Foreman v. Bank of America, N.A., No. 5:2018cv01375 - Document 50 (N.D. Cal. 2018)

Court Description: ORDER GRANTING 30 MOTION FOR LEAVE TO AMEND; GRANTING 24 MOTION TO DISMISS SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND. Amended complaint due on or before January 10, 2019. Signed by Judge Beth Labson Freeman on 12/6/2018. (blflc2S, COURT STAFF) (Filed on 12/6/2018)
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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 JAMES FOREMAN, et al., Plaintiffs, 8 9 10 United States District Court Northern District of California 11 12 13 Case No. 18-cv-01375-BLF v. BANK OF AMERICA, N.A., Defendant. ORDER GRANTING MOTION FOR LEAVE TO AMEND; GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND [Re: ECF 24, 30] This case involves a consumer’s right to authorize his bank to transfer funds electronically 14 to third parties through what is aptly named an “electronic fund transfer.” Such transfers are 15 governed by the Electronic Fund Transfer Act (“EFTA”), 15. U.S.C. § 1693. If a consumer has 16 authorized a financial institution to transfer funds on his behalf, the EFTA provides the consumer 17 the right to “stop payment” of those preauthorized transfers—that is, to withdraw his 18 authorization. Id. § 1693e. In practice, in order to stop payment, the consumer may be required 19 by his financial institution to pay what is known as a “stop-payment fee.” Plaintiffs James 20 Foreman and Alvin Moody allege that Defendant Bank of America, N.A. (“BOA”) charges such a 21 fee. Plaintiffs contend that BOA’s stop-payment fee, in combination with several other alleged 22 impositions to stopping payments, violates the EFTA and California’s Unfair Competition Law. 23 Before the Court is Plaintiffs’ motion for leave to amend their First Amended Complaint 24 (ECF 30) and BOA’s motion to dismiss the First Amended Complaint (ECF 24). For the reasons 25 stated on the record at the hearing on the motion to dismiss, and because leave to amend should be 26 freely given, the Court GRANTS Plaintiffs’ motion for leave to amend. The Second Amended 27 Complaint, attached to Plaintiffs’ motion for leave to amend (at ECF 30-1), is thus the operative 28 pleading here. Because BOA’s motion to dismiss applies equally to the Second Amended 1 Complaint, the Court CONSTRUES Defendant’s motion to dismiss the First Amended Complaint 2 to be a motion to dismiss the Second Amended Complaint. 3 For the reasons that follow, the motion to dismiss the Second Amended Complaint is 4 GRANTED WITH LEAVE TO AMEND. Plaintiffs shall file an amended complaint on or before 5 January 10, 2019. 6 I. Plaintiffs James Foreman and Alvin Moody each have a bank account with Defendant 7 United States District Court Northern District of California BACKGROUND1 8 Bank of America, N.A. (“BOA”). Second Am. Compl. (“SAC”) ¶ 28. Through its deposit 9 agreement, BOA, like many financial institutions, allows its customers to authorize recurring 10 electronic funds transfers (“EFTs”) from their checking accounts to various third parties, to 11 effectuate, for example, the payment of monthly bills. Id. ¶¶ 1, 27. Under the Electronic Fund 12 Transfer Act (“EFTA”), 15. U.S.C. § 1693, BOA is required to allow consumers to withdraw their 13 authorizations for EFTs. Id. ¶¶ 21–22. Accordingly, BOA allows its customers to stop such 14 payments. However, in order to stop the payments, the customer must first satisfy certain 15 16 requirements imposed by BOA in its deposit agreement. First, BOA requires the customer to pay 17 a $30 “stop-payment fee” (“SPF”). Id. ¶¶ 3–4, 30. Every customer must pay this fee, regardless 18 of his or her means. Id. ¶ 5. Second, it requires the customers to notify the third-party recipient of 19 the EFT that the customer has withdrawn his or her authorization for the EFT. Id. ¶ 31. And 20 third, it requires the customer to provide BOA with the exact details of the pre-authorized transfer, 21 down to the penny, before it will stop the payment. Id. Plaintiff James Foreman authorized BOA to transfer funds from his checking account to 22 23 pay a third-party lender, who he alleges was an illegal, predatory lender. Id. ¶¶ 34–38. When he 24 learned in November 2017 that the lender’s tactics were illegal, he told BOA he wanted to stop 25 payment, and BOA required Foreman to pay the $30 fee. Id. ¶¶ 39–40. Because he was caught up 26 27 28 Plaintiffs’ well-pled factual allegations are accepted as true for purposes of the motion to dismiss. See Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). 1 2 1 in what he alleges was an illegal lending scheme and needed to escape the “illegal debt trap,” he 2 paid the fee. Id. ¶ 40. This happened to him more than once. Id. ¶ 41. 