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Case:1:09-cv-06746
1:09-cv-06746Document
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APPEAL TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
FROM AND FILED IN THE
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
DREW W. PETERSON, )
) Appeal No. _________
Plaintiff, )
) District Court Case No. 1:09-cv-6746
v. )
) Hon. Ronald A. Guzman
) U.S. District Judge
JPMORGAN CHASE BANK, NA, )
d/b/a “CHASE”, ) Hon. Nan R. Nolan
) U.S. Magistrate Judge
Defendant. )
NOTICE OF APPEAL
To: Clerk of the U.S. District Court for the Northern District of Illinois,
LeAnn Pedersen Pope, Michael G. Salemi, Victoria R. Collado, and
Bruke, Warren, McKay & Serritla
CERTIFICATE OF SERVICE
The undersigned certifies that he served true and correct copies of the foregoing
by electronically filing them on September 29, 2010 with the Clerk U.S. District Court
for the Northern District of Illinois using the CM/ECF system, which will send
notification by electronic mail to the following counsel for Defendant-Appellee:
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Other Information
Has Docketing Statement been filed with the District Court Clerk’s Office? Yes No X
If State/Federal Habeas Corpus (28 USC 2254/28 USC 2255), was Certificate of Appealability:
IMPORTANT: THIS FORM IS TO ACCOMPANY THE SHORT RECORD SENT TO THE CLERK OF
THE U.S. COURT OF APPEALS PURSUANT TO CIRCUIT RULE 3(A). Rev 04/01
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Drew W. Peterson
Plaintiff,
v. Case No.: 1:09−cv−06746
Honorable Ronald A. Guzman
JPMorgan Chase Bank NA
Defendant.
This docket entry was made by the Clerk on Thursday, April 29, 2010:
ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of
Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was
generated by CM/ECF, the automated docketing system used to maintain the civil and
criminal dockets of this District. If a minute order or other document is enclosed, please
refer to it for additional information.
For scheduled events, motion practices, recent opinions and other information, visit our
web site at www.ilnd.uscourts.gov.
Case:
Case:1:09-cv-06746
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DREW W. PETERSON, )
)
Plaintiff, )
) No. 09 C 6746
v. )
) Judge Ronald A. Guzmán
JPMORGAN CHASE BANK, N.A., )
)
Defendant. )
Plaintiff has sued defendant for its alleged violations of the Truth in Lending Act and state
law. The case is before the Court on defendant’s Federal Rule of Civil Procedure (“Rule”) 12(b)(6)
motion to dismiss the complaint. For the reasons set forth below, the Court grants the motion.
Facts
On May 18, 2005, the parties entered into a contract for a twenty-year home equity line of
credit (“HELOC”) in the amount of $220,000.00. (Compl. ¶ 10.) On May 7, 2009, plaintiff was
arrested on murder charges and has been held in a state detention facility ever since. (Id. ¶ 11.)
After his arrest, plaintiff drew on the HELOC to pay his expenses. (Id. ¶ 12.) On May 15, 2009,
defendant suspended the HELOC “because of a material change in [plaintiff’s] financial condition,”
Discussion
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On a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded factual
allegations of the complaint, drawing all reasonable inferences in plaintiff’s favor. Hecker v. Deere
& Co., 556 F.3d 575, 580 (7th Cir. 2009). “[A] complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations” but must contain “enough facts to state a claim
for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
In Counts I and II, plaintiff alleges that defendant suspended his HELOC in violation of the
Truth in Lending Act (“TILA”). With certain exceptions, that statute bars creditors from unilaterally
changing the terms of HELOC agreements. 15 U.S.C. § 1647(c). One exception allows a creditor
to “[p]rohibit additional extensions of credit or reduce the credit limit applicable to [a HELOC]
during any period in which the creditor has reason to believe that the consumer will be unable to
comply with the repayment requirements . . . due to a material change in the consumer’s financial
says it suspended the HELOC because it believes plaintiff’s arrest and detention for first degree
murder will impair his ability to make HELOC payments. (See Compl., Ex. C, Letter to Drew &
Stacy Peterson from Chase dated 5/19/09.) Plaintiff says that justification is baseless because he has
alleged that his income, which is comprised of pension and social security benefits, is not affected
The assumption underlying plaintiff’s argument is that “financial circumstances,” for the
purposes of TILA section 1647(c)(2)(C), means “income.” That language does not appear in the
statute, however, and the staff interpretation of Regulation Z indicates that “financial circumstances”
encompasses more than income. Id.; 12 C.F.R. § 226.5b(f)(3)(vi)(B); see 12 C.F.R. § 226, Supp.
I (saying that decreased income is an example, not the universe, of changed financial circumstances).
