Gay v. Peoples Bank

Gay v. Peoples Bank, 2015 NCBC 59.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION LINCOLN COUNTY 13 CVS 383 JOSEPH LEE GAY, Individually and on Behalf of All Persons Similarly Situated, Plaintiff, ORDER AND OPINION v. PEOPLES BANK, Defendant.

{1} THIS MATTER is before the Court upon Defendant Peoples Bank’s (“Defendant,” “Peoples,” or the “Bank”) Motion for Summary Judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure (the “Motion for Summary Judgment”); Plaintiff Joseph Lee Gay’s (“Plaintiff”) Motion for Permission to File Plaintiff’s Supplement (the “Motion to Supplement”); and Defendant’s Motion to Strike Plaintiff’s Supplement in Further Opposition to Defendant’s Motion for Summary Judgment (the “Motion to Strike”) in the above-captioned case. {2} After considering the Motions, briefs in support of and in opposition to the Motions, the appropriate evidence of record, and the arguments of counsel at the March 4, 2015 hearing on this matter, the Court hereby GRANTS Plaintiff’s Motion to Supplement, DENIES Defendant’s Motion to Strike, and GRANTS Defendant’s Motion for Summary Judgment.

Sigmon, Clark, Mackie, Hanvey & Ferrell, P.A. by Stephen L. Palmer; Squitieri & Fearon, LLP by Stephen J. Fearon, Jr.; and Greg Coleman Law PC by Greg Coleman for Plaintiff Joseph Lee Gay.

Brooks, Pierce, McLendon, Humphrey & Leonard, LLP by Reid L.

Phillips and Daniel F.E. Smith for Defendant Peoples Bank.

Bledsoe, Judge.

I.

PROCEDURAL HISTORY {3} Plaintiff alleges claims, both individually and purportedly on behalf of a class of similarly situated persons, arising out of certain overdraft fees incurred by Plaintiff and other of Defendant’s customers between June 6, 2008 and July 1, 2011.1 Plaintiff’s claims are specifically focused on multiple overdraft fees incurred on a single banking day by Plaintiff and other customers as a result of Defendant’s high- to-low posting of ATM and one-time, non-recurring, debit card transactions, which Plaintiff contends Defendant did not properly disclose in an effort to derive excessive overdraft fee income at the expense of unsuspecting customers. Plaintiff’s core contention is that Defendant manipulated the timing and order in which customer debit charges were processed – without notice to customers and in violation of Defendant’s contract obligations to its customers – to charge overdraft fees on accounts that were not actually overdrawn. {4} Defendant contends that, unlike certain large national banks sued in other class actions around the United States with whom Plaintiff compares Defendant, Defendant always disclosed to its customers that it paid transactions in high-to-low order during the time period at issue and always posted credits to its customers’ accounts before posting debits. Defendant asserts that Defendant fully complied with the terms of its applicable agreements with Plaintiff and other Bank customers and that Plaintiff’s claims represent an improper attempt to shift responsibility for managing Plaintiff’s account to avoid overdrafts from Plaintiff to Defendant. {5} Plaintiff filed his Class Action Complaint on March 25, 2013, in Lincoln County Superior Court, asserting claims against Defendant for breach of contract, breach of the covenant of good faith and fair dealing, conversion, unjust enrichment, and unfair and deceptive trade practices under N.C. Gen. Stat. §§ 75-1.1, et seq. (“UDTP”).

II.