3 Plaintiff Alvin Moody is an indigent consumer whose monthly income comes mostly from 4 Social Security benefits. Id. ¶¶ 43–44. In December 2017, he went to BOA and attempted to stop 5 a recurring EFT to his insurance company, in accordance with the terms and conditions of his 6 account. Id. ¶ 45. He also paid the $30 fee. Id. ¶ 46. BOA, however, failed to stop the EFT, and 7 the EFT was effectuated on January 3, 2018. BOA then charged Moody a $35 overdraft fee 8 because he had insufficient funds in his account for the transfer. Id. ¶ 48. Plaintiffs allege that the SPF provision, in tandem with the other requirements BOA United States District Court Northern District of California 9 10 imposes before it will allow a customer to stop payments, “impede[], hinder[], or deter[] 11 consumers” from stopping payments, in violation of their rights under the EFTA, which seeks to 12 protect individual consumer rights in relation to electronic fund transfers. Specifically, Plaintiffs 13 claim that BOA violates 15 U.S.C. § 1693e(a), which sets forth the means by which a consumer 14 can stop payments. Id. ¶¶ 30, 42, 61–67. Likewise, they claim that BOA’s deposit agreement 15 violates 15 U.S.C. § 1693l, which states that “[n]o writing or other agreement between a consumer 16 and any other person may contain any provision which constitutes a waiver of any right conferred 17 or cause of action created by” the EFTA. Id. ¶¶ 33, 68–73. Lastly, Plaintiffs claim that BOA’s 18 violations of the EFTA constitute violations of California’s Unfair Competition Law’s unlawful 19 prong. Id. ¶¶ 74–82. 20 Plaintiffs bring their causes of action under the EFTA on behalf of a putative class of “[a]ll 21 holders of a [BOA] checking account who, within the applicable statute of limitations, paid one or 22 more SPFs to stop a recurring EFT.” Id. ¶ 49. And they bring their UCL claim on behalf of a 23 subclass of holders of BOA accounts in California. Id. 24 25 II. LEGAL STANDARD “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 26 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation 27 Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 28 729, 732 (9th Cir. 2001)). While a complaint need not contain detailed factual allegations, it 3 1 “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 2 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 3 550 U.S. 544, 570 (2007)). A claim is facially plausible when it “allows the court to draw the 4 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 5 III. United States District Court Northern District of California 6 DISCUSSION BOA challenges the claims in the SAC on two key fronts: (1) the SAC does not allege 7 EFTA violations based on the $30 stop-payment fee; and (2) Plaintiff Moody fails to state a claim 8 under the EFTA because he does not plausibly allege he complied with the prerequisites for 9 stopping payment. The Court addresses each argument in turn. 10 A. 11 On its face, the SAC seemingly asserts two theories of liability under the EFTA. First, Imposition of Stop-Payment Fees 12 Plaintiffs appear to claim that any imposition of a SPF violates the EFTA. For example, the 13 common questions in the class allegations include “[w]hether [BOA]’s assessment of SPFs on 14 recurring EFTs violated the EFTA” and “[w]hether [BOA]’s assessment of SPFs hinders, 15 impedes, and deters consumers from exercising their right under the EFTA and 15 U.S.C. 16 § 1693e(a) to stop payment on EFTs . . . .” SAC ¶ 54(b), (c). Likewise, in claiming BOA violated 17 § 1693e, Plaintiffs allege that “[i]n violation of 15 U.S.C. § 1693e(a), and as a common practice, 18 [BOA] assesses a $30 ‘stop-payment fee’ when a consumer instructs [BOA] to stop a recurring 19 EFT.” Id. ¶ 63; see also Opp. at 1, ECF 27 (“The Bank’s Fee is an unlawful imposition on 20 consumers’ federal right to stop preauthorized electronic fund transfers.”). 21 Second, Plaintiffs appear to claim that the imposition of a $30 fee unlawfully hinders the 22 rights of certain consumers—namely, those for whom $30 is unduly burdensome because of their 23 limited means. For example, the SAC contains allegations emphasizing Plaintiff Foreman’s 24 attempt to get out from under predatory loans, SAC ¶¶ 34–38, and notes that Plaintiff Moody is 25 indigent and suffered an overdraft fee because of BOA’s alleged failure to stop his payment, id. ¶¶ 26 43–44. See also Opp. at 1 (arguing that BOA violates the law “by requiring consumers— 27 especially indigent ones—to pay a $30 stop-payment fee”). 28 Despite these allegations, Plaintiffs argued at the hearing on the motion to dismiss that they 4 United States District Court Northern District of California 1 do not assert either of these theories. See Hearing Tr. 14: 3–6 (disavowing claim that “any fee” 2 violates the EFTA); id. 13:16–18, ECF 47 (disavowing any claim that there is a “sliding scale” of 3 fees “based on an ability to pay” that would violate the EFTA). Contra Opp. at 13 (“The Bank 4 violates § 1693e when it uses the Fee to impede, hinder, and deter consumers—especially indigent 5 ones—from exercising their right to stop payment of an EFT.”). Instead, they ostensibly seek to 6 assert a theory not readily apparent on the face of the SAC—namely, that the $30 fee in 7 combination with the required notice to the third-party payee and the requirement that the stop- 8 payment notice to BOA be technically precise impede consumers to such a degree that BOA 9 violates the EFTA as a matter of law.2 See Hearing