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Nonetheless, plaintiff contends that two district courts have agreed with his interpretation
and urges the Court to follow their lead. In the first case, Schulken v. Washington Mutual Bank, the
financial circumstance defendants cited for suspending plaintiffs’ HELOC was that their income had
dropped. No. C-09-02708 JW, 2009 WL 4173525, at *1-2 (N.D. Cal. Nov. 19, 2009). Because the
alleged income change was the only reason defendants gave for the suspension in that case, the
parties used “financial circumstances” and “income” interchangeably. Id. However, the Schulken
court did not hold that the terms are interchangeable. In fact, the court dismissed the TILA claim
on other grounds without even addressing the issue. Id. at *4. Given its unique facts and inapposite
Nor does Levin v. Citibank N.A., No. C-09-0350 MMC, 2009 WL 3008378 (N.D. Cal. Sept.
17, 2009), the other case plaintiff cites. The issue in Levin was whether defendant had properly
invoked the TILA exception in section 1647(c)(2)(B), which permits a creditor to suspend a HELOC
if the value of the property securing it decreases significantly, not the exception in 1647(c)(2)(C)
for changed financial circumstances. Id. at *1-2. Because the meaning of financial circumstances
was not even presented to, let alone ruled on, by the Levin court, the case has no application here.
Plaintiff does not offer any other authority for his crabbed interpretation of “financial
circumstances,” and the Court has found none. Moreover, Seventh Circuit decisions in other
contexts demonstrate that financial condition depends on both income and expenses. See Rivera v.
City of Chi., 469 F.3d 631, 635 (7th Cir. 2006) (holding that a losing party can be excused from
paying costs under Rule 54(d) only if evidence about his “income/assets and expenses” shows that
he is “incapable of paying the court-imposed costs at this time or in the future” (quotation omitted));
Goulet v. Educ. Credit Mgmt. Corp., 284 F.3d 773, 777 (7th Cir. 2002) (stating that a student loan
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will be discharged in bankruptcy only if the debtor shows that “he cannot maintain, based on current
income and expenses, a minimal standard of living for himself and his dependents if forced to repay
the loan[]”). Given TILA’s plain language, the Seventh Circuit’s reasoning in analogous cases and
the utter lack of support for plaintiff’s view, the Court holds that “financial circumstances,” as it is
Plaintiff’s TILA suspension claim does not pass muster under the Court’s interpretation of
the statute. Though plaintiff alleges that the murder charge does not affect his income, he does not
say that his expenses are similarly unaffected. In fact, his allegations suggest the reverse. (See
Compl. ¶ 39(a)-(m) (alleging that plaintiff needs multiple lawyers, experts and other professionals
to defend against the charge).) Because plaintiff’s allegations do not state a plausible claim for relief
In Count III of the complaint, plaintiff alleges that defendants violated TILA by sending him
a suspension notice that was “untimely and/or did not contain sufficiently specific . . . reasons” for
the action. (Id. ¶ 45.) But, in his response to defendant’s motion, plaintiff does nothing to defend
the timeliness claim and concedes that the specificity claim has no merit. (See Pl.’s Mem. Opp’n
Mot. Dismiss at 11 (“In compliance with [sic] first Regulation Z disclosure requirement, the
[suspension] notice letter identified the specific reasons for the suspension of the Petersons’ HELOC
. . . .”).) Given plaintiff’s abandonment of these claims, the Court grants defendant’s motion to
dismiss them and the state claims based on the same alleged deficiencies asserted in Counts V and
1
Because plaintiff also abandons the Count VIII unjust enrichment claim, the Court dismisses it as well.
(See Pl.’s Mem. Opp’n Mot. Dismiss at 14.)
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In Counts IV and V, plaintiff alleges that defendant breached the terms of the parties’
contract and the covenant of good faith and fair dealing by baselessly suspending the HELOC. (Id.
¶¶ 52, 57.) In Count VII, he alleges that defendant’s suspension notice is fraudulent because it
falsely states that plaintiff’s incarceration is a material change to his financial condition. (Id. ¶¶ 70-
74.) In Count XI, plaintiff alleges that defendant defamed him by making the baseless HELOC
suspension “part of his credit information.” (Id. ¶ 100.) In Count XII, he alleges that defendant’s
baseless suspension of the HELOC intentionally inflicted emotional distress on him. (Id. ¶ 102.)
Though these claims are based on different legal theories, they all have the same factual premise –
that the murder charge does not affect plaintiff’s financial condition. Because, as discussed above,
plaintiff has not adequately alleged this fact, the Court dismisses these claims.
In Count VI, plaintiff alleges that defendant violated the Illinois Consumer Fraud Act
because its statements about “the availability of credit through the HELOC” and “potential bases
for reducing credit limits” were false. (Id. ¶ 65.) If this claim shares the factual premise of the
claims discussed above, it fails for the same reason. If this claim has some other factual basis, it
fails for lack of specificity under Rule 9(b). See id.; Windy City Metal Fabricators & Supply, Inc.
v. CIT Tech. Fin. Servs., Inc., 536 F.3d 667, 669 (7th Cir. 2008).
