United States District Court, S.D. New York
TAWANNA M. ROBERTS, on behalf of herself and all others similarly situated, Plaintiff,
CAPITAL ONE, N.A., Defendant.
OPINION AND ORDER
G. SCHOFIELD UNITED STATES DISTRICT JUDGE.
putative class action arises from Defendant Capital One,
N.A.'s (“Capital One”) allegedly improper
assessment of overdraft fees. Plaintiff Tawanna M. Roberts
asserts claims against Capital One for breach of contract,
breach of the implied covenant of good faith and fair
dealing, conversion, unjust enrichment and violation of New
York General Business Law § 349. Capital One moves to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
For the reasons below, the motion is granted.
facts that follow are drawn from the Complaint and documents
that are integral to the Complaint. They are construed in the
light most favorable to Plaintiff, as the non-moving party.
See Doe v. Columbia Univ., 831 F.3d 46, 48 (2d Cir.
has a Capital One checking account and a corresponding debit
card that draws on that account. A debit card enables a
customer to make purchases, payments, withdrawals, and other
electronic debit transactions.
relevant here, the parties' contract consists of Capital
One's Rules Governing Deposit Accounts (the
“Deposit Agreement”), and the Electronic Funds
Transfer Agreement (the “EFT Agreement”)
(together, the “Account Agreements”). The Deposit
Agreement is appended as an exhibit to the Complaint and
provides in part:
Withdrawals. . . . If you provide your ATM card or ATM/Debit
card and personal access code to a third party, you have
authorized the third party to withdraw funds from your
account at an ATM machine or point of sale terminal. [Dep.
Agmt. at 1.]
Processing Order of Credits and Debits. We process credits
and debits to your account in a specific order. We refer to
this as the processing order and it is how we decide what
posts first and last each day. . . . Our processing order
might not be the same as the order you make transactions and
could result in overdraft transactions. You can avoid
overdrafts on your account by always making sure you have
enough available funds in your account to cover your
transactions. . . . Debits . . . decrease your balance. We
will process credits and debits as follows:
. . . .
. After we have processed any credits to
your account, we will process debits. First, we group any
similar types of debits . . . together into separate
categories. Then, we process those debits within each
category in a specific order such as by dollar amount. For
some debits, we will know the time you made the transaction.
This allows us to post the debit closer to the time you
actually made the debit transaction instead of by dollar
amount. [The Deposit Agreement also includes a table that
discloses the processing order for different types of
transaction, and examples of each.]
Overdrafts. We may in our sole discretion, and without
obligation, elect to pay checks and other items drawn on your
deposit account or to permit automatic bill payments and
withdrawals against your account for an amount in excess of
your available balance (an “Overdraft”). . . .
You have no right to overdraw your account at any time, for
any reason, and our decision to pay Overdraft items is solely
within our discretion. You understand and agree that if we
elect to pay Overdraft items or to permit an Overdraft to
exist in your account, you have no right to defer payment,
and you must deposit additional funds into your account
promptly in an amount sufficient to cover the Overdraft and
to pay us Overdraft fees for each Overdraft item in
accordance with our current Schedule of Fees and Charges. . .
. You can avoid overdrafts on your account by always making
sure that you have sufficient available funds in your account
to cover all of the debits presented for payment against your
account. [Dep. Agmt. at 3.]
Agreement in § 3(D) provides:
If we authorize the transaction, the funds will be debited
from your primary checking account immediately or a hold may
be placed on your account for up to several days after the
purchase transaction has occurred, depending upon the
promptness with which the merchant processes your
Some purchases may result in a longer hold. Sometimes the
preauthorization requests may be in amounts different from
the total amount of the transaction. . . . You agree not to
withdraw, write checks or make point of sale purchases
against funds that are needed to pay ...