the option to pay the shortage over 12 

months, which meant his monthly payment would increase to $6,352.52. (Id.) If he paid the escrow 

shortage in a lump sum, his monthly payment amount would be $6,156.83 beginning March 1, 2011. 

(Id.) Foster elected to pay the escrow shortage in a lump sum and remitted $2,348.44 to PNC on 

February 7, 2011. (Id.) Foster made, and PNC applied, the following payments from January 1, 

2011 to June 1, 2011. (SOF ¶ 35.)

Payment Due Date Payment 

Amount Due

Amount Remitted By 

Foster

Date Payment 

Remitted by Foster

Application of Payment

January 1, 2011 $6,000.26 $6,000.26 January 8, 2011 Applied to Payment Due 

January 1, 2011

February 1, 2011 $6,000.26 $6,000.26 February 7, 2011 Applied to Payment Due 

February 1, 2011

March 1, 2011 $6,156.83 $6,156.83 March 4, 2011 Applied to Payment Due 

March 1, 2011

April 1, 20111 $6,156.83 $6,156.83 April 4, 2011 Applied to Payment Due 

April 1, 2011

May 1, 2011 $6,156.83 $6,156.83 May 6, 2011 Applied to Payment Due 

May 1, 2011

June 1, 2011 $6,156.83 $6,156.83 June 30, 2011 Applied to Payment Due 

June 1, 2011

c. Effective July 1, 2011, the monthly payment increased to cover an 

escrow shortage resulting from, in part, payment of lender placed flood 

gap insurance

In March 2011, PNC sent Foster a letter notifying him that him that his flood insurance was 

not sufficient under the National Flood Insurance Program (“NFIP”) because his coverage was less 

than $250,000. (SOF ¶ 36.) PNC requested that by Foster provide proof of sufficient flood 

insurance coverage or obtain additional flood insurance coverage. (Id.) PNC sent Foster a second 

letter in April 2011 advising him that it still had not received notification of sufficient flood 

insurance coverage. (Id.) PNC advised that if it did not receive notice of coverage within 24 days, it 

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would obtain lender placed flood gap insurance to ensure Foster had flood insurance coverage up to

$250,000. (SOF ¶ 37.) Foster did not remit proof of sufficient flood insurance to PNC. (SOF ¶ 

38.) In May 2011, PNC obtained lender placed flood gap insurance and advanced funds from 

Foster’s escrow account in the amount of $647.28. (Id.)

After PNC obtained the lender placed flood gap insurance, it conducted an escrow analysis 

on Foster’s account. (SOF ¶ 39.) The May 18, 2011 Escrow Account Disclosure statement advised 

Foster that beginning July 1, 2011 his payment would increase to $6,237.67 to account for the 

change in his escrow amount, which occurred in part, from the payment of the lender placed flood 

gap insurance. (Id.) In July 2011, PNC advised Foster that it had received proof that he had 

sufficient flood insurance coverage, and PNC refunded the total amount of the lender placed flood

gap insurance premium advanced on July 28, 2011. (SOF ¶ 40). There was no change to Foster’s 

payment amount as a result of this refund, but it would be reflected in the next escrow account 

analysis. (Id.) 

Foster failed to make the increased payments in July 2011. (SOF ¶ 41.) PNC agreed to 

accept the short payment in July 2011, even though it was under no contractual obligation to do so. 

(Id.) 

Payment Due Date Payment Amount 

Due

Amount 

Remitted By 

Foster

Date Payment 

Remitted by Foster

Application of Payment

July 1, 2011 $6,237.67 $6,156.83 July 29, 2011 Applied to Payment Due July 1, 

2011

August 1, 2011 $6,237.67 $6,156.83 August 30, 2011 Funds applied to outstanding late 

charges and remaining funds 

returned to Foster

In a letter dated September 1, 2011, PNC advised Foster that his payment of $6,156.83, 

which Foster remitted on August 30, 2011 for the payment due August 1, 2011 was insufficient 

because the amount to be remitted was $6,237.67. (SOF ¶ 42.) PNC advised that the funds would 

be held in suspense until September 22, 2011. (Id.) If he did not remit the additional $80.84, the 

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funds would be applied in the following order: negative escrow balance, late charges, returned check 

fees, property inspection fees, and other fees due. Any remaining funds would be returned to 

Foster. (Id.) Foster did not remit the additional funds by September 22, 2011. (SOF ¶ 43.) PNC 

applied the funds to the outstanding late fees in the total amount of $1,192.79 and returned 

$4,964.04 to Foster. (Id.) At that point, Foster’s Loan was one month past due because no payment 

was applied to the August 1, 2011 payment. (Id.) 

Foster remitted the correct payment amount to PNC in September 2011. (SOF ¶ 44.) The 

funds remitted on September 30, 2011 were applied to the payment due August 1, 2011, and 

Foster’s account remained one month past due. (Id.) Because Foster did not make up the missing 

payment, his account remained one month past due as of yearend 2011. (Id.) 

