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Sergio Vega Soto, On His Own Behalf and On Behalf of v. Bank of Lancaster County

March 23, 2011


The opinion of the court was delivered by: James Knoll Gardner, United States District Judge


This matter is before the court on the Motion for Reconsideration filed April 13, 2010 by plaintiff Sergio Vega Soto.

The Brief of Defendant Bank of Lancaster County in Opposition to Plaintiff's Motion for Reconsideration of the Court's March 30, 2010 Order Dismissing the Case was filed April 27, 2010. Plaintiff filed his Reply Brief in Further Support of Plaintiff's Motion for Reconsideration on May 4, 2010.

For the reasons articulated in this Opinion, I deny plaintiff's Motion for Reconsideration.


Jurisdiction in this case is based on federal question jurisdiction pursuant to 28 U.S.C. § 1331. This court has supplemental jurisdiction over plaintiff's pendent state-law claims. See 28 U.S.C. § 1367.


Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to plaintiff's claims allegedly occurred within Lancaster County, Pennsylvania, which is located within this judicial district.


On April 16, 2008, plaintiff filed a four-count Civil Complaint in this matter as a putative class action on behalf of all the customers of the Bank of Lancaster County. As discussed below, the Complaint alleged claims pursuant to the federal National Bank Act*fn1 ("NBA") and Truth in Lending Act*fn2 ("TILA"), as well as state-law claims for breach of contract and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law*fn3 ("UTPCPL").

The case was assigned to my former colleague, United States District Judge Thomas M. Golden. On September 26, 2008, defendant moved to dismiss the Complaint in its entirety. Plaintiff responded on November 26, 2008, and defendant filed a reply brief on December 10, 2008 in further support of its motion to dismiss.

Judge Golden conducted oral argument on the motion on October 26, 2009 and took the matter under advisement. Subsequently, the parties filed supplemental briefs on the motion to dismiss.

On March 31, 2010, Judge Golden filed a Memorandum Opinion and Order dated March 30, 2010, granting defendant's motion to dismiss plaintiff's two federal claims for failure to state a claim.*fn4 He also declined to exercise jurisdiction over plaintiff's remaining state claims, and dismissed the case in its entirety. Judge Golden's Memorandum is summarized more fully below.

As noted above, plaintiff filed the within motion for reconsideration on April 13, 2010, and defendant filed a brief in opposition on April 27, 2010. Plaintiff filed a reply brief in further support of his motion for reconsideration on May 4, 2010.

On August 11, 2010, after the untimely death of my former colleague Judge Golden, the case was reassigned to me. Hence this Opinion.

Plaintiff's Complaint

The claims in plaintiff's four-count Complaint arise from fees defendant applied to automated teller machine ("ATM") and debit card transactions made by plaintiff. Plaintiff alleges that he is an account holder with defendant.

Specifically, Count I alleges that defendant charged usurious interest on plaintiff's ATM and debit-card overdrafts pursuant to defendant's Overdraft Privilege Service ("OPS"), in violation of the federal NBA.

Count II asserts that defendant failed to seek plaintiff's permission before enrolling him in the OPS, failed to provide certain disclosures on the true cost of using the OPS, and improperly offset OPS fees against plaintiff's funds held on deposit, all in violation of the federal TILA.

Count III avers that defendant violated Pennsylvania's UPTCPL because the OPS constituted deceptive conduct which created a likelihood of confusion and misunderstanding.

Finally, Count IV alleges breach of contract under Pennsylvania contract law because defendant imposed the OPS on plaintiff's deposit account without notice and without plaintiff's consent, in violation of the parties' Terms and Conditions on Deposit Accounts ("deposit agreement").

District Court Memorandum Opinion Judge Golden's Memorandum Opinion and Order dismissed Counts I and II for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Having dismissed the federal claims, he declined to exercise supplemental jurisdiction over the state-law claims in Count III and Count IV, and he dismissed the Complaint in its entirety.*fn5

Accepting the allegations in plaintiff's complaint as true, as required by the standard of review for Rule 12(b)(6) motions, Judge Golden noted the following relevant facts.

A customer of defendant Bank of Lancaster County ("Bank") is automatically charged a fee of $35.00 every time the Bank pays for an overdrawn transaction, without first giving any notice to the customer that his account has insufficient funds. As a result of the application of the OPS to plaintiff's account, plaintiff was assessed $560.00 in "paid item fees" between September 11, 2007 and September 25, 2007. The Bank charged plaintiff such non-sufficient funds fees only in relation to his deposit account.*fn6

In ruling on the motion to dismiss, Judge Golden considered, in addition to plaintiff's Complaint, an exhibit attached to defendant's motion to dismiss and an exhibit attached to defendant's reply brief. Judge Golden considered these two documents based on his apparent conclusion that they were undisputedly authentic, and because plaintiff's claims were based upon them. See Pension Benefit Guaranty Corporation v. White Consolidated Industries, Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Memorandum at 3, n.2.

The first document is the deposit agreement, which outlines the terms and conditions governing plaintiff's deposit account at defendant Bank. The deposit agreement is ...

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