FACTUAL BACKGROUND {9} While findings of fact are not necessary or proper on a motion for summary judgment, “it is helpful to the parties and the courts for the trial judge to articulate a summary of the material facts which he considers are not at issue and which justify entry of judgment.” Collier v. Collier, 204 N.C. App. 160, 161–62, 693 S.E.2d 250, 252 (2010). Therefore, the Court limits its factual recitation to the undisputed material facts necessary to decide the Motions, and not to resolve issues of material fact. {10} Plaintiff Joseph Lee Gay is a resident of Lincolnton, North Carolina, and maintained a checking account with Peoples Bank at all times relevant to this action. (Compl. ¶ 9.) {11} Defendant Peoples Bank is a North Carolina corporation that provides retail banking services to thousands of customers at approximately 22 branches in North Carolina. (Compl. ¶ 2.) {12} The Bank’s services include issuing debit cards, which allow the Bank’s customers to transact with third parties using funds paid directly from their checking Although Defendant moved for summary judgment prior to the close of the discovery period, Rule expressly provides that a party may move for summary judgment “at any time after the expiration of 30 days from the commencement of the action or after service of motion for summary judgment,” N.C. R. Civ. P. 56(b), and Plaintiff has not filed an affidavit as permitted under Rule 56(f) stating that “he cannot for reasons stated present by affidavit facts essential to justify his opposition,” N.C. R. Civ. P. 56(f). Accordingly, contrary to Plaintiff’s contention that Defendant’s Motion is “premature,” (Pl.’s Resp. Def.’s Mot. Summ. J., p. 8), the Court finds no procedural impediment to its consideration of Defendant’s Motion for Summary Judgment on the record here. accounts, and issuing automatic teller machine (“ATM”) cards, which allow the Bank’s customers to withdraw cash directly from their accounts at ATMs. These debit card and ATM transactions are generally referred to as “electronic debit transactions.” (Compl. ¶¶ 2–3, 38–39.) {13} Since December 8, 1999, Peoples Bank has processed electronic debit transactions from the highest to lowest dollar amount. (Def.’s Br. Supp. Mot. Summ.

J., p. 13–14; Pl.’s Resp. Def.’s Mot. Summ. J., p. 1.) {14} On July 3, 2008, Plaintiff opened an account at the Bank, at which time Plaintiff agreed to and received the following documents: (i) the Terms and Conditions of the Account Agreement (“Terms and Conditions”); (ii) an Addendum to the Terms and Conditions (“Terms and Conditions Addendum”); (iii) a Funds Availability disclosure (per Regulation CC); (iv) Electronic Funds Transfers Disclosures, Peoples Bank 24 Express, & Peoples Bank 24 Express Check Terms, Conditions and Agreements (“ETF Agreements”); (v) a truth-in-savings disclosure (per Regulation DD); (vi) a No Bounce Advantage (overdraft program) disclosure;3 and (vii) a privacy disclosure (per Regulation P) (collectively, the “Account Agreement Documents”). (Connie Ollis Aff., ¶¶ 13, 14; Ans. Ex. 8.)4 {15} On September 14, 2009, Plaintiff was charged multiple overdraft fees for the payment of ATM and/or one-time debit card transactions from his Peoples Bank checking account. Peoples Bank assessed Plaintiff’s account eleven (11) insufficient funds charges of $33 each for a total charge of $363. (Compl. ¶ 9.)

Moreover, the Account Agreement [Documents] failed to disclose that Peoples would process debits to a customer’s account before processing credits in order to maximize overdrafts, and that the Bank delayed posting certain transactions, or processed them ahead of, or behind, transactions from different days, in order to post multiple debits on a single day and maximize overdrafts on that day. Thus the Account Agreement [Documents] failed to disclose that Peoples reordering practices would allow the Bank to maximize the number of overdrafts on any account, and to assess overdraft fees for days when a customer’s account was not actually overdrawn (but for the Bank’s reordering).” (Compl. ¶ 43) (emphasis in original). b. “Peoples failed to disclose that it would charge overdraft fees when customer accounts had a positive balance and were not overdrawn. The Account Agreement [Documents] failed to disclose the Bank’s wrongful practices relating to its reordering of debit transactions and imposing overdraft fees from debit card purchases and ATM withdrawals. As described herein, Peoples did not debit customer accounts immediately at the time of purchase in the amount of that purchase only, and Peoples reordered transactions from different days for its own benefit, to the customer’s detriment.” (Compl. ¶ 44.) c. “Peoples representations were deceptive and unfair because it was, in fact, the Bank’s policy and practice during the Class Period to always reorder debits from highest dollar value to lowest, and because the Bank grouped together point of sale transactions that occurred on subsequent days with those transactions that occurred on earlier days, and reordered them so that debits were processed before credits and higher debits that occurred on subsequent days were posted to its customers’ accounts before lower debits that occurred on earlier days.” (Compl. ¶ 45) (emphasis in original). d. “Even if Plaintiff was given materials containing clear and unambiguous language disclosing or authorizing the Bank’s practices as described above, any such notice or authorization would have been inadequate and ineffective. Furthermore, any reservation of discretion to reorder transactions and assess overdraft fees would be constrained by Peoples’s obligation to deal fairly and in good faith.” (Compl. ¶ 47.)

III.