Payment Due Date Payment Amount 

Due

Amount 

Remitted By 

Foster

Date Payment 

Remitted by Foster

Application of Payment

September 1, 2011 $6,237.67 $6,237.67 September 30, 2011 Applied to Payment Due August 

1, 2011

October 1, 2011 $6,237.67 $6,237.67 October 31, 2011 Applied to Payment Due 

September 1, 2011

November 1, 2011 $6,237.67 $6,237.67 November 30, 2011 Applied to Payment Due October 

1, 2011

December 1, 2011 $6,237.67 $6,237.67 December 30, 2011 Applied to Payment Due 

November 1, 2011

(Id.) 

d. Effective February 1, 2012, the monthly payment amount increased to 

include new escrow amounts after PNC obtained lender placed 

comprehensive wind insurance

In September 2011, PNC sent Foster a letter notifying him that his hazard insurance policy 

no longer included comprehensive wind coverage. (SOF ¶ 15.) PNC had received notification from 

Foster’s insurer that the wind insurance policy previously in place had been cancelled. (SOF ¶ 14.) 

PNC requested that Foster provide proof of comprehensive wind coverage or PNC would obtain 

the required coverage at Foster’s expense. (SOF ¶ 15.) PNC sent Foster a second letter in October

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13

2011 advising him that it still had not received notification of sufficient flood insurance coverage. 

(SOF ¶ 16.) PNC requested he provide proof of coverage and advised that it secured a temporary 

binder. (Id.) Foster did not remit proof of sufficient wind insurance coverage. (Id.) On November 

15, 2011, PNC obtained lender placed comprehensive wind coverage and advanced its own funds to 

cover the premium amount of $37,730 because there were no funds in Foster’s escrow account. 

(SOF ¶ 17.) 

After PNC obtained the lender placed comprehensive wind insurance, it conducted an 

escrow analysis on Foster’s account. (SOF ¶ 45.) The November 28, 2011 Escrow Account 

Disclosure statement advised Foster that beginning February 1, 2012 his monthly payment increased 

to $12,893.19. (Id.) 

Foster provided proof to PNC that he obtained comprehensive wind insurance coverage in 

January 2012. (SOF ¶ 46.) PNC advised Foster that it had received proof of wind insurance for the 

period of February 22, 2012 to February 22, 2013. (SOF ¶ 47.) PNC refunded the premium in the 

amount of $20,223.28 for the period Foster provided proof of coverage. (Id.) However, Foster had 

a lapse in coverage from September 5, 2011 to February 22, 2012 and PNC was did not refund the

remaining premium of $17,506.72. (Id.) 

PNC conducted another escrow analysis after the premium was refunded. (SOF ¶ 47.) The 

February 13, 2012 Escrow Account Disclosure Statement advised Foster that his new payment, 

effective with the payment due February 1, 2012 was $7,913.66. (Id.) Because the payment Foster 

remitted in March 2012 was less than the amount due, PNC, in accordance with Section 2 of the 

Mortgage permitting remaining amounts be applied to amounts due under the Mortgage, applied the 

funds to reduce the escrow advance balance. (SOF ¶ 47.) Up until this point, Foster was a month 

behind because he never made up for the missed payment from August 2011. (SOF ¶ 43-44.) Now 

he became two months behind. 

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Payment Due Date Payment Amount 

Due

Amount 

Remitted By 

Foster

Date Payment 

Remitted by Foster

Application of Payment

January 1, 2012 $6,237.67 $6,237.67 January 30, 2012 Applied to payment Due 

December 1, 2011

February 1, 2012 $7,913.66 $6,237.67 February 28, 2012 Applied to payment due January 

1, 2012

March 1, 2012 $7,913.66 $6,237.67 March 30, 2012 Applied to reduce escrow 

advance balance

Beginning in April 2012, Foster remitted partial payments in amounts less than the total 

amount due. (SOF ¶ 48.) PNC returned these funds to Foster. (Id.) The Florida Mortgage 

provides PNC the right to return any payment or partial payment if those payments are insufficient 

to bring the Loan current. (Id.) Beginning in April 2014, PNC ceased returning his monthly tender 

due to the pending litigation and retained Foster’s payments in a suspense account. (SOF ¶ 49.) 

Today, the Florida Loan remains due and owing for the February 1, 2012 payment and all payments 

due thereafter. (SOF ¶ 50.)

D. PNC Did Not Violate The Fair Credit Reporting Act (Count 2)

The Fair Credit Reporting Act (“FCRA”) establishes a comprehensive framework, requiring 

notice, an opportunity to investigate and an opportunity to correct inaccurate information, with 

which plaintiff must comply before filing an FCRA Claim. See Nelson v. Chase Manhattan Mortg. Corp., 

282 F.3d 1057, 1060 (9th Cir. 2002); Sanders v. Mt. Am. Fed. Credit Union, 689 F.3d 1138, 1147 (10th 

Cir. 2012). When a consumer disputes the accuracy of his information on his credit report, the 

consumer is required to report any inaccuracies to the credit reporting agency (“CRA”). 15 U.S.C. § 

1681i(a)(1). When the CRA receives the dispute from the consumer, it notifies the furnisher of the 

information, and both the CRA and the furnisher commence an investigation of the dispute. 15 

U.S.C. § 1681i(a)(1)-(2); 15 U.S.C. § 1681s-2(b)(1)(A); see also Ihebereme v. Capital One, N.A., 933 F. 

Supp. 2d 86, 110-111 (N.D. Ill. 2013) (describing procedures for disputing inaccurate credit reports).

