financial institute is liable for damages proximately caused by the financial institution’s failure
to make an electronic fund transfer in a timely manner when properly instructed to do so by the
consumer. 15 U.S.C. § 1693h. In his Complaint, Gale alleges that he made a request to
Defendant to transfer funds to a merchant in December 2001 and that Defendant did not make
such transfer. Subsequently, Defendant received a request for transfer of funds in April 2002 to
the same merchant; this transfer was made. These allegations support Gale’s claim under
Section 1693h. However, the exhibits that Gale attached to his Complaint negate these
allegations. If a plaintiff attaches documents to his complaint and relies upon such documents
for the basis of his claim or part of a claim, dismissal is appropriate if the documents negate the
claim. See Thompson v. Illinois Dept. of Prof’! Regulation, 300 F.3d 750, 754 (7th Cir. 2002).
The exhibits attached to Gale’s Complaint show that Defendant was not made aware of
the transaction between Gale and the merchant until April 2002. At that time, Defendant had no
knowledge that the actual transaction took place in December 2001 and that the merchant was
tardy in submitting the authorized purchase. Upon Gale’s notification of the delay, the
Defendant immediately undertook an investigation and credited Gale’s account the disputed
amount and all fees associated with the transaction. Defendant also timely responded to all of
Gale’s inquiries as well as Gale’s complaint to the FDIC. These exhibits negate Gale’s claim
that Defendant was aware of the request to transfer funds in December 2001 and that it failed to
process such transaction. They also negate that Defendant failed to timely transfer funds after
receiving an authorized request for such transfer. The Defendant was unaware of the delay in
the merchant’s submission of the transaction and was unable to have knowledge of the delay

absent notification by Gale and the undertaking of an investigation. Accordingly, Gale has not



Corporation (“FDIC”) regarding the December/April transaction. Defendant responded to the
FDIC, stating that Gale authorized a transaction in the amount of $352.32, using his debit card in
December 2001. On April 3, 2002, the $352.35 transaction was posted to Gale’s account,
causing an overdarft. Defendant had no indication that this was an old transaction that had never
been posted.

On April 18, 2002, Defendant informed Gale via letter that a provisional credit in the
amount of $352.35 had been credited to his checking account.

On May 14, 2002, Defendant responded to additional inquiries by Gale via e-mail.
Defendant informed Gale that no agency had asked Defendant to monitor his credit and that such
a request by a federal agency would be inappropriate. Defendant also informed Gale that the
transaction in question was processed electronically and that Defendant does not review them for
dates of authorization because the authorization is granted by the consumer to the creditor.
Defendant had no way of knowing about the delay in the transaction until it was brought to the
Defendant’s attention, and it conducted an investigation.

Defendant argues that Gale’s Complaint should be dismissed because it fails to state a
claim, In response, Gale argues that several aspects of Defendant’s conduct violated 15 U.S.C. §
1693. Gale first argues that Defendant did not inform him of all the rules governing the use of
his debit card on an annual basis. There are no allegations in the Complaint, including its
exhibits, that Defendant failed to properly send any required annual information. Gale cannot
amend his complaint via a response to a motion to dismiss. See Car Carriers, Inc. v. Ford
Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984).

Gale also alleges that the funds were not timely transferred. Section 1693h states that a



stated a claim under Section 1693h.

Gale also alleges that the Defendant failed to conduct an investigation of the error and
provide proof of records of its investigation. It also “blindly accepted” the April request for a
transfer without checking to see if it was authorized.

The exhibits attached to Gale’s Complaint negate these allegations. The Defendant made
a timely investigation and provided Gale with the information known to it. Defendant assisted
Gale jn further investigating the transaction by providing explanations of how debit card
transactions proceed and information about VISA. Furthermore, the April request for a transfer
of funds was authorized by Gale. It was authorized in December 2001 but not submitted to
Defendant until Apri] 2002.

Lastly, Gale argues that Defendant knowingly had an error in his account but took no
responsibility for it and tried to blame him for the error. Again, the exhibits attached to Gale’s
Complaint negate this allegation. The exhibits demonstrate that the Defendant timely responded
to Gale’s notice that something was wrong with the April 2002 transaction, investigated the
problem, and timely credited Gale’s account his monies. The Defendant's actions are consistent
with those required by statute. See 15 U.S.C. § 1693f.

For the foregoing reasons, Gale’s Complaint fails to plead a cause of action.
Accordingly, Defendant’s Motion to Dismiss is granted, and Gale’s Complaint is dismissed

without prejudice. In light of this ruling, Defe: t’s Motion to Strike is denied as moot.