LEGAL STANDARD {18} Summary judgment is appropriate where the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.” N.C. R. Civ. P. Rule 56(c) (2015). “A movant may meet its burden by showing either that: (1) an essential element of the non- movant’s case is nonexistent; or (2) based upon discovery, the non-movant cannot produce evidence to support an essential element of its claim; or (3) the [non-]movant cannot surmount an affirmative defense which would bar the claim.” McKinnon v. CV Indus., 213 N.C. App. 328, 332, 713 S.E.2d 495, 499 (2011) (citations and internal quotation marks omitted). The Court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of the non-moving party. Whitley v. Cubberly, 24 N.C. App. 204, 206, 210 S.E.2d 389, 291 (1974); See generally McKee v. James, 2014 NCBC 73 ¶ 31 (N.C. Super. Ct. Dec. 31, 2014), www.ncbusinesscourt.net/opinions/2014_NCBC_73.pdf (discussing standard).

IV.

ANALYSIS A. Plaintiff’s Motion to Supplement and Defendant’s Motion to Strike {19} Based on the particular procedural facts here – and without intending to create a rule of general application and without prejudice to future challenges under Business Court Rule 15.6 concerning response briefs in this case – the Court elects, in its discretion, to consider all the arguments presented in Plaintiff’s Supplement in considering Defendant’s Motion for Summary Judgment. Accordingly, the Court determines that Defendants’ Motion to Strike should be denied and Plaintiff’s Motion to Supplement should be granted.

B. Defendant’s Motion for Summary Judgment {20} As an initial matter, Plaintiff contends that Defendant’s Motion should be denied because Judge Murphy rejected Defendant’s contract-based arguments in denying Defendant’s Motion for Judgment on the Pleadings under Rule 12(c). (Pl.’s Resp. Def.’s Mot. Summ. J., p. 8.) North Carolina law is clear, however, that “denial of a previous motion for judgment on the pleadings made under N.C. Gen. Stat. § 1A- 1, Rule 12(c) (2003) does not preclude the trial court from granting a subsequent motion for summary judgment.” Rhue v. Pace, 165 N.C. App. 423, 426, 598 S.E.2d 662, 664–65 (2004). Moreover, it is undisputed that Defendant has relied upon certain evidence that was not before Judge Murphy on Defendant’s Rule 12(c) Motion to support Defendant’s Motion for Summary Judgment, providing further basis for the Court to re-examine Defendant’s arguments under the standards of Rule 56.5 Accordingly, the Court rejects Plaintiff’s contention that the Court is bound on this Motion by Judge Murphy’s interpretation of the Account Agreement Documents in resolving Defendant’s Motion for Judgment on the Pleadings.

