negate the claim. See Thompson vy. 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
stated a claim under Section 1693h.

Gale also alleges that the Defendant failed to provide proof of records of its investigation.

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 in 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 April 2002.



causing an overdraft. 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 the funds were not timely transferred. Section 1693h states
that a 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 Amended 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



Lastly, Gale argues that Defendant's actions caused harm to Gale’s credit rating. There
are no allegations in the Amended Complaint that Defendant’s actions harmed Gale’s credit
rating. 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).

For the foregoing reasons, Gale’s Amended Complaint fails to plead a cause of action.
Accordingly, Defendant’s Motion to Dismiss is granted; and Gale’s Amended Complaint is
dismissed without prejudice. Gale is granted leave to file an amended complaint, if any, within
twenty-eight days of this Order only if he can do so consistent with his obligations under Fed. R.

Civ. Proc. 11. In light of this ruling, Defendant’s Motion to Strikeis denied as moot.

Dated: [- )5-OF W WN aa

ofxw. DARRAH
Uhied States District Judge



Minute, Order Form (06/97)

United States District Court, Northern District of Illinois

neni Magers dee John W. Darrah “oan Asgoed Judge

CASE NUMBER 02 C 3663 DATE 1/15/2004
CASE Andrew Gale vs. Hyde Park Bank
TITLE

[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

qd) a] Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

@) a Answer brief to motion due___. Reply to answer brief due__.

(4) o Ruling/Hearing on setfor at

(5) Oo Status hearing[held/continued to] [set for/re-set for] on setfor at

(6) 1) Pretrial conference[held/continued to} [set for/re-setfor)on___—ssetfor__—saat__— ts

(7) oO Trial[set for/re-set for]on__—_—_at

(8) a (Bench/Jury trial] Hearing] held/continuedto_——_—aat

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) (Cl Local Rule 41.1 OOFRCP41(a)(1) 0 FRCP41(a)(2).

ao (Other docket entry] For the reasons stated in the attached memorandum opinion and order,

defendant’s motion to dismiss amended complaint [31-2] is granted. Plaintiff's amended complaint is
dismissed without prejudice. Plaintiff is granted leave to file an amended complaint, if any, within twenty
-eight days of this order only if he can do so consistent with his obligations under FRCP 11. In light of
this ruling, defendant's motion to strike [31-1] is denied as moot. Enter Memorandum Opinion and Order.

aq) [For further detail see order attached to the origina! minute order.)

No notices required, advised in open court,

No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

ov | Docketing to mail notices.

Mail AO 450 form. 1bn09 Loiwisia'sin
Copy to judge/magistrate judge. HY39q9
coun = PCH ST Re ay
MF deputy's

initisls OTS Uphadad eocived in
central Cletk’s Office



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS Pam,

EASTERN DIVISION 5 TE
ANDREW GALE, ) "8 0 2094
)
Plaintiff, )
) No. 02 C 3663
v. )
) Judge John W. Darrah
HYDE PARK BANK, )
)
Defendant. )
MORAN INION iE,

Plaintiff, Andrew Gale (“Gale”), filed an Amended Complaint! against Defendant, Hyde
Park Bank, alleging a violation of 15 U.S.C. §1693 ef al. Gale’s previous Complaint was
dismissed without prejudice for failure to state a claim. Presently pending before the Court is
Defendant’s Motion to Dismiss and to Strike.

In reviewing a motion to dismiss, the court reviews al] facts alleged in the complaint and
any reasonable 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 Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

A reading of the Amended Complaint supports the following summary of the alleged
conduct of the parties.

In early December 2001, Gale used his debit card to make a purchase with a merchant.
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. On April 3, 2002, the vendor

'Gale’s Amended Complaint was filed pro se. However, counsel was appointed; and counsel

responded to the present Motion to Dismiss and Strike. L} 0



submitted a request for payment to Defendant. Defendant paid the Tequest without the
knowledge and consent of Gale.

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
Corporation (“FDIC”) regarding the December/April transaction. Defendant responded to the
FDIC, stating that Gale authorized a transaction in the amount of $352.35, using his debit card in

December 2001. On April 3, 2002, the $352.35 transaction was posted to Gale’s account,