Tr. 4:21–5:1, 8:25–9:7; see also SAC ¶¶ 33, 10 69 (referring to the “contractual provisions,” not just the $30 SPF, as violating the EFTA). That 11 this theory is not discernible from the face of the SAC is just one of its problems. Another, albeit related, problem, is that Plaintiffs’ support of this theory is internally 12 13 inconsistent. They argue that BOA’s impositions to stopping payments are contrary to the EFTA 14 on its face. The EFTA states that a consumer may stop payment by doing two things: (1) 15 “notifying the financial institution . . . up to three business days preceding the scheduled date of 16 the transfer; and (2) if the stop payment request is made orally, the “financial institution may 17 require written confirmation to be provided to it within fourteen days.” 15 U.S.C. § 1693e. 18 Plaintiffs seemingly argue that this provision imposes two and only two requirements on a 19 consumer for stopping payments, such that additional requirements “not contemplated by the 20 statute” impede a consumer’s ability to exercise his right to stop payment. See Hearing Tr. at 21 5:14–17; see also Opp. at 4, 13. But this argument does not support Plaintiffs’ espoused theory. 22 Instead, this argument supports the theory that any imposition not expressly enumerated in the 23 statute violates the statute. That is, it supports the theory that any stop-payment fee, be it $1 or 24 25 26 27 28 2 In its motion, BOA understandably rebuts the SAC as if it claims that any SPF violates the EFTA. See, e.g., Mot. at 2, ECF 24 (“He challenges only the fact that he was charged a $30 fee.”). And in its reply, it tackles the second purported theory—that there is some sliding scale of fees a bank can charge based on the consumers’ means. See Reply at 1, ECF 29 (“Plaintiffs argue that the [EFTA] should be interpreted to prohibit stop-payment fees if, on a case-by-case basis, the fees” impede stopping the payments). With Plaintiffs’ theory more clearly articulated, these arguments are, unfortunately, somewhat beside the point. 5 United States District Court Northern District of California 1 $30, violates the statute, because SPFs are not contemplated by the statute. Yet Plaintiffs 2 expressly disclaim this theory. 3 Even assuming that Plaintiffs’ theory were clear from the face of the SAC and their 4 arguments more clearly bolstered that theory, the SAC fails for an additional reason. Plaintiffs do 5 not allege facts to plausibly state a valid claim that these impositions violate the EFTA as a matter 6 of law. This is so because Plaintiffs do not allege facts that they personally were impeded, 7 hindered, or delayed by the $30 SPF (much less the two other impositions). Indeed, each Plaintiff 8 alleges that he paid the fee, seemingly without delay. SAC ¶¶ 40–41 (Foreman); id. ¶ 46 9 (Moody). Though Plaintiffs argue that “the $30 Fee ‘inherently [preclude[d] Plaintiff[s] from 10 stopping payment],’” Opp. at 15 (quoting Simone v. M & M Fitness LLC, No. cv-16-01229-PHX, 11 2017 WL 1318012, at *3 (D. Ariz. Apr. 10 2017)), they do not allege such preclusion. There are 12 no allegations that would allow this Court to determine that these impositions worked in tandem to 13 impede or hinder Plaintiffs’ rights to stop payments, much less that these impositions together are 14 somehow so drastic that they hinder consumers as a matter of law. There is simply no alleged 15 causal link between BOA’s impositions and Plaintiffs’ abilities to exercise their rights to stop 16 payments under the EFTA. Thus, Plaintiffs fail to state a claim under the EFTA. Because violations of the EFTA 17 18 serve as the predicate to Plaintiffs’ UCL claim, that claim fails as well.3 Moody’s Claim 19 B. 20 In contrast to Plaintiffs’ opaque allegations regarding BOA’s impositions, Plaintiff Moody 21 alleges facts that could state a claim under the EFTA. He alleges that he requested BOA stop a 22 payment and complied with BOA’s requirements to do so, but that BOA did not stop the payment. 23 However, Plaintiff Moody nowhere actually asserts an individual claim based on these allegations. 24 Each of the three asserted causes of action are brought on behalf of the putative classes and relate 25 specifically to BOA’s impositions, not to its failure to process requests. To validly state a claim, 26 Plaintiff Moody must first bring such a claim. 27 28 3 Because Plaintiffs fail to state a claim under the UCL, the Court need not reach BOA’s argument that the National Banking Act preempts the UCL in this case. See Mot. at 9–12. 6 1 IV. ORDER For the foregoing reasons, the Court GRANTS Plaintiffs’ motion for leave to amend the 2 first amended complaint and CONSTRUES BOA’s motion to dismiss to be a motion to dismiss 3 the second amended complaint. The Court GRANTS WITH LEAVE TO AMEND the motion to 4 dismiss. Plaintiffs’ amended complaint is due on or before January 10, 2019. 5 6 IT IS SO ORDERED. 7 8 Dated: December 6, 2018 9 10 United States District Court Northern District of California 11 ______________________________________ BETH LABSON FREEMAN United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7