See Henderson v. United States Fid. & Guar. Co., 124 N.C. App. 103, 107, 476 S.E.2d 459, 461 (1996) (“Where, however, no ambiguity exists, the court may not rewrite the contract and find coverage where none was contracted for.”). Moreover, our courts have long held that “[p]arties can differ as to the interpretation of language without its being ambiguous.” Walton v. City of Raleigh, 342 N.C. 879, 881–82, 467 S.E.2d 410, 412 (1996). {27} Applying these principles here, the Court concludes that Defendant’s use of the phrase “such as checks or drafts” in this specific context is an unambiguous phrase of inclusion and not an exhaustive list of the specific “items” embraced by the Bank’s policy. In particular, the Court finds the phrase “such as,” as used here, to be synonymous with “for example,” “for instance,” or “like” and to identify “checks or drafts” as an illustration of two types of transfers the Bank may pay as provided in the policy statement. {28} Moreover, the Court further concludes that the term “item,” as used here, plainly contemplates any debit to an account – whether by check, draft, ACH payment, wire, online, mobile device, voice response, debit transaction or other withdrawal. This reading is not only supported by the “plain, ordinary and popular” use of the word “item” – see Webster’s Third New International Dictionary, Unabridged (2002) (defining “item” variously as “each of the separate credits or debits detailed in a book of account”)6 – but also by the way the term is used in the Account Agreement Documents. For example, the Court reads the EFT Agreements to include debit card transactions as an “item” (referencing “failure to pay ‘other items’ drawn on [a] checking account”), (Ans., Ex. 5 ¶ 13(b) at p. 5), as well as the No Bounce Advantage disclosure (requesting “check number (if applicable)” concerning an “item” and referencing the “order of item payment” in discussing “electronic transactions”) (Second Ollis Aff. Ex. F.) The fact that the Account Agreement Documents do not expressly state that an “item” includes an “electronic debit transaction” does not create ambiguity where, as here, the plain meaning of the term can be discerned by reference to the relevant documents. See RL Regi N.C., LLC v. Lighthouse Cove, LLC, 367 N.C. 425, 428, 762 S.E.2d 188, 190 (2014) (“Applying contract principles, we determine the intent of the parties by the plain meaning of the written terms.”); see 6See also Black’s Law Dictionary, 5th Ed., (1979) (defining “item” variously as “[a] separate entry in an account or a schedule, or a separate particular in an enumeration of a total.”); Black’s Law Dictionary, 8th Ed., (1999) (defining “item” as “[a] negotiable instrument or a promise or order to pay money handled by a bank for collection or payment.”). also Lee v. Scarborough, 164 N.C. App. 357, 360, 595 S.E.2d 729, 732 (2004) (“[T]he clear intent of the parties as expressed on the face of the contract controls.”); Brawley v. Brawley, 87 N.C. App. 545, 549, 361 S.E.2d 759, 762 (1987) (“[W]here the language used in the contract is clear and unambiguous, the intention of the parties is to be gathered from the face of the contract.”). {29} Having concluded that electronic debit transactions are included within the term “items” under the Terms and Conditions Addendum and the other Account Agreement Documents, the plain language of the Addendum compels the conclusion that the Bank retained the right to pay, and disclosed to the Bank’s customers that the Bank would pay, debit transactions in high-to-low order during the time period at issue. (See Ans. Ex. 3 (“When processing items drawn on your account, our policy is to pay them according to the dollar amount. We pay the largest items first.”).) {30} The Court finds further support for its reading in the language of the No Bounce Advantage disclosure stating that “[i]n the normal course of business, we generally pay electronic transactions first and then checks beginning with the highest dollar amount, per the bank’s policy”7 and warning customers to “be aware that the order of item payment may create multiple overdrafts during a single banking day for which you will be charged our paid item NSF fee of $33 for each overdraft paid.” (Ollis Second Aff. Ex. E) (emphasis added).8 {31} When read and considered together, the Court finds that the language describing the payment priority of electronic debit transactions in the Account Agreement Documents generally, and in the Terms and Conditions Addendum specifically, is unambiguous and clearly discloses Defendant’s policy to pay electronic

The language in the Account Agreement Documents is clear, however, that Defendant was under no obligation to return items NSF and instead had the right to pay or return items in the event of an overdraft in the exercise of its sole discretion. (See Ans. Ex. 3 (“If an item is presented without sufficient funds in your account to pay it, we may, at our discretion, pay the item (creating an overdraft) or return the item (NSF).”).) Plaintiff’s claim therefore asks the Court to impose an implied term – requiring Defendant to always return and not pay NSF items – that is contrary to the express terms of the Account Agreement Documents. This the Court may not do.

See, e.g., Lane, 284 N.C. at 410, 200 S.E.2d at 624 (implying contract terms only if they do not conflict with express terms); Maglione, 168 N.C. App. at 56, 607 S.E.2d at 291 (same). {41} Moreover, Plaintiff has not brought forward any evidence to suggest that the parties intended that the Bank would always exercise its discretion to refuse to pay NSF items as Plaintiff contends the Bank should have done here. As a result, Plaintiff has failed to show that the implied term Plaintiff argues for “effects the intention of the parties,” Lane, 284 N.C. at 410, 200 S.E.2d at 624, or otherwise “accomplishes the purposes of the [agreement],” Maglione, 168 N.C. App. at 56, 607 S.E.2d at 291 (“All parties to a contract must act upon principles of good faith and fair dealing to accomplish the purpose of an agreement, and therefore each has a duty to adhere to the presuppositions of the contract for meeting this purpose.”). {42} Based on the foregoing, the Court concludes that Plaintiff has failed to show that he has been deprived of any rights or benefits under the Account Agreement Documents, and therefore, that Plaintiff’s claim for breach of the covenant of good faith and fair dealing should be dismissed. See, e.g., Governor’s Club Inc., 152 N.C. App. at 251, 567 S.E.2d at 789; see also Suntrust Bank v. Bryant/Sutphin Prop., LLC, 222 N.C. App. 821, 833, 732 S.E.2d 594, 603 (2012) (“As the jury determined that plaintiff did not breach any of its contracts with defendants, it would be illogical for this Court to conclude that plaintiff somehow breached implied terms of the same contracts.”). ii. Conversion {43} “[C]onversion is defined as an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner’s rights.” Bartlett Milling Co., L.P. v. Walnut Grove Auction & Realty Co., 192 N.C. App. 74, 86, 665 S.E.2d 478, 488 (2008) (internal citations omitted). A plaintiff must prove two essential elements to establish a conversion claim under North Carolina law: (1) ownership in the plaintiff, and (2) a wrongful possession or conversion by the defendant. Id.; Variety Wholesalers, Inc. v. Salem Logistics Traffic Servs., LLC, 365 N.C. 520, 523, 723 S.E.2d 744, 747 (2012). “The essence of conversion is not the acquisition of property by the wrongdoer, but a wrongful deprivation of it to the owner . . . and in consequence it is of no importance what subsequent application was made of the converted property, or that defendant derived no benefit from the act.” Lake Mary L.P. v. Johnston, 145 N.C. App. 525, 532, 551 S.E.2d 546, 552 (2001); Bartlett Milling Co. L.P. v. Walnut Grove Auction & Realty Co., 192 N.C. App. 74, 86, 665 S.E.2d 478, 488 (2008). {44} In this case, Plaintiff does not challenge Defendant’s general right to charge overdraft fees but nonetheless argues that “Peoples has wrongly collected overdraft fees from Plaintiff” as a result of its manipulation and posting of debit card transactions and continues to exercise “the right of ownership over these funds in hostility to the rights of Plaintiff.” (Compl. ¶¶ 94–96.) The Court, however, has already concluded that the Account Agreement Documents authorized the Bank to charge overdraft fees to Plaintiff and other Bank customers, Defendant was within its rights to charge overdraft fees based on the high-to-low posting of debits, (Ans.

