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Old Nat'l Bank v. Kelly

Court of Appeals of Indiana

April 23, 2015

Old National Bank, Appellant-Defendant,
Steven Kelly, Jon A. Cook, and Rebecca F. Cook, individually and on behalf of others similarly situated, Appellees-Plaintiffs

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[Copyrighted Material Omitted]

Page 524

Appeal from the Vanderburgh Circuit Court. The Honorable David D. Kiely, Judge. Cause No. 82C01-1012-CT-627.

ATTORNEYS FOR APPELLANT: Mark J.R. Merkle, Marc T. Quigley, Libby Y. Goodknight, Kay Dee Baird, Krieg DeVault LLP, Indianapolis, Indiana.

ATTORNEYS FOR AMICUS CURIAE, INDIANA BANKERS ASSOCIATION: Thomas W. Dinwiddie, Maureen E. Ward, Wooden & McLaughlin LLP, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: Henry J. Price, Joseph N. Williams, Price Waicukauski & Riley, LLC, Indianapolis, Indiana; William M. Sweetnam, Sweetnam LLC, Chicago, Illinois.

Bailey, Judge. Robb, J., and Brown, J., concur.


Page 525

Bailey, Judge.

Case Summary

[¶1] Old National Bank (" the Bank" ) brings an interlocutory appeal challenging the trial court's denial of the Bank's motion for summary judgment upon breach of contract, conversion, and equitable claims of a certified class of depositors-plaintiffs who were charged overdraft fees stemming from debit card transactions (hereinafter, " Depositors" ).[1] We affirm in part and reverse in part.


[¶2] The Bank presents a single (consolidated) issue: whether it is entitled to summary judgment upon each of Depositor's claims because those claims are preempted by federal law or because the Bank, as movant for summary judgment, has negated essential elements of each of those claims.

Facts and Procedural History

[¶3] Steven Kelly, Jon A. Cook, and Rebecca F. Cook, on behalf of themselves and a class of consumer checking account holders, brought a class action suit against the Bank.[2] The Amended Class Action Complaint (" the Complaint" ) challenged a bank bookkeeping device known as " high-to-low" posting,[3] the delayed debiting of transactions, and the Bank's alleged utilization of a so-called " shadow" line of credit.[4] See Gutierrez v. Wells Fargo Bank, N.A., 730 F.Supp.2d 1080 (N.D. Cal. 2010)

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(" Gutierrez I " ), aff'd. in part, rev'd. in part on other grounds 704 F.3d 712 (9th Cir. 2012) (" Gutierrez II " ).

[¶4] A copy of a Deposit Account Agreement between class members and the Bank was attached as Exhibit A. In relevant part, it provided:

If there are available funds to cover some, but not all, of the withdrawals or other debits (such as charges) to your Account, we may post those withdrawals or other debits for which there are sufficient available funds in any order we may choose at our sole discretion. If there are insufficient available funds to cover some of the withdrawals or debits presented against your Account, such items will be handled in accordance with our overdraft procedures or in accordance with any other agreement you may have with us (such as an overdraft protection program). Even if we choose to pay one or more overdrafts, we are not obligated to cover any future overdrafts. We may determine the balance of your account in connection with determining whether payment of an item will create an overdraft at any time between the time we receive the item and the deadline for us to take action on the item. We are not required to determine your account balance more than one (1) time during this period. An NSF/overdraft item fee may be assessed on any item that will overdraw the available account balance, regardless of whether we pay or dishonor (return) the item.

( App. 95-96.)

[¶5] The common factual allegations included an allegation that the Bank manipulated customers' electronic debits[5] from highest to lowest dollar amount, thereby depleting customer funds and maximizing the occurrences of $35.00 overdraft fees.[6] (App. 13.) Depositors also alleged that the Bank grouped together transactions from multiple days, defying a reasonable contractual expectation of the consumer that instantaneous electronic transactions would be posted in chronological order. According to Depositors, " customer accounts may not have been actually overdrawn at the time the overdraft fees were charged, or at the time of the debit transaction." (App. 6.) Finally, Depositors alleged that the Bank failed to provide accurate and timely information to Depositors regarding their balances or to warn that an overdraft was in progress.

[¶6] Count I, captioned " Breach of Contract and Breach of the Covenant of Good Faith and Fair Dealing," was premised upon the contention that the Bank, " through its overdraft policies and practices," breached the Deposit Agreement and its implied covenant of good faith and fair dealing. (App. 24.) Count II alleged that the Bank committed civil conversion by taking specific and readily identifiable funds without consent and with intent to permanently deprive Depositors of those funds. Count III alleged that the ...

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