UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JEFF FOSTER, ) 

 ) 

 Plaintiff, ) 

 v. ) Judge Joan B. Gottschall 

 ) 

PNC BANK, NA, ) Case No. 12 CV 3130 

 ) 

 Defendant. ) 

 

OPINION & ORDER

Defendant PNC Bank (“PNC”) has moved to dismiss Plaintiff Jeff Foster’s Complaint in 

its entirety and with prejudice. For the reasons that follow, the motion is granted in part and 

denied in part. 

I. BACKGROUND

 This Complaint concerns two loans currently held by PNC. Foster alleges a series of 

misdeeds by PNC and its predecessors in interest1 in their dealings with Foster and his loans. 

What follows is a summary of the relevant facts pled in Foster’s lengthy Complaint. 

A. The Line of Credit Secured by Foster’s Home at 6201 N. Kilpatrick 

In 2003, Foster obtained a “Home Equity Line of Credit” (hereinafter “the line of credit”) 

secured by his home located at 6201 N. Kilpatrick in Chicago, Illinois. In March 2009, Foster 

requested that PNC notify him of the current status of the line of credit and modify it to reduce 

the interest charge. PNC never produced documentation about the status of his loan. In April 

2009, PNC confirmed a modification of the terms of the line of credit, and the Complaint alleges 

 

1

 It is unclear from the Complaint when PNC took over the loans. Neither party suggests that the 

timing of the change in ownership affects the rights of the parties, so for simplicity the court refers to both 

PNC and its predecessors in interest as “PNC.” 
2

that Foster accepted the modification in writing.2

 Foster alleges that although he made timely 

payments, PNC repeatedly failed to credit his account with the payments he made, and falsely 

reported that he was delinquent to various consumer credit reporting agencies (“CRAs”). The 

Complaint appears to allege that these problems continued for several years, despite numerous 

requests from Foster that PNC correct these errors. Foster admits he ceased making payments on 

the line of credit, but does not specify when. 

B. The Mortgage Secured by the Real Estate at 56 Fiesta Way 

 Foster also had a mortgage loan with PNC secured by real estate located at 56 Fiesta 

Way, Fort Lauderdale, FL. In November 2009, PNC rejected a loan modification it had 

previously proposed to Foster, eventually explaining that Foster had failed to return executed 

documents. Foster alleges that he never received these documents. PNC later approved a 

modification, but Foster did not accept it. In April 2010, PNC notified Foster that it could not 

apply the monthly payment he submitted because the required monthly payment was $13,199.95. 

The Complaint alleges that this new monthly amount claimed “was totally false, having 

absolutely no basis in fact whatsoever.” (Compl. at ¶ 39.) Foster alleges that PNC falsely 

reported that he was delinquent to various CRAs, and he protested this action. 

In February 2011, Foster alleges that PNC falsely informed him that he had not submitted 

proof of hazard insurance on the property. Though PNC eventually acknowledged that Foster 

had insurance, Foster alleges that PNC increased his payments by $80 per month anyway, 

without providing him notice. This increase again resulted in PNC rejecting Foster’s monthly 

payments as insufficient, and reporting him as delinquent to CRAs. Foster alleges that a PNC 

officer told him that a mistake had been made by PNC, and that he should not make payments; 

 

2

 The Complaint incorporates numerous exhibits, including the April 2009 loan modification, but 

not Foster’s alleged writing accepting it. 
3

he alleges that he made the payments anyway. Next PNC notified Foster that he had not secured 

flood insurance, and then later, than he had not secured wind insurance. In November 2011, PNC 

notified Foster that it had purchased wind coverage in August 2011 at the cost of $37,730, and 

thereafter further increased his monthly payments to pay for the insurance. Foster alleges that 

PNC knew this statement was untrue at the time it was made. Foster further alleges that this was 

an inflated price for wind coverage and that wind coverage was not required under their contract. 

 Foster filed this six-count Complaint against PNC. There is both diversity and federal 

question jurisdiction. Count I alleges that PNC violated the Fair Credit Billing Act, 15 U.S.C. § 

1666 (“the FCBA”). Count II alleges that PNC violated the Fair Credit Reporting Act, 15 U.S.C. 

§ 1681n (“the FCRA”). Count III alleges that PNC breached its agreements and contracts with 

Foster. Count IV alleges that PNC violated the Illinois Consumer Fraud and Deceptive Business 

Practices Act, 815 Ill. Comp. Stat. 505-2 (“the ICFA”). Count V alleges common law 

defamation. Count IV alleges common law fraud. 

