BURTON, Mich. – Five more credit unions have agreed to settle pending civil suits alleging they violated the Electronic Funds Transfer Act’s fee disclosure provisions, but at least one of the settlements is raising questions about the more than three dozen suits filed against credit unions and banks by a Michigan retiree and her boyfriend.
Under the terms of a recent settlement of a class action suit, ELGA CU agreed to set aside $60,000 and pay non-member users of the ATMs in question up to $250 every time they were charged a $2.50 surcharge, but a lawyer for the credit union said they were unable to verify that any of the 20 claimants to the funds—all of them from out of state--had in fact used the ATMs. So no money will be paid out under the settlement. “Everybody can take the facts and come to their own conclusions,” said Lisa Milton, an attorney with the Troy, Mich, firm Bowen, Anderson, who is representing ELGA and three other credit union poised to settle similar EFTA suits, including Lenco CU, AAC Community CU and Michigan Schools and Government CU.
White Sands FCU, an Albuquerque, N.M., credit union, also agreed last week to settle a similar suit brought by the same plaintiff.
All of the suits, and as many as three dozen more, were filed by Nancy Kinder and/or her boyfriend Ray Harrison. Under the terms of each of the settlements, Kinder is to be paid $1,000 for being the lead plaintiff and the credit union or bank has agreed to make a donation to her favorite charity, the Karmanos Cancer Institute. Lawyers for Kinder and Harrison have not returned phone calls seeking comment.
In each of the suits, the settlement is paid off by the credit union’s insurer, which in most cases is CUNA Mutual Group’s CUMIS Insurance Society unit.
The growing number of EFTA suits—a New York man recently filed eleven such suits, including six against credit unions—has vexed credit unions and banks. Credit unions see the settlements as preferable to paying fines up to $500,000 and attorneys fees they are subject to for violating the EFTA. Under the law, the maximum that a group of people may recover in a case or group of cases alleging EFTA violations is the lesser of 1% of a credit union’s or bank’s net worth or $500,000.00, plus any actual damages that the members suffered.
At issue is language in the EFTA which requires the owner of an ATM to post a disclosure at the machine describing any fees that will be charged a user. Credit unions and banks consider the language to mean the disclosure should be either on the physical machine or on screen, but lawyers for Kinder and other plaintiffs insist the language requires the disclosure be provided on screen and on the machine.
“It’s really a shame that people are allowed to exploit this particular loophole in the law,” said William Jacobs, president of White Sands FCU, which settled a suit filed by Kinder last week. “That’s really what they’re doing.”
Kinder and Harrison arrived at their ATM vigilante status by traveling the country with a camera in hand and photographing ATMs where there were no fee disclosures visible on the outside of the machines. Over the past 18 months they have filed suits in Michigan, Texas, Kentucky, New Mexico, North Carolina and South Carolina. The couple has also settled suits against Jackson Community FCU, Northwood CU, Chino FCU, FirstLight FCU and more than 20 banks.
