Jeff Foster v. Pnc Bank , National Association

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20‐1667
J EFF FOSTER,
Plaintiff‐Appellant,
v.
PNC BANK , NATIONAL A SSOCIATION,
Defendant‐Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 12‐cv‐3130 — Mary M. Rowland, Judge.
____________________
A RGUED D ECEMBER 1, 2021 — D ECIDED OCTOBER 18, 2022
____________________
Before MANION, BRENNAN, and J ACKSON‐A KIWUMI, Circuit
Judges.
J ACKSON‐A KIWUMI, Circuit Judge. Jeff Foster appeals the
district court’s decision granting PNC Bank, National Associ‐
ation’s motion for summary judgment. Because we find al‐
most no error, we affirm on all fronts, except that Foster’s Fair
Credit Reporting Act (“FCRA”) claim should be dismissed for
lack of standing.

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2 No. 20‐1667
I
In 2004, Foster, a real estate investor, purchased property
in Fort Lauderdale, Florida, with a $1.1 million loan secured
by a mortgage on the property. 1 In May 2010, the parties mod‐
ified the loan to extend the payment period and lower the in‐
terest rate, thereby lowering the monthly payments. Since
then, Foster and PNC’s relationship has fallen apart after a
flurry of disputes over required insurance policies, loan pay‐
ments, credit reports, and an escrow account—all of which
are now the subject of this litigation.
Foster and PNC’s clashes first began with his insurance
obligations under the mortgage. Section 5 of the mortgage re‐
quired Foster to maintain certain levels of insurances “against
loss by fire, hazards included within the term ‘extended cov‐
erage,’ and any other hazards including, but not limited to,
earthquakes and floods, for which Lender requires insurance”
on the property or PNC would force‐place such insurance.
The cost of the force‐placed insurance would “become addi‐
tional debt of [Foster] secured by [the mortgage].” The mort‐
gage stated that PNC was “under no obligation to purchase
any particular type or amount of coverage” and that Foster
acknowledged “that the cost of the insurance coverage so ob‐
tained [by PNC] might significantly exceed the cost of insur‐
ance that [he] could have obtained.” PNC could change the
insurance requirements during the loan term.
In March 2011, Foster and PNC separately learned that
Foster underpaid his flood insurance. In April, PNC mailed
Foster a letter that stated that his flood insurance coverage
1 Foster also purchased property in Illinois that is involved in the under‐
lying litigation but not at issue in this appeal.

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No. 20‐1667 3
was below the required amount. The next month, Foster paid
the insurance company the outstanding balance, which was
$82, but PNC mailed him another letter stating that he had not
provided proof of coverage, and that it would impose the ap‐
propriate force‐placed flood insurance in 24 days. Foster did
not receive this letter.
In May 2011, PNC, pursuant to its letter, obtained force‐
placed flood insurance for the property, paid for it through
the escrow account associated with the loan, and increased
Foster’s monthly payments to cover the premiums. Foster
contacted several PNC employees and stated he had the ap‐
propriate coverage; these representatives advised him to con‐
tinue paying his original monthly payment. In July 2011, Fos‐
ter provided PNC with proof of his flood insurance, and PNC
refunded the total amount of the force‐placed insurance to the
escrow account. The refund did not result in a reduction of
his monthly payments.
Then, there was the wind insurance. PNC maintains that
it has always required wind insurance as part of the loan it
gave Foster, but he claims that the loan did not initially re‐
quire wind insurance. Nonetheless, Foster had wind insur‐
ance for the property in September 2010. When Foster’s policy
lapsed in September 2011, PNC mailed him a letter asking
him to provide proof of insurance. As with all the others, Fos‐
ter did not receive this letter. In October, PNC mailed him a
second letter stating that it had acquired temporary wind in‐
surance. Yet again, Foster did not receive this letter. A month
later, Foster did a receive a letter—PNC’s third letter about
wind insurance, which informed him that PNC had acquired
force‐placed wind insurance. Foster did not acquire his own
wind insurance policy until January 2012, which went into

