NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). 

2020 IL App (3d) 180691-U 

Order filed June 23, 2020 

_____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2020 

BANK OF AMERICA, N.A.,

 Plaintiff-Appellee, 

 v. 

 

STEVE S. YUN, 

Defendant-Appellant.

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Appeal from the Circuit Court

of the 12th Judicial Circuit, 

Will County, Illinois. 

Appeal No. 3-18-0691 

Circuit No. 15-AR-663 

The Honorable 

Barbara N. Petrungaro, 

Judge, presiding.

_____________________________________________________________________________ 

 JUSTICE CARTER delivered the judgment of the court. 

 Justices Holdridge and O’Brien concurred in the judgment. 

_____________________________________________________________________________ 

ORDER

¶ 1 Held: In an appeal in a civil case for breach of contract and account stated relating to the 

defendant’s failure to pay the amount allegedly owed on his credit card account, 

the appellate court found that the trial court: (1) did not make a final ruling upon 

defendant’s initial three affirmative defenses; (2) properly granted the plaintiff 

bank’s section 2-619 motion to dismiss defendant’s counterclaims, which alleged 

violations of the federal Truth in Lending Act (TILA); and (3) erred when it 

granted the bank’s section 2-619 motion to dismiss defendant’s counterclaim, 

which alleged violations of the federal Fair Credit Reporting Act (FCRA). The 

appellate court, therefore, took no action on defendant’s claim of error regarding 

his initial three affirmative defenses, affirmed the trial court’s grant of the bank’s 

motion to dismiss defendant’s TILA-based counterclaims, reversed the trial 

court’s grant of the bank’s motion to dismiss defendant’s FCRA-based 
2 

counterclaim, and remanded defendant’s FCRA-based counterclaim for further 

proceedings. 

¶ 2 Plaintiff, Bank of America, N.A. (bank), filed an amended complaint in the trial court for 

breach of contract and account stated against defendant, Steve S. Yun, seeking to collect the 

amount that defendant allegedly owed and failed to pay on his credit card account with the bank. 

Defendant filed various affirmative defenses and counterclaims against the bank alleging, among 

other things, that the bank had violated both the federal Truth in Lending Act (TILA) (15 U.S.C. 

§ 1601 et seq. (2012)) and the federal Fair Credit Reporting Act (FCRA) (15 U.S.C. § 1681 et 

seq. (2012)). The bank filed section 2-619 motions (735 ILCS 5/2-619 (West 2016)) to dismiss 

the counterclaims arguing that the counterclaims were time barred by the applicable statutes of 

limitations. After conducting hearings on the matter, the trial court granted the bank’s motions 

to dismiss and declined to rule upon defendant’s initial three affirmative defenses. Defendant 

appeals, arguing that the trial court erred in: (1) rejecting his initial three affirmative defenses; 

(2) granting the bank’s motion to dismiss his TILA-based counterclaims; and (3) granting the 

bank’s motion to dismiss his FCRA-based counterclaim.

1

 We agree with defendant’s third 

argument and disagree with defendant’s other two arguments. We, therefore, take no action on 

defendant’s claim of error regarding his initial three affirmative defenses, affirm the trial court’s 

dismissal of defendant’s TILA-based counterclaims, reverse the trial court’s dismissal of 

defendant’s FCRA-based counterclaim, and remand defendant’s FCRA-based counterclaim for 

further proceedings. 

1

 In addition to setting forth his claims of error, defendant asks in his reply brief that we strike the 

bank’s response brief because the bank allegedly improperly obtained an extension to file that brief with 

this court. We have reviewed the procedural history of this case on appeal and do not agree with 

defendant’s contention in that regard. Therefore, to the extent that defendant’s request constitutes a 

motion to strike the bank’s response brief, we deny that motion. 
3 

¶ 3 I. BACKGROUND

¶ 4 In December 2008, defendant opened a credit card account with the bank or with one of 

the bank’s predecessors. Defendant was authorized to use the account to make purchases, to 

complete balance transfers, and to obtain cash advances. The credit card agreement for the 

account required defendant to pay interest on any unpaid balance and to pay fees for such things 

as making late payments or for exceeding the approved credit limit. Defendant used the account 

to charge items and was sent monthly billing statements for the account by the bank. In 

approximately May 2014, defendant stopped making the required periodic payments on the 

account and his ability to use the account was subsequently suspended. In November 2014, the 

bank closed (charged-off) the account for defendant’s failure to make payment. 

¶ 5 In August 2015, the bank filed a complaint in the trial court, seeking to collect from 

defendant approximately $24,000 for the unpaid balance, interest, and fees on the account. An 

amended complaint was later filed that alleged claims for breach of contract (count I) and 

account stated (count II) against defendant. Various supporting documents were attached to the 

amended complaint, including a copy of the credit card agreement, an affidavit establishing the 

amount allegedly due and owing on the account, and copies of several of the prior monthly 

billing statements that the bank had sent to defendant. 

