Gerald M. Dombrowski #06210375
SANCHEZ DANIELS & HOFFMAN LLP
333 W. Wacker Drive, Suite #500
Chicago, Illinois 60606

312/641-1555

Respectfully submitted,

SANCHEZ DANIELS & HOFFMAN LLP

By:_/s/ Gerald M. Dombrowski
Attorneys for Defendant
PNC BANK, NA


Attorney ID #06210375 PNC-81931 GMD/NCB

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

EASTERN DIVISION
JEFF FOSTER, )
Plaintiff, )
v. ) No. — 12-ev-03130

)

PNC BANK, NA, )
Defendant. )

DEFENDANT PNC BANK’S

MOTION TO DISMISS PURSUANT TO RULE 12(b)(6)

NOW COMES Defendant PNC BANK, NA, by and through its attorneys, Gerald M.
Dombrowski of Sanchez Daniels & Hoffman LLP and for its Motion to Dismiss, states as
follows:

Defendant, PNC BANK, NA asserts that Plaintiff, JEFF FOSTER has failed to state a
claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).

The Plaintiff filed a six-count Complaint against his mortgage holder, Defendant PNC
Bank, asserting various claims regarding his mortgage and lending history with PNC Bank and
its predecessor. (See attached Complaint incorporated herein as Exhibit A.) Count I asserts the
Defendant violated the Fair Credit Billing Act, 15 USC 1666, er seq., Count II alleges the
Defendant violated the Fair Credit Reporting Act, 15 USC 1681n, Count III alleges a breach of
contract involving the Plaintiff's mortgage, Count IV asserts a violation of the Illinois Consumer
Fraud and Deceptive Business Practices Act, 815 ILCS 505-2, et seg., Count V alleges common

law defamation and Count VI alleges common law fraud. (Exhibit A)


The entirety of the Plaintiff's Complaint fails to state a cause of action as to any of the six
counts pled against the Defendant and should be dismissed with prejudice.

The Plaintiff initially pleads in Count I that Defendant has violated the Fair Credit Billing
Act (FCBA), 15 USC §1666, et seg. asserting that the Plaintiff repeatedly notified the Defendant
of numerous billing errors and that the Defendant failed to timely and properly respond on
multiple occasions to each violation under the FCBA. (Exhibit A.) The FCBA only applies to
creditors of open-end credit plans. 15 USC §1602(f). The Plaintiff's mortgage is not an open-
ended credit plan and the FCBA requires that a plaintiff submit his dispute to the proper address

of the defendant. Jeffries v. Dutton & Dutton, PC, 2006 WL 1343629 (N.D.IL 2006).

Bare allegations that he had a dispute with PNC and that he told the Defendant of his stance does
not satisfy the specific requirements of the FCBA and, thus Count I of the Plaintiff's Complaint
should be dismissed.

The Fair Credit Reporting Act (FCRA) requires that consumers register a dispute with a
credit reporting agency who then has a responsibility under the Act to pass information regarding

the dispute on to the information furnisher. Jeffries citing Nelson v. Chase Manhattan Mortgage

Co., 282 F.2d 1057, 1060 (" Cir. 2002). Therefore, the Plaintiff's allegations in Count II that
he complained directly to the Defendant here does not entitle him to relief under the FCRA and,
thus Count II should be dismissed.
Count IH, the Plaintiff's breach of contract claim, is pre-empted by the FCRA and, thus
Count II must fail as a matter of law. Purcell v. Bank of America, 659 F.3d 622 (7" Cir. 2011).
Count IV alleging a violation of the Illinois Consumer Fraud and Deceptive Business
Practices Act simply does not apply to the alleged ongoing dispute between the Plaintiff and

Defendant here. To adequately plead a private cause of action for a violation of §2 of the


Consumer Fraud Act, a plaintiff must allege (1) a deceptive act or practice by the defendant; (2)
the defendant’s intent that the plaintiff rely on the deception; (3) the deception occurred in the
course of conduct involving trader commerce; (4) actual damage to the plaintiff; and (5) such
damages were proximately caused by the deception. Oliviera v. Amoco Oil Co., 201 Ill.2d 134,
149, 776 N.E.2d 151, 160 (2002). The Consumer Fraud Act does not apply and the FCRA pre-
empts any breach of contract claim even though the breach of contract claim may be disguised
under the Consumer Fraud Act.

The Plaintiff's defamation count, Count V, is entirely pre-empted by the FCRA and to
allow a state law defamation claim to stand would defeat the decision that administrative action
rather than litigation is the right way to deal with false reports to credit agencies. Purcell at 626.

Count VI, the Plaintiff's common law fraud count, is not pled with the required
specificity under Illinois law to withstand a motion to dismiss. Connick v. Suzuki Motor
Company, Ltd., 174 Tll.2d 482, 496, 675 N.E.2d 584, 591 (1996). Furthermore, the fraud count

is pre-empted by the FCRA pursuant to Purcell, supra.

Therefore, the Plaintiffs Complaint at Law should be dismissed in its entirety and with
prejudice.

WHEREFORE, Defendant PNC BANK, NA, respectfully requests this Honorable Court
to dismiss Plaintiff JEFF FOSTER’s Complaint with prejudice and for any further relief this

Court deems fair and just.