II. LEGAL STANDARD

For purposes of a motion to dismiss, the court takes all facts alleged in a complaint as 

true and draws all reasonable inferences from those facts in the plaintiff’s favor, although 

conclusory allegations that merely recite the elements of a claim are not entitled to this 

presumption of truth. Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011). A motion to dismiss 

should be granted if the plaintiff fails to “state a claim to relief that is plausible on its face.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007)). The factual allegations in a complaint must “raise a right to relief above the speculative 

level.” Twombly, 550 U.S. at 555-56; see also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th 

Cir. 2010) (“[P]laintiff must give enough details about the subject-matter of the case to present a 
4

story that holds together.”). The plaintiff’s complaint must offer “enough facts to raise a 

reasonable expectation that discovery will reveal evidence” that supports the plaintiff's 

allegations. Twombly, 550 U.S. at 556. 

Additionally, to survive a Rule 12(b)(6) motion to dismiss, a complaint must comply with 

the Federal Rule of Civil Procedure’s pleading requirements.3

 Rule 8(a)(2) governs pleadings 

generally and requires, in relevant part, that the complaint contain “a short and plain statement of 

the claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice 

of what the ... claim is and the grounds upon which it rests.” Fed. R. Civ. P. 8(a)(2). Rule 8 

reflects a liberal notice pleading requirement that focuses “litigation on the merits of a claim 

rather than on technicalities that might keep plaintiffs out of court.” Brooks v. Ross, 578 F.3d 

574, 580 (7th Cir. 2009) (internal citation and quotation omitted). Allegations of fraud, however, 

must be pled with particularity. Fed. R. Civ. P. 9(b). This means the plaintiff must, at a 

minimum, provide the time, place, and content of the alleged false representations, the method 

by which the representations were communicated, and the identities of the parties to those 

representations. Slaney v. Int’l Amateur Athletic Fed’n, 244 F.3d 580, 597 (7th Cir. 2001). 

III. ANALYSIS

A. Count I – the FCBA

Foster alleges numerous instances where PNC billed him erroneously and would not fix 

the errors. The FCBA obligates certain types of creditors to communicate with a consumer to 

resolve billing errors. But this provision applies only to creditors offering open-end credit plans. 

15 U.S.C. § 1602(f). PNC argues that the FCBA is not applicable to Foster’s loan because that 

 

3

 Both parties argue about the sufficiency of Foster’s pleading of his state law claims using Illinois 

case law. However, because this case is in federal court, the Federal Rules of Civil Procedure apply. See 

Houben v. Telular Corp., 309 F.3d 1028, 1031-33 (7th Cir. 2002); Erie R.R. v. Tompkins, 304 U.S. 64 

(1938).
5

loan was not an “open-end credit plan.” The FCBA defines an open-end credit plan as a “plan 

under which the creditor reasonably contemplates repeated transactions . . . . and which provides 

for a finance charge which may be computed from time to time on the outstanding unpaid 

balance.” 15 U.S.C. § 1602(j). The parties dispute whether Foster’s “Home Equity Line of 

Credit” (which was secured by a mortgage on his home) is of the type such that PNC could have 

reasonably contemplated repeated transactions, or whether the loan is really just a one-time 

mortgage on his home. Numerous courts have treated home equity lines of credit as open-end 

credit plans at the stage of a motion to dismiss. E.g. Fernandes v. JPMorgan Chase Bank, N.A., 

818 F. Supp. 2d 1086, 1095 (N.D. Ill. 2011); Stroman v. Bank of Am. Corp., 852 F. Supp. 2d 

1366, 1374 (N.D. Ga. 2012). Drawing all reasonable inferences in favor of Foster, the court will 

assume for now that his home equity line of credit was an open-end credit plan, and thus was 

subject to the FCBA. PNC also asserts that Count I must be dismissed because Foster failed to 

plead that he submitted his disputes to PNC’s proper address as required by the statute. This is so 

far beyond the requirements of notice pleading that it merits no further discussion. Therefore, 

Foster’s FCBA claim survives PNC’s motion to dismiss. 

B. Count II – the FCRA

Foster alleges that PNC made false reports to CRAs, and has refused to correct those 

reports. The FCRA places various requirements on: 1) CRAs; 2) the entities, such as lenders, that 

furnish credit information to CRAs (“furnishers”); and 3) the users of credit reports. The statute 

includes numerous enforcement provisions for its various requirements. Foster’s allegations 

suggest that PNC furnished inaccurate information to CRAs, in violation of § 1681s-2(a), and 

that PNC failed to investigate and correct its inaccurate reports, in violation of § 1681s-2(b). 