¶ 6 In July 2017, defendant, who represented himself pro se in this case, filed an answer and 

denied certain aspects of the bank’s claims. Defendant also filed three affirmative defenses: that 

the amended complaint was not verified, that a copy of the relevant signed contract was not 

attached to the amended complaint, and that the account stated claim was not valid because 

defendant disputed the amount that was allegedly owed (collectively referred to hereinafter at 

times as the initial three affirmative defenses). In addition, defendant filed six counterclaims 
4 

against the bank. Defendant’s first five counterclaims alleged violations of the federal TILA

based upon the bank’s alleged failure to correct certain errors in defendant’s billing statements

after defendant notified the bank of those errors in February and March 2013 and sought 

damages for the amounts that were incorrectly charged to defendant’s account, to compensate 

defendant for his lost time, and as statutory penalties. Defendant’s sixth counterclaim alleged 

what defendant had titled as “defamation of character and denial of credit.”2 Defendant attached 

to his pleadings various supporting documents, including copies of the two notices that defendant 

had sent to the bank regarding the billing errors in his account. In the first notice, which was 

dated February 22, 2013, defendant asked the bank to credit the erroneously-listed amount 

(approximately $2100 for items that defendant claimed he had not charged) to his account. In 

the second notice, which was dated March 28, 2013, defendant pointed out that the bank had not 

corrected the billing errors and asked the bank to immediately stop “illegal collection activities” 

and “reporting delinquency to credit bureaus.” The defendant stated further in the notice that he 

would not pay until the bank credited the erroneously-listed amount to his account with late fees 

and interest.

¶ 7 Later that same month (July 2017), the bank filed a section 2-619 motion to dismiss 

defendant’s counterclaims with prejudice. The bank asserted in the motion that defendant’s five 

TILA-based counterclaims (counterclaims I through V) were subject to dismissal because they 

were time barred by the TILA one-year statute of limitations (15 U.S.C. § 1640(e) (2012)) and 

that defendant’s remaining counterclaim for defamation and denial of credit (counterclaim VI) 

was subject to dismissal as well because it was time barred by the state statute of limitations for 

2 In defendant’s counterclaims, this title was listed in bold and all capital letters and was 

underlined. We have changed the formatting of the title here for the convenience of the reader. 
5 

defamation claims (735 ILCS 5/13-201 (2016)) and because it was pre-empted by the federal 

FCRA. 

¶ 8 Defendant filed a response opposing the motion to dismiss. Defendant asserted in his 

response that the state counterclaim savings statute (735 ILCS 5/13-207 (West 2016)) prevented 

his five TILA-based counterclaims from being time barred by the TILA statute of limitations. 

As to his other counterclaim, defendant asserted that he was claiming a denial of credit, not 

defamation, and that the state statute of limitations cited by the bank, therefore, did not apply. 

¶ 9 The bank filed a reply to defendant’s response and maintained its previous positions. The 

bank also argued that the state counterclaim savings statute did not prevent defendant’s five 

TILA counterclaims from being time barred because the statute of limitations period for 

defendant’s counterclaims had expired before the bank’s claim had arisen. 

¶ 10 In October 2017, the trial court held a hearing on the bank’s motion to dismiss. After 

listening to the oral arguments of the parties, the trial court took the case under advisement. The 

following month, the trial court issued a written ruling, granting the bank’s motion in part. In its 

ruling, the trial court found that defendant’s five TILA-based counterclaims were time barred by 

the one-year statute of limitations and were not saved by the state counterclaim savings statute 

because the statute of limitations period for defendant to file a TILA claim had already expired 

before the bank initially filed the instant lawsuit. The trial court ruled, therefore, that defendant 

could only raise the alleged TILA violations as an affirmative defense for recoupment or set-off. 

In addition, the trial court noted in its order that during oral argument on the motion, defendant 

had argued that his initial three affirmative defenses justified a dismissal of the bank’s lawsuit in 

this case. The trial court commented in the order that defendant’s argument in that regard was to 

be raised at a hearing or trial on the matter and that the trial court had “rejected [that argument] 
6 

at this stage of the proceedings.” As a result of its findings, the trial court granted the bank’s 

section 2-619 motion to dismiss with prejudice as to defendant’s five TILA-based counterclaims. 

As to defendant’s sixth counterclaim, however, the trial court granted defendant leave to amend, 

since defendant had indicated on the record that he was withdrawing his claim of defamation. 

¶ 11 In December 2017, defendant filed his first amended affirmative defenses and first 

amended counterclaim. In the first amended affirmative defenses, defendant restated all of his 

previously-dismissed TILA-based counterclaims as affirmative defenses and sought damages for 

those affirmative defenses, including damages for the incorrect credit charges, compensation for 

lost time, and statutory penalties. In the first amended counterclaim, which was defendant’s 

attempt to amend his prior counterclaim VI, defendant sought damages for the profits that he had 

allegedly lost from possible business opportunities because he was denied credit due to the 

negative credit reports that had been issued by the bank to the consumer credit reporting 

agencies. Defendant titled that counterclaim as one for “[l]ost [p]rofit by [d]enial of [c]redit.” 

