during a course of conduct involving trade or commerce. See Robinson, 201 Ill. 2d at 417. Factors
reviewed to determine whether an act was unfair include: (1) whether the act offends public policy;
(2) whether the act is immoral, unethical, oppressive or unscrupulous; and (3) whether the act caused
substantial injury to the consumer. See Robinson, 201 Ill. 2d at 417-18.

The facts of the instant case fail to support Plaintiff’s claim. The Bank initially allowed the
transfer of funds to GEICO on April 5, 2002. After Plaintiff notified the Bank that the transfer of
funds had not been authorized, the Bank took corrective action and provisionally credited Plaintiff's
account. Through correspondence, the Bank informed Plaintiff of the proper documentation needed
to contest the transaction. Plaintiff failed to provide the Bank with the proper documentation.
Subsequently, and after warning Plaintiff that failure to provide the proper documentation would
result in the provisional credit being withdrawn, the Bank withdrew the provisional credit. These
facts fail to support any of the elements of an ICFA claim.

In Count IV, Plaintiff alleges that the Bank violated the EFTA, 15 U.S.C. § 1693 et al., by
(1) failing to adequately investigate the unauthorized transfer of funds, (2) failing to notify Plaintiff
of the results of its investigation or determination, and (3) by debiting Plaintif’s account to reverse
the provisional credit.

Section 1693f(a) requires that after a financial institution receives oral or written notice of
an alleged error, the financial institution shall investigate the alleged error and report or mail the
results of the investigation to the consumer. It also provides that the financial institution may require
written confirmation be provided to it within ten business days if an oral notification of error has
been made. A financial institution that requires written confirmation need not provisionally recredit

a consumer’s account, and the financial institution is not liable for treble damages if the written


sent another correspondence to Plaintiff, informing her that the Bank had recently received

information validating the charges to her account. The correspondence requested that the Plaintiff

review the documentation and, if she still wished to dispute the charges, to please send a letter

indicating her rebuttal to the documentation. If the Bank did not receive a response by

June 12, 2002, the Bank considered the matter closed. No such response was received by the Bank.
ANALYSIS

Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that there is no genuine issue as to any
material fact.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
All the evidence and the reasonable inferences that may be drawn from the evidence are viewed in
the light most favorable to the nonmovant. Miller v. American Family Mut. Ins. Co., 203 F.3d 997,
1003 (7th Cir. 2000). Summary judgment may be granted when no “reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In Count II, Plaintiff alleges that the Bank violated the ICFA, 815 ILCS § 505/2, by
committing the unfair act of allowing GEICO to transfer funds from Plaintiff's account without her
express or implied permission after the Bank was on notice that the transfer was unauthorized and
unlawful.

The ICFA is intended to protect consumers, business persons, and borrowers against fraud,
unfair methods of competition, and unfair and deceptive business practices. Robinson v. Toyota
Motor Credit Corp., 201 Ill. 2d 403, 416-17 (2002) (Robinson). The elements of a claim under the
ICFA are: (1) a deceptive or unfair act or practice by the defendant, (2) the defendant’s intent that

the plaintiff rely on the deceptive or unfair act, and (3) the occurrence of the deceptive or unfair act


confirmation is not received within the ten-day period. See 15 U.S.C. § 1693 f(a).

The facts of the instant case also fail to support Plaintiff's EFTA claim. Upon receiving oral
notification of a possible unauthorized transaction, the Bank provisionally credited Plaintiff's
account. Through correspondence, the Bank informed Plaintiff that a written report was required,
The correspondence included an affidavit to assist Plaintiff in completing the written report. Plaintiff
failed to provide the Bank with a written report. After investigation, the Bank again corresponded
with Plaintiff, informing her that the Bank had received information validating the disputed
withdraws. The correspondence requested that Plaintiff review the documentation and to contact
the Bank if she still disputed the charges. Plaintiff did not respond to the Bank.

The above facts demonstrate that, contrary to Plaintiff's allegations, the Bank complied with
the EFTA.

Lastly, the Bank seeks attorney’s fees and costs pursuant to the EFTA.

The EFTA allows the court to award the defendants reasonable attorney’s fees and costs
related to the work expended if the court finds that “an unsuccessful action under this section was
brought in bad faith or for the purpose of harassment”. 15 U.S.C. § 1693m(f). The Bank argues that
Plaintiff's bad faith is demonstrated by Plaintiff’s failure to disclose to her counsel the substance of
her conversations with the Bank or the receipt of the two correspondences from the Bank or
Plaintiff's counsel to heed such facts if they were informed of such.

The above facts demonstrate that the Bank fully complied with the EFTA and that the
Plaintiff failed to assist the Bank in investigating the alleged unauthorized transaction. Plaintiff does
not dispute that the two correspondences, which Plaintiff failed to mention in her complaint or

dispute during the present litigation, are fatal to her allegations against the Bank. Furthermore,


oo CS
Minute Order Form (06/97)

United States District Court, Northern District of Illinois

viii Magistrate Sudge John W. Darrah “than Assigned Judge

CASE NUMBER 02 C3865 DATE 5/1/2003
CASE ANNA UCHACZ vs. GOVERNMENT EMPLOYEES INSURANCE
TITLE

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

MOTION:

DOCKET ENTRY:

(i) QO Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) Qo Answer brief to motion due___. Reply to answer brief due___.

(4) oO Ruling/Hearingon___setfor____at

(5) Oo Status hearing[held/continued to} [set for/re-set for]on__set for___at.

