Consumer complaint received 2018-05-18
Company: DISCOVER BANK
State: NJ
Product: Checking or savings account
Sub-product: Other banking product or service
Issue: Managing an account
Sub-issue: Funds not handled or disbursed as instructed

Complaint:
On XX/XX/XXXX I submitted to Discover Bank via a secure upload on their web site a two page letter, a two page attachment, and eight exhibits documenting that they, as IRA Trustee, had in their possession Traditional IRAs that were commingled with Roth IRAs, in violation of Federal Law, specifically Title 26 of the Code of Federal Regulations.

That letter and attachment is reproduced here without account numbers and other personal information : XX/XX/XXXX Attention : IRA Department XXXX. XXXX  XXXX XXXX XXXX XXXX, Utah XXXX Phone : XXXX RE : Request for Audit of Discover Bank IRA Account XXXX and Correction of Mistake Regarding Comingling of Roth and Traditional IRA Funds by Former IRA Trustee Dear Sir/Madam : As Discover Bank is well aware, I have a considerable funds on deposit because of its dedication to service and presumably its conformance with the law particularly regarding fiduciary duties. That is why I anticipate full cooperation with regard to the following matter : In XX/XX/XXXX, my XXXX Roth and traditional IRAs were transferred to XXXX XXXX, which made a bookkeeping error and labeled all transferred funds as traditional IRAs regardless of some of them being Roth IRAs. In XX/XX/XXXX, these funds were transferred to XXXX XXXX and comingled into one account. Eventually these funds were transferred to Discover Bank IRA account XXXX. 
Recently I became aware that trustees are not allowed to commingle Roth and Traditional IRAs and I am putting you on notice that an audit on my IRA account XXXX is necessary to monitor for and to reverse comingling of Roth and traditional IRA funds in violation of Federal Law. Your responsibility as trustee in this regard is specified in the Code of Federal Regulations, Title 26 1-408-2 in which it is stated in part under subsection ( iii ) Audits ( A ) At least once during each period of 12 months, the applicant will cause detailed audits of the fiduciary books and records to be made by a qualified public accountant. At that time, the applicant will ascertain whether the fiduciary accounts have been administered in accordance with law, this paragraph, and sound fiduciary principles. The audits shall be conducted in accordance with generally accepted auditing standards, and shall involve whatever tests of the fiduciary books and records of the applicant are considered necessary by the qualified public accountant And in which it is stated under subsection ( vii ) Books and records : ( A ) The applicant must keep its fiduciary records separate and distinct from other records. All fiduciary records must be so kept and retained for as long as the contents thereof may become material in the administration of any internal revenue law. The fiduciary records must contain full information relative to each account.

And in which it is stated under subsection ( 5 ) Prohibition against commingling : ( i ) The assets of the trust must not be commingled with other property except in a common trust fund or common investment fund.

Please confirm in writing within 30 days that 1. You have verified that comingling or Roth and traditional IRA funds did occur ; 2. These comingled funds were transferred and presently exist in Discover Bank IRA account XXXX ; and 3. You will properly segregate the comingled traditional and Roth funds into separate accounts in conformance with IRS regulations.

To aid you in above endeavor I am supplying you with Attachment A, which is a tracing from my personal financial records of my Roth and Traditional IRA funds from XX/XX/XXXX, with XXXX as Trustee, to the present, with Discover Bank as Trustee. This attachment shows that Roth IRA funds were mislabeled as traditional IRA funds by XXXX XXXX in year XX/XX/XXXX and that they were subsequently comingled by XXXX XXXX in XX/XX/XXXX. It also shows that these funds eventually became part of my IRA portfolio with Discover Bank as Trustee. 
Thank you in advance for your anticipated prompt cooperation with the above requests. 

Very Truly Yours, XXXX ATTACHMENT A a. XXXX XXXX Roth IRA Accounts XXXX XXXX XXXX, both of retirement ID # XXXX and totaling {$4400.00} ( Exhibit 1 ), were transferred to XXXX XXXX Account XXXX in year XX/XX/XXXX. XXXX XXXX sent me a XX/XX/XXXX dated letter, certificate of deposit receipts, and three XX/XX/XXXX quarterly statements, all indicating that these funds were invested as a traditional IRA ( Exhibit 2 ) in spite of my indicating on my IRA Transfer request form that funds were coming from a Roth IRA at XXXX XXXX ( Exhibit 3 ). XXXX quarterly statements at XXXX XXXX   indicate that there was no recharacterization of the funds in that transferred IRA ( Exhibit 2 ). Therefore, XXXX XXXX  mislabeled the Roth IRA as a traditional IRA. 

b. In the fall of XX/XX/XXXX I made application with XXXX XXXX to effect a rollover from XXXX XXXX   into XXXX Traditional IRA Account XXXX as follows : 1. ) {$4900.00} from XXXX XXXX account XXXX was deposited on XX/XX/XXXX ; and 2. ) {$29000.00} from XXXX traditional IRA account XXXX was deposited on XX/XX/XXXX. 
Relevant documentation is shown in Exhibit 4. 
c. In the fall of XXXX I effected an IRA rollover from XXXX XXXX to XXXX XXXX  as follows : : {$39000.00} from XXXX XXXX Account XXXX was rolled over into XXXX XXXX  account XXXX. 
Relevant documentation is shown in Exhibit 5. 
d. In the spring of XX/XX/XXXX I effected an IRA rollover from XXXX XXXX and XXXX XXXX to XXXX XXXX XXXX as follows : 1. ) {$39000.00} was transferred from XXXX XXXX  Traditional IRA Account XXXX   to XXXX XXXX XXXX Traditional IRA account XXXX ; and 2. ) {$4100.00} was transferred from XXXX XXXX Traditional IRA Account XXXX to XXXX XXXX XXXX   Traditional IRA account XXXX. 
Relevant documentation is shown in Exhibit 6. 

e. In the fall of XX/XX/XXXX I effected an IRA rollover from XXXX XXXX XXXX XXXX to XXXX XXXX XXXX as follows : On XX/XX/XXXX, a check of {$27000.00} was received from XXXX XXXX XXXX XXXX account XXXX and deposited on XX/XX/XXXX into XXXX XXXX XXXX   Traditional IRA account XXXX. 
Relevant documentation is shown in Exhibit 7. 
f. In XX/XX/XXXX, XXXX XXXX XXXX was taken over by XXXX XXXX XXXX XXXX having the same address. 

Relevant documentation is shown in Exhibit 8. 

g. In XX/XX/XXXX I effected an IRA rollover from XXXX XXXX XXXX XXXX XXXX XXXX to Discover Bank as follows : On XX/XX/XXXX, {$110000.00} a check was received from XXXX XXXX XXXX Traditional IRA Account XXXX and deposited into Discover IRA Account XXXX on XX/XX/XXXX. 
Relevant documentation is shown in Exhibit 8.

The same day Discover Bank contacted me by phone and when we spoke the following was communicated by them : 1. They maintained that they could not verify the business documents regarding the comingling, in spited of the fact that such documents are normally admitted in court under the business document hearsay exception.

2. They maintained that they were unable to segregate the comingled traditional and Roth funds to conform with IRS regulations.

Company response to consumer: Closed with explanation