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1. Foster’s direct disputes with PNC about his credit reporting are not 

actionable under the FCRA

Under the FCRA framework, PNC is a furnisher of information. 16 C.F.R. §660.2(c). A 

consumer has no private right of action against a furnisher of information, like PNC, where the 

consumer simply notifies the furnisher of the dispute regarding his credit report. A consumer has a 

private right of action against a furnisher only where the consumer reporting agency (“CRA”), not 

the consumer, notifies the furnisher of a dispute. 15 U.S.C. § 1681s-2(b)(1); Gulley v. Pierce & Assocs., 

P.C., 436 F. App'x 662, 665 (7th Cir. 2011); Westra v. Credit Control of Pinellas, 409 F.3d 825, 827 (7th 

Cir. 2005). To the extent Foster lodged disputes directly with PNC, those disputes are not 

actionable under the FCRA. 

2. PNC’s investigation of Foster’s complaint resulted in updates, but 

determined no inaccuracies in its reporting

PNC conducted a reasonable investigation in accordance with its internal procedures in 

reviewing the dispute it did receive from a CRA. Upon a notification of a dispute by a CRA, a 

furnisher is required only to conduct a reasonable investigation. Westra v. Credit Control of Pinellas, 

409 F.3d 825, 827 (7th Cir. 2005) The reasonableness of an investigation “hinges substantially on 

the amount of information regarding the nature of the customer’s dispute that a credit reporting 

agency relays to the furnisher of the disputed information.” Whiting v. Harley-Davidson Fin. Servs., 534 

F. Supp. 2d 823, 832 (N.D. Ill. 2008). Some factors a court may consider include if the furnisher 

contacted the consumer, if the furnisher has procedures in place for investigations, and the time 

taken to investigate. Brown v. Trans Union LLC, No. 03 C 5774, 2005 U.S. Dist. LEXIS 44524, at *7-

9 (N.D. Ill. Feb. 23, 2005); Osuna v. Equifax Credit Info. Servs., No. : 02-CV-6465, 2004 U.S. Dist. 

LEXIS 17124, at *4 (N.D. Ill. Jan. 28, 2004). “Summary judgment is proper if the reasonableness of 

the defendant’s procedures is beyond question.” Westra v. Credit Control of Pinellas, 409 F.3d 825, 827 

(7th Cir. 2005) (quoting Crabill v. Trans Union, L.L.C., 259 F.3d 662, 664 (7th Cir. 2001)). 

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PNC investigated Foster’s dispute and modified any information consistent with its internal 

records. PNC’s records indicated that in January 2012, it received disputes from two CRAs, 

TransUnion and Equifax, regarding the Florida Loan. (SOF ¶ 54.) PNC confirmed that Foster’s 

account was reported as “current” through September 2011. (SOF ¶55.) Foster’s account was 

reported 30-59 days past due from October 2011 through January 2012 (the date of the dispute). 

(Id.) These facts were confirmed to be consistent with PNC’s records of payments. (Id.) PNC 

modified the account information based on its investigation and returned information to the CRAs 

electronically through the E-Oscar system. (Id.) Foster has no evidence that PNC failed to act 

reasonably in reviewing his account. 

E. PNC Did Not Make Any False Statement Regarding A Specific Material Fact 

Nor Did Foster Rely In Any Way On Any Statement By PNC (Count 7)

There is no evidence that PNC made any false statement to Foster, or that PNC did so to 

induce Foster’s reliance or that Foster was, in any way, injured by any statement PNC made to him.

“The essential elements of a fraud claim are: (1) a false statement concerning a specific material fact; 

(2) the maker's knowledge that the representation is false; (3) an intention that the representation 

induces another's reliance; and (4) consequent injury by the other party acting in reliance on the 

representation." Lopez-Infante v. Union Cent. Life Ins. Co., 809 So.2d 13, 15 (Fla. Dist. Ct. App. 2002).

2

 

Foster’s fraud claim is based on allegations that PNC: 

 refused to accept timely payments;

 increased monthly payments related to escrow; 

 reduced amounts in Foster’s escrow account with no accounting for reason; 

 force placed unnecessary insurance; 

 forced Foster to make payments to Bank in amounts which were not due.

 

As discussed above PNC had the contractual right to obtain lender placed flood and 

comprehensive wind insurance. Furthermore, PNC followed the Mortgage in applying payments 

 

2 The fraud claim on the Florida Loan is governed by Florida Law. 

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and managing Foster’s escrow account. Because Foster has no evidence of any false statement made 

to induce his reliance, Foster’s claim fails as a matter of law. 

F. PNC Received No Benefit in Connection with Obtaining Lender Placed 

Insurance and Foster’s Claim for Unjust Enrichment and Disgorgement Fails 

as a Matter of Law (Count 8)

The obligation to maintain comprehensive wind insurance for the Florida Property is 

governed by the terms of the Florida Mortgage—an express, written contract between Foster and 

PNC. To succeed on a claim of unjust enrichment under Florida law a party must establish: (1) a 

benefit conferred upon a defendant by a plaintiff, (2) defendant’s appreciation of that benefit, and 

(3) defendant’s acceptance and retention of the benefit under circumstances that make it inequitable 

for defendant to retain the benefit without paying the value of the benefit. Fla. Power Corp. v. City of 

Winter Park, 887 So. 2d 1237, 1241 n.4 (Fla. 2004). Under Florida law, no cause of action for unjust 

enrichment exists where the parties’ relationship is governed by an express contract. Zarrella v. Pac. 

Life Ins. Co., 755 F. Supp. 2d 1218, 1227 (S.D. Fla. 2010); see also Wilson v. EverBank, N.A., 77 F. 

Supp. 3d 1202, 1220–21 (S.D. Fla. 2015) (dismissing plaintiff’s unjust enrichment claim relating to 

force placement of insurance where dispute was governed by terms of mortgage).

