Date: 06-30-2012
Case Style: Jerry Lee White v. Midfirst Bank
Case Number: CJ-2010-6250
Judge: Linda G. Worrissey
Court: District Court, Tulsa County, Oklahoma
Plaintiff's Attorney: Don M. Downing, Jason D. Sapp and Robert F. Ritter, Gray, Ritter & Graham, P.C., St. Louis, Missouri and Andrea Gold, Tycko & Zavareei, LLP, Washington, D.C.; Barrett J. Vahle, Stueve Siegel Hanson, Kansas City, Missouri, ; Mark A. Waller, Sneed Lang Herrold, P.C., Tulsa, Oklahoma
Defendant's Attorney: Trent A. Gudgel, Hall, Estill, Hardwich, Gable, Golden & Nelson, P.C., Tulsa, Oklahoa; April Jordon and Rodney Kraig May, Midfirst Bank, Oklahoma City, Oklahoma; Graydon Dean Luthey, Jr., Gablegotwals, Tulsa, Oklahoma; ; David Deupree Morgan, Oklahoma City, Oklahoma
Description: Jerry Lee White sued Midfirst Bank on breach of contract and unjust enrichment theories. He sought class action certification seeking to assert claims on behalf of others against Midfirst.
Plaintiff here, Jerry Lee White, filed an amended petition against MidFirst Bank. Plaintiff alleged three claims, of the Oklahoma Consumer Protection Act (“OCPA”), breach of express contract and unjust enrichment, arising out of MidFirst’s payment practices from Plaintiffs deposit account and resulting in overdraft fees.
On January 17, 2011, this Court dismissed Plaintiffs claims for violation of the OCPA and unjust enrichment, This Court additionally substantially limited Plaintiff’s one remaining claim of breach of express contract. (Exhibit “A” hereto).
On January 18, 2011, the District Court in Pottawatomie County entered its order in Stokes granting preliminary approval of a class action settlement, appointing a class representative, appointing class counsel and setting a schedule for objections, opting out, and a fairness hearing on the settlement. (Exhibit “B” hereto).
Plaintiff here asserts that his case and and the Stokes case are identical except for different plaintiffs, different plaintiffs’ counsel and different courts.
Plaintiff here seeks to have this Court enjoin the Stokes case from proceeding, the Order of Preliminary Approval of the Class Action Settlement there notwithstanding, or in the alternative consolidate the Stokes case into what remains of this case.
No process has been issued from this Court to the plaintiff in Stokes making him a party here subject to injunctive relief.
No process has been issued from this Court to the District Court in Stokes making that Court a party here subject to injunctive relief
Proposition I: Since the Stokes Plaintiff is Not a Party Here, this Court Cannot Enjoin the Stokes Action.
In essence, Plaintiff seeks an injunction against the Stokes court and Judge Canavan from proceeding to a final determination of the class action settlement preliminarily approved by that court. Because one district court has no authority to enjoin another district court, as the lack of decisional law from Plaintiff on that issue confirms, Plaintiff must resort to an attempted injunction against the plaintiff in Stokes. However, since the Stokes plaintiff is not a party here, this Court cannot enjoin him.’ An injunction to stop the Pottawatomie County District Court from proceeding with the Stokes action or to stop the plaintiff in Stokes himself from pursing his claims and on behalf of a settlement class already certified simply are not procedural mechanisms available to Plaintiff here and, thus, should be denied.
Defendant MidFirst Bank (“MidFirst”) hereby Answers the First Amended, Class
Action Petition as follows:
Because the Court granted MidFirst’s Motion to Dismiss as to Plaintiffs claims for violation of the Oklahoma Consumer Protection Act, Unjust Enrichment, and Punitive Damages, MidFirst is relieved of any obligation to answer allegations contained in the First Amended Class Action Petition that pertain to those causes of action. To the extent those allegations require an affirmative or negative response, however, MidFirst denies the allegations.
To the extent that the headings, Prayer for Relief or Jury Demand in the First Amended Class Action Petition require a response, MidFirst denies the allegations contained therein.
With respect to the numbered paragraphs of the First Amended Class Action Petition:
SPECIFIC DENIALS
The allegations contained in Paragraph 1 require neither an affirmative nor negative response.
The allegations contained in Paragraph 2 require neither an affirmative nor a negative response. To the extent a response is required, MidFirst admits that Plaintiff Jerry Lee White (“Plaintiff’) brings an action on behalf of himself and a class of all similarly situated Oklahoma citizens. MidFirst denies that its assessment and collection of overdraft fees or insufficient funds fees (“overdraft fees”) is or has been unfair, deceptive, unconscionable and/or in bad faith. Moreover, the claims related to allegations of unfair, deceptive, unconscionable and/or in bad faith assessment or collection of overdraft fees have been dismissed.
MidFirst admits that it issues debit cards to checking account customers. MidFirst denies that all checking account customers are issued debit cards. As a point of clarification, MidFirst only issues debit cards to those customers who specifically request one. MidFirst admits that debit cards provide customers with electronic access to their checking accounts for purchases, payments, withdrawals, and other electronic debit transactions, but clarifies that debit cards will only give such access after the customer activates the card. MidFirst denies that possession of a debit card without the customer activating same will give electronic access to checking accounts. MidFirst admits that it issued Plaintiff with a debit card upon his request and that he activated it.
