UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Rita Grenier and Edwin Grenier, Individually and on Behalf of All Others Similarly Situated

v. Civil No. 21-cv-00534-LM Opinion No.

P Granite State Credit Union, Does 1 through 5

ORDER Plaintiffs Rita and Edwin Grenier bring this putative class action against

Granite State Credit Union (“Granite”) and “Does 1 through 5,” alleging injuries

stemming from Granite’s overdraft fees and policies. Plaintiffs allege that—by not

properly informing consumers how overdrafts are assessed—Granite has violated,

and continues to violate, the Electronic Funds Transfer Act’s,

(“EFTA”), implementing regulations,

et seq. (“Regulation E”).

Pending before the court is Granite’s motion to dismiss (doc. no. 9) under Fed.

R. Civ. P. 12(b)(6). For the following reasons, the motion is denied.

STANDARD OF REVIEW Under Rule 12(b)(6), the court must accept the factual allegations in the

complaint as true, construe reasonable inferences in the plaintiff’s favor, and

“determine whether the factual allegations in the plaintiff’s complaint set forth a

plausible claim upon which relief may be granted.” Foley v. Wells Fargo Bank,

N.A.,

(1st Cir. 2014) (internal quotation marks omitted). A claim is

facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal,

(2009).

BACKGROUND Regulators, private litigants, and the courts have recently devoted significant

attention to overdraft fees. See Chambers v. NASA Fed. Credit Union,

(D.D.C. 2016) (thoroughly outlining history). In 2009, the Federal Reserve

Board1 revised Regulation E to add a provision intended to “assist consumers in

understanding how overdraft services provided by their institutions operate and to

ensure that consumers have the opportunity to limit the overdraft costs associated

with ATM and one-time debit card transactions where such services do not meet

their needs.” Electronic Fund Transfers, Final Rule,

, 59,033

(Nov. 17, 2009).

Thus, Regulation E now requires financial institutions to obtain a customer’s

“affirmative consent” before charging overdraft fees on ATM or one-time debit card

transactions.

(b)(1)(iii). To secure consent, institutions must

use an opt-in notice that “describe[s] the institution’s overdraft service.” Id. at

1005.17(b)(1)(i). The notice must be “segregated from all other information,” and

“substantially similar” to a model form (Model Form A-9) provided by the Consumer

1 Congress reassigned responsibility for enforcing the EFTA from the Federal

Reserve Board to the Consumer Financial Protection Bureau in 2010. See Dodd- Frank Wall Street Reform and Consumer Protection Act of 2010, Pub. L. No. 111- 203, Title X, § 1084,

, 2081–83.

2 Financial Protection Bureau. Id. at 1005.17(b)(1)(i); (d). All disclosures must be

“clear and readily understandable.”

(a)(1).

Issues occur when a disclosure does not adequately convey how overdraft fees

are assessed. There are two balances financial institutions can use to calculate

whether the amount of money in an account dips below zero: either the “actual

balance”2 or the “available balance.” The “actual balance” is the actual amount of

money in an accountholder’s account at any particular time. The “available

balance,” in contrast, is the actual amount of money in the account minus any

“holds” on deposits and pending debits that have not yet been posted. For this

reason, calculating overdrafts based on the available balance “often leads to more

frequent overdrafts because there is less money available in the account due to

holds and pending transactions.” Domann v. Summit Credit Union, No. 18-cv-1670-

slc,

(W.D. Wis. Sept. 13, 2018) (citation omitted).

Thus, plaintiffs across America have filed a number of “virtually identical

lawsuits” challenging institutions that use the available balance method where the

opt-in notice does not explain how it assesses overdraft fees. Id.; see, e.g., Tims v.

LGE Cmty. Credit Union,

(11th Cir. 2019); Adams v.

Liberty Bank, No. 3:20-cv-01601(MPS),

(D. Conn. Aug. 23, 2021);

Wellington v. Empower Fed. Credit Union, -- F. Supp. 3d. --,

(N.D.N.Y. Apr. 13, 2021); Bettencourt v. Jeanne D’Arc Credit Union,

Courts also refer to “actual balance” as the “ledger balance” or “current balance.”

3 3d 258 (D. Mass. 2019); Walbridge v. Northeast Credit Union,

(D.N.H. 2018); Walker v. People’s United Bank,

(D. Conn.