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4 No. 20‐1667
effect the following month. PNC refunded most of the cost of
the force‐placed insurance to the escrow account, except for
the premiums paid during the time when coverage lapsed.
Because of this gap, Foster’s monthly payments again in‐
creased and did not drop after reimbursement. Foster spoke
with PNC representatives, who advised him to continue mak‐
ing the original payments. When his new wind insurance
lapsed in March 2013, PNC mailed three more letters once a
month, and in May 2013, PNC yet again acquired force‐placed
wind insurance. In 2014, after still not hearing from Foster
about any wind insurance, PNC mailed a letter indicating it
would continue to renew its force‐placed policy.
All this time, Foster only made payments in the amount
originally specified in the May 2010 modification—despite
the fact that the payments had increased as a result of the
force‐placed insurance policies. In April 2012, PNC began re‐
turning Foster’s payments as partial (incomplete) payments,
which it was allowed to do under Section 1 of the mortgage.
That same month, PNC mailed Foster a letter informing him
that he was in default, and that it would accelerate the entire
amount of the loan if he did not cure the default. After two
years of receiving and returning partial payments from Fos‐
ter, PNC decided to place the incomplete payments in a sus‐
pense account, which now contains just under $350,000. As of
May 2019, PNC claimed Foster owed just over $1.75 million.
Since the partial payments were incomplete, PNC re‐
ported Foster’s July and August 2011 payments as 60 days or
more late to TransUnion and Equifax. In November 2011, Fos‐
ter’s credit score dropped. According to Foster, the drop in his
credit score prevented him from obtaining new loans (though
he never applied for any), purchasing new property (though

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No. 20‐1667 5
he never attempted to do so), and refinancing his current
loans (though he never tried to). He also alleges the drop in
his score forced him to sell his property and forgo rental in‐
come. In January 2012, Foster contacted TransUnion and
Equifax to dispute PNC’s reports that his loan payments were
late. The credit reporting agencies notified PNC about the dis‐
putes. PNC reported that Foster’s account was current
through September 2011 and became past due from October
2011 through January 2012.
Foster’s final dispute with PNC concerns PNC’s use of the
escrow account. Section 3 of the mortgage requires Foster to
make payments to an escrow account to cover taxes, leasehold
payments, and insurance premiums. In July 2010, Foster
made his first payment under the May 2010 modification, part
of which was credited to cover shortages in the escrow ac‐
count. Each time PNC acquired force‐placed flood and wind
insurance policies, it advanced the premiums for those poli‐
cies from the escrow account. When PNC received proof of
insurance from Foster, it refunded the balance back to the es‐
crow account.
The foregoing disputes led Foster to sue PNC. Foster’s
lawsuit presented multiple claims, only four of which remain
on appeal: a claim under the FCRA for PNC’s failure to inves‐
tigate the two credit reporting disputes; a breach of contract
claim regarding the force‐placed flood and wind insurance
policies; a breach of implied duty of good faith and fair deal‐
ing claim for the wind insurance; and a breach of fiduciary
duty claim for the alleged mishandling of the escrow

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6 No. 20‐1667
account. 2 PNC counterclaimed to seek judgment on the loan.
PNC filed for summary judgment and attached an affidavit
from its business representative regarding PNC’s records on
the Florida property. Foster opposed the motion with his own
affidavit. In his affidavit, in addition to alleging the injuries
regarding his low credit score, Foster alleged that PNC’s con‐
duct resulted in loss of income and forced him to sell a variety
of his possessions for below market value. After determining
that Foster’s affidavit was conclusory and speculative as to
proof of insurance and his loan payments (plus a third issue
regarding the Illinois property that is not relevant to this ap‐
peal) and that his evidence of damages was too general and
conclusory, the district court granted PNC’s motion. The dis‐
trict court then entered partial judgment as to the Florida
property. Foster appeals the district court’s judgment on the
Florida property, and raises issues regarding his affidavit,
PNC’s affidavit, and the merits.
II
We review a district court’s grant of summary judgment
de novo. Flexible Steel Lacing Co. v. Conveyor Accessories, Inc.,
955 F.3d 632, 643 (7th Cir. 2020) (citation omitted). Summary
judgment is appropriate when “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as
a matter of law.” FED. R. C IV. P. 56(a). “We draw ‘all justifiable
inferences’ in the favor of the nonmoving party.” Flexible Steel,
955 F.3d at 643 (citation omitted).
2 Foster also appealed claims for fraud and unjust enrichment but did not
address these in his opening brief, so any arguments on those counts are
waived. Lisle v. Welborn, 933 F.3d 705, 722 n.4 (7th Cir. 2019) (citations
omitted).

