784 F. Supp. 2d 926
N.D. Ill.2011Background
- Plaintiff Geimer sues Bank of America for unauthorized electronic transfers from her checking and credit accounts; claims include FOA-based breach of fiduciary duty, negligence, and breach of contract (checking/electronic funds and credit policy).
- Plaintiff discovered transfers in May 2008 and the credit account in September 2008; she notified BOA and alleges the bank did not investigate.
- Original EFTA claim was withdrawn due to statute of limitations; remaining state-law claims are pursued in diversity jurisdiction.
- Documentary evidence shows Plaintiff allegedly accepted a BOA FIA Card Services credit card agreement; Plaintiff alleges unauthorized use of credit line up to $64,000.
- The court analyzes EFTA preemption and the viability of state-law claims under Illinois law; claims proceed except for the fiduciary duty claim.
- The court schedules further proceedings and outlines the interplay of Moorman doctrine with the pleaded negligence claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| EFTA preemption of state-law claims | Geimer's state-law claims are preserved by § 1693q | EFTA preempts state-law claims and bars timeliness issues | EFTA preemption rejected; state-law claims preserved |
| Breach of fiduciary duty under FOA | FOA applies and creates trustee-like duties for banks | No fiduciary relationship; FOA does not apply | Count I dismissed; FOA does not extend to these facts |
| Negligence claim under Moorman | Extra-contractual duty may exist; Moorman does not bar tort claim | Moorman bars purely economic losses where duties are.contractual | Negligence claim denied without prejudice to renewal on summary judgment |
| Breach of contract—credit card policy | Valid contract existed via disclosure and acceptance; damages alleged | Insufficient contract pleading for credit policy claim | Count III survives; contract claim adequately pleaded. |
| Breach of contract—checking account/electronic funds agreement | Existence of contract shown by disclosures and terms | Not challenged in brief | Count II (improperly labeled) survives as to checking/electronic funds agreement. |
Key Cases Cited
- Bernhard v. Whitney Nat'l Bank, 523 F.3d 546 (5th Cir. 2008) (EFTA preemption and state-law rights comparison)
- Stegall v. Peoples Bank of Cuba, 270 S.W.3d 500 (Mo. Ct. App. 2008) (EFTA non-preemption timing and state-law rights)
- Moorman Mfg. Co. v. Nat'l Tank Co., 91 Ill.2d 69 (1982) (Moorman economic-loss doctrine applicability; tort vs contract)
- In re Chicago Flood Litig., 176 Ill.2d 179 (1997) (Exceptions to Moorman for fraud and negligent misrepresentation; information services)
- Congregation of the Passion, Holy Cross Province v. Touche Ross & Co., 159 Ill.2d 137 (1994) (Economic-loss doctrine exceptions when duty arises outside contract)
- Mutual Service Casualty Insurance Co. v. Elizabeth State Bank, 265 F.3d 601 (7th Cir. 2001) (Possibility of extra-contractual bank-depositor duty)