¶ 12 In January 2018, the bank filed a section 2-619 motion to dismiss defendant’s first 

amended affirmative defenses and defendant’s first amended counterclaim with prejudice. The 

bank asserted in the motion that defendant’s first amended affirmative defenses should be 

stricken because they were merely a relabeling of the prior counterclaims that the trial court had 

previously dismissed with prejudice as being time barred. The bank asserted further that

defendant’s first amended counterclaim was also subject to dismissal because it was preempted 

by the FCRA. 

¶ 13 Defendant filed a response opposing the motion to dismiss, the bank filed a reply to 

defendant’s response, and defendant filed a response to the bank’s reply. 
7 

¶ 14 In February 2018, the trial court held a hearing on the bank’s motion to dismiss. After 

listening to the oral arguments of the parties, the trial court granted the motion in part and 

dismissed with prejudice defendant’s first amended affirmative defenses that were based upon 

the alleged TILA violations. As to the first amended counterclaim, however, the trial court again 

granted defendant leave to replead.

¶ 15 In March 2018, defendant filed his second amended affirmative defenses and his second 

amended counterclaims. In his second amended affirmative defenses, defendant again restated 

all of his previously-dismissed TILA-based counterclaims as affirmative defenses. Defendant 

took the same approach with his second amended counterclaims and again restated all of his 

previously dismissed TILA-based counterclaims as new counterclaims for set-off. In addition, 

defendant also restated his counterclaim for lost profits and stated in that claim for the first time 

that the bank had violated the FCRA. 

¶ 16 In April 2018, the parties appeared before the trial court for a status hearing. After some 

discussion between the parties and the trial court, the trial court entered an order essentially 

clarifying the previous order it had entered in November 2017 and dismissed with prejudice all 

of defendant’s second amended counterclaims that were based upon TILA violations. In 

addition, the trial court again ruled that any of defendant’s affirmative defenses that were based 

upon TILA violations were limited to set-off or recoupment. 

¶ 17 In May 2018, new attorneys entered their appearance for the bank and filed a section 2-

619 motion to dismiss defendant’s one remaining second amended counterclaim—the 

counterclaim that was based upon violations of the FCRA. In the motion, the bank alleged that 

the counterclaim was subject to dismissal because it was time barred by the two-year FCRA 

statute of limitations (15 U.S.C. § 1681(p)(1) (2012)). 
8 

¶ 18 Defendant filed a response opposing the motion to dismiss and asserted that the bank’s 

argument regarding the statute of limitations had already been raised and rejected by the trial 

court. Defendant attached to his response as a supporting document a notice he had sent to one 

of the consumer credit reporting agencies notifying the agency that the bank had allegedly failed 

to correct its billing errors and had illegally reported adverse information about defendant to the 

agency. The notice was dated September 19, 2014. 

¶ 19 The bank filed a reply to defendant’s response and maintained its previous position. In 

its reply, the bank disputed defendant’s allegation that the trial court had already rejected the 

bank’s statute of limitations argument. Defendant filed a response to the bank’s reply. 

¶ 20 In August 2018, the trial court held a hearing on the bank’s motion to dismiss. After 

listening to the oral arguments of the parties, the trial court took the case under advisement. The 

trial court later issued a written ruling granting the bank’s motion. The trial court found in its 

ruling that defendant’s one remaining second amended counterclaim (the FCRA-based 

counterclaim) was time barred by the two-year FCRA statute of limitations because it was not 

filed until approximately a year after the statute of limitations period had expired. 

¶ 21 Defendant filed a motion to reconsider (titled as a motion to vacate), which the trial court 

denied after a hearing. At that same time, the bank orally moved to voluntarily dismiss all of its 

claims against defendant, and the trial court granted the bank’s motion. Defendant appealed. 

¶ 22 II. ANALYSIS

¶ 23 As noted above, defendant argues on appeal that the trial court erred in: (1) rejecting his 

initial three affirmative defenses; (2) granting the bank’s motion to dismiss his TILA-based 

counterclaims; and (3) granting the bank’s motion to dismiss his FCRA-based counterclaim. We 

will address each of those arguments in turn. 
9 

¶ 24 A. Defendant’s Initial Three Affirmative Defenses

¶ 25 As his first point of contention on appeal, defendant argues that the trial court erred in 

rejecting his initial three affirmative defenses—that the amended complaint was not verified, that 

a copy of the relevant signed contract was not attached to the amended complaint, and that the 

account stated claim was not valid because defendant disputed the amount that was allegedly 

owed. According to defendant, the bank’s amended complaint should have been stricken or 

dismissed in the trial court based upon those affirmative defenses. As the bank correctly points 

out, however, the record clearly shows that even though the trial court used the term, “rejected,” 

it did not make any type of a final ruling on defendant’s affirmative defenses. Rather, the trial 

court merely informed defendant at the hearing on the bank’s motion to dismiss that the 

affirmative defenses were not currently before the court for hearing and that the affirmative 

defenses were matters to be raised at the trial or later hearing in this case. Since there was no 

final order entered on defendant’s initial three affirmative defenses, we have no jurisdiction to 

rule upon that particular claim of error and take no action on that portion of defendant’s appeal. 

See EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 9 (recognizing that unless a supreme 

court rule provides for jurisdiction, the appellate court has no jurisdiction to review trial court 

orders that are not final). 

¶ 26 B. Defendant’s TILA-Based Counterclaims

¶ 27 As his second point of contention on appeal, defendant argues that the trial court erred in

granting the bank’s section 2-619 motion to dismiss defendant’s TILA-based counterclaims. 

More specifically, defendant contends that the trial court erred in finding that defendant’s TILAbased counterclaims were time barred by the statute of limitations, in granting the bank’s motion 

to dismiss those counterclaims on that basis, and in ordering that defendant could only raise the 
10 

alleged TILA violations as an affirmative defense for set-off or recoupment. In support of that 

contention, defendant asserts first that the trial court incorrectly determined that the statute of 

limitations period started to run in this case in February and March 2013 when defendant sent the 

billing errors notices to the bank. To the contrary, defendant maintains, because the bank failed 

to send defendant an acknowledgement that it had received the notices and failed to correct the 

billing errors, defendant did not discover the bank’s TILA violations until a much later date. 

Thus, defendant contends that the statute of limitations period had not yet expired when 

defendant filed the TILA-based counterclaims and that the trial court, therefore, should not have 

granted the bank’s motion to dismiss. Second, defendant asserts that even if the statute of 

limitations period had otherwise expired before he had filed the TILA-based counterclaims, the 

bank’s motion to dismiss still should not have been granted because defendant’s counterclaims 

were saved by the Illinois counterclaim savings statute (section 13-207 of the Code of Civil 

Procedure (Illinois Code) (735 ILCS 5/13-207 (West 2016)). Third and finally, defendant asserts 

that contrary to the trial court’s ruling, he was not limited to raising the alleged TILA violations 

as an affirmative defense for set-off or recoupment because section 1640(h) of the TILA (15 

U.S.C. § 1640(h) (2012)) and section 2-608 of the Illinois Code (735 ILCS 5/2-608 (West 2016)) 

specifically allow defendant to raise those violations as counterclaims. For all of the reasons 

stated, defendant asks that we reverse the trial court’s grant of the bank’s section 2-619 motion to 

dismiss defendant’s TILA-based counterclaims and that we remand this case for further 

proceedings on those counterclaims. 

¶ 28 The bank argues that the trial court’s ruling was proper and should be upheld. In 

response to defendant’s assertions, the bank contends first that the trial court correctly found that 

the statute of limitations period for defendant’s TILA-based counterclaims started to run in 
11 

February and March 2013 (when defendant notified the bank of the alleged billing errors) and 

that defendant’s TILA-based counterclaims, which were filed in July 2017, were time barred by 

the one-year TILA statute of limitations. Second, the bank contends that the Illinois savings 

statute does not save defendant’s TILA-based counterclaims from the TILA statute of limitations 

because defendant’s counterclaims were time barred before the bank’s claims arose in November 

2014 when the bank charged-off defendant’s credit card account.

3

 Third, the bank contends that 

the trial court correctly found that defendant’s TILA-based counterclaims could only be pled as 

an affirmative defense for set-off or recoupment because there is nothing in section 1640(h) of 

the TILA or section 2-608 of the Illinois Code—the two sections upon which defendant relies—

that overrides the statute of limitations period set forth in section 1640(e) of the TILA. For all of 

the reasons set forth, the bank asks that we affirm the trial court’s judgment granting the bank’s 

section 2-619 motion to dismiss defendant’s TILA-based counterclaims.

¶ 29 Section 2-619 of the Illinois Code allows a litigant to obtain an involuntary dismissal of 

an action or claim based upon certain defects or defenses. See 735 ILCS 5/2-619 (West 2016); 

Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003). The statute's purpose is to 

3 As at least one court has recently recognized, there is not much Illinois law on when the 

limitations period starts to run (when a cause of action accrues) on a delinquent credit card account. See 

CACH, LLC v. Moore, 2019 IL App (2d) 180707, ¶ 12. The general rule is that a limitations period starts 

to run when a party has the right to invoke the aid of the court and to enforce his remedy. See id. Some 

courts have indicated that the statute of limitations on a bank’s cause of action for a debtor’s failure to pay 

his credit card bill starts to run on either the date the credit card account was charged-off or on the last 

date of payment. See, e.g., Basile v. Blatt, Hasenmiller, Leibsker & Moore LLC, 632 F. Supp. 2d 842, 

846 (N.D. Ill. 2009). In this particular case, the billing records attached as an exhibit to one of the bank’s 

motions to dismiss indicates that defendant made the minimum payment that was due in April 2014 but 

failed to make the payment that was due the following month or any payment thereafter. Defendant’s 

account was charged-off by the bank in November 2014. The bank asserts in this case that its cause of 

action accrued on that date, the charge-off date, and defendant does not dispute that contention. We, 

therefore, have accepted the November 2014 date as the accrual date, as the trial court apparently did as 

well.
12 

provide litigants with a method for disposing of issues of law and easily proven issues of fact 

early in a case, often before discovery has been conducted. See Van Meter, 207 Ill. 2d at 367; 