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No. 20‐1667 7
A. Foster’s Affidavit
We first begin with Foster’s main piece of evidence—his
affidavit. Foster argues that the district court erred because it
did not appreciate the details in his affidavit, and it found his
whole affidavit conclusory even though the court pointed to,
by Foster’s count, just three examples. Affidavits must be
based on personal knowledge. F ED. R. C IV. P. 56(c)(4); FED. R.
EVID. 602. A nonmoving party’s own affidavit can indeed be
“a legitimate method of introducing facts on summary judg‐
ment.” McKinney v. Office of Sheriff of Whitley Cnty., 866 F.3d
803, 814 (7th Cir. 2017) (citation omitted). Evidence “pre‐
sented in a ‘self‐serving’ affidavit or deposition is enough to
thwart a summary judgment motion,” unless it fails to meet
the usual requirements of any other form of evidence at the
summary judgment stage. Kellar v. Summit Seating, Inc., 664
F.3d 169, 175 (7th Cir. 2011) (citation omitted). While it is true
that courts should generally not make credibility determina‐
tions at the summary judgment stage, McCottrell v. White, 933
F.3d 651, 657 (7th Cir. 2019) (citation omitted), a nonmoving
party at the summary judgment stage cannot rest “upon con‐
clusory statements in affidavits; [they] must go beyond the
pleadings and support [their] contentions with proper docu‐
mentary evidence.” Weaver v. Champion Petfoods USA Inc., 3
F.4th 927, 934 (7th Cir. 2021) (citation omitted). Mere specula‐
tion cannot “be used to manufacture a genuine issue of fact.”
Id. (citation omitted)
Foster’s argument about his affidavit is incorrect on the
law and in its application. As an initial matter, courts are al‐
lowed to find affidavits and other forms of evidence as insuf‐
ficient or conclusory as a legal matter at the summary judg‐
ment stage; that is not an impermissible credibility

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8 No. 20‐1667
determination. See, e.g., id. at 935–36 (plaintiff failed to survive
summary judgment by relying solely on his own testimony of
how a reasonable person would interpret “biologically appro‐
priate”). Moreover, the district court did not cherry‐pick three
examples and declare Foster’s affidavit conclusory in its en‐
tirety. Instead, it pointed to two relevant, specific instances
where it believed Foster engaged in pure conjecture: whether
he provided any proof of his flood insurance and whether he
was current on his loan payments. In fact, the district court
relied on parts of Foster’s affidavit that were not conclusory,
including when Foster learned that PNC required wind insur‐
ance and what quotes he received. The district court did not
throw the baby out with the bathwater. It only determined
two aspects of the affidavit were conclusory. We review those
determinations for abuse of discretion. See Stagman v. Ryan,
176 F.3d 986, 995 (7th Cir. 1999) (citation omitted).
On the proof of flood insurance, Foster stated that he pro‐
vided the proof of insurance to PNC by May 2011, but he does
not cite to any documentation or even specify how he pro‐
vided PNC proof except to say that he spoke to PNC employ‐
ees. But PNC has no record of Foster’s proof of flood insur‐
ance until July 2011. Foster attempts to manufacture a factual
dispute despite the dearth of evidence. The district court did
not abuse its discretion in declining to join him on that jour‐
ney.
As for whether he is current on his loan payments, Foster
again provides no supporting documentation, such as bank
statements, payment confirmations, or correspondence with
PNC about the payment amounts. Moreover, his affidavit
states that he made payments that were returned. Even taking
these statements at face value, the facts do not elucidate how