The allegations contained in Paragraph 4 (i.e., that practices are “unfair”) pertain to claims that have been dismissed and, thus, do not require a response. To the extent that a response is required, MidFirst denies the allegations.
The allegations contained in Paragraph 5 (i.e., complaining of a “deceptive scheme”) pertain to claims that have been dismissed and, thus, do not require a response. To the extent that a response is required, MidFirst lacks sufficient information or knowledge as to the unsupported and vague statement contained in Paragraph 5 that “banks generate more than $27 billion in overdraft fees annually,” and therefore denies same. MidFirst denies any and all remaining allegations contained in Paragraph 5.
Plaintiff’s claims for violations of the Oklahoma Consumer Protection Act and unjust enrichment have been dismissed. MidFirst Bank admits that in the First Amended Class Action Petition, Plaintiff attempts to seek a claim for breach of contract, but denies that such claim has merit.
The allegations contained in Paragraph 7 (i.e., regarding “unlawful practices,” failure to disclose, and “false and misleading” disclosures) pertain to claims that have been dismissed and, thus, do not require a response. To the extent that a response is required, MidFirst denies the allegations contained in Paragraph 7.
MidFirst admits that plaintiff Jerry Lee ‘White “banked with MidFirst and incurred overdraft fees.” MidFirst is without sufficient information or knowledge to admit or deny the remaining allegations contained in Paragraph 8 and therefore denies same.
MidFirst admits that it is a federally chartered savings association. MidFirst admits that its headquarters and principal place of business are located in Oklahoma City, Oklahoma. MidFirst denies that it currently is the third largest privately owned bank in the United States. MidFirst admits that it conducts business throughout Oklahoma, including in Tulsa County, Oklahoma. The remaining allegations contained in Paragraph 9 are denied.
Paragraph 10 contains a legal conclusion to which no response is required. To the extent a response is required, MidFirst admits that this Court may exercise personal jurisdiction over MidFirst.
Paragraph 11 contains a legal conclusion to which no response is required. To the extent a response is required, MidFirst admits that venue is proper in this Court.
Paragraph 12 contains a legal conclusion to which no response is required. To the extent a response is required, MidFirst denies same.
The allegations contained in Paragraph 13 (i.e., to the extent that “manipulation” is intended to mean deceitfiul, misleading, and/or unlawfhl) pertain to claims that have been dismissed and, thus, do not require a response. To the extent that a response is required, MidFirst admits that it generally orders debit transactions from highest to lowest, as is provided in MidFirst’s Account Agreement, to which every person holding an account with MidFirst is a party:
We have a complex set of rules that determine the order We use to process (1) deposits and other credit items; and (2) withdrawals and other debit items each business day. We generally process deposits before debits. We process various types of debit transactions (for example, checks, check card purchases, ATM transactions, ACH payments, etc.) in different categories. Within each category, We process from the highest dollar amount to the lowest dollar amount. Processing debit items from highest dollar amount to lowest dollar amount produces more overdrafts and resulting fees than other processing orders.
MidFirst denies any and all remaining allegations contained in Paragraph 13.
The allegations contained in Paragraph 14 (i.e., allegations that MidFirst “misleads and deceives”) pertain to claims that have been dismissed and, thus, do not require a response. To the extent a response is required, MidFirst denies the allegations contained therein. See disclosure contained in Account Agreement set out in Paragraph 13 herein.
MidFirst admits that it generally orders debit transactions from highest to lowest, as is provided in MidFirst’s Account Agreement, to which every person holding an account with MidFirst is a party. See answer to Paragraph 13. MidFirst admits that the ordering is automatic and systematic. MidFirst denies that it groups together debit card transactions that posted on subsequent days with transactions that posted on earlier days. Midfirst denies that it groups together debit card transactions that were authorized on subsequent days with transactions that were authorized on earlier days. MidFirst denies that it reorders debit card transactions so that higher debits that occurred on subsequent days are posted to customer accounts before lower debits that occurred on earlier days. MidFirst has insufficient information or knowledge to admit or deny the allegation about customers’ reasonable expectations and therefore denies same. MidFirst denies any and all remaining allegations contained in Paragraph 15.
MidFirst admits that transactions involving debit cards are electronic and that MidFirst is notified instantaneously of the occurrence of such a transaction. Midfirst denies that it is notified instantaneously of the amount of the debit card transaction, as the amount of a settlement transaction often differs from the amount authorized. MidFirst admits that it generally orders debit transactions from highest to lowest, as is provided in MidFirst’s Account Agreement, to which every person holding an account with Midfirst is a party. See answer to Paragraph 13. MidFirst denies any and all remaining allegations contained in Paragraph 16.
MidFirst denies the allegations contained in Paragraph 17.
MidFirst denies the allegations contained in Paragraph 18.