Exs. 1–2, 5), and Plaintiff has not shown that Defendant failed to comply with the Account Agreement Documents in assessing overdraft fees against Plaintiff. As a result, the Court concludes that Plaintiff has not brought forward evidence of Defendant’s wrongful possession or conversion of Plaintiff’s property, and Plaintiff’s conversion claim should therefore be dismissed. iii. Unjust Enrichment {45} When a party “confers a benefit upon another which is not required by a contract either express or implied or a legal duty, the recipient thereof is often unjustly enriched and will be required to make restitution therefor.” Progressive Am.

Ins. Co. v. State Farm Mut. Auto. Ins. Co., 184 N.C. App. 688, 695–96, 647 S.E.2d 111, 116 (2007). However, “[o]nly in the absence of an express agreement of the parties will courts impose a quasi-contract or a contract implied in law in order to prevent an unjust enrichment.” Paul L. Whitfield, P.A. v. Gilchrist, 348 N.C. 39, 42, 497 S.E.2d 412, 415 (1998); see, e.g., Booe v. Shadrick, 322 N.C. 567, 570, 369 S.E.2d 554, 556 (1998) (rejecting unjust enrichment claim and holding that “[i]f there is a contract between the parties, the contract governs the claim and the law will not imply a contract”); Vetco Concrete Co. v. Troy Lumber Co., 256 N.C. 709, 713, 124 S.E.2d 905, 908 (1962) (holding that “[i]t is a [well-established] principle that an express contract precludes an implied contract with reference to the same matter”).

Because the Court has concluded that the express terms of the Account Agreement Documents permit Defendant to assess the overdraft fees it charged to Plaintiff here, Plaintiff’s unjust enrichment claim must therefore be dismissed. iv. Unfair and Deceptive Trade Practices N.C. Gen. Stat. §§75-1.1, et seq.