Advocate Health & Hospitals Corp. v. Bank One, N.A., 348 Ill. App. 3d 755, 759 (2004). In a 

section 2-619 proceeding, the moving party admits the legal sufficiency of the complaint but 

asserts an affirmative defense or other matter to defeat the nonmoving party's claim. Van Meter, 

207 Ill. 2d at 367. Section 2-619 lists several different grounds for which an involuntary 

dismissal may be granted. See 735 ILCS 5/2-619(a)(1) to (a)(9) (West 2016). Under subsection 

(a)(5), the subsection that applies in this case, a defendant may obtain an involuntary dismissal of 

an action if the action was not commenced within the time limits provided by law. 735 ILCS 

5/2-619(a)(5) (West 2016). In ruling upon a section 2-619 motion to dismiss, the court must 

construe all of the pleadings and supporting documents in the light most favorable to the 

nonmoving party. Van Meter, 207 Ill. 2d at 367-68. On appeal, a dismissal pursuant to section 

2-619 is reviewed de novo. Id. at 368; Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352 

(2008) (applying a de novo standard of review to a section 2-619(a)(5) dismissal). When de 

novo review applies, the appellate court performs the same analysis that the trial court would 

perform. Direct Auto Insurance Co. v. Beltran, 2013 IL App (1st) 121128, ¶ 43. A trial court’s 

grant of a section 2-619 motion to dismiss a complaint may be affirmed on any basis supported 

by the record. Board of Trustees of Community College, District No. 508, County of Cook v. 

Coopers & Lybrand LLP, 296 Ill. App. 3d 538, 543 (1998). 

¶ 30 To resolve this particular issue on appeal, we must examine the provisions of both the 

federal act and the Illinois Code. The applicable federal act for this issue, the TILA, was enacted 

in 1968 to ensure that credit terms were disclosed in a meaningful way so that consumers could 

readily and knowledgeably compare the credit options that were available to them. See 15 
13 

U.S.C. § 1601(a) (2012); Financial Freedom Acquisition, LLC v. Standard Bank & Trust Co., 

2015 IL 117950, ¶ 20. Pursuant to the TILA and of relevance to this appeal, a creditor who 

receives a written billing errors notice from an obligor is required to follow a certain specified 

procedure, which includes: acknowledging receipt of the notice within 30 days; correcting any 

alleged errors and notifying the obligor of the same or of the reason for denying correction 

within 90 days; and refraining from attempting to collect the disputed amount, restricting or 

closing the account, accelerating the debt, or issuing negative credit reports regarding the 

obligor’s failure to pay the disputed amount during the 90 day investigation period. 15 U.S.C. §§ 

1666, 1666a (2012); 12 C.F.R. § 1026.13 (2013). Failure to satisfy the requirements of the TILA 

can subject a creditor to criminal penalties and/or civil liability for actual damages, statutory 

penalties, costs, and attorney fees. See 15 U.S.C. §§ 1611, 1640(a) (2012); U.S. Bank National 

Ass'n v. Manzo, 2011 IL App (1st) 103115, ¶¶ 18, 48. Civil liability claims for TILA violations, 

such as those raised in the present case, are generally subject to a one-year statute of limitations. 

15 U.S.C. § 1640(e) (2012); Beneficial Illinois, Inc. v. Parker, 2016 IL App (1st) 160186, ¶ 18; 

Manzo, 2011 IL App (1st) 103115, ¶ 48. 

¶ 31 The TILA, however, contains its own savings clause, which states as follows: 

“This subsection does not bar a person from asserting a violation of this 

subchapter in an action to collect the debt which was brought more than one year 

from the date of the occurrence of the violation as a matter of defense by 

recoupment or set-off in such action, except as otherwise provided by State law.” 

15 U.S.C. § 1640(e) (2012). 

Thus, the TILA allows a person in a collection case to bring an otherwise time barred TILA 

claim if the person does so as a matter of defense by recoupment or set-off, unless the state’s 
14 

own law provides otherwise. See 15 U.S.C. § 1640(e) (2012); Parker, 2016 IL App (1st) 

160186, ¶ 18. Courts in Illinois have interpreted the TILA savings provision to mean that a 

TILA damages counterclaim may be filed, even after the statute of limitations period has 

expired, if the counterclaim was brought as a defense by recoupment or set-off under Illinois law 

and complies with the requirements of section 13-207 of the Illinois Code. See Parker, 2016 IL 

App (1st) 160186, ¶ 18. 

¶ 32 Section 1640(h) of the TILA, another one of the statutory sections defendant relies upon 

in this case, provides as follows: 

 “A person may not take any action to offset any amount for which a 

creditor or assignee is potentially liable to such person under subsection (a)(2) 

against any amount owed by such person, unless the amount of the creditor's or 

assignee's liability under this subchapter has been determined by judgment of a 

court of competent jurisdiction in an action of which such person was a party. 

