which she was discussing various aspects of the accounting system with the deposing attorney but this is who correct because if you look further into her deposition and count votes that were held because she had accumulated twelve paid privilege fees in three days for debit card transactions and couldn't understand why she said she still shows she should have about twenty dollars left after researching her account i found that a hotel put a hold on her account for a larger amount causing a domino effect since we charge fees according to available balance instead of actual balance because the fees to be charged for all debit card transactions that were on hold mrs whittington stepha's initial testimony came to this exact knew it and she was asked about it and in response she said that's when i figured it out that's what i've learned how they do it so as you can see from both of these pieces of evidence she did not know how the system worked until far into their conduct until she was contacting the credit union to discuss the fact that she had been charged fees she felt were improper and even then she was only learning dollar aspect of how the accounting system worked we didn't learn the full truth about how the accounting system worked until we got into discovery and gave evidence to our experts and received greater explanations from their representatives through depositions and through the evidence that they gave to us and of course we were sharing this information with our client who was hearing this before deposition so the lower court erred and thinking that because she was able to explain certain parts of how the system worked at deposition that she knew this all along and therefore was not justified in relying on misrepresentations this is a problem because in texas justifiable reliance is typically an issue for the fact finder and we asked this court reversed so that in fact finder can assess this issue the nd issue on appeal is whether summary judgment was appropriate in light of the evidence in the growing weight of legal authority the lower court held quote m c use membership disclosures correctly describe how overdraft fees are incurred and therefore there was no misrepresentation underpinning winnington sufficient for all of theory excuse me sufficient funds theory to support her fraud claim this is also other courts have looked at similar agreements and i found at least ten similar cases where courts were asked to look at the ledger balance an available balance distinction most recently the th circuit looked at this issue in tim tim's vs l g e community credit union and in that case the th circuit decided that at best it was in big us whether they were using the ledger balance or available balance method you would agree there's nothing inherently fraudulent about picking one accounting methodology over another yes honor there's nothing inherently fraudulent about using the available balance method it's just that if you're going to use that balance method you have to disclose how it works because if you don't it's very likely to mislead consumers the consumer financial protection bureau looked into these practices and found they were likely to mislead and that they were deceptive and the th circuit holding actually supports that opinion why didn't paragraph twelve day of the membership disclosures provide that disclosure provide that information they were using the word it available to say available funds or available account balance and the plain meaning of the term available would lead one to think how much i have in the bank that's what balance the other is called available and that's for the word available means they're not using available well the thing is these are terms of art that have all sorts of distinctions to them an added meaning that's very loaded i can understand how maybe different people different communities have different understandings of words but you're making not a disagreement there's not a about making the mind's breach of contract cases a fraud case that's correct i was just fraud well the reason that it's fraud is because when you're using the term available in the fashion that they are it creates the impression that you're actually describing a ledger balance method but then when you get into their accounting and how it works it ends up being completely different and there are a number of loaded kling's like there are undisclosed sub ledger of holds that aggregate to artificially depress the balance and create fees where there usually wouldn't be and if i could read a quote from the bank of why it's smith versus bank of hawaii in this was the case that the th circuit quoted to explain their opinion that even if you use the word available or available funds are available balance it's still not enough to put a member on notice so i'm quoting here from the smith versus bank of why a case where they stated although the account agreement has sporadic references to available funds or balances there is no statement clearly understood by reasonable customer the bank of hawaii would use the available balance method when determining if an account was overdrawn they went on to at no point in either of the agreements does bank of y define the meaning of available when describing balances think of why it apparently assumes that the customer will read the word available in six scattered sections spanning the thirty six rather than available to that's the point which