Kern Schools said it wants $615.09 plus interest from Christina Moralez, who filed a class-action suit against the credit union on Sept. 23, 2015. Bethpage said it wants $889.70 plus interest from Sheila McDermott, who filed a class-action suit against the credit union on Oct. 14, 2015.

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

In its countersuit, Kern Schools, which has $1.3 billion in assets and 150,000 members, said its issues with Moralez spanned more than a decade to December 2003, when she opened a checking account with the credit union. By July 13, 2004, Moralez had allegedly overdrawn the account 27 times and the account had a negative balance of $502.93, according to the counterclaim. Moralez repaid $360 of the balance a few weeks later; Kern Schools wrote off the rest, it said.

On Aug. 2, 2004, Moralez opened a second checking account. Kern Schools alleged she proceeded to overdraw that account 23 times by Nov. 16, 2004, creating a negative balance of $352.25. The pattern repeated, with Moralez opening a third account in December 2009 and overdrawing it 41 times by October 2010, creating a negative balance of $203.96, it claimed.

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

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

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

“Pursuant to the Membership Agreement, McDermott agreed that if BFCU paid any drafts she authorized that exceeded the available balance in her account, BFCU would be entitled to recover or obtain a refund of the amount of the resulting overdraft, plus additional charges,” Bethpage stated in its countersuit. “McDermott also expressly agreed to be liable for any and all overdrafts of her accounts and any and all associated costs created by the overdrafts.”

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 Muchin Rosenman, which represents several of the 12 credit unions being sued over their overdraft disclosures, said there's more to the countersuits than just money.

“The argument there is that a person who has sued but owes the credit union money has an interest, and a personal interest, and is not 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.-based Advia Credit Union and the $2 billion, St. Joseph, Mich.-based United Federal Credit Union – both of which are also facing class-actions suits over their overdraft disclosures.

“A legitimate counterclaim is absolutely a tool that can and should be used,” he said. “I think there's more than that. When a complaint's filed, you know, you file an answer. Well, we don't answer. We file a motion to dismiss. That's our answer.”

He added, “One of our strategies is to fight the existence of a class. 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 other members and this is a class action.' Nope, we perform a detailed investigation with our client and we explain to the court why there isn't a class.”

The 12 credit unions involved in the suits are likely looking at those options and more right now. That includes Rod Staatz, president/CEO of the $2.9 million State Employees Credit Union of Maryland in Linthicum, which was sued just before 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 interests of our member owners. We strongly disagree with the claims made against our credit union, and are going to do what is necessary to protect our members' interests.”

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

Instant Insights /

Two Credit Unions Strike Back in Overdraft Suits

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