PNC argues that Foster failed to state a claim under either provision. 
6

As to the alleged violation of § 1681s-2(a), even if PNC furnished inaccurate information 

to a CRA as Foster alleges, he cannot recover because there is no private right of action for 

violations of that section.4

 As to the alleged violation of § 1681s-2(b), PNC argues that Foster 

has not alleged facts sufficient to state a claim because he has not alleged that he ever brought 

any dispute with PNC to a CRA’s attention. Under § 1681s-2(b), a furnisher must investigate any 

information an individual disputes, and must correct inaccurate information. § 1681s-2(b)(1)(E). 

The obligation to investigate, however, arises only after the furnisher receives notice of the 

dispute from a CRA. § 1681s-2(b). In order to prevail on a claim under § 1681s-2(b), a plaintiff 

must present evidence that a CRA notified the furnisher of a dispute. Dumas v. Dovenmuehle 

Mortg. Inc., No. 02 C 6271, 2005 WL 1528262, at *5 (N.D. Ill. June 23, 2005). But, again, this 

level of specificity is not required in the complaint. Foster’s Complaint gives PNC fair notice of 

his claim, and so is sufficient to survive PNC’s motion to dismiss. 

C. Count III – Breach of Contract

Foster alleges that PNC’s conduct “constitutes a breach [of] its agreements and contracts 

with” Foster. (Compl. at ¶ 74.) PNC argues that all of Foster’s Illinois statutory and common law 

claims are preempted by the FCRA and thus fail as a matter of law. The FCRA preempts certain 

state law claims regarding credit reporting. See § 1681t(t); § 1681h(e); Purcell v. Bank of 

America, 659 F.3d 622, 624 (7th Cir. 2011) (holding that the FCRA “preempts some state claims 

that could arise out of reports to credit agencies”) (emphasis added). As PNC concedes in its 

reply brief, not all contract claims would be preempted by the FCRA. From the pleadings, the 

court cannot determine whether any or all of Foster’s contract claim is preempted by the FCRA. 

 

4

 Pursuant to § 1681s-2(c)-(d), only government officials can enforce § 1681s-2(a). Foster attempts 

to get around this by arguing that PNC is liable for its allegedly false reports under § 1681n, which creates 

liability for willful violations of the act. But § 1681s-2(c) explicitly exempts § 1681s-2(a) from 

enforcement under § 1681n. 
7

In any event, Foster’s conclusory pleading of his breach of contract claim is too vague to 

put PNC on notice as to which agreement(s) Foster believes are enforceable contracts PNC 

breached. Therefore, the court dismisses Count III without prejudice pursuant to Rule 8(a). 

D. Count IV – the ICFA

The ICFA protects consumers against “unfair or deceptive acts or practices.” 815 Ill. 

Comp. Stat. § 505/2. Foster alleges that PNC violated the ICFA in two ways. First, Foster alleges 

that PNC failed to credit his payments to his accounts; Foster seems to be asserting that this 

practice is both deceptive and unfair.5 Second, Foster alleges that PNC engaged in prohibited 

deception when it represented that it had purchased wind insurance for him, knowing that 

statement was false, in order to charge Foster additional fees. PNC raises several arguments as to 

the sufficiency of Foster’s ICFA claim generally, which the court analyzes with respect to each 

of his allegations. 

PNC argues that Foster’s ICFA claim is really just a breach of contract claim, and as 

such, cannot give rise to a cause of action under the ICFA. “It is well settled that the Consumer 

Fraud Act was not intended to apply to every contract dispute or to supplement every breach of 

contract claim with a redundant remedy.” Sklodowski v. Countrywide Home Loans, Inc., 832 

N.E.2d 189, 196 (Ill. App. Ct. 2005) (internal quotation and citation omitted). While a plaintiff 

cannot prevail on a claim under the ICFA simply because a defendant does not fulfill his or her 

obligations under a contract, a plaintiff can assert a cause of action if the defendant’s promise 

was deceptive or unfair at the time the defendant made the promise. Zankle v. Queen Anne 

Landscaping, 724 N.E.2d 988, 993 (Ill. App. Ct. 2000). Taking the allegations in the Complaint 

 

5

 Foster’s response brief cites in passing Illinois case law defining unfair business practices. PNC 

does not respond to this line of argument in its reply. At this stage, the court cannot say that failing to 

credit Fosters payments does not, as a matter of law, constitute an unfair business practice. Therefore 

Foster may proceed on that theory.
8

as true, PNC made two knowingly deceptive representations that suggested Foster had liabilities 

beyond those created by his loan contracts, because Foster alleges that the monthly payment on 

the line of credit was not $13,000 and wind insurance was not required for the mortgage on the 

Florida property. Neither of Foster’s allegations is a “naked breach-of-contract claim . . . that 

defendants did not do what they promised.” Id. Thus, it does not appear that Foster’s IFCA 

claims are merely contract claims. They might, if proven, give rise to a cause of action under the 

ICFA.6

PNC next argues Foster has not adequately pled his ICFA claim. Because Foster alleges 

that PNC engaged in deceptive behavior, his ICFA claim “sounds in fraud,” and thus is subject to 

the heightened pleading requirements of Rule 9(b). Pirelli Armstrong Tire Corp. Retiree Med. 