{46} The issue of whether an act or practice is unfair or deceptive is a question of law for the court. Songwooyarn Trading Co. v. Sox Eleven, Inc., 213 N.C. App. 49, 56, 714 S.E.2d 162, 167 (2011). To prevail on a UDTP claim under N.C. Gen. Stat. § 75- 1.1, Plaintiff must demonstrate: “(1) an unfair or deceptive act or practice, or unfair method of competition, (2) in or affecting commerce, and (3) which proximately caused actual injury to the plaintiff or his business.” Dalton v. Camp, 138 N.C. App. 201, 209, 531 S.E.2d 258, 264, rev’d on other grounds, 353 N.C. 647, 548 S.E.2d 704 (2001) (internal citation omitted). “‘A practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers,’ and a ‘practice is deceptive if it has the capacity or tendency to deceive.”’ Bumpers v. Cmty. Bank of Va., 367 N.C. 81, 91, 747 S.E.2d 220, 228 (2013) (internal citations omitted). {47} Plaintiff argues that Defendant violated the UDTPA “by misrepresenting to customers that debits were posted chronologically and by victimizing customers to maximize unauthorized fees.” (Pl.’s Resp. Def.’s Mot. Summ. J., p. 19.) Plaintiff’s claim must be dismissed for at least two reasons. {48} First, it is undisputed that the Bank processed debit transactions in high- to-low priority during the relevant period, and the Court has already concluded that Defendant disclosed to customers in the Account Agreement Documents that the Bank processed large debits first and, in its discretion, assessed overdraft fees for transactions drawn on insufficient funds. Hence, Plaintiff has failed to bring forward evidence showing that Defendant “misrepresent[ed] to customers that debits were posted chronologically” or otherwise engaged in conduct that violated its obligations under the Account Agreement Documents.11 Noel L. Allen, 1 North Carolina Unfair Although Plaintiff seeks to equate Defendant’s actions here with the actions of other banks whose practices have been deemed unlawful, the Court finds Plaintiff’s comparisons unpersuasive. For example, in Gutierrez v. Wells Fargo Bank, N.A., 622 F. Supp. 2d 946, 954 (N.D. Cal. 2009), a case relied upon by Plaintiff, the bank’s policy, unlike Defendant’s here, was to “post items presented against the Account in any order the Bank chooses . . . .” Similarly, in Hughes v. TD Bank, N.A., 856 F. Supp. 2d 673, 676 (D. N.J. 2012), another case relied upon by Plaintiff and again unlike here, the bank informed customers that “[w]e may choose our processing orders in our sole discretion and Business Practice § 19.04[2][b] (Matthew Bender 2014) (“Although it may seem obvious, a party’s actions that conform with the terms of a contract have not been considered an unfair trade practice.”). Further, Plaintiff does not otherwise offer evidence – independent from conduct permitted by contract – to support his claim that Defendant has violated N.C. Gen. Stat. § 75-1.1. See, e.g., Gaynoe v. First Union Corp., 153 N.C. App. 750, 755, 571 S.E.2d 24, 27 (2002) (“Since we have concluded that defendants acted in accordance with the cardholder agreement, a careful review of the record does not establish independent grounds for a [UDTP claim].”). {49} Second, while Plaintiff claims Defendant should have declined the transactions that would draw on insufficient funds, the record discloses that Defendant was not obligated to refrain from drawing on insufficient funds in the event of an overdraft, (Ans. Ex. 3), and further that Plaintiff was notified of the procedure to remove the overdraft (i.e., “No Bounce”) protection from his account, which would have prevented those items from being paid by the Bank, yet never exercised this option. Furthermore, it is certainly relevant that Plaintiff was the purchaser initiating the transactions at issue and the holder and user of his debit card. It cannot be disputed that he was in the best position to prevent items from being paid when there was not enough money in his account to cover them. That Plaintiff failed to manage and reconcile his account to avoid these charges in the circumstances here does not provide grounds for a UDTP claim. {50} For the reasons set forth above, the Court concludes that Plaintiff has not brought forward sufficient evidence to permit his UDTP claim to survive Defendant’s motion for summary judgment.

without notice to you, regardless of whether additional fees may result.” The Court does not find either case to present circumstances analogous to those here. Moreover, it appears undisputed that unlike other banks referenced by Plaintiff, Defendant always posted credits to a customer’s account before posting debits to that account, (Puntch Dep. 45; Puntch Aff. ¶ 21); has not commingled transactions to increase overdraft fees, (Puntch Dep. 43; Puntch Aff. ¶¶ 19–22); and has never subtracted fees before processing a customer’s transaction, (Puntch Dep. 56).

V. CONCLUSION {51} Based on the foregoing, the Court hereby GRANTS Plaintiff’s Motion for Permission to File Plaintiff’s Supplement, DENIES Defendant’s Motion to Strike Plaintiff’s Supplement, and GRANTS Defendant’s Motion for Summary Judgment on all claims. Accordingly, Plaintiff’s Complaint and all claims contained therein is hereby DISMISSED with prejudice.12

SO ORDERED, this the 10th day of June 2015.

/s/ Louis A. Bledsoe, III Louis A. Bledsoe, III Special Superior Court Judge for Complex Business Cases

Defendant also moves for dismissal of Plaintiff’s Complaint under Rule 56 on grounds of laches and waiver. The Court declines to reach Defendant’s arguments in light of the Court’s resolution of Defendant’s Motion on the grounds stated.