2018); Salls v Digital Fed. Credit Union,

(D. Mass. 2018);

Domann,

; Ramirez v. Baxter Credit Union, No. 16-CV-03765-SI,

(N.D. Cal. Mar. 21, 2017); Pinkston-Poling v. Advia Credit Union,

(W.D. Mich. 2016); Chambers,

.

Plaintiffs in this case bring one such lawsuit. They allege that Granite used

a one-page notice entitled “What You Need to Know about Overdrafts and Overdraft

Fees” (the “Opt-in Disclosure”). The Opt-in Disclosure states that an overdraft

“occurs when you do not have enough money in your account to cover a transaction,

but we pay it anyway.” It does not outline the distinction between the actual

balance method and the available balance method. Thus, Plaintiffs allege that

Granite has violated, and continues to violate, Regulation E because the phrase

“enough money” does not specify whether Granite calculates overdrafts based on the

actual balance or the available balance. Essentially, they argue that the Opt-in

Disclosure does not provide a “clear and readily understandable” explanation of “the

institution’s overdraft service.” See

(1)(1); 1005.17(b)(1)(i).

DISCUSSION Granite moves to dismiss on the grounds that, first, it did not violate

Regulation E and, second, that the EFTA’s safe harbor provision, 15 U.S.C.

§ 1693m(d)(2), insulates it from liability.

4 I. Regulation E Violation

Granite first argues that when the Opt-in Disclosure is read in conjunction

with a document entitled “Terms and Conditions of Your Account” (the

“Membership Agreement”), Granite satisfies Regulation E’s disclosure

requirements. Granite attaches the five-page Membership Agreement to its motion,

and alleges it is the operative agreement governing Plaintiffs’ relationship with

Granite. The Membership Agreement states that Granite assesses overdrafts based

on the available balance:

Determining your available balance – We use the “available balance” method to determine whether your account is overdrawn, that is, whether there is enough money in your account to pay for a transaction. Importantly, your “available” balance may not be the same as your account’s “actual” balance. This means an overdraft or an NSF [nonsufficient funds] transaction could occur regardless of your account’s actual balance.

Doc. no. 9-3 at 1. It then proceeds to describe in further detail the difference

between actual balance and available balance. See id. The Membership Agreement

was not attached to—or referenced in—the complaint.3

Even assuming that the Membership Agreement could be considered at the

motion to dismiss stage, Plaintiffs have still plausibly alleged violations of

Regulation E. Regulation E requires financial institutions to provide disclosures

about their overdraft policies “segregated from all other information,” i.e. in a

3 Granite alleges that Plaintiffs referred to the Membership Agreement in their

complaint when they referenced a “Granite agreement.” Doc. no. 9 at 2 n.1. As Plaintiffs clarify, the “Granite agreement” referenced in the complaint is actually the Opt-in Disclosure. Doc. no. at 11 n.4.

5 standalone document.

(b)(1)(i). Because Plaintiffs allege that

the Opt-in Disclosure is the segregated document, only it is relevant to Plaintiffs’

claim. The Membership Agreement is extraneous information, irrelevant to

whether the Opt-in Disclosure itself—i.e., the segregated document—adequately

explains Granite’s overdraft policy. See Adams,

, at *4 (refusing

to consider extraneous documents such as an Account Agreement on Rule 12(b)(6)

motion, but holding that even if it could consider those documents, they would not

make plaintiff’s Regulation E claim any less plausible because Regulation E

requires notice to be “segregated from all other information”); see also Wellington,

, at *4 (holding that even assuming extraneous evidence should be

considered on a Rule 12(b)(6) motion, the plaintiff still plausibly alleged violations

of Regulation E).

The cases Granite cites in support of its argument that the Opt-in Disclosure

and the Membership Agreement should be read together are not persuasive. Those

cases are all in the context of contract claims, for which it may be appropriate to

construe multiple documents together. See, e.g., Tims,

n.5 (citing

state contract law for the proposition that “where multiple documents are executed

at the same time in the course of a single transaction, they should be construed

together”); Domann,

, at *6-7; Chambers,

-

12. Yet in cases where plaintiffs allege both a contract claim and a Regulation E

claim, courts will read the documents together for the contract claim only, because

Regulation E requires notice to be “segregated.” See Ramirez,

, at

6 *8. Thus, Tims, Domann, and Chambers do not help Granite’s argument because

here Plaintiffs do not allege breach of contract, and in fact specifically disavow any

such claim. See doc. no. 11 at 10.