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No. 20‐1667 9
much Foster paid. All these statements show is that he made
some payments on the loan; they do not indicate whether
those payments made him current. Because Foster’s affidavit
lacks substance on both the proof of flood insurance and the
status of the loan payments, we see no abuse of discretion in
the district court’s determination of these issues.
B. PNC’s Affidavits
Foster also argues that the district court erred because it
accepted PNC’s affidavits from its corporate representatives.
As relevant here, Foster argues that PNC’s affidavit is faulty
because PNC’s employee had no personal knowledge about
the Florida loan and only “sets out the dates that PNC sent
letters to Mr. Foster telling him that he had insufficient flood
insurance.” 3 Foster has waived that argument because he did
not challenge the validity of the affidavit before the district
court. Mahran v. Advocate Christ Med. Ctr., 12 F.4th 708, 713
(7th Cir. 2021) (citation omitted). Putting aside waiver, Fos‐
ter’s argument is frivolous. The underlying documents re‐
garding PNC’s records on the Florida loan are permissible un‐
der the business records exception to hearsay, and the affida‐
vits provide the authenticity of these records. FED. R. EVID .
803(6), 901(b)(1); Steffek v. Client Servs., Inc., 948 F.3d 761, 769
(7th Cir. 2020) (citation omitted) (“Documents must be au‐
thenticated by an affidavit that lays a proper foundation for
their admissibility, even at the summary judgment stage.”);
United States v. Reese, 666 F.3d 1007, 1017 (7th Cir. 2012) (cita‐
tion omitted) (“A qualified witness need not be the author of
3 Foster also argues that the other PNC affidavit is similarly conclusory.
But that affidavit is about the Illinois property—which, again, is not at is‐
sue on appeal.

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10 No. 20‐1667
the document [admitted under the business records excep‐
tion] but must have personal knowledge of the procedure
used to create and maintain the document.”).
C. Foster’s FCRA Claim
Turning to the merits, Foster’s first claim is that PNC vio‐
lated the FCRA by failing to reasonably investigate the dis‐
putes in January 2012 about his loan payments. We affirm the
district court’s grant of summary judgment to PNC on this
claim, but on a different ground than that reached by the dis‐
trict court. Specifically, although the district court erred in re‐
quiring Foster to prove damages as an element of his FCRA
claim, Foster ultimately lacked standing to bring this claim.
The district court relied on Walton v. BMO Harris Bank,
N.A. (Walton II), 761 F. App’x 589 (7th Cir. 2019), to suggest
that proof of damages is an element of an FCRA claim. Walton
II stated that damages are an element of FCRA claims under
15 U.S.C. § 1681e(b) for failure to follow reasonable proce‐
dures for accuracy of credit reports. Id. at 591–92 (citations
omitted). But Foster’s FCRA claim is for failure to conduct a
reasonable investigation after receiving a dispute from a con‐
sumer reporting agency regarding inaccurate or incomplete
information under 15 U.S.C. § 1681s‐2(b)(1)(A). See Walton v.
EOS CCA, 885 F.3d 1024, 1028 (7th Cir. 2018) (Walton I). Walton
II dealt with an entirely different provision of the FCRA than
the one at issue here. Therefore, regardless of whether dam‐
ages is an element of a § 1681e(b) claim under Walton II, that
case simply does not address the elements of a claim under §
1681s‐2(b)(1)(A).
Nonetheless, Foster’s claim fails on a different ground:
standing. A plaintiff must show an injury under Article III

