Asher v. Chase Bank USA, N.A.

310 F. App'x 912
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 20, 2009
DocketNo. 08-2217
StatusPublished
Cited by7 cases

This text of 310 F. App'x 912 (Asher v. Chase Bank USA, N.A.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Asher v. Chase Bank USA, N.A., 310 F. App'x 912 (7th Cir. 2009).

Opinion

ORDER

Donald Asher’s personal secretary used her position to incur and conceal fraudulent charges on Asher’s credit card over the course of three years during which Asher paid his bills in full. When he discovered the fraud and asked for reimbursement from Chase Bank, which issued the credit card, Chase eventually refused after a lengthy investigation. Asher sued Chase approximately eighteen months after discovering the fraud and eight months after receiving final notice that Chase would not reimburse him. Asher claimed that the bank’s refusal to repay him violated the Truth in Lending Act and, as the district court understood his complaint, constituted a breach of his cardholder agreement with Chase. The district court granted summary judgment for Chase, reasoning that the federal statutory claim was barred by the relevant statute of limitations and the state-law contract claim lacked evidentiary support. Asher appeals. Although the district court’s statute-of-limitations analysis is questionable, we affirm the judgment because a jury could not reasonably find for Asher on either his federal or his state claim.

I. Background

For over twenty years, Asher employed Carol MacKenzie as a secretary for his [914]*914family and the family business. He gave her the responsibility of preparing his credit-card statements for his review, including the statements for a VISA card issued by Chase (the card initially was issued by another bank and through a succession of ownership changes, was reissued by Bank One and then by Chase). If MacKenzie possessed receipts for individual charges appearing on the statements, she was to attach them and draw a line through the corresponding entry on the statement so that Asher could focus his review on those charges MacKenzie had not substantiated. When she presented the statements to Asher, MacKenzie also prepared a check in the amount of the bill for Asher to sign or, more frequently, for his mother or brother to sign on his behalf. MacKenzie abused her position by using the Chase VISA account number to incur fraudulent charges and then crossing out those entries on the corresponding statements in hopes that Asher would not notice them. Specifically, MacKenzie had opened a sign-making business, A Sign of the Tymes, which she was running out of her house. She had entered into a merchant agreement with PMT/Imperial Bank that allowed her to accept credit cards in payment for her signs, and in 2001 she began posting fictitious charges from Tymes to Asher’s card as though he was buying signs from her company. She did not create receipts for these transactions, but Asher did not question her about them. Asher paid his bills in full and did not discover the charges until 2004, by which time MacKenzie had collected $77,655. The most recent charges were incurred just days before Asher discovered the fraud.

Asher got wind of MacKenzie’s fraud in March 2004 when Chase (at that time the card issuer was still Bank One, but for simplicity we use “Chase” throughout) notified him about “excessive charges” on his account. Asher then reviewed his prior statements and discovered the Tymes charges going back to 2001. He notified Chase about the fraudulent charges, and by letter dated March 8, 2004, Chase acknowledged his fraud claim. Asher fired MacKenzie on March 23.

The following month Chase notified Ash-er that it would not reimburse him because after investigating his fraud claim, the bank had concluded that he was liable for the Tymes charges. But when Asher protested, Chase continued to evaluate his claim and on September 15, 2004, requested that he provide another affidavit of fraud. Finally, in a letter dated October 15, 2004, but apparently postmarked January 28, 2005, Chase gave final notice that it considered Asher liable for the Tymes charges. Chase had previously credited Asher’s account $16,785 as partial reimbursement for the Tymes charges, so it rebilled those transactions on his statement for the period ending in February 2005, for which payment was due on March 14, 2005.

In September 2005 Asher filed suit in state court against Chase and MacKenzie, and the following month the bank removed the action to federal court. MacKenzie later pleaded guilty to state theft charges and was dropped from the lawsuit. In Count I of his complaint, Asher claimed that by refusing to reimburse him, Chase had violated the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601-1667Í, which provides in relevant part that “a cardholder incurs no liability from the unauthorized use of a credit card” beyond at most $50. Id. § 1643. In Count II of his complaint, Asher alleged that Chase had “contracted and agreed with Plaintiff that it would only pay and allow payments on charges and applications for reimbursement in accord with the authority set forth in the credit card agreements.” He claimed that the bank had “breached its duty to the Plain[915]*915tiff’ by allowing his VISA account to be charged for forged applications for payment, and by failing “to determine the authority by which fraudulent charges and applications for payments were allowed to be made.”

In October 2007 Chase moved for summary judgment. The bank, however, ignored Count II of Asher’s complaint and addressed its motion solely to his TILA claim. As to that claim, Chase first asserted that it was untimely under 15 U.S.C. § 1640(e), which provides that a civil action alleging a violation of TILA must be brought “within one year from the date of the occurrence of the violation.” The “occurrence of the violation,” Chase argued, is the date on which a card issuer “consummates” an allegedly unauthorized charge by posting it to the cardholder’s account. It follows, Chase reasoned, that Asher’s claim was too late because all of the Tymes charges were processed more than a year before he filed suit. Alternatively, Chase argued that Asher’s claim would fail on the merits because according to the bank, the charges made by MacKenzie were not “unauthorized.” For purposes of § 1643, TILA defines “unauthorized use” of a credit card as use “by a person other than the cardholder who does not have actual, implied, or apparent authority for such use and from which the cardholder receives no benefit.” 15 U.S.C. § 1602(o). The use of Asher’s account by MacKenzie, the bank asserted, was not “unauthorized” because Asher’s repeated payments of her transactions evidenced her apparent authority to charge purchases to the account.

The district court agreed with Chase’s statute-of-limitations argument and did not discuss the merits. The court reasoned, without citing authority, that the limitations period for the § 1643 claim began to run at the time of the transactions or, at the latest, when Asher discovered the fraudulent Tymes charges in March 2004. Either way, the court continued, Asher’s claim under TILA was untimely because he did not file suit until September 2005. In reaching this conclusion, the court apparently overlooked Asher’s contention that his claim under § 1643 did not even accrue until early 2005 when Chase definitively rejected his claim for reimbursement. And although its reasoning is difficult to discern, the court also rejected Asher’s contention that principles of equitable tolling or equitable estoppel rendered his TILA claim timely.

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Bluebook (online)
310 F. App'x 912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/asher-v-chase-bank-usa-na-ca7-2009.