MidFirst admits that it generally orders debit transactions from highest to lowest, as is provided in MidFirst’s Account Agreement, to which every person holding an account with MidFirst is a party. See answer to Paragraph 13. MidFirst denies that said practice is improper. With respect to Plaintiffs transactions, MidFirst admits that it posted the transactions in question based on MidFirst’s Account Agreement, as follows:
• On October 5, 2008, MidFirst received a request for authorization for a debit transaction and placed an authorization hold on Plaintiffs account. The merchant did not settle the transaction until October 7, 2008 and, thus, it did not post to the account until October 7, 2008.
• Plaintiffs available balance at the end of October 6,2008, was $416.92.
• On October 7, 2008, the following transactions were posted to Plaintiffs account in the following order: Credit $262.00; Check $819.68; Check Card Purchase $19.38.
• On October 8, 2008, two overdraft fees were assessed on Plaintiffs account. MidFirst denies any and all remaining allegations contained in Paragraph 19.
MidFirst admits, as a hypothetical, that had it posted the transactions on October 7, 2008 from low to high, Plaintiff would have been assessed one overdraft fee. MidFirst is without sufficient information or knowledge to admit or deny the remaining allegations contained in Paragraph 20 and therefore denies same.
MidFirst admits that it generally orders debit transactions from highest to lowest, as is provided in MidFirst’s Account Agreement, to which every person holding an account with MidFirst is a party. See answer to Paragraph 13. MidFirst denies that said practice is improper. With respect to Plaintiffs transactions, MidFirst admits that it posted the transactions in question based on MidFirst’s Account Agreement as follows:
• On March 1, 2009, MidFirst received a request for authorization for a debit transaction and placed an authorization hold on Plaintiffs account. The merchant did not settle the transaction until March 4, 2009 and, thus, it did not post to the account until March 4, 2009.
• Plaintiffs available balance at the end of March 3, 2009, was $778.31.
• On March 4, 2009, the following transactions were posted to Plaintiffs account in the following order: Deposit $110; Check $819; Check Card Purchase $11.00.
• On March 5, 2009, two overdraft fees were assessed on Plaintiffs account.
MidFirst denies any and all remaining allegations contained in Paragraph 21.
MidFirst admits, as a hypothetical, that had it posted the transactions on March 4, 2009 from low to high, Plaintiff would have been assessed one overdraft fee. MidFirst is without sufficient information or knowledge to admit or deny the remaining allegations contained in Paragraph 22 and therefore denies same.
MidFirst admits that it generally orders debit transactions from highest to lowest, as is provided in MidFirst’s Account Agreement, to which every person holding an account with MidFirst is a party. See answer to Paragraph 13, MidFirst denies that said practice is improper. With respect to Plaintiffs transactions, MidFirst admits that it posted the transactions in question based on MidFirst’s Account Agreement as follows:
• On June 3, 2009, MidFirst received a request for authorization for a $6.25 point of sale transaction and authorized payment.
• On June 5, 2009, MidFirst received a request for authorization for an ATM transaction of $20.00.
• On June 5, 2009, Plaintiff ended the day with an available account balance of
$622.39.
• On June 8, 2009, the June 3Td and 5th transactions were settled by the merchants and posted to Plaintiff’s account with the following transactions in this order:
Deposit $5.00; Check $817.43; ATM Withdrawal $20.00; Check Card Purchase $6.25.
The allegations contained in Paragraph 25 (i.e., the allegation that certain practices are “deceptive”) pertain to claims that have been dismissed and, thus, do not require a response. To the extent a response is required, MidFirst is without sufficient information or knowledge to ascertain what “machinations” Paragraph 25 refers to and therefore denies the allegations contained in Paragraph 25.
The allegations contained in Paragraph 26 (i.e., allegation that certain practices are “unconscionable and predatory”) pertain to claims that have been dismissed and, thus, do not require a response. To the extent that a response is required, MidFirst denies the allegations contained therein.
The allegations contained in Paragraph 27 (i.e., continuation of allegations about practices being unconscionable and predatory) pertain to claims that have been dismissed and, thus, do not require a response. To the extent that a response is required, MidFirst denies the allegations contained therein.
MidFirst admits the account balances and the transactions set out in Paragraph
28 as having occurred on June 15 and 16, 2009, are the same as appear in MidFirst’s records. MidFirst admits that it posted the transactions in question based on MidFirst’s Account Agreement. MidFirst admits that Plaintiff was charged an overdraft fee on June 16, 2009. MidFirst denies that the account insufficiency discussed in Paragraph 28 was made up entirely of overdraft fees charged in the preceding month. MidFirst denies that Plaintiff was assessed three overdraft fees on May 17, as MidFirst’s records show no such fees assessed that day. MidFirst denies that Plaintiff was assessed three overdraft fees on May 21, as MidFirst’s records show one overdraft fee assessed to Plaintiff that day. MidFirst admits that
• On June 9, 2009, three overdraft fees were assessed on Plaintiffs account.
MidFirst denies any and all remaining allegations contained in Paragraph 23.