Because PNC is not receiving a benefit outside of an express written agreement, Foster’s 

claim for unjust enrichment fails as a matter of law. The Florida Mortgage specifically provides that 

PNC may require a borrower to obtain insurance for extended hazards, including comprehensive 

wind insurance. (SOF ¶ 12.) The Florida Mortgage also provides that the amount and periods for 

which insurance must be maintained is left to PNC’s sole discretion. (Id.) If the borrower fails to 

obtain the required insurance, PNC may exercise the option to obtain coverage sufficient to protect 

its interest in the property. (Id.) The Florida Mortgage also provides that Foster must reimburse 

PNC for those amounts advanced on his behalf. (Id.) 

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Foster’s claim for unjust enrichment also fails because PNC did not receive any benefit from 

Foster as a result of it having to obtain lender placed comprehensive wind insurance or lender 

placed flood gap insurance. PNC advanced the full lender placed insurance premium to the entity 

which provided the lender placed insurance coverage. (SOF ¶ 24.) PNC did not charge Foster any 

additional fees or interest charges beyond the actual premium. (Id.) Moreover, PNC did not receive 

any commissions or reinsurance from any entity when it obtained the lender placed insurance for the

Florida Property. (Id.) 

G. PNC and Foster’s Relationship is that of an Ordinary Borrower and Lender

(Count 10) 

PNC did not owe Foster a fiduciary duty. “The elements of a claim for breach of fiduciary 

duty are: the existence of a fiduciary duty, and the breach of that duty such that it is the proximate 

cause of the plaintiff’s damages.” Gracey v. Eaker, 837 So. 2d 348, 353 (Fla. 2002). “Under Florida 

law, a lender does not ordinarily owe a fiduciary duty to its borrower.” Gordon v. Chase Home Fin. 

LLC, No. 8:11-cv-2001, 2013 U.S. Dist. LEXIS 15461 (M.D. Fla. Feb. 5, 2013); see also Maxwell v. 

First United Bank, 782 So. 2d 931, 934 (Fla. Dist. Ct. App. 2001) (relationship between bank and 

creditor is generally creditor and debtor). An arms-length relationship between a lender and 

borrower does not give rise to fiduciary duties flowing from the lender to the borrower absent 

evidence of special circumstances giving rise to such a duty. McCulloch v. PNC Bank, INc. 298 F.3d 

1217, 1226 n.3 (11th Cir. 2002). 

There is no evidence that PNC breached any duty to Foster in connection with 

administration of his escrow account. To the extent Foster claims that PNC unilaterally utilized 

escrow funds to purchase lender placed comprehensive wind insurance, Foster had no funds in his 

escrow account as of November 7, 2011, and PNC advanced its own funds to obtain the lender 

placed insurance on November 15, 2011. (SOF ¶ 56.) Moreover, PNC did not charge Foster any 

additional fees or interest charges beyond the actual premium due and owing to the insurer. (SOF ¶ 

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24.) Further, PNC did not receive any commissions or reinsurance from any entity when it obtained 

the lender placed insurance for the Florida Property. (SOF ¶ 24.) 

II. FOSTER’S CLAIMS REGARDING THE ILLINOIS PROPERTY AND LOAN 

FAIL (Counts 1, 2, 3)

A. Foster Cannot Escape His Obligations Under The Illinois Loan and 

Mortgage By Claiming, Years After Accepting Its Benefits, That He Did Not 

Sign It

1. The Illinois Mortgage Contains A Notary’s Certificate And A 

Presumption of Validity.

Despite the existence of the Illinois Loan Documents which contain Foster’s signature, 

Foster maintains that the Illinois Loan Documents did not contain the terms of their agreement and 

he did not sign the Illinois Note or the Illinois Mortgage. (Compl. ¶ 59.) “[A] notary public’s 

certificate of acknowledgment, regular on its face, carries a strong presumption of validity.” Butler v. 

Encyclopedia Britannica, Inc., 41 F.3d 285, 294-95 (7th Cir. 1994). A party can overcome this 

presumption of validity only where the signer of the document presents clear and convincing 

evidence from a disinterested witness to establish that the signature is false. Id. Where state law 

governs the substantive claim (breach of contract and foreclosure), it also governs “the effect of a 

presumption regarding a claim or defense for which state law supplies the rule of decision.” Fed. R. 

Civ. P. 302.

The Illinois Mortgage contains a notary’s certificate and carries with it a presumption of 

validity. Monika Kopec, a notary public, identified herself and included her notarial seal on the 

Illinois Mortgage. (SOF ¶ 62.) The Illinois Mortgage was then recorded with the Cook County 

Recorder of Deeds. (SOF ¶ 63.) Foster has no evidence, much less clear and convincing evidence 

from a disinterested witness, to establish that his signature is false. Any claim by Foster that he is 

not responsible for the obligations due and owing under the Illinois Loan evidenced by the Illinois

Note and secured by the Illinois Mortgage fails as a matter of law. 

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2. Foster Is Estopped From Asserting That He is Not Responsible For 

The Amounts Due On The Illinois Loan.

Based on his own conduct, Foster is estopped from denying that he is bound by the terms of 

the Illinois Loan. Equitable estoppel is in effect where the voluntary conduct of a party precludes, at 

law and in equity, that party from asserting rights against an entity which has, in good faith, relied 

upon that party’s conduct and in reliance changed its position for the worse. Northern Trust Co. v. 