Looking only at the Opt-in Disclosure, then, Plaintiffs plausibly state a claim

that the phrase “enough money” does not adequately provide a “clear and readily

understandable” explanation of “the institution’s overdraft service.”

(1)(1); 1005.17(b)(1)(i). Countless courts examining virtually identical

language have agreed. See, e.g., Tims,

(ambiguous whether

disclosure that overdraft occurs “when you do not have enough money in your

account to cover a transaction, but we pay it anyway” uses actual balance or

available balance method); Wellington,

, at *5; Bettencourt, 370 F.

Supp. 3d at 262, 265; Walbridge,

; Salls,

; Pinkston-Poling,

; Walker,

. Thus,

Plaintiffs plausibly state a claim that Granite’s Opt-in Disclosure violates

Regulation E.

II. Safe Harbor Provision Granite next argues that the EFTA’s safe harbor provision insulates it from

liability. The EFTA protects financial institutions from liability for “any failure to

make disclosure in proper form if a financial institution utilized an appropriate

model clause issued by the Bureau or the Board.” 15 U.S.C. § 1693m(d)(2).

Regulation E requires that notice “shall be substantially similar to Model Form A-

9,” which is promulgated by the Consumer Financial Protection Bureau. 12 C.F.R.

7 § 1005.17(d). Model Form A-9 states: “An overdraft occurs when you do not have

enough money in your account to cover a transaction, but we pay it anyway.”

§1005, App. A (emphasis in original).

Courts across the country have addressed arguments identical to Granite’s

argument here, and the vast majority have held that that using language identical

to that in Model Form A-9 does not necessarily insulate a financial institution from

liability. See Tims,

; Adams,

, at *6-*8;

Bettencourt, 370 F. Supp. 3d at 266; Salls,

; Walbridge,

; Smith,

, at *8; Gunter v. United Fed. Credit

Union, No. 3:15-cv-00483-MMD-WGC,

, at *3 (D. Nev. Sept. 25,

2017); Ramirez,

, at *7; Pinkston-Poling,

.

As one court reasoned, the safe harbor provision requires the use of an “appropriate

model clause.” Adams,

, at *7 (citing 15 U.S.C. § 1693m(d)(2)). If

the language in Model Form A-9 does not accurately describe a particular

institution’s overdraft service, then it is not “appropriate.” Id. Indeed, “[i]f use of a

model clause were, by itself, an impenetrable shield, a consumer would have no

redress” when Model Form A-9 does not actually provide a “clear and readily

understandable” description,

, of an institution’s overdraft

services.

Granite cites two unreported district court cases holding otherwise. See

Rader v. Sandia Lab. Fed. Credit Union, No.20-559 JAP/JHR,

, at

*13-*14 (D.N.M. April 19, 2021); Tilley v. Mountain Am. Fed. Credit Union, No.

8 2:17-cv-01120-JNP-BCW,

, at *4-*6 (D. Utah Sept. 25, 2018). The

court does not find the reasoning of these cases to be persuasive. Tilley, for

example, cited a Northern District of Georgia case for the proposition the phrase

“enough money” from the model form is not inaccurate when the financial

institution calculates overdrafts based on an account’s available balance. Tilley,

, at *5 (citing Tims v. LGE Cmty. Credit Union, No. 1:15-cv-4279-

TWT,

, at *6 (N.D. Ga. Nov 6, 2017), rev’d and remanded by

). But the Eleventh Circuit later overturned that case on appeal, holding

that using language from a model clause “does not shield [a financial institution] for

claims based on their failure to make adequate disclosures.” Tims,

. The other case Granite cited, Rader, relied exclusively on Tilley’s reasoning,

without acknowledging that Tilley was predicated in part on reasoning that the

Eleventh Circuit had overturned. See

, at *13-*14. Rather than

following either of these cases, this court agrees with the sound reasoning of the

Eleventh Circuit and the previously cited district court cases holding that the safe

harbor provision did not defeat plaintiffs’ claims.

Thus, Plaintiffs have plausibly stated a claim that the clause from Model

Form A-9 was not “appropriate” because the language did not describe Granite’s

overdraft policy in a “clear and readily understandable” way. See Adams,

, at *8.

9 CONCLUSION For these reasons, Granite’s motion to dismiss (doc. no. 9) for failure to state

a claim is denied.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

November 8, 2021

cc: Counsel of Record

10