United States District Court, D. New Hampshire
Joseph Walbridge, Individually and on Behalf of All Others Similarly Situated
Northeast Credit Union and Does 1 through 100
Christine M. Craig, Esq.
J. Demko, Esq.
Russell F. Hilliard, Esq.
Louis Lovett Shilo, Esq.
Richard D. McCune, Esq.
T. O'Connell, Esq.
M. Richter, Esq.
A. DiClerico, Jr. United States District Judge
Walbridge brings a putative class action to challenge the
practices of Northeast Credit Union to charge overdraft fees
when customers' accounts held funds to cover the
transactions. He alleges claims for breach of contract,
breach of the implied duty of good faith and fair dealing,
unjust enrichment, money had and received, and violation of
Regulation E, 12 C.F.R. § 1005.17, of the Electronic
Fund Transfers Act ("EFTA"), 15 U.S.C. § 1693,
et seq. Northeast moves to dismiss all claims.
considering a motion to dismiss, the court accepts all
well-pleaded facts as true, disregarding legal conclusions,
and resolves reasonable inferences in the plaintiff's
favor. Galvin v. U.S. Bank, N.A., 852 F.3d 146, 155
(1st Cir. 2017). To avoid dismissal, the complaint must state
sufficient facts to support a plausible claim for relief.
In re Curran, 855 F.3d 19, 25 (1st Cir. 2017). The
plausibility standard is satisfied if the factual allegations
in the complaint, along with reasonable inferences, show more
than a mere possibility of liability. Germanowski v.
Harris, 854 F.3d 68, 71 (1st Cir. 2017).
had a checking account and a debit card with Northeast Credit
Union that was originated by the Share Account Agreement
("Account Agreement"). Walbridge also completed the
Opt In Form for overdraft transactions ("Opt In
Agreement"). His claims in this case arise from
overdraft fees charged by Northeast based on the
"available balance" in his account rather than the
balance shown on the account, called the "ledger
balance" or "actual balance."
difference between the available balance and the actual
balance results from the way Northeast credits deposits made
to an account and reduces the balance by debits that are
pending but not yet paid. As a result, the available balance
can be less, and even considerably less, than the actual
balance, depending on the delay in crediting deposits and the
anticipatory deductions of pending debits. Northeast then
assesses an overdraft fee when the available balance is
insufficient to cover a transaction, even though the actual
balance shows enough money to cover the
alleges that on March 15, 2016, he had an actual balance in
his Northeast checking account of $111.09. He made a debit
card payment of $32.43, which left a balance of $78.66.
Northeast, however, determined that he had insufficient funds
and charged an overdraft fee of $32.00. Northeast then
assessed additional overdraft fees of $32.00 on March 29 and
March 30, 2016. Walbridge believes that subsequent improper
overdraft fees were charged but provides no allegations in
alleges that Northeast breached the Account and Opt In
Agreements and the implied duty of good faith and fair
dealing by charging him overdraft fees when the actual
balance showed there was money in his account to cover the
transactions. He also brings equitable claims for unjust
enrichment and money had and received. In addition, Walbridge
alleges that Northeast violated Regulation E of EFTA by
failing to disclose its overdraft policy.
moves to dismiss Walbridge's breach of contract claims
and EFTA claim on the grounds that it did not promise to use
the actual balance for its overdraft service and instead
properly explained its overdraft policy based on the
available balance. Northeast moves to dismiss the EFTA claim
on the merits and asserts that the claim is barred by the
statute of limitations and the "safe harbor"
provision. Northeast moves to dismiss the equitable claims
because valid contracts control the issues raised. Walbridge
objects to the motion to dismiss.
Breach of Contract
contends that Northeast breached the Opt In Agreement by
assessing overdraft fees when there was enough money in his
account to cover the transaction. He contends that Northeast
breached the Account Agreement because it promised to assess
overdraft fees only when there were insufficient funds in the
account to cover a transaction but instead assessed overdraft
fees based on the available balance. Northeast asserts that
no breach occurred.
New Hampshire law, "[a] breach of contract occurs when
there is a failure without legal excuse to perform any
promise which forms the whole or part of a contract."
Audette v. Cummings, 165 N.H. 763, 767 (2013)
(internal quotation marks omitted). The meaning of a written
contract is a question of law for the court. Holloway
Auto. Gr. v. Giacalone, 169 N.H. 623, 628 (2017).
"When interpreting a written agreement, [the court
gives] the language used by the parties its reasonable
meaning, reading the document as a whole, and considering the
circumstances and the context in which the agreement was
language of a contract is ambiguous if the parties to the
contract could reasonably disagree as to the meaning of that
language." Found, for Seacoast Health v. Hosp. Corp.
of Am., 165 N.H. 168, 172 (2013) (internal quotation
marks omitted). To determine whether an ambiguity exists, the
"court should examine the contract as a whole, the
circumstances surrounding execution and the object intended
by the agreement, while keeping in mind the goal of giving
effect to the intentions of the parties." Id.
The process of applying that standard generally involves
factual issues although in some cases an ambiguity may be
resolved as a matter of law. Sunapee Difference, LLC v.
State, 164 N.H. 778, 790 (2013).