MidFirst admits, as a hypothetical, that had it posted the transactions on June
8, 2009 from low to high, Plaintiff would have been assessed one overdraft fee. MidFirst is without sufficient information or knowledge to admit or deny the remaining allegations contained in Paragraph 24 and therefore denies same.
Plaintiff was assessed three overdraft fees on June 9, MidFirst denies any and all remaining allegations contained in Paragraph 28.
MidFirst admits, as a hypothetical, that had Plaintiff not actually overdrawn
his account and, thus, not actually incurred any overdraft fees in the time period from May 7
to June 16, 2009, then Plaintiffs account would not have been overdrawn on June 17, 2009.
Midfirst denies any and all remaining allegations contained in Paragraph 29.
30. MidFirst denies the allegations contained in Paragraph 30.
The allegations contained in Paragraph 31 (i.e., characterizing conduct as “unfair and deceptive”) pertain to claims that have been dismissed and, thus, do not require a response. To the extent that a response is required, MidFirst denies the allegations contained therein.
MidFirst admits that Plaintiff was assessed overdraft fees on the dates in question because his account had a negative balance. MidFirst denies any and all remaining allegations contained in Paragraph 32.
The allegations contained in Paragraph 33 (i.e., regarding inadequate disclosures) pertain to claims that have been dismissed and, thus, do not require a response. To the extent that a response is required, MidFirst denies the allegations contained therein.
The allegations contained in Paragraph 34 (i.e., alleging that certain practices constitute “unfair and deceptive trade practices”) pertain to claims that have been dismissed and, thus, do not require a response. Moreover, the allegations contained in Paragraph 34 state legal conclusions to which no response is required. To the extent that a response is required, MidFirst admits providing its Account Agreement and Disclosure to customers and denies any and all remaining allegations contained in Paragraph 34.
MidFirst denies the allegations contained in Paragraph 35.
MidFirst denies the allegations contained in Paragraph 36,
The allegations contained in Paragraph 37 (i.e., alleging that disclosures were “deceptive”) pertain to claims that have been dismissed and, thus, do not require a response. To the extent that a response is required, MidFirst denies the allegations. See disclosure contained in Account Agreement set out in Paragraph 13 herein.
MidFirst responds that the Account Agreement and Disclosure speaks for itself. To the extent an answer is required, the allegations contained in Paragraph 38 are denied.
MidFirst responds that the Account Agreement and Disclosure speaks for itself To the extent an answer is required, the allegations contained in Paragraph 39 are denied.
MidFirst responds that the Account Agreement and Disclosure speaks for itself. To the extent an answer is required, the allegations contained in Paragraph 40 are denied.
MidFirst responds that Account Agreement and Disclosure speaks for itself To the extent an answer is required, the allegations contained in Paragraph 41 are denied.
MidFirst responds that Account Agreement and Disclosure speaks for itself To the extent an answer is required, the
allegations contained in Paragraph 42 are denied.
Because it appears that Plaintiffs allegations in Paragraph 45 are about bank practices generally and are not specific to MidFirst, MidFirst states that it has insufficient knowledge or information as to the allegations and, thus, denies same.
MidFirst denies the allegations contained in Paragraph 46.
The allegations contained in Paragraph 47 (i.e., regarding alleged “unlawful” activity and deception) pertain to claims that have been dismissed and, thus, do not require a response. To the extent that a response is required, MidFirst responds as follows. MidFirst denies the use of what Plaintiff characterizes as “Theoretical Overdrafts.” With respect to Plaintiff’s transactions set out in Paragraph 47, MidFirst admits that it posted the transactions in question based on MidFirst’s Account Agreement as follows:
• MidFirst’s records show that Plaintiff had an available balance of $53.03 at the end of the day on April 16, 2009,
• On April 17, 2009, a request for authorization for a Check Card Purchase in the amount of $6.16 was received arid authorized, This placed a hold on the account and reduced the available balance by $6.16. Also on April 17, 2009, Check 1059 in the amount of $50.00 posted to the account, leaving an available balance of ($3.13) overdrawn.
• On April 20, 2009, a deposit in the amount of $4.00 was posted, an overdraft fee of $27.50 was assessed, check 1057 in the amount of $35.00 posted, and a debit transaction in the amount of $6.16 settled and posted, leaving an available balance of ($61.63) overdrawn.
• On April 21, 2009, two overdraft fees in the amount of $27.50 each were assessed
on Plaintiff’s account.
MidFirst denies any and all remaining allegations contained in Paragraph 47.
The allegations contained in Paragraph 48 (i.e., that certain practices are “deceptive”) pertain to claims that have been dismissed and, thus, do not require a response. To the extent that a response is required, MidFirst is without sufficient information or
MidFirst denies the allegations contained in Paragraph 43.
The allegations contained in Paragraph 44 (i.e., regarding misleading disclosures) pertain to claims that have been dismissed and, thus, do not require a response. To the extent that a response is required, MidFirst denies the allegations.
knowledge to ascertain what “machinations” Paragraph 48 refers to and therefore MidFirst denies the allegations contained in Paragraph 48.
MidFirst denies the allegations contained in Paragraph 49.
MidFirst denies the allegations contained in Paragraph 50.