Oxford Speaker Co., 109 Ill. App. 3d 433, 438-39, 440 N.E.2d 968, 65 Ill. Dec. 113 (1982). Under 

Illinois law, the party to be estopped does not have to have a fraudulent intent. Shockley v. Ryder 

Truck Rental, Inc., 74 Ill. App. 3d 89, 92, 392 N.E.2d 675, 30 Ill. Dec. 20 (1978). But the position 

adopted by that party must reasonably motivate the other party to detrimentally rely upon their 

actions. Id. 

Foster insists that he did not execute the Illinois Loan Documents, but his conduct tells a 

different story. Foster acted as though the Illinois Loan closed when he accepted the payoff of his 

prior equity line of credit. (SOF ¶ 63.) Foster acted as though the Illinois Loan closed when he 

drew down over $700,000 on the line of credit from the Illinois Loan within a year of the closing. 

(SOF ¶ 64.) Foster acted as though the Illinois Loan closed by making payments on the Illinois 

Loan after oringation. (SOF ¶ 65.) Foster even set up an automatic withdrawal from his checking 

account for the payments due in 2006. (SOF ¶ 66.) Foster acted as though the Illinois Loan closed 

when he sought a modification and assistance to make payments due on the Illinois Loan. (SOF ¶ 

68.) 

PNC acted to its detriment in disbursing the funds and permitting Foster to continue to 

draw down the entire line of credit from the Illinois Loan. After receiving all of the benefits of the 

Illinois Loan, Foster cannot now claim that he is not obligated for the amounts due on the Illinois 

Loan. As a matter of law and equity, Foster should be estopped from arguing that he is not liable 

for the amounts due and owing under the Illinois Loan. 

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3. Foster’s Self-Serving Statements Are Contradicted By Unrebutted

Expert Testimony

Although he denies that it is his signature on the Illinois Loan Documents, there is 

unrebutted expert testimony indicating that Foster signed the Illinois Loan Documents. PNC’s 

designated expert, Ellen Mulcrone Schuetzner, a Forensic Document Examiner, provided an expert 

report in which she concluded that “it is highly probable/probable” that the person who signed the 

known documents—documents Foster admits to having signed—executed the questioned 

documents. (Exhibit E – Expert Report of Ellen Mulcrone Schuetzner.) Tellingly, Foster has 

offered no expert testimony to rebut Ms. Schuetzner’s conclusions and expert report. (SOF ¶ 74.)

B. PNC Complied with the Illinois Loan Documents and Foster’s Claim for 

Breach of Contract Fails (Count 3)

The essential elements of a claims for breach of contract under Illinois law include: “(1) an 

offer and acceptance, (2) consideration, (3) definite and certain contractual terms, (4) the plaintiff’s 

performance of his contractual obligations, (5) the defendant’s breach of the contract, and (6) 

damages resulting from the breach.” Barille v. Sears Roebuck & Co., 289 Ill. App. 3d 171, 175 682 

N.E.2d 118, 224 Ill Dec. 557 (1997). 

Foster alleges the following conduct as the basis of his claim:

 Failure to provide Foster with documentation regarding the status of the line of 

credit;

 Failure to accept payments on the Equity line; and

 Failure to correctly and timely credit Foster’s payments.

1. PNC had no contractual duty to provide any documents to Foster.

Foster cannot point to any portion of the Illinois Loan Documents that impose an actual 

duty on PNC to provide any specific documents to Foster in regards to his request for a status of 

the Illinois Loan. If there is no contractual duty, there can be no claim for breach of contract. 

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2. PNC was not required to accept amounts less than those due under 

the Illinois Loan Documents and applied payments received in 

accordance with the terms of the Illinois Loan Documents

Foster’s payments obligations are governed by the written Illinois Loan Documents. The 

Illinois Note requires Foster to make the minimum payment listed on each monthly billing 

statement. (SOF ¶ 67.) When Foster advised PNC that he was having difficulty making his monthly 

payments on the Illinois Loan, PNC offered, and Foster accepted, a written Short Term Repayment 

Modification Program (“Repayment Program”). (SOF ¶ 68.) The Repayment Program 

contemplated that Foster would make reduced payments of $3,005.50 for 24 consecutive billing 

cycles beginning on April 6, 2009 and ending on April 7, 2011. (Id.) PNC advised Foster, in writing 

that his monthly account payment would return to being calculated according to the normal terms 

of the original contract after April 7, 2011. (SOF ¶ 69.) 

Any contention that PNC orally agreed to accept a reduced amount cannot form the basis of 

a claim for breach of contract. Foster claims that PNC failed to accept and properly apply four 

payments in the amount of $3,006.00 on the Illinois Loan in June 2011, July 2011, August 2011, and 

September 2011. (SOF ¶ 70.) However, PNC accepted and applied these payments to the monthly

amounts due. (SOF ¶ 71.) The Illinois Note specifically provided that the minimum payment (and 

certainly an amount less than the minimum payment) would not reduce the principal amount due 

under the Line of Credit. (SOF ¶ 71.) Based on this evidence, Foster’s claim for breach of contract 

fails as a matter of law. 

C. Foster Did Not Comply With the Requirements of The Fair Credit Billing Act 

and his Claim Fails as a Matter of Law (Count 1)

1. PNC Made No Billing Error

Foster’s claim of a “billing error” rests on his assertion that he did not sign the Illinois Note 

and Illinois Mortgage. For the reasons discussed above, however, Foster can offer no evidence to 

support that claim; his bare, uncorroborated, self-serving assertion, in the face of a notarized 

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document, is insufficient as a matter of law. PNC made no “billing error” in billing Foster in 

accordance with the terms of the Illinois Note.

