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PARVIZ HAGHIGHI ABYANEH v. MERCHANTS BANK

March 6, 1987

Parviz Haghighi Abyaneh and Iran Haghighi, Plaintiffs,
v.
Merchants Bank, North, Successor by merger to First State Bank, Defendant



The opinion of the court was delivered by: NEALON

 NEALON, C.J.

 Plaintiff Abyaneh commenced this action on May 21, 1986 by filing a Complaint which contained three counts and which alleged causes of action in contract, tort and under the Electronic Fund Transfers Act (EFTA), 15 U.S.C. § 1693 et seq. Plaintiff Haghighi was added as a party by means of an Amended Complaint filed on June 27, 1986.

 Plaintiffs alleged that they were co-owners of a savings account at First State Bank. On May 23, 1984, an unknown male individual entered the Raleigh, North Carolina office of Citizens Savings and Loan Association of Rocky Mount, North Carolina (Citizens) and identified himself as plaintiff Abyaneh. This individual established a savings account at Citizens and advised Citizens' personnel that he wished to transfer funds from plaintiffs' Pennsylvania account into his newly created account. He provided Citizens with First State Bank's telephone number, the name of a woman employed at the Pennsylvania bank who supposedly could handle the transfer and the account number for plaintiffs' Pennsylvania account. The individual then telephoned First State Bank, spoke with an officer of that institution and arranged a wire transfer. All of the funds in the First State Bank account, $ 53,825.66, were transferred by wire to the account at Citizens and were later withdrawn from the North Carolina account.

 Also before the court is plaintiff's Motion for Partial Summary Judgment which was submitted on February 25, 1987, along with a Statement of Material Facts, a Brief in Support and an Opposition to defendant's motion. Plaintiffs in essence seek a ruling on the availability of certain defenses raised in defendant's Answer.

 For the reasons set forth below, the court will grant defendant's Motion for Partial Summary Judgment and will deny plaintiffs' Motion for Partial Summary Judgment.

 Analysis

 1. Defendant's Motion

 The EFTA specifically excludes the following situation from its coverage:

 
any transfer of funds which is initiated by a telephone conversation between a consumer and an officer or employee of a financial institution which is not pursuant to a prearranged plan and under which periodic or recurring transfers are not contemplated.

 15 U.S.C. § 1693a(6)(E).

 There is no dispute that the present case involves a wire transfer initiated by a telephone conversation with an officer of a financial institution, which conversation neither was conducted pursuant to a prearranged plan nor contemplated periodic or recurring transfers. Plaintiffs argue, however, that the above exclusion does not apply to their case because the individual who appeared at Citizens on May 23, 1984 was not a "consumer." In short, plaintiffs want the court to interpret "consumer" as synonymous with "account holder." See Document 30 at pp. 13-14.

 The only reported decision construing 15 U.S.C. § 1693a(6)(E) is Kashanchi v. Texas Commerce Medical Bank, N.A., 703 F.2d 936 (5th Cir. 1983), a case which involved facts and issues which are nearly identical to those in the present dispute. There, plaintiff and her sister were sole owners of a savings account at the defendant bank. A total of $4,900 was transferred from their account as a result of a telephone conversation between an ...


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