MidFirst denies the allegations contained in Paragraph 51.
MidFirst denies the allegations contained in Paragraph 52.
MidFirst responds that the Class Action Petition speaks for itself and opposes class certification.
Paragraph 54 contains no factual allegations to which to respond. To the extent that a response is required, MidFirst denies the allegations and opposes class certification.
MidFirst responds that the Class Action Petition speaks for itself and opposes class certification.
Paragraph 56 contains legal conclusions to which no response is required. To the extent a response is required, MidFirst denies the allegations contained in Paragraph 56 and opposes class certification.
Paragraph 57 contains legal conclusions to which no response is required. To the extent a response is required, MidFirst denies the allegations contained in Paragraph 57 and opposes class certification.
Paragraph 58 contains legal conclusions to which no response is required. To the extent a response is required, MidFirst denies the allegations contained in Paragraph 58 and opposes class certification.
Paragraph 59 contains legal conclusions to which no response is required. To the extent a response is required, MidFirst denies the allegations contained in Paragraph 59 and opposes class certification.
MidFirst denies the allegations contained in Paragraph 60 and opposes class certification.
MidFirst is without sufficient information or knowledge as to the truth of the allegations contained in Paragraph
61 and thus denies same.
MidFirst denies the allegations contained in Paragraph 62 and opposes class certification.
MidFirst denies the allegations contained in Paragraph 63 and opposes class certification.
MidFirst denies the allegations contained in Paragraph 64 and opposes class certification.
Paragraphs 65 through 73 make allegations pertaining to a cause of action for alleged violation of the Oklahoma Consumer Protection Act, which has been dismissed by the Court. For this reason, Paragraphs 65 through 73 require no response. To the extent a response is required, MidFirst denies the allegations,
The allegations contained in Paragraph 74 require neither an affirmative nor a negative response. See responses to the preceding and subsequent paragraphs.
Paragraph 75 states a legal conclusion to which no response is required and contains no factual allegation. To the extent that a response is required, Plaintiff admits that Plaintiff had an Account Agreement with MidFirst and admits that the purported class members as well had an Account Agreement with MidFirst, Any and all remaining factual allegations are denied.
Paragraph 76 states legal conclusions to which no response is required. To the extent that a response is required, MidFirst denies the factual allegations contained in Paragraph 76.
Paragraph 77 states legal conclusions to which no response is required. To the extent that a response is required, MidFirst denies the factual allegations contained in Paragraph 77.
Paragraph 78 states legal conclusions to which no response is required. To the extent that a response is required, MidFirst denies the factual allegations contained in Paragraph 78.
Paragraph 79 states legal conclusions to which no response is required. To the extent that a response is required, MidFirst denies the factual allegations contained in Paragraph 79.
Paragraph 80 states legal conclusions to which no response is required. To the extent that a response is required, MidFirst denies the factual allegations contained in Paragraph 80.
Paragraph 81 states legal conclusions to which no response is required. To the extent that a response is required, MidFirst denies the factual allegations contained in Paragraph 81.
Paragraph 82 states legal conclusions to which no response is required. To the extent that a response is required, MidFirst denies the factual allegations contained in Paragraph 82.
Paragraph 83 states legal conclusions to which no response is required. To the extent that a response is required, MidFirst denies the factual allegations contained in Paragraph 83.
Paragraph 84 states legal conclusions to which no response is required. To the extent that a response is required, MidFirst denies the factual allegations contained in Paragraph 84.
Paragraphs 85 through 91 make allegations pertaining to a cause of action for Unjust Emiclunent that has been dismissed by the Court. For this reason, Paragraphs 85 through 91 require no response. To the extent a response is required, MidFirst denies the allegations.
AFFIRMATIVE DEFENSES
MidFirst incorporates the preceding Paragraphs 1 through 91 and the preceding Specific Denials as though set forth in full herein.
FIRST AFFIRMATIVE DEFENSE
Preemption. Plaintiff’s claims are preempted, in whole or in part, by federal law, including, the Home Owners’ Loan Act (“HOLA”) and regulations promulgated thereunder by the Office of Thrift Supervision (“OTS”). MidFirst submits this is a legal defense and accordingly, it need not be pled with any additional specificity. Notwithstanding that there is no need to plead it more fully, the grounds for this defense are set forth in, inter cilia, MidFirst’s Motion to Dismiss.
SECOND AFFIRMATIVE DEFENSE
Statute of limitations/laches. Plaintiff’s claims are barred, in whole or in part, by the applicable statutes of limitation and by laches. To the extent that equitable relief is sought, each Plaintiff is barred by laches. At the present time MidFirst is not aware that the entirety of any Plaintiffs claims falls outside of any pertinent statutory limitations period, but to the extent any of a Plaintiffs complained-of transactions fall outside a limitations period, recovery on such transactions is barred.
THIRD AFFIRMATIVE DEFENSE
Estoppel. Plaintiff’s claims are barred by the doctrine of estoppel. Plaintiff is estopped from seeking damages for overdraft fees because, after receiving notice of MidFirst’ s posting order and all other pertinent policies, and after receiving Overdraft Notices, and all other such notices as outlined above and as will be provided in discovery, Plaintiff entered into transactions that caused him to incur overdraft fees, and it would prejudice MidFirst for Plaintiff to obtain recovery for complained-of practices of which plaintiff was aware and acted in the face of.