2. Foster Did Not Provide PNC Written Notice of Any Billing Errors

There is no evidence that Foster ever provided written notice to PNC of any billing errors

contained in any billing statement as required under the Fair Credit Billing Act (“FCBA”). The 

FCBA provides the statutory obligations and timeframes for creditors addressing a billing error. 15 

U.S.C. § 1666 imposes certain duties upon creditors only after the creditor receives (1) written notice 

of a (2) billing error. 15 U.S.C. § 1666(a). A billing error is defined by the statute to include: 

o A reflection on a statement of an extension of credit which was not made to 

the obligor or, if made, was not in the amount reflected on such statement.

o A reflection on a statement of an extension of credit for which the obligor 

requests additional clarification including documentary evidence thereof.

o The creditor’s failure to reflect properly on a statement a payment made by 

the obligor or a credit issued to the obligor.

o A computation error or similar error of an accounting nature of the creditor 

on a statement.

A creditor’s statutory duty to respond to an allegation of a billing error is triggered only 

when the borrower sends the creditor a written notice of an alleged billing error. See 12 C.F.R. § 

226.13(b)(1); see also 15 U.S.C. § 1666(a)-(b). If a borrower does not send the written notice within 

60 days after a creditor transmits the billing statement with the error, the creditor has no obligation 

to respond to the consumer. See Hill v. Chase Bank USA, N.A., No. 2:07-CV-82 RM, 2010 U.S. Dist. 

LEXIS 1262 at *17 (N.D. Ind. Jan. 6, 2010) (“Without a valid and timely notice of billing error, 

there's no duty to comply with § 1666(a)(3)(A) and (B), and no violation of those sections.”) 

(citations omitted). 

Foster has no evidence of any written communication showing that he notified PNC in 

writing of a billing error within 60 days after PNC sent him a billing statement that contained an 

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alleged error. Written notice is mandated and that notice must identify the error on a specific 

billing statement that is the subject of the complaint. Under the FCBA, it would not be enough if

Foster merely advised PNC by telephone of alleged errors in applications of his payments. See Fowler 

v. Bank of Am., No. 10 C 3944, 2011 U.S. Dist. LEXIS 9080 at *10 (N.D. Ill. Jan. 28, 2011)

(acknowledging that written notice is required to state a claim under FCBA). The letter Foster 

attaches as Exhibit G to his Complaint, in addition to being time barred, does not constitute 

sufficient notice to PNC because it does not contain any description of an error on a billing 

statement. Without a writing referencing an error on a specific billing statement, he cannot sustain a 

claim under the FCBA. 

3. Foster’s contention that he did not sign the Illinois Loan Documents is 

time barred under the FCBA

Any argument by Foster that his alleged failure to sign the Illinois Loan Documents gives 

rise to a FCBA claim is barred by the statute of limitations. To trigger a creditor’s obligation to 

investigate a disputed billing statement, a consumer must send written notice within 60 days of the 

creditor's transmission of the statement containing the alleged error. § 1666(a). Regulation Z 

specifies that the 60-day period begins to run after the creditor has transmitted the first periodic 

statement that reflects the alleged billing error. 12 C.F.R. § 226.13(b)(1). Section 1666 has a one year 

statute of limitations. 15 U.S.C. §1640(e); Neiman v. Chase Bank, USA N.A., No. 13 C 8944, 2014 

U.S. Dist. LEXIS 101553 *9 (N.D. Ill. July 25, 2014). This statute of limitations runs at the time 

that the creditor fails to satisfy its compliance duties within the timeframe proscribed by the statute. 

Hill v. Chase Bank USA, N.A., No. 07-cv-82, 2010 U.S. Dist. LEXIS 1262 *6 (N.D. Ind. Jan. 6, 

2010).

Even had Foster notified PNC of the “error” related to the alleged wrongfully closed loan

on the first billing statement in July 2006, and even had he submitted written notice of the dispute, 

which he did not, any violation would have occurred at the latest, 90 days from the July 2006 

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statement giving Foster until October 2007 to file a claim under the FCBA. Because Foster did not 

file this lawsuit until April 2012, any claim under the FCBA relating to issues with the origination of 

the Illinois Loan is time barred. 

D. Foster’s Claim Under The Fair Credit Reporting Act For The Illinois Loan 

Fails (Count 2)

Like the Florida Loan, Foster’s direct disputes to PNC are not actionable under the FCRA. 

Foster’s FCRA claim on the Illinois Loan also fails because PNC complied with its internal 

procedures in reviewing the dispute it received from the CRA. In January 2012, PNC received a 

single notice of dispute from a CRA regarding the Illinois Loan. (SOF ¶ 72.) The CRA notified 

PNC that the customer stated that inaccurate information was on his account, but the CRA did not 

provide PNC details as to a more specific dispute. (Id.) Upon a review of Foster’s account history 

for the Illinois Loan, PNC confirmed that the balance reported was accurate and updated the 

amount of the last payment. (Id.) PNC also determined Foster was 180 days past due (not 150) and 

updated the account to reflect this information. (Id.) PNC’s conduct to investigate the non-specific 

dispute was reasonable, and more to the point, PNC had reported no inaccurate information.

Foster’s FCRA claim as to the Illinois Loan fails as a matter of law.