The two remaining counts, IX and X, seek specific remedies for the defunct state-law claims.
Conclusion
For the reasons set forth above, the Court grants defendant’s motion to dismiss [doc. no. 27]
and dismisses plaintiff’s complaint without prejudice. Plaintiff may amend his complaint in
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accordance with this Order on or before May 6, 2010. If he fails to do so, the Court will dismiss this
suit with prejudice. Defendant may file a response to any amended complaint on or before May 10,
2010. The Court strikes the summary judgment briefing schedule set forth in the April 7, 2010 order
[doc. no. 72]. Summary judgment motions, if any, must be filed by June 1, 2010. If only one party
moves for summary judgment, response is due June 15, 2010 and reply is due June 29, 2010. Cross-
motions will be briefed as set forth in the Court’s standing order. Ruling on any summary judgment
SO ORDERED. ENTERED:
________________________________
HON. RONALD A. GUZMAN
United States District Judge
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Drew W. Peterson
Plaintiff,
v. Case No.: 1:09−cv−06746
Honorable Ronald A. Guzman
JPMorgan Chase Bank NA
Defendant.
This docket entry was made by the Clerk on Thursday, June 24, 2010:
ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of
Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was
generated by CM/ECF, the automated docketing system used to maintain the civil and
criminal dockets of this District. If a minute order or other document is enclosed, please
refer to it for additional information.
For scheduled events, motion practices, recent opinions and other information, visit our
web site at www.ilnd.uscourts.gov.
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Case:1:09-cv-06746
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Drew W. Peterson
Plaintiff,
v. Case No.: 1:09−cv−06746
Honorable Ronald A. Guzman
JPMorgan Chase Bank NA
Defendant.
This docket entry was made by the Clerk on Wednesday, September 8, 2010:
ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of
Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was
generated by CM/ECF, the automated docketing system used to maintain the civil and
criminal dockets of this District. If a minute order or other document is enclosed, please
refer to it for additional information.
For scheduled events, motion practices, recent opinions and other information, visit our
web site at www.ilnd.uscourts.gov.
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Drew W. Peterson
Plaintiff,
v. Case No.: 1:09−cv−06746
Honorable Ronald A. Guzman
JPMorgan Chase Bank NA
Defendant.
This docket entry was made by the Clerk on Friday, September 17, 2010:
ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of
Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was
generated by CM/ECF, the automated docketing system used to maintain the civil and
criminal dockets of this District. If a minute order or other document is enclosed, please
refer to it for additional information.
For scheduled events, motion practices, recent opinions and other information, visit our
web site at www.ilnd.uscourts.gov.
Case:
Case:1:09-cv-06746
1:09-cv-06746Document
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119Filed:
AO 450(Rev. 5/85)Judgment in a Civil Case
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G Jury Verdict. This action came before the Court for a trial by jury. The issues have been
tried and the jury rendered its verdict.
O Decision by Court. This action came to trial or hearing before the Court. The issues
have been tried or heard and a decision has been rendered.
IT IS HEREBY ORDERED AND ADJUDGED that the Court enters judgment in favor of
defendant, JPMorgan Chase Bank NA, and against plaintiff, Drew W. Peterson, on all of the
remaining claims in this suit.
V.
Defendant
JPMorgan Chase Bank NA represented by LeAnn Pedersen Pope
doing business as Burke, Warren, MacKay &
CHASE Serritella, P.C.