Benefits Trust v. Walgreens Co., 631 F.3d 436, 446-47 (7th Cir. 2011) (holding that an ICFA 

claim for a deceptive practice sounds in fraud and is subject to the heightened pleading standard 

of Rule 9(b)). Foster has met the particularity required by Rule 9(b) by attaching both supposedly 

deceptive letters from PNC to his Complaint. (See Compl. Ex. N and T, ECF Nos. 1-15 at 1 and 

1-16 at 1, respectively.) 

The Seventh Circuit has specifically addressed what is required to adequately plead a 

claim under the ICFA. First, a plaintiff must allege a pecuniary injury caused by the defendant’s 

deception. Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 575-76 (7th Cir. 2012). Foster’s 

allegation that his credit was damaged because PNC failed to credit his account is sufficient to 

allege economic damages under the ICFA. Id. Also, his allegation that he had to pay for 

unnecessary wind coverage meets the requirement of pecuniary harm. Second, a plaintiff must 

“allege that the defendant committed a deceptive or unfair act and intended that the plaintiff rely 

 

6

 In light of the court’s rejection of PNC’s arguments that the ICFA claims are merely contract 

claims, and that the contract claims are preempted by the FCRA, the court also rejects PNC’s argument 

that the ICFA claim is preempted by the FCRA because the ICFA claim is actually a contract claim.
9

on that act.” Id. Both the letters Foster alleges were deceptive were clearly written with the intent 

that Foster make additional payments to PNC. Accordingly, Foster has adequately pled his ICFA 

claim. 

E. Count V – Defamation 

Foster alleges that PNC defamed him by intentionally and maliciously publishing and 

disseminating false information about Foster’s credit history. PNC argues Foster’s defamation 

claim is preempted by the FCRA. Foster replies that, if the FCRA claim is dismissed, there is no 

preemption. But since the court allowed the FCRA claim to go forward, preemption of the 

defamation claim must be addressed. 

The FCRA provides, in relevant part, that it preempts any state law claim “with respect to 

any subject matter regulated under . . . (F) section 1681s-2 of this title, relating to the 

responsibilities of persons who furnish information to consumer reporting agencies.” 

§ 1681t(b)(1)(F). Because Foster’s defamation claim rests solely on PNC’s allegedly false 

reports to CRAs, it is preempted by § 1681t(b)(1)(F) of the FCRA. Though Foster cites Illinois 

cases that allow defamation claims for accusing a businessperson of lacking credit, these cases 

are not relevant because they predate § 1681t.7

 Foster’s claim for defamation is preempted by the 

FCRA and is dismissed. 

 

7

 A previously enacted portion of the FCRA, § 1681h(e) (which is still in effect), preempts 

defamation claims except those based on willfully false reports. The Seventh Circuit discussed the two 

preemption provisions, explaining why § 1681t operates to preempt willful defamation claims that were 

exempted from preemption under § 1681h(e): 

 

[W]e do not perceive any inconsistency between the two statutes. Section 1681h(e) 

preempts some state claims that could arise out of reports to credit agencies; 

§ 1681t(b)(1)(F) preempts more of these claims. Section 1681h(e) does not create 

a right to recover for wilfully false reports; it just says that a particular paragraph does 

not preempt claims of that stripe. . . . Reading the earlier statute, § 1681h(e), to defeat the 

later-enacted system in § 1681s-2 and § 1681t(b)(1)(F), would contradict fundamental 

norms of statutory interpretation. 

Purcell, 659 F.3d at 624 (emphasis in original).
10

F. Count VI – Fraud 

Foster’s fraud allegations mirror his ICFA allegations. PNC’s argument that Foster’s 

fraud claim is not pled with adequate specificity fails for the same reasons discussed in Count 

IV. PNC also argues Foster’s fraud claim is preempted by the FCRA. The fraud claim has 

nothing to do with credit reporting, and so is not preempted by the FCRA. 

IV. CONCLUSION

 Foster has stated a claim as to Counts I, II, V, and VI. Foster’s contract claim, Count III, 

is dismissed without prejudice. Should he wish to re-plead, he must do so by February 22, 2013. 

Foster’s defamation claim, Count IV, is preempted by the FCRA and so is dismissed. 

 

 ENTER: 

 /s/ 

 JOAN B. GOTTSCHALL 

 United States District Judge 

DATED: January 22, 2013