III. FOSTER’S CLAIMS ON THE FLORIDA AND ILLINOIS LOAN FAIL 

BECAUSE HE HAS NO EVIDENCE HE SUFFERED ANY DAMAGES AS A 

RESULT OF ANY CONDUCT OF PNC (Counts 1, 2, 3, 4, 5, 7, 8, 10)

Foster’s claims all fail as a matter of law because Foster has no evidence that he suffered any 

damages. Foster alleges three main categories of damages: (1) inability to obtain credit; (2) business 

losses; and (3) losses related to payments on the Florida and Illinois Loans. There is no evidence 

that Foster applied and was turned down for any extension of credit, or that he was turned down for 

a loan because of his credit score, or that if he was turned down, that adverse result was the result of 

anything PNC wrongfully did. (SOF ¶ 73.) As to his business losses, Foster has offered no expert 

testimony to support his claimed damages and relies on self-serving testimony about the extent of 

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his financial losses. There is no evidence that his business losses even occurred or if they did occur

that any such losses are attributable to the conduct of PNC. Foster has no evidence to demonstrate

that his loss residential real estate business was not caused by the well-documented downturn in the 

economy rather than PNC’s conduct. These claimed losses are speculative at best. All of Foster’s 

other claimed damages relating to losses for his loans are not damages because he was contractually 

obligated to make those payments. 

Without evidence of damages, and without proof that those damages were caused by PNC’s 

conduct, all of Foster’s claims fail as a matter of law. 

IV. PNC IS ENTITLED TO SUMMARY JUDGMENT ON ITS COUNTERCLAIMS

A. Foster Is In Default On The Florida Loan and PNC is Entitled To Summary 

Judgment on its Counterclaim for Foreclosure

The holder of a promissory note can enforce that instrument. Fla. Stat. § 673.3011(1). “A 

plaintiff alleging standing as a holder ‘must prove not only physical possession of the original note 

but also, if the plaintiff is not the named payee, possession of the original note endorsed in favor of 

the plaintiff or in blank (which makes it bearer paper).’” Rosa v. Deutsche Bank Nat’l Tr. Co., 191 So. 

3d 987, 988 (Fla. 2d DCA 2016) (quoting Kiefert v. Nationstar Mortg., LLC, 153 So. 3d 351, 353 (Fla. 

1st DCA 2014)).

There are a number of ways in which standing can be established under Florida law. See, e.g., 

BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936, 939 (Fla. 2d Dist. Ct. 

App. 2010) (finding a plaintiff may prove standing “through evidence of a valid assignment, proof of 

purchase of the debt, or evidence of an effective transfer”). One way a party “can establish standing 

to foreclose [is] based upon a merger.” Seagall v. Wachovia Bank, 192 So. 3d 1241 (Fla. 4th Dist. Ct. 

App. 2016). When doing so “the surviving entity [must] prove that it ‘acquired all of [the absorbed 

entity’s] assets, including [the] note and mortgage, by virtue of the merger.’” Id. (quoting Fiorito v. JP 

Morgan Chase Bank, Nat’l Ass’n, 174 So. 3d 519, 521 (Fla. 4th Dist. Ct. App. 2015)).

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Mergers of national banks are governed by federal law, rather than state law. Rogers v. First 

Nat’l Bank of St. George, 297 F. Supp. 641, 645 (D.S.C. 1969) aff’d and remanded on other grounds, 410 

F.2d 579 (4th Cir. 1969). Federal law provides that a succeeding national bank is the same 

corporation as its predecessor. 12 U.S.C. § 215a(e). When national banking corporations merge, so 

do their property rights and interests. See Wachovia Mortgage, F.S.B. v. Goodwill, 199 So. 3d 346, 348 

(Fla. 4th DCA 2016). Thus, if the holder of a note merges into another entity, that entity becomes 

the holder of the note. No proof of transfer, such as a deed or indorsement, is necessary; the 

merger itself suffices. See 12 U.S.C. § 215a(e); see also Wells Fargo Bank, N.A. v. Tom Roberts Const. Co. 

Inc., 629 F. App’x 877, 880 (11th Cir. 2015).

Under federal law, PNC, National City Bank, and MidAmerica Bank are “deemed to be the 

same corporation” following the merger of the entities. 12 U.S.C. 215a(e); see Goodwill, 199 So. 3d at 

348. As of November 6, 2009, by operation and effect of 12 U.S.C. § 215a(e), everything owned or 

held by National City Bank vested in PNC thus giving Plaintiff the standing required to enforce the

Florida Loan Documents. (SOF ¶ 1.) 

Foster defaulted under the Florida Note and Modification for failure to make the monthly 

payment due on February 1, 2012 and all subsequent payments. (SOF ¶ 50.) The Florida Note

provides that in the event of a default under the Florida Note, PNC is entitled to accelerate the sums 

due under the Florida Note and pursue damages against Foster for all amounts due. In accordance 

with paragraph 7(c) of the Florida Note, PNC sent a letter dated April 17, 2012 to Foster via first 

class mail providing notice of the default and intent to accelerate the Florida Loan unless the default 

was cured. (SOF ¶ 51-52.) To date, Foster has remitted $341,787.30 to PNC, but those funds are 

not sufficient to cure the default. (SOF ¶ 58.) Based on the Affidavit of Dorothy Thomas, filed in 

support of this Motion, PNC is due $1,754,030.15, in connection with the Florida Note and 

Modification as of May 31, 2019 and judgment should be entered against Foster in the amount of 

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$1,754,030.15. (SOF ¶ 53.)

