Parrish v. Arvest Bank
17-6042
| 10th Cir. | Nov 20, 2017Background
- Parrish filed a putative class action against Arvest Bank alleging fraud, constructive fraud, false representation/deceit, breach of fiduciary duty, breach of contract (including breach of the EFTA and the implied covenant), and unjust enrichment related to Arvest’s transaction posting practices and online/mobile balance displays.
- Plaintiff alleges Arvest batch-posts transactions by type at day-end (POS first, then other debits, checks, ACH, etc.), rather than posting chronologically, which she claims increases NSF/OD fees and misleads customers.
- Parrish contends Arvest’s EFTA and consumer pamphlet create the impression transactions are debited in chronological order and that online/mobile balances are accurate, real-time reflections.
- She alleges specific incidents of unexpected NSF/OD fees (two identified dates), and one weekend incident where an online balance led her to delay a deposit and later incur a fee.
- The district court dismissed the second amended complaint under Rule 12(b)(6); on appeal the Tenth Circuit reviewed plausibility and Rule 9(b) pleading requirements.
- The Tenth Circuit affirmed dismissal of all fraud claims and the fiduciary-duty, implied-covenant, and unjust-enrichment claims, but reversed the dismissal of the breach-of-contract claim that Arvest breached the EFTA by providing inaccurate online/mobile account-balance information, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fraud — misrepresentations that Arvest posts transactions chronologically | EFTA language ("Each time you use your CheckCard, the amount... will be debited") and pamphlet imply chronological posting; customers relied and incurred fees | Language describes mechanics of debits, does not promise instantaneous or chronological posting; allegations are at best ambiguous | Dismissed: plaintiff failed to plead a plausible misrepresentation with the particularity required by Rule 9(b) |
| Fraud — online/mobile balances are "real-time" and false | EFTA permits checking balances and posted debits/credits; Arvest displayed a balance that led Parrish to delay depositing funds, causing an NSF/OD fee | Online balance display does not plausibly appear false as pleaded; plaintiff failed to plead specifics showing the balance was inaccurate when relied upon | Dismissed: fraud claim inadequate under Rule 9(b) and plausibility standards |
| Breach of fiduciary duty (Oklahoma law) | Arvest’s superior knowledge of posting practices and balance displays creates a special relationship and fiduciary duties | Oklahoma law bars imposing fiduciary duties on banks absent an express written agreement to assume them | Dismissed: no written agreement alleged and general creditor–debtor relationship insufficient to create fiduciary duty |
| Breach of contract — implied covenant and EFTA balance promise | Arvest breached implied covenant by batching and failing to disclose; EFTA promises the ability to check balances and posted credits/debits (argued as a promise of accuracy) | EFTA does not promise instantaneous posting; implied-covenant claim not tied to an express contractual grant of discretion | Implied covenant claim dismissed; EFTA breach claim for inaccurate online/mobile balance information survives and is reversed to remand (plausible on its face) |
| Unjust enrichment (alternative) | Arvest was unjustly enriched by fees caused by posting and inaccurate balances | An adequate contract remedy bars quasi-contract relief under Oklahoma law | Dismissed: unjust-enrichment barred where an enforceable contract governs the dispute |
Key Cases Cited
- George v. Urban Settlement Serv., 833 F.3d 1242 (10th Cir. 2016) (standard for Rule 12(b)(6) review)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for pleadings)
- Koch v. Koch Indus., Inc., 203 F.3d 1202 (10th Cir. 2000) (Rule 9(b) pleading particularity for fraud)
- Gutierrez v. Wells Fargo Bank, N.A., 704 F.3d 712 (9th Cir. 2012) (bank overdraft/marketing misrepresentation claims)
- In re Checking Account Overdraft Litig., 694 F. Supp. 2d 1302 (S.D. Fla. 2010) (related implied-covenant/overdraft posting decisions)
- Elliott Indus. Ltd. P’ship v. BP Am. Prod. Co., 407 F.3d 1091 (10th Cir. 2005) (quasi-contract relief barred when contract governs)
- U.S. ex rel. Sikkenga v. Regence BlueCross BlueShield of Utah, 472 F.3d 702 (10th Cir. 2006) (pleading assessment limited to the complaint and attached/central documents)
- First Nat’l Bank & Tr. Co. of Vinita v. Kissee, 859 P.2d 502 (Okla. 1993) (creditor–debtor relationship not creating fiduciary duty)
- Am. Biomedical Grp., Inc. v. Techtrol, Inc., 374 P.3d 820 (Okla. 2016) (Oklahoma rule limiting unjust enrichment where contract provides remedy)