Credit unions across the country were hit recently with class-action lawsuits over their overdraftdisclosures, but at least two are suing the plaintiffs rightback.

Since September, at least a dozen credit unions in nine stateshave been sued in federal court over their overdraft practices.Often, the dispute is over whether and how credit unions disclosethe use of available balances when applying overdraft fees.However, two credit unions – the Bakersfield, Calif.-based KernSchools Federal Credit Union and the Bethpage, N.Y.-based BethpageFederal Credit Union – are fighting back by countersuing for breachof contract.

Kern Schools said it wants $615.09 plus interest from ChristinaMoralez, who filed a class-action suit against the credit union onSept. 23, 2015. Bethpage said it wants $889.70 plus interest fromSheila McDermott, who filed a class-action suit against the creditunion on Oct. 14, 2015.

The Redlands, Calif.-based McCune Wright and the Santa Monica,Calif.-based The Kick Law Firm represent both Moralez andMcDermott, as well as the plaintiffs in 10 other overdraft cases filed in recent months. McCune Wrightand The Kick Law Firm did not respond to requests for comment.

In its countersuit, Kern Schools, which has $1.3 billion inassets and 150,000 members, said its issues with Moralez spannedmore than a decade to December 2003, when she opened a checkingaccount with the credit union. By July 13, 2004, Moralez hadallegedly overdrawn the account 27 times and the account had anegative balance of $502.93, according to the counterclaim. Moralezrepaid $360 of the balance a few weeks later; Kern Schools wroteoff the rest, it said.

On Aug. 2, 2004, Moralez opened a second checking account. KernSchools alleged she proceeded to overdraw that account 23 times byNov. 16, 2004, creating a negative balance of $352.25. The patternrepeated, with Moralez opening a third account in December 2009 andoverdrawing it 41 times by October 2010, creating a negativebalance of $203.96, it claimed.

Moralez repaid both negative balances, Kern Schools admitted,but when she opened a fourth account in October 2012, the creditunion claimed it informed Moralez that deposited funds were subjectto a hold. Moralez allegedly overdrew that account 19 times betweenNovember 2012 and February 2013, producing a negative balance of$615.09, Kern Schools claimed. At that point, Kern Schools closedthe account. It claimed Moralez still hasn't repaid the$615.09.

In her response, Moralez denied the allegations and said thecredit union's membership agreement speaks for itself.

Similarly, Bethpage countersued plaintiff Sheila McDermott,claiming she wound up with a negative balance of $889.70 afteroverdrawing her checking account 17 times in August 2015 andfailing to repay the money.

“Pursuant to the Membership Agreement, McDermott agreed that ifBFCU paid any drafts she authorized that exceeded the availablebalance in her account, BFCU would be entitled to recover or obtaina refund of the amount of the resulting overdraft, plus additionalcharges,” Bethpage stated in its countersuit. “McDermott alsoexpressly agreed to be liable for any and all overdrafts of heraccounts and any and all associated costs created by theoverdrafts.”

Bethpage, which has $6.2 billion in assets and 274,000 members,closed McDermott's account on Sept. 23.

Stuart Richter, a Los Angeles-based partner at Katten MuchinRosenman, which represents several of the 12 credit unions beingsued over their overdraft disclosures, said there's more to thecountersuits than just money.

“The argument there is that a person who has sued but owes thecredit union money has an interest, and a personal interest, and isnot an adequate person to represent the class,” he said.

Michael Bell is an attorney at Howard & Howard in Royal Oak,Mich., which represents the $1.1 billion, Parchment, Mich.-basedAdvia Credit Union and the $2 billion, St. Joseph, Mich.-basedUnited Federal Credit Union – both of which are also facingclass-actions suits over their overdraft disclosures.

“A legitimate counterclaim is absolutely a tool that can andshould be used,” he said. “I think there's more than that. When acomplaint's filed, you know, you file an answer. Well, we don'tanswer. We file a motion to dismiss. That's our answer.”

He added, “One of our strategies is to fight the existence of aclass. We don't lay down on that. You can't just get by and say,'Hey, we represent this member and by the way, there are 100 othermembers and this is a class action.' Nope, we perform a detailedinvestigation with our client and we explain to the court why thereisn't a class.”

The 12 credit unions involved in the suits are likely lookingat those options and more right now. That includes Rod Staatz,president/CEO of the $2.9 million State Employees CreditUnion of Maryland in Linthicum, which was sued justbefore Thanksgiving.

“Obviously, we cannot comment on pending litigation,” he said.“I will say, however, that SECU – and I am sure other credit unions– have done and will continue to do what is in the best interestsof our member owners. We strongly disagree with the claims madeagainst our credit union, and are going to do what is necessary toprotect our members' interests.”

On Nov. 30, McCune Wright, The Kick Law Firm and Brandt Lawfiled a request to have 11 cases consolidated and heard in anIllinois District Court. A hearing is scheduled for Jan. 28.