B. Foster Is In Default On The Illinois Loan And PNC is Entitled To Judgment 

On The Illinois Note and Foreclosure of the Illinois Mortgage 

Under Illinois law, a mortgagee may foreclose its interest in real property upon “either the 

debt’s maturity or default of condition in the instrument.” Heritage Pullman Bank v. Am. Nat’l Bank 

and Trust, 164 Ill. App. 3d 680, 685, 518 N.E.2d 231 (1st Dist. 1988). Illinois mortgage foreclosure 

law states, in relevant part:

15-1506. Judgment. (a) Evidence. In the trial of a foreclosure, the evidence to 

support the allegations of the complaint shall be taken in open court, except:

(1) where an allegation of fact in the complaint is not denied by a party’s verified 

answer or verified counterclaim, or when a party pursuant to subsection (b) of 

Section 2-610 of the Code of Civil Procedure states, or is deemed to have stated in 

its pleading that it has no knowledge of such allegation sufficient to form a belief and 

attaches the required affidavit, a sworn verification of the complaint or a separate 

affidavit setting forth such fact, is sufficient evidence thereof against such party and 

no further evidence of such fact shall be required; and

(2) where all the allegations of fact in the complaint have been proved by 

verification of the complaint or affidavit, the court upon motion supported by 

affidavit stating the amount which is due the mortgagee, shall enter a judgment of 

foreclosure as requested in the complaint.

735 ILCS 5/15-1506(a). Because Foster defaulted on his obligations under the Illinois Note and 

Mortgage, and because PNC is the holder of the Note and the Mortgagee under Illinois law, PNC is 

entitled to foreclose its interest in the Illinois Property. 

PNC sent Foster a Grace Period Notice dated October 19, 2011, notifying Foster that the 

Illinois Loan was more than 30 days past due. (SOF ¶ 75.) PNC sent Foster a Notice of Default 

dated April 24, 2012. (SOF ¶ 76.) The Notice of Default provided Foster 30 days to cure the 

default. (SOF ¶ 76.) Foster failed to cure the default on the Illinois Note by remitting the amounts 

due. (SOF ¶ 78.) 

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The undisputed evidence demonstrates that Foster failed to repay his debt and is in default 

on his obligations under the Illinois Note and Illinois Mortgage. The Illinois Loan is currently due 

for $1,910,557.77 (SOF ¶ 78.) 

The undisputed evidence demonstrates that PNC is the mortgagee and is entitled to 

foreclose on the Property. A mortgagee may foreclose its interest in real property upon “either the 

debt’s maturity or default of condition in the instrument.” Heritage Pullman Bank v. Am. Nat’l Bank 

and Trust, 164 Ill. App. 3d 680, 685, 518 N.E.2d 231, 235 (1st Dist 1988). A mortgagee is defined by 

statute as “(i) the holder of an indebtedness or obligee of a non-monetary obligation secured by a 

mortgage or any person designated or authorized to act on behalf of such holder and (ii) any person 

claiming through a mortgagee as successor.” 735 ILCS 5/15-1208. PNC has physical possession of 

the Illinois Note and had possession of the Illinois Note at the time it filed its claim for foreclosure. 

Accordingly, PNC is the holder and therefore is the “Mortgagee” as defined by Illinois law. 

The undisputed evidence establishes Foster failed to make his payments when due under the 

Illinois Note, which is a condition of default under the Illinois Mortgage, and PNC accelerated the 

amount due under the Illinois Note. (SOF ¶ 77.) Consequently, there is no genuine issue of 

material fact that Foster is in default and PNC, as Mortgagee, is entitled to: (i) judgment against 

Foster for all amounts due in connection with the Illinois Note and (ii) entry of a judgment allowing 

the foreclosure of the Illinois Mortgage on the Illinois Property, to be submitted after judgment is 

entered in favor of PNC. 

V. CONCLUSION

PNC is entitled to summary judgment on each of Foster’s remaining claims against PNC in 

his Third Amended Complaint as a matter of fact and law. Foster has no evidence that PNC acted 

in any way that was not expressly permitted by the parties’ contractual documents or Foster suffered 

any damages. 

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PNC is entitled to summary judgment on Counts 1 through 3 of its counterclaim against 

Foster, including judgment against Foster based on his default under the Florida Note (Count I of 

the Counterclaim), judgment against Foster based on his default under the terms of the Illinois Note 

(Count III of the Counterclaim) and judgment of Foreclosure on the Illinois Mortgage (Count II of 

the Counterclaim, and for such relief as this court deems reasonable. 

Respectfully submitted,

PNC BANK, NATIONAL ASSOCIATION

By: /s/ Marcel C. Duhamel

One of its Attorneys

Marcel C. Duhamel, Esq. (Ohio Bar No. 0062171 pro hac vice)

Lindsay Doss Spillman (Ohio Bar No. 0086849 pro hac vice)

Vory’s Sater, Seymour & Pease, LLP

200 Public Square, Suite 1400

Cleveland, OH 44114

(216) 479-6100

MCDuhamel@vorys.com

ldspillman@vorys.com

James M. Crowley, Esq. (ARDC 6182597)

John F. Sullivan, Esq. (ARDC 6205900)

Plunkett Cooney, PC

221 N. LaSalle Street, Suite 1550

Chicago, IL 60601

(312) 670-6900

jcrowley@plunkettcooney.com

jsullivan@plunkettcooney.com

5/24/2019 32942754 

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