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No. 20‐1667 11
beyond just a statutory violation. See Spokeo, Inc. v. Robins, 578
U.S. 330, 341–42 (2016); Crabtree v. Experian Info. Sols., Inc., 948
F.3d 872, 880–81 (7th Cir. 2020). At the summary judgment
stage, a plaintiff can establish standing through an affidavit
with specific facts demonstrating “a concrete and particular‐
ized injury that is both fairly traceable to the challenged con‐
duct and likely redressable by a judicial decision.” Spuhler v.
State Collection Serv., Inc., 983 F.3d 282, 284 (7th Cir. 2020) (cit‐
ing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
Assuming Foster has provided enough to show an injury‐
in‐fact, 4 he still lacks standing because the injury is not fairly
traceable. The causation requirement requires the plaintiff to
show “that the defendant’s actual action has caused the sub‐
stantial risk of harm.” Remijas v. Neiman Marcus Group, LLC,
794 F.3d 688, 696 (7th Cir. 2015) (quoting Clapper v. Amnesty
Int’l USA, 568 U.S. 398, 414 n.5 (2013)). According to Foster’s
affidavit and the rest of the record, PNC received only two
notices from credit reporting agencies in January 2012, both
of which Foster insists PNC failed to reasonably investigate.
Foster claims that this conduct by PNC caused his credit score
to drop—a drop that happened in November 2011. But PNC’s
conduct in 2012 (i.e., its alleged failure to reasonably investi‐
gate) cannot have caused Foster’s credit score to drop in late
2011. Therefore, Foster’s FCRA claim must be dismissed for
lack of standing.
4 Foster argued on appeal that the district court erred in finding that his
affidavit relied on hearsay to prove his FCRA damages. Specifically, the
district court found that his reliance on the lender’s statements about his
inability to obtain a loan was hearsay. Regardless of whether those state‐
ments are hearsay, Foster cannot pursue his FCRA claim due to the break‐
down in causation. Therefore, we need not address this hearsay argument.

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12 No. 20‐1667
D. Remaining Arguments
As for the remaining three claims, all state law claims, Fos‐
ter argues that there are genuine disputes of material fact with
each one.5 We disagree.
First, his breach of contract and breach of fiduciary duty
claims fail because his evidence of damages is speculative,
which vitiates an element of those claims. People’s Trust Ins.
Co. v. Valentin, 305 So. 3d 324, 326–27 (Fla. Ct. App. 2020) (ci‐
tation omitted) (breach of contract); Columbia Bank v. Turbe‐
ville, 143 So. 3d 964, 970 (Fla. Ct. App. 2014) (citation omitted)
(breach of fiduciary duty). He avers that he sold valuable pos‐
sessions for less than market value without any evidence of a
single item that he actually sold, how much it sold for, and
what the fair market value was.
Second, damages aside, the breach of contract claim is
doubly undermined by the fact that Foster received notice
pursuant to the mortgage regarding the need to maintain
wind insurance. Foster asserts multiple times that he did not
receive many of PNC’s letters, including most of the ones re‐
garding the wind insurance. But Section 15 of the mortgage
states that notice is “deemed to have been given to [Foster]
when mailed by first class mail” or when he receives it “if sent
by other means.” Thus, it is irrelevant that Foster claims that
he did not receive the letters; under the terms of the loan, he
received notice and therefore knew he needed to acquire
wind insurance. See Roman v. Wells Fargo Bank, 143 So. 3d 489,
490 & n.1 (Fla. Ct. App. 2014) (concluding plaintiff received
notice based solely on mailing where mortgage included
5 Florida law applies to the state law claims under the mortgage’s choice
of law provision.

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No. 20‐1667 13
language identical to this case). And since Florida law prohib‐
its standalone claims for breach of the implied duty of good
faith and fair dealing without an alleged breach of an express
contract term, Ins. Concepts & Design, Inc. v. Healthplan Servs.,
Inc., 785 So. 2d 1232, 1234 (Fla. Ct. App. 2001) (citations omit‐
ted), he cannot survive summary judgment on that count ei‐
ther. 6 His breach of fiduciary duty claim additionally fails be‐
cause Foster relies on his inadmissible statement regarding
his proof of flood insurance, discussed above, and he did not
substantively address the wind insurance.
Finally, Foster cannot succeed on PNC’s counterclaim be‐
cause he relies only on his conclusory statements that he was
in full compliance with his loan obligations, and he admits
that PNC had been returning his payments as partial pay‐
ments for two years.
III
Finding almost no error in the district court’s decision, we
A FFIRM the judgment on all counts except the FCRA claim,
which we VACATE and R EMAND to dismiss for lack of stand‐
ing.
6 To the extent that Foster relies on a separate breach of contract under
Section 3 of the mortgage regarding the escrow account, that claim fails as
well because Foster waived the underlying argument by not properly rais‐
ing it at the district court level. Mahran, 12 F.4th at 713 (citation omitted).

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