FOURTH AFFIRMATIVE DEFENSE
Waiver. Plaintiffs claims are barred by the doctrine of waiver. He has waived any complaints about the order of posting, or any other complained-of practices, because after receiving notice of MidFirst’s posting order and all other pertinent policies, and after receiving Overdraft Notices, and all other such notices as outlined above and as will be provided in discovery, Plaintiff entered into transactions that caused him to incur overdraft fees.
FIFTH AFFIRMATIVE DEFENSE
Ratification. Plaintiff ratified all transactions complained of by continuing to use his debit card and continuing to incur overdraft fees after becoming fully aware of MidFirst’s posting and other relevant practices through account agreement materials and receipt of Overdraft Notices, and all other such notices as outlined above and as will be provided in discovery.
SIXTH AFFIRMATIVE DEFENSE
Voluntary Payment Doctrine. Plaintiffs claims are barred by the voluntary payment doctrine. Knowing all relevant facts, Plaintiff voluntarily paid the overdraft fees by continuing to maintain his accounts and to incur overdraft fees.
SEVENTH AFFIRMATIVE DEFENSE
Failure to timely noqfy. Plaintiff’s claims are barred in whole or part because Plaintiff failed to notify MidFirst of any dispute in a timely manner following the mailing or other receipt of account statements. The Plaintiff is precluded from recovery for failing to timely notify MidFirst of any disputed fees or charges. MidFirst’s Account Agreement and Disclosure requires customers to noti& MidFirst of any errors or discrepancies on any Statement of Account within 60 days of receipt of a statement. (Account Agreement and Disclosure ¶ 19.) Customers were notified of each overdraft fee assessed both in their monthly account statements and in the Overdraft Notices sent promptly after any overdraft occurrence, Plaintiffs failure to dispute these charges in accordance with the terms of his Account Agreement and Disclosure precludes him from disputing these charges now.
EIGHTH AFFIRMATIVE DEFENSE
Mitigation. Plaintiffs claims are barred, in whole or in part, by his failure to mitigate their damages, if any. After being fully on notice of the posting order and other practices, Plaintiff could have mitigated any alleged losses by, inter alia, not initiating transactions that would result in an overdraft fee, by opting in to MidFirst’s overdraft coverage, and by declining to finalize withdrawals at proprietary ATMs after being advised of the overdraft.
NINTH AFFIRMATIVE DEFENSE
Accord and satisfaction. On different occasions, Plaintiff contacted MidFirst about overdraft fees that had been incurred. On occasion, fees were waived or refunded in whole or in part. Whenever a partial refund or waiver was made in response to a contact regarding multiple overdrafts to the satisfaction of the Plaintiff and MidFirst, such resolution effected an accord and satisfaction with respect to all of the fees that were the subject of the Plaintiffs contact with MidFirst.
TENTH AFFIRMATIVE DEFENSE
Bankruptcy Discharge/Judicial Estoppel. The claims of any putative Plaintiff who filed for bankruptcy, received a discharge in bankruptcy and failed to identify on their bankruptcy petitions and schedules this litigation and/or the claims the Plaintiff is pursuing in this litigation will be barred by the Plaintiffs bankruptcy discharge and by judicial estoppel. MidFirst asserts this defense against any putative Plaintiff for whom discovery may show a bankruptcy discharge.
ELEVENTH AFFIRMATIVE DEFENSE
Set off To the extent that any putative Plaintiff has outstanding obligations to MidFirst, their claims are set off and barred or reduced. MidFirst is entitled to a setoff for any unpaid, refunded or waived overdraft fees assessed. MidFirst is also entitled to a setoff for any accounts with an outstanding balance at time of closing.
TWELFTH AFFIRMATIVE DEFENSE
Stay. This lawsuit should be stayed in order to promote judicial efficiency and to allow a Class Action Settlement that has received preliminary approval to proceed in a parallel class action pending in Pottawatomie County, Oklahoma
THIRTEENTH AFFIRMATIVE DEFENSE
Release. Unless he opts out, the claims of Plaintiff White will be released if final approval is granted for the Class Action Settlement in a parallel class action pending in Pottawatomie County, Oklahoma.
FOURTEENTH AFFIRMATIVE DEFENSE
Res Judicatci/collateral estoppel. Unless he opts out, Plaintiff White will be barred by res judicata and/or collateral estoppel if final approval is granted for the Class Action Settlement in a parallel class action pending in Pottawatomie County, Oklahoma.
FIFTEENTH AFFIRMATIVE DEFENSE
Defenses Applicable to Putative Class Members. MidFirst denies that it would be legally proper to certify any class in this action, Nonetheless, if any class were to be certified, each and every aforesaid Specific Denial and Affirmative Defense is applicable to the class or to any and all members thereof to whom the Specific Denial or Affirmative Defense would apply. MidFirst also reserves the right to assert against any putative class member any affirmative defenses that may not be applicable to any of the named Plaintiffs. For example, entirely apart from the effect of the Class Action Sefflement in a parallel class action pending in Pottawatomie County, Oklahoma, pled above, which will if finally approved act as res judicata as to all MidFirst customers who did not opt out, if any putative class member has filed an individual claim and that claim has been adjudicated, it would be resjudicata against that person.