330 North Wabash Avenue
22nd Floor
Chicago, IL 60611-3607
(312) 840-7000
Email: lpope@burkelaw.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Victoria R. Collado
Burke, Warren, MacKay &
Serritella, PC
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Michael G. Salemi
Burke, Warren, MacKay &
Serritella, PC
330 North Wabash
22nd Floor
Chicago, IL 60611-3607
(312) 840-7112
Fax: (312) 840-7900
Email: msalemi@burkelaw.com
ATTORNEY TO BE NOTICED
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request, status hearing set for 3/25/2010 is stricken and reset for
3/31/2010 at 09:00 AM.Mailed notice (lxs, ) (Entered:
03/26/2010)
03/31/2010 70 MINUTE entry before Honorable Ronald A. Guzman: Status
hearing held on 3/31/2010. Status hearing set for 4/7/2010 at
09:30 AM. Mailed notice (cjg, ) (Entered: 03/31/2010)
03/31/2010 71 MINUTE entry before Honorable Nan R. Nolan:Magistrate Judge
Status hearing held on 3/31/2010 and continued to 4/7/2010 at
09:00 AM. Parties reported status of discovery production and
confidentiality agreement. Parties are to continue to meet and
confer.Mailed notice (lxs, ) (Entered: 03/31/2010)
04/07/2010 72 MINUTE entry before Honorable Ronald A. Guzman: Status
hearing held on 4/7/2010. Defendant to answer complaint on or
before 4/21/10. Plaintiff's motion for summary judgment to be
filed on or before 5/5/2010. Response due 5/19/10. Reply due
6/2/10. Ruling to be by mail. Mailed notice (cjg, ) (Entered:
04/07/2010)
04/07/2010 73 MINUTE entry before Honorable Nan R. Nolan:Magistrate Judge
Status hearing held on 4/7/2010 and continued to 4/12/2010 at
08:45 AM. Stipulate Protective Order to follow.Mailed notice
(lxs, ) (Entered: 04/07/2010)
04/07/2010 74 STIPULATED PROTECTIVE Order Signed by the Honorable
Nan R. Nolan on 4/7/2010.Mailed notice(lxs, ) (Entered:
04/08/2010)
04/14/2010 75 MINUTE entry before Honorable Nan R. Nolan:Magistrate Judge
Status hearing held on 4/14/2010 and continued to 4/15/2010 at
03:30 PM.Mailed notice (lxs, ) (Entered: 04/15/2010)
04/15/2010 76 MINUTE entry before Honorable Nan R. Nolan:Magistrate Judge
Status hearing held on 4/15/2010 and continued to 4/21/2010 at
04:00 PM.Mailed notice (lxs, ) (Entered: 04/19/2010)
04/16/2010 77 MINUTE entry before Honorable Nan R. Nolan:Magistrate Judge
Status hearing held on 4/16/2010.Mailed notice (lxs, ) (Entered:
04/19/2010)
04/20/2010 78 MINUTE entry before Honorable Nan R. Nolan:On the court's
own motion, status hearing set for 4/21/2010 is stricken and reset
for 4/22/2010 at 04:00 PM.Mailed notice (lxs, ) (Entered:
04/20/2010)
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06/22/2010 105 MOTION by Plaintiff for leave to file second amended complaint
(Maksym, Walter) Modified on 6/23/2010 (vmj, ). (Entered:
06/22/2010)
06/22/2010 106 DOCUMENT entered in error (Maksym, Walter) Modified on
6/24/2010 (vmj, ). (Entered: 06/23/2010)
06/22/2010 (Court only) ***Motions terminated: MOTION by Defendant
JPMorgan Chase Bank NA to dismiss Amended Complaint 87
(vmj, ) (Entered: 06/24/2010)
06/23/2010 107 MotionforLeavetoFileSecondAmendedComplaint NOTICE of
Motion by Walter Peter Maksym, Jr for presentment of motion to
amend/correct 106 , motion to amend/correct 105 before
Honorable Ronald A. Guzman on 6/24/2010 at 09:30 AM.
(Maksym, Walter) (Entered: 06/23/2010)
06/23/2010 108 Second AMENDED complaint by Drew W. Peterson against
Drew W. Peterson (Attachments: # 1 Exhibit Exhibit1)(Maksym,
Walter) (Entered: 06/23/2010)
06/23/2010 109 Second AMENDED complaint by Drew W. Peterson against
Drew W. Peterson (Tendered) (Attachments: # 1 Exhibit
Exhibit1, # 2 Exhibit ExhibitA, # 3 Exhibit ExhibitB, # 4 Exhibit
ExhibitC, # 5 Exhibit ExhibitD, # 6 Exhibit ExhibitE, # 7 Exhibit
ExhibitF, # 8 Exhibit ExhibitG)(Maksym, Walter) (Entered:
06/23/2010)
06/23/2010 110 MINUTE entry before Honorable Ronald A. Guzman: Reset
hearing as to motion by Plaintiff Drew W. Peterson for Leave to
File Second Amended Complaint 105 : Motion Hearing set for
6/24/2010 at 08:30 AM. NOTE TIME CHANGE ONLY.
Document numbers 108 and 109 are stricken as filed in error.
Mailed notice (cjg, ) (Entered: 06/23/2010)
06/23/2010 111 AMENDED NOTICE of Motion by Walter Peter Maksym, Jr for
presentment of motion to amend/correct 105 before Honorable
Ronald A. Guzman on 6/24/2010 at 08:30 AM. (Maksym, Walter)
(Entered: 06/23/2010)
06/23/2010 113 NOTICE of Correction regarding 106 (vmj, ) (Entered:
06/24/2010)
06/24/2010 112 MINUTE entry before Honorable Ronald A. Guzman: Motion
hearing held on 6/24/2010. Motion by Plaintiff for leave to file
second amended complaint 105 is denied. Mailed notice (cjg, )
(Entered: 06/24/2010)
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