7
\pbs W. DARRAH
Inited States District Judge

Dated: 40 -//-O2—



Mina Order Form (9657) NO)
c U States District Court, Northern District of Illinois
Name niers bys | John W. Dara Stet eer
CASE NUMBER) 02 C 3663 DATE 10/17/2002
CASE ANDREW GALE vs. HYDE PARK BANK
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
Q) ia} Brief in support of motion due
@) a Answer brief to motion due___. Reply to answer brief due___.
(4) a Ruling/Hearing on setfor_____at
(5) Qo Status hearing[held/continued to] [set for/re-set for]on__———ssetfor_——aat
(()) Oo Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor__———sat__—
(7) ia} Trial[set for/re-set for] on at
(8) oO (Bench/Jury trial] [Hearing] held/continued to__at
(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CUFRCP4(m) OLocal Rule 41.1 OFRCP41(a\(1) OFRCP41(a)(2).
ao [Other docket entry] Status hearing held. Enter Memorandum Opinion And Order. Gale’s

complaint fails to plead a cause of action. Accordingly, defendant’s motion to dismiss is granted, and
Gale’s complaint is dismissed without prejudice. In light of this ruling, defendant’s motion to strike is

denied as moot.

(11) @ {For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required,
Notices mailed by judge's staff.
. OCT 18 2g
Notified counsel by telephone.
a | Docketing to mail notices.
Mail AO 450 form. Lb 5
N ;
Copy to judge/magistrate judge.
courtroom Ob:
LG deputy’s
initials
Date/time received in ~
central Clerk's Office



¢-

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS DOCKETED
EASTERN DIVISION OCT 1.8 2002

ANDREW GALE,

Plaintiff,
No. 02 C 3663
v.
Judge John W. Darrah
HYDE PARK BANK,

www we were

Defendant.
MEMORANDUM OPINION AND ORDER

Plaintiff, Andrew Gale (“Gale”), filed a pro se complaint against Defendant, Hyde Park
Bank, alleging a violation of 15 U.S.C. §1693 et ai. Presently pending before the Court is
Defendant’s Motion to Dismiss and to Strike.

In reviewing a motion to dismiss, the court reviews all facts alleged in the complaint and any
teasonable inferences drawn therefrom in the light most favorable to the plaintiff. See Marshall-
Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). Dismissal is only
warranted if the plaintiff can prove no set of facts in support of its claims that would entitle it to
relief. See Comey v. Gibson, 355 U.S. 41, 45-46 (1957).

A reading of the Complaint supports the following summary of the alleged conduct of the
parties,

~ On December 3, 2001, Gale used his debit card to make a purchase with a merchant, The
College of Office. The amount of the transaction was $352.35. Defendant failed to process the
transaction at that time and failed to notify Gale of any error in the transaction. Gale contacted
the vendor to verify that he had received payment, and he was informed that payment had been

received. On April 3, 2002, the vendor submitted another request for payment to Defendant.

[S-

Defendant paid the request without the knowledge and consent of Gale.



Plaintiff alleges that Defendant had in its possession a request for a transfer of funds for
the December 2001 purchase, but it failed to transfer the funds. Defendant further failed to
provide an adequate explanation for its failure to pay the request. He also alleges that the
“evidence suggests some type of collusion with other parties, possibly the government because
of plaintiff's long history of social activism.”

Gale attached several exhibits to his Complaint which support the following additional
facts.

Gale’s bank statement for transactions occurring between November 16, 2001 and
December 14, 2001, does not include an entry for the amount of $352.35. The $352.35 was
transferred from Gale's account once, in April 2002.

On April 9, 2002, Gale submitted a request to Defendant for an explanation for the error
since his account now had a negative balance and he was being charged overdraft charges.

On April 12, 2002, Defendant responded to Gale’s inquiry. Defendant informed Gale
that debit card purchases are not returnable and must be posted to an account. The delay in this
transaction may have been caused by any number of reasons, The merchant may have delayed
submitting the purchase to VISA or the item may have been lost or may have been rejected by
the system for one reason or another and needed to be reconciled before submission. The delay
in the instant transaction was between the merchant and VISA. Furthermore, regulation allows
120 days for a debit card item to be posted to an account. The authorization for the December 3”
purchase is a temporary hold only and may or may not be followed by an actual purchase.
Therefore, Defendant did not post anything until VISA sent a debit.

On April 16, 2002, Gale filed a complaint with the Federal Deposit Insurance