(6) oO Pretrial conference[held/continued to] [set for/re-set for}on___—ssetfor_ saat.

(7) QO Trial[set for/re-set for]on____—_at

(8) a [Bench/Jury trial] [Hearing] held/continued to____at .

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) CLocal Rule 41.1 OPRCP41(a)(1) O FRCP41(a)(2).

qo) (Other docket entry] Status hearing set for 5/1/03 is reset to 5/14/03 at 9:00 a.m. Enter

Memorandum Opinion And Order. The Bank’s motion for summary judgment is granted. The Bank is
also awarded reasonable attorney’s fees and costs related to the litigation of the EFTA claim. The Bank
is ordered to submit proper documentation setting forth the requested fees and costs related to the EFTA
litigation on or before 5/16/03. Plaintiffs response to the requested fees and costs, if any, is to be filed
on or before 5/30/03.

(qj) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. i
ea number of notices

Notices mailed by judge’s staff. MA

Notified counsel by telephone.

uv | Docketing to mail notices.

Mail AO 450 form. LYnga sat
of

MISIg's'A

Copy to judge/magistrate judge.

date mailed notice
courtroom

LG deputy’s
initials

re
central Clerk’s Office rating deputy initials



Plaintiff continued to litigate the allegations against the Bank after the Bank set forth its argument,
including the two correspondences, in September 2002. This continued litigation included
responding to the Motion to Dismiss without properly addressing the two correspondences, litigating
a Motion to Obtain Discovery and to Extend the Time to Respond to the converted Motion for
Summary Judgment, and then failing to respond to the Motion for Summary Judgment.

These facts demonstrate that Plaintiff filed suit against the Bank in bad faith and that
attorney’s fees and costs related to the litigation of the EFTA claim are proper.

CONCLUSION

For the reasons stated above, the Bank’s Motion for Summary Judgment is granted. The
Bank is also awarded reasonable attorney’s fees and costs related to the litigation of the EFTA claim.
The Bank is ordered to submit proper documentation setting forth the requested fees and costs

related to the EFTA litigation on or before May 16, 2003. Plaintiff's response to the requested fees

and costs, if any, is to be filed on or before May 30, 2003. :
Dated: Yar oup ) 2003 ’ ‘7 A,

\ JOHN W. DARRAH
United States District Judge



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
ANNA UCHACZ, )
)
Plaintiff, )
) No. 02 C 3865
v. )
) Judge John W. Darrah
GOVERNMENT EMPLOYEES INSURANCE )
COMPANY and SUBURBAN BANK )
BARRINGTON, )
) ete
Defendants. ) ant
vy 4 703

wr *
MEMORANDUM OPINION AND ORDER

Plaintiff, Anna Uchacz (“Uchacz”) brought suit against the Government Employees
Insurance Company (“GEICO”) and Suburban Bank Barrington (“the Bank”). Count I alleges
conversion, and Count II alleges a violation of the Illinois Consumer Fraud Act (“ICFA”) against
GEICO. Count ILalleges a violation of the ICFA against the Bank, and Count IV alleges a violation
of the Electronic Fund Transfer Act (“EFTA”) against the Bank.

In September 2002, the Bank filed a Motion to Dismiss Counts IM and IV. After the Motion
to Dismiss was fully briefed, the Court informed the parties that the Motion to Dismiss would be
treated as a Motion for Summary Judgment. The Court allowed the parties additional time to file
additional responses. In December 2002, the Court granted Plaintiff's Motion to Obtain Discovery
and extended the time for the parties to respond to the Motion for Summary Judgment. On
February 11, 2003, the Court ordered a new briefing schedule, allowing the Plaintiff until March 18,
2003, to file an additional response to the Motion for Summary Judgment. Plaintiff has not filed an

additional response.



BACKGROUND

On April 5, 2002, GEICO initiated two electronic transfers of funds from Plaintiff's bank
account. The first transfer was in the amount of $562. The second transfer was in the amount of
$169. Plaintiff claimed she did not have a business relationship with GEICO and did not authorize
GEICO to electronically transfer funds from her account.

On April 11, 2002, Plaintiff contacted the Bank to inquire about a deficiency of funds in her
account and to inform the Bank of the unauthorized transfer of funds by GEICO. A Bank
representative completed a “Fraud/Unauthorized Information Questionnaire based on Plaintiff's
telephone call. On April 17, 2002, the Bank provisionally credited Plaintiffs account in the amount
of $731.

On April 18, 2002, Judy Hallman (“Hallman”), a Senior Processing Technician for the Bank,
wrote Plaintiff a correspondence concerning the unauthorized transfer. The correspondence
informed Plaintiff that her account had been provisionally credited in the amount of $731. It further
stated that, to keep the provisional credit, Plaintiff must provide the Bank with a letter detailing the
specific transactions that were in dispute within ten business days from the date that she gave the
Bank oral notice. The correspondence warned Plaintiff that if it did not receive the Plaintiff's letter
within the ten-day period, the Bank would immediately deduct the provisional credit applied to
Plaintiff's account. Hallman also included an affidavit, to be completed by the Plaintiff, that
addressed the facts and circumstances relating to Plaintiff’s claim. The correspondence asked the
Plaintiff to complete the affidavit.

The Bank did not receive a letter or the affidavit from Plaintiff; and, on May 20, 2002, the

Bank deducted the provisional credit of $731 from Plaintiffs account. On May 29, 2002, the Bank