Some of the overdraft fee-related class-action suits filed against credit unions across the country in recent years appear to be headed for settlement, and new suits continue to spring up, according to a review of court documents.

Since 2015, at least 19 credit unions in a dozen states and the District of Columbia have been mired in lawsuits over how they assess overdraft fees. The complaints largely center on the use of members' available balances rather than actual balances to determine when to charge the fees; there are also allegations of using opt-in agreements inconsistent with other disclosure materials.

Several credit unions could soon be heading into a second year of litigation — many of the cases were filed during the fourth quarter of 2015. But according to public court records, at least 10 have settled or notified the court that settlement discussions are happening.

Recommended For You

The Bethpage, N.Y.-based Bethpage Federal Credit Union, for example, recently resolved its overdraft suit in February after almost a year and half of legal wrangling. Confidentiality is often part of the deal, as is the case for Bethpage.

"All we can say really is that the case was resolved to the satisfaction of both parties," said Stuart Richter, a partner at Katten Muchin Rosenman, which represents Bethpage and several other credit unions embroiled in overdraft suits. Bethpage has $6.9 billion in assets and about 304,000 members.

Richter said any credit union's decision to settle isn't necessarily an indication of "winning" or "losing" a case, and he noted that there are also many credit unions that are not settling or in discussions to do so. Also, a motion to dismiss was granted in one case. Even though much of the settlement action has occurred since the beginning of this year, there's little correlation in the timing among settlements, he added.

"Each case is different. It depends on the facts in each particular case whether you settle it or you move to dismiss. It all depends," he said.

Even though several of the overdraft suits may appear closer to the end than the beginning, more have arrived — at least two new suits have been filed since the beginning of the year.

One of the latest came in January against the Live Oak, Texas-based Randolph-Brooks Federal Credit Union, which has $7.8 billion in assets and about 673,000 members.

"Because the opt-in agreement does not describe RBFCU's actual overdraft service, the opt-in agreement fails to comply with the requirements of Regulation E," the complaint alleged. "The opt-in agreement nonetheless contains promises to which RBFCU is contractually bound. In the opt-in agreement, RBFCU promised that: 'An overdraft occurs when you do not have enough money in your account to cover a transaction, but we pay it anyway.' This promise meant that RBFCU is not authorized to assess an overdraft fee because an overdraft has not occurred, unless there is not enough money in the customer's account to cover the transaction."

The complaint also alleged the credit union made a contractual promise in its customer agreements to assess overdraft fees only when there was not enough money in the plaintiff's account to cover a transaction, and that RBFCU repeated that in other disclosures and marketing materials.

"RBFCU also promises in the customer agreements and marketing materials that it will not assess overdraft fees on ATM and non-recurring debit card transactions against any customer who does not 'opt-in' to the overdraft service," the plaintiff claimed in the complaint. "However, directly contrary to this promise, RBFCU's policy and practice is to ignore whether there is money in the account or a negative balance. Instead, RBFCU's policy and practice is, and at all times relevant herein has been, to assess overdraft fees based on an artificial internal calculation called the available-balance method rather than the ledger-balance method."

RBFCU did not respond to a request for comment on the case.

Though the end is not yet in sight for many of the credit unions that have spent months working their cases, one takeaway is already clear for the industry as a whole, according to Richter.

"I think that it's the same message that everybody's been telling them from the beginning: You've got to look at your disclosures and look at your processes," he said.

Back in October, an order from a district judge in the overdraft case against another one of Richter's clients — the Upper Marlboro, Md.-based NASA Federal Credit Union — provided crucial details about what exactly the problem is with some credit union disclosures. And in NASA FCU's case, it may come down to a few words in the overdraft opt-in agreement.

There, a sentence stated that an "overdraft occurs when you do not have enough money in your account to cover transactions, but we pay it anyway." The wording led to months of wrangling over the meanings of "enough" and "account," as well as the plaintiff arguing that because the word "available" does not appear in the sentence, the actual balance applied. How the court interpreted the language revealed what appears to be another determining factor in evaluating overdraft disclosures: The wording of examples in other parts of the documents.

"The credit union provides examples of when a customer might find herself without 'enough money in [her] account to cover a transaction'— such as when she 'inadvertently miscalculate[s] [her] available balance,' or 'when funds from a recent deposit are not available,'" the judge explained in a court memo. "By specifically invoking the phrase 'available balance,' the opt-in agreement makes clear that balance will be used in calculating overdrafts and imposing fees. There is no competing reference to an actual or ledger balance. Under the terms of the opt-in agreement, then, overdrafts are a function of the available balance; when the credit union pays an overdraft, the customer must pay an overdraft fee."

NASA FCU has $2.1 billion in assets and about 138,000 members.

Though the judge dismissed most of the claims against the credit union in that case, NASA FCU's case, which was filed in November of 2015, is still pending, as what's left of the case continues its journey through the legal system.

NOT FOR REPRINT

© Touchpoint Markets, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more inforrmation visit Asset & Logo Licensing.