SIXTEENTH AFFIRMATIVE DEFENSE
Arbitration Agreement. Plaintiff cannot maintain a class action or represent the members of the putative class as Defendant and the members of the putative class are parties to binding arbitration agreements that preclude their participation in class litigation.
SEVENTEENTH AFFIRMATIVE DEFENSE
UCC. MidFirst is entitled to post items in any order pursuant to Oklahoma UCC § 4- 303(b).
EIGHTTEENTH AFFIRMATIVE DEFENSE
Ratification and Acceptance. Along with other communications and notices, Plaintiff White personally received written and oral explanations from MidFirst concerning its overdraft posting and overdraft policies in July, 2010. Mr. White expressly understood, and accepted, MidFirst’s overdraft and posting policies.
PRAYER FOR RELIEF
MidFirst denies that Plaintiff or any purported Classes are entitled to a judgment or to any other relief requested in their Prayer for Relief MidFirst respectfully requests that judgment be entered in its favor and against Plaintiff and the Class, if any such Classes and/or Subclasses are certified, and that MidFirst be awarded its costs and fees in defending this action, and any other relief the Court deems appropriate and just.
MORRISSEY, LINDA G: THIS CAUSE COMES BEFORE THE COURT FOR DECISION ON PLAINTIFF'S MOTION TO ENJOIN PROSECUTION OF SECOND-FILED ACTION, OR ALTERNATIVELY, TO CONSOLIDATE AND TO APPOINT INTERIM CLASS COUNSEL AND THE DEFENDANT'S MOTION TO STAY. AFTER CONSIDERING ALL BRIEFS AND AUTHORITY PRESENTED, THE COURT, BEING FULLY ADVISED IN THE PREMISES, HEREBY FINDS AND ORDERS AS FOLLOWS: THIS COURT IS AWARE OF NO STATUTORY SCHEME IN OKLAHOMA FOR COORDINATION AND CONSOLIDATION OF CONFLICTING OR OVERLAPPING CLASS-ACTION CLAIMS FILED IN DIFFERENT COUNTIES OR FALLING INTO MULTIPLE JUDICIAL DISTRICTS, COMPARABLE, TO OR MODELED ON, THE FEDERAL CLASS ACTION JURISPRUDENCE WHICH OKLAHOMA FOLLOWS CLOSELY IN OTHER REGARDS. 28 U.S.C. § 1407, ET SEQ. OTHER STATES, SUCH AS CALIFORNIA AND NEW YORK, HAVE RECOGNIZED THE UTILITY OF FOLLOWING THE FEDERAL LEAD IN THIS REGARD AND HAVE CREATED, BY STATUTE OR JUDICIAL RULE, MECHANISMS FOR THE ORDERLY DISPOSITION OF SUCH CASES. SEE, CAL. CIV. PROC. § 404.1, ET SEQ.; N.Y.CT. RULES, § 202.69. THAT IS NOT TO SAY, HOWEVER, THAT OKLAHOMA COURTS ARE BEREFT OF AUTHORITY TO HANDLE SUCH MULTI-DISTRICT LITIGATION. IN THE CASE STYLED IN RE OKLAHOMA BREAST IMPLANT CASES, 1993 OK 11, 847 P.2D 772, THE OKLAHOMA SUPREME COURT LOOKED TO ITS OWN CONSTITUTIONAL POWER TO FIND ITSELF COMPETENT TO DIRECT REFERRAL OF A GROUP OF COMPETING CASES TO THE SUPERVISION OF A SINGLE TRIAL COURT JUDGE AND THE RELINQUISHMENT OF THOSE CASES BY THE OTHER DISTRICT COURTS IN WHICH THEY HAD BEEN FILED. THE FARMERS MED-PAY CASES PRESENTS ANOTHER SERIES OF CLASS ACTIONS IN OKLAHOMA MANAGED PURSUANT TO AN OKLAHOMA SUPREME COURT ORDER IN CASE NO. 100,829, WHICH REFERENCED THE OKLAHOMA BREAST IMPLANT CASES STRATEGY. SEE IN RE FARMERS MED-PAY LITIGATION, 2010 OK CIV APP 12, 229 P.3D 551. THIS COURT IS GUIDED BY THE PROCEDURE FOLLOWED IN THE FARMERS MED-PAY CASES, STEMMING FROM A SERIES OF CLASS ACTIONS, FILED IN MULTIPLE COUNTIES, INVOLVING SUBSTANTIVELY IDENTICAL ISSUES. THE FARMERS MED-PAY CASES WERE CONSOLIDATED BEFORE ONE JUDGE FOR ADJUDICATION. IN SEEKING LEGAL GUIDANCE TO APPLY TO THE CASE AT BAR, THIS COURT FINDS THE ANALYSIS IN ASKIN V. QUAKER OATS COMPANY, 2012 WL 517491 (N.D. ILL. 2012) INSTRUCTIVE. IN THE ASKIN CASE, THE DISTRICT COURT APPLIED THE “FIRST-TO-FILE RULE” TO “PREVENT MULTIPLICITY OF ACTIONS AND TO ACHIEVE RESOLUTION IN A SINGLE LAWSUIT OF ALL DISPUTES ARISING OUT OF COMMON MATTERS.” ASKIN AT *3. THE COURT RECOGNIZED THE NEED TO AVOID DUPLICATIVE LITIGATION WHICH IT DEFINED AS CASES WHERE “THERE ARE NO SIGNIFICANT DIFFERENCE BETWEEN THE CLAIMS, PARTIES, AND AVAILABLE RELIEF.” ID. SIMILARLY, THE CLAIMS, PARTIES AND AVAILABLE RELIEF PRESENTED IN THE WHITE CLASS-ACTION CASE, PENDING BEFORE THIS COURT, AND IN THE CLASS-ACTION CASE STYLED LARRY A. STOKES V. MIDFIRST BANK, CASE NO. CJ-11-130, PENDING BEFORE THE DISTRICT COURT OF POTTAWATTAMIE COUNTY, ARE SUBSTANTIVELY IDENTICAL AND SUBSTANTIALLY OVERLAP. THIS COURT HAS BUT ONE PURPOSE IN THIS ORDER: TO PRESERVE FOR A LATER PROPER DETERMINATION THE RIGHTS OF ALL THE PARTIES, PENDING A COMPLETE, AUTHORITATIVE AND FAIR DETERMINATION IN THE ISSUES OF PRE-TRIAL COORDINATION AND CONSOLIDATION. IT IS ALSO MINDFUL OF THE EXTENT AND LIMITS OF ITS JURISDICTION TO CONTROL THE ORDERLY LITIGATION OF CASES BEFORE IT. AS THE OKLAHOMA SUPREME COURT OBSERVED IN A RECENT OPINION, “OKLAHOMA HAS LONG RECOGNIZED THE POWER INHERENT TO THE COURT TO CONTROL ITS OWN DOCKET.” IN RE WALLACE REVOCABLE TRUST, 2009 OK 16, ¶20, 204 P.3D 80, 85. THE SUPREME COURT ALSO OBSERVED, “[C]OURTS ARE CREATED FOR THE PURPOSE OF ADMINISTERING JUSTICE UNDER THE LAW. IN ORDER TO ACCOMPLISH THAT PURPOSE, A COURT MUST, THROUGH NECESSITY, HAVE THE POWER TO FACILITATE AND EXPEDITE CAUSES BEFORE IT SO LONG AS THE REASONABLE EXERCISE OF THESE INHERENT POWERS DOES NOT PREJUDICE THE RIGHTS OF PARTIES INVOLVED.” ID. CITING HAMBRIGHT V. CITY OF CLEVELAND, 1960 OK 184, ¶ 15, 360 P.2D 493, 496. ACCORDINGLY, WHILE THIS COURT, AS THE FIRST-FILED COURT, IS A PROPER FORUM TO DECIDE THE ISSUES, INCLUDING PRE-TRIAL PROCEDURE, CLASS-ACTION CERTIFICATION AND SELECTION OF LEAD CLASS COUNSEL, AS WELL AS OTHER MATTERS PRESENTED IN THE WHITE CLASS-ACTION CASE, THIS COURT WILL DEFER TO THE OKLAHOMA SUPREME COURT TO ADDRESS THE ISSUE OF CONSOLIDATION OF THE TWO CASES. THEREFORE, THE DEFENDANT HEREIN IS ENJOINED FROM LITIGATING THE SUBSTANTIVE ISSUES PENDING IN THE WHITE CASE IN ANY OTHER FORUM UNTIL THE PARTIES PRESENT THE ISSUE OF CONSOLIDATION TO THE OKLAHOMA SUPREME COURT. PLAINTIFF'S MOTION TO APPOINT INTERIM CLASS COUNSEL IS DENIED AT THIS TIME. DEFENDANT'S MOTION TO STAY FILED JANUARY 26, 2012, IS DENIED. THE COURT FINDS THAT THIS ORDER AFFECTS A SUBSTANTIAL PART OF THE MERITS OF THE CONTROVERSY AND THAT AN IMMEDIATE APPEAL FROM THIS ORDER MAY MATERIALLY ADVANCE THE ULTIMATE TERMINATION OF THIS LITIGATION AND THAT IT IS IN THE INTEREST OF JUSTICE THAT ISSUES DETERMINED HEREIN BE PERMITTED AN IMMEDIATE APPEAL. COPY OF THIS ORDER MAILED TO: MARK WALLER; GRAYDON DEAN LUTHEY, JR.
See: http://www.oscn.net/applications/oscn/GetCaseInformation.asp?number=CJ-2010-6250&db=Tulsa&submitted=true
Outcome: Settled and dismissed with prejudice.
Plaintiff's Experts:
Defendant's Experts:
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