This subsection does not bar a consumer then in default on the obligation from 

asserting a violation of this subchapter as an original action, or as a defense or 

counterclaim to an action to collect amounts owed by the consumer brought by a 

person liable under this subchapter.” 15 U.S.C. § 1640(h) (2012). 

¶ 33 Turning to the Illinois Code, section 13-207, the state counterclaim savings statute,

provides, in pertinent part, that: 

“A defendant may plead a set-off or counterclaim barred by the statute of 

limitation, while held and owned by him or her, to any action, the cause of which 

was owned by the plaintiff or person under whom he or she claims, before such 
15 

set-off or counterclaim was so barred, and not otherwise.” 735 ILCS 5/13-207 

(West 2016). 

Illinois courts have interpreted section 13-207 as allowing a defendant to file a counterclaim 

even if the claim would have been time barred if filed as a separate action. Parker, 2016 IL App 

(1st) 160186, ¶ 19. However, for a defendant to be able to bring a time barred counterclaim 

pursuant to section 13-207, the counterclaim must not have been time barred before the cause of 

action that formed the basis of the bank’s primary complaint arose. Id.

¶ 34 Finally, section 2-608(a) of the Illinois Code, which addresses counterclaims and is 

another one of the statutory sections that defendant relies upon in this case, provides that: 

“Any claim by one or more defendants against one or more plaintiffs, or against 

one or more codefendants, whether in the nature of setoff, recoupment, cross 

claim or otherwise, and whether in tort or contract, for liquidated or unliquidated 

damages, or for other relief, may be pleaded as a cross claim in any action, and 

when so pleaded shall be called a counterclaim.” 735 ILCS 5/2-608(a) (West 

2016). 

¶ 35 In the present case, after reviewing the pleadings and supporting documents in the light 

most favorable to defendant and considering the above-referenced statutes, we find that 

defendant’s TILA-based counterclaims were time barred by the one-year TILA statute of 

limitations and were not saved by the state counterclaim savings statute. The record in this case 

clearly shows that defendant sent his written billing errors notices to the bank in February and 

March 2013. Under the provisions of TILA, the bank had 30 days to acknowledge receipt of the 

notices (and 90 days to correct any errors and to notify defendant). See 15 U.S.C. § 1666(a)

(2012); 12 C.F.R. § 1026.13(c) (2013). After the 30-day period had passed and the bank had not 
16 

acknowledged receipt of the notices, defendant would have been aware that the bank was in 

violation of the TILA requirements. See 15 U.S.C. § 1666(a) (2012); 12 C.F.R. § 1026.13(c) 

(2013). Thus, the TILA statute of limitations would have started to run at that time (March and 

April of 2013) and would have expired one year later (March and April 2014). See 15 U.S.C. § 

1640(e) (2012). Defendant’s TILA-based counterclaims, therefore, were time barred by the oneyear TILA statute of limitations before defendant filed those counterclaims in July 2017. See 15 

U.S.C. § 1640(e) (2012); Parker, 2016 IL App (1st) 160186, ¶ 18. 

¶ 36 Under the provisions of the TILA and section 13-207 of the Illinois Code, defendant still 

could have raised the TILA violations as counterclaims in a suit brought against him by the bank 

and the counterclaims would been saved from the application of the TILA statute of limitations, 

if the counterclaims were not time barred by the statute of limitations before the bank’s primary 

cause of action arose. See 15 U.S.C. § 1640(e) (2012); 735 ILCS 5/13-207 (West 2016); Parker, 

2016 IL App (1st) 160186, ¶¶ 18-19. However, the record in this case clearly shows that the 

statute of limitations period for defendant’s TILA-based counterclaims expired in March and 

April 2014, several months before the bank’s primary cause of action later arose in November 

2014 when the bank charged-off defendant’s account. Thus, defendant’s TILA-based 

counterclaims could not be saved from the application of the one-year statute of limitations by 

the state counterclaim savings statute (section 13-207 of the Illinois Code). See 15 U.S.C. § 

1640(e) (2012); 735 ILCS 5/13-207 (West 2016); Parker, 2016 IL App (1st) 160186, ¶¶ 18-19. 

As the trial court correctly found, therefore, defendant could only raise the alleged TILA 

violations as an affirmative defense for set-off or recoupment. See 15 U.S.C. § 1640(e) (2012); 

735 ILCS 5/13-207 (West 2016); Parker, 2016 IL App (1st) 160186, ¶¶ 18-19. 
17 

¶ 37 Furthermore, although defendant asserts that section 1640(h) of the TILA and section 2-

608 of the Illinois Code specifically allow defendant to raise the TILA violations as 

counterclaims, there is nothing in those two statutory sections that would override the manner in 

which section 1640(e) of the TILA and section 13-207 of the Illinois Code would apply to the 

facts of this case. We, therefore, affirm the trial court’s ruling granting the bank’s section 2-619 

motion to dismiss defendant’s TILA-based counterclaims. 

¶ 38 C. Defendant’s FCRA-Based Counterclaim

¶ 39 As his third point of contention on appeal, defendant argues that the trial court erred in 

granting the bank’s section 2-619 motion to dismiss defendant’s FCRA-based counterclaim. 

More specifically, defendant contends that the trial court erred in finding that defendant’s FCRAbased counterclaim was time barred by the statute of limitations and in granting the bank’s 

motion to dismiss the counterclaim on that basis. In support of that contention, defendant asserts 

first that the trial court should have denied the motion to dismiss because the trial court had 

already rejected the same arguments by the bank as to the same counterclaim in ruling upon the 

bank’s prior two motions to dismiss. In making that contention, defendant claims that he 

asserted an FCRA-based counterclaim in each of his three filings (the original set of 

counterclaims, the first amended set of counterclaims, and the second amended set of 

counterclaims) and that the trial court was incorrect when it found that defendant had not 

asserted an FCRA-based counterclaim until defendant had filed his second amended set of 

counterclaims.4

 Second, defendant asserts that the trial court incorrectly determined that the 

statute of limitations period had started to run in this case in September 2014, when defendant 

4

 In its written order granting the bank’s motion to dismiss defendant’s FCRA-based 

counterclaim, the trial court stated that the second amended counterclaim (the FCRA-based counterclaim) 

was filed in December 2017. Our review of the record indicates, however, that the second amended 

counterclaim was actually filed in March 2018. 
18 

sent the dispute notice to the consumer credit reporting agency, or at the latest, in December 

2014, following the 45 day period the bank would have had to respond after being notified of the 

dispute by the agency (see 15 U.S.C §§ 1681i(a), 1681s-2(b) (2012)). To the contrary, defendant 

maintains, he did not know about the possible FCRA claim with sufficient specificity until he 

was served with the bank’s initial complaint the following year in September 2015. Thus, 

defendant contends that the two-year FCRA statute of limitations period in this case did not 

expire until September 2017 and was not expired, therefore, when defendant filed his initial set 

of counterclaims in this case in July 2017. Third, defendant asserts that even if the two-year 

statute of limitations period had otherwise expired before defendant had filed the FCRA-based 

counterclaim, the bank’s motion to dismiss still should not have been granted because 

defendant’s counterclaim was saved by the Illinois counterclaim savings statute (section 13-207 

of the Illinois Code). For all of the reasons stated, defendant asks that we reverse the trial court’s 

grant of the bank’s section 2-619 motion to dismiss defendant’s FCRA-based counterclaim and 

that we remand this case for further proceedings on that counterclaim.

¶ 40 The bank argues that the trial court’s ruling was proper and should be upheld. In 

response to defendant’s assertions, the bank contends first that the record shows that the trial 

court did not previously deny or reject the bank’s arguments as to what started out as defendant’s 

initial counterclaim VI and, instead, merely allowed defendant to replead his counterclaim two 

times. Second, the bank contends that the trial court correctly found that defendant was aware of 

his potential FCRA claim no later than December 2014 (45 days after defendant sent the dispute 

letter to the credit reporting agency) and failed to raise that claim before the two-year statute of 

limitations period expired in December 2016. In making that contention, the bank maintains that 

the record in this case shows, as the trial court correctly found, that defendant did not assert an 
19 

FCRA-based counterclaim until defendant filed his second amended set of counterclaims in this 

case. Third, the bank contends that defendant’s FCRA-based counterclaim was not saved by the 

state counterclaim savings statute (section 13-207 of the Illinois Code) because defendant did not 

file that counterclaim within a reasonable time period after the bank’s lawsuit was filed, did not 

raise the FCRA violation as one of his initial counterclaims, and did not raise the FCRA 

violation until more than two years after the bank had filed its initial lawsuit in this case. Fourth, 

the bank contends that defendant’s FCRA-based counterclaim cannot stand here because the 

bank voluntarily dismissed all of its claims against defendant prior to this appeal and defendant 

cannot move forward on his counterclaim alone. For all of the reasons set forth, the bank asks 

that we affirm the trial court’s ruling granting the bank’s section 2-619 motion to dismiss 

defendant’s FCRA-based counterclaim.

¶ 41 The legal principles that apply when an appellate court reviews a trial court’s grant of a 

section 2-619 motion to dismiss have been stated above and will not be repeated here. As noted 

previously, a trial court’s grant of a section 2-619 motion to dismiss is subject to a de novo

standard of review on appeal. Van Meter, 207 Ill. 2d at 368; Porter, 227 Ill. 2d at 352. 

¶ 42 As with the prior issue, to resolve this third issue on appeal, we must consider the 

provisions of both the federal act and the Illinois Code. The applicable federal act for this issue, 

the FCRA, was enacted in 1970 to ensure fair and accurate credit reporting, promote efficiency 

in the banking system, and protect consumer privacy. See 15 U.S.C. § 1681 (2012); Safeco 

Insurance Co. of America v. Burr, 551 U.S. 47, 52 (2007). Under the FCRA and of relevance to 

this appeal, when a consumer directly notifies a consumer credit reporting agency of alleged 

errors in the consumer’s credit report relative to a particular party that has furnished information 

to the agency about the consumer, the agency is required to notify the furnishing party of the 
20 

dispute notice, and the furnishing party must investigate the matter and respond to the agency 

within 45 days. See 15 U.S.C. §§ 1681i(a), 1681s-2(b) (2012)). Failure to comply with the 

requirements of the FCRA may subject a furnishing party to civil liability for actual damages, 

costs, attorney fees, and, in some cases, punitive damages. See 15 U.S.C. §§ 1681n, 1681o 

(2012)). Civil liability claims for FCRA violations are subject to the earlier of either a two year 

statute of limitations that runs from the point of discovery or a five year statute of limitations that 

runs from the date of the violation. See 15 U.S.C. § 1681p (2012). In addition, as noted above, 

section 13-207 of the Illinois Code, the state counterclaim savings provision, allows a defendant 

to file a counterclaim that is otherwise time barred by the statute of limitations if the 

counterclaim was not time-barred before the bank’s primary cause of action arose. See 735 

ILCS 5/13-207 (West 2016); Parker, 2016 IL App (1st) 160186, ¶¶ 18-19. 

¶ 43 In the instant case, after having reviewed the record and the applicable statutes, we find 

that although defendant’s FCRA-based counterclaim was otherwise time barred by the statute of 

limitations, it was not barred here because it was saved by the Illinois counterclaim savings 

statute. With regard to defendant’s FCRA-based counterclaim, the record in this case shows that 

in September 2014, defendant notified the consumer reporting agency of the bank’s alleged 

billing errors, the bank’s failure to correct those errors, and the allegedly erroneous negative 

credit reports that the bank had issued to the agency about defendant. The bank had 45 days 

from that point to take action upon defendant’s complaint to the consumer reporting agency (see 

15 U.S.C §§ 1681i(a), 1681s-2(b) (2012)), and the consumer credit reporting agency had 5 

business days thereafter to notify defendant of the results of its investigation (see 15 U.S.C. § 

1681i(a)(6)(A) (2012)). Thus, in approximately December 2014, as the trial court correctly 

found, defendant would have known about his potential FCRA claim against the bank. See 15 
21 

U.S.C. §§ 1681i(a), 1681s-2(b) (2012). Under the FCRA, therefore, defendant had until twoyears after that point—until December 2016—to file such a claim. See 15 U.S.C. § 1681p 

(2012). Defendant did not raise his FCRA-based counterclaim until March 2018 when defendant 

filed his second amended set of counterclaims. Thus, defendant’s FCRA-based counterclaim 

was otherwise time barred by the statute of limitations before defendant filed that counterclaim. 

See id.

¶ 44 However, under the state counterclaim savings statute (section 13-207 of the Illinois 

Code), defendant could still file his FCRA-based counterclaim in response to a suit brought 

against him by the bank, as long as his FCRA-based counterclaim was not time barred before the 

bank’s primary cause of action arose. See 735 ILCS 5/13-207 (West 2016); Parker, 2016 IL 

App (1st) 160186, ¶¶ 18-19. In this case, the bank’s primary cause of action arose in November 

2014 (when the bank charged-off defendant’s account), which was well before the statute of 

limitations period had expired on defendant’s counterclaim in December 2016. The state 

counterclaim savings statute, therefore, saves defendant’s FCRA-based counterclaim from being 

time barred. See Parker, 2016 IL App (1st) 160186, ¶¶ 18-19. Thus, the trial court erred when it 

reached the opposition conclusion. 

¶ 45 Furthermore, although the bank claims that defendant’s FCRA-based counterclaim 

cannot go forward because the bank has dismissed all of its claims against defendant, the law is 

well established in this area that the dismissal of the bank’s lawsuit does not prevent defendant 

from being able to proceed against the bank on his FCRA-based counterclaim. See, e.g., Ogg v. 

City of Springfield, 121 Ill. App. 3d 25, 34 (1984) (recognizing that a party’s counterclaim could 

still go forward even though the underlying cause of action against that party had been 

dismissed). In addition, despite the bank’s implied assertion to the contrary, we find nothing in 
22 

the language of section 13-207 of the Illinois Code that would impose additional requirements 

upon defendant regarding the reasonableness of when defendant’s FCRA-based counterclaim 

was eventually filed.

¶ 46 III. CONCLUSION

¶ 47 For the foregoing reasons, we take no action on defendant’s claim of error regarding his 

initial three affirmative defenses, we affirm the trial court’s dismissal of defendant’s TILA-based 

counterclaims, we reverse the trial court’s dismissal of defendant’s FCRA-based counterclaim, 

and we remand defendant’s FCRA-based counterclaim for further proceedings. 

¶ 48 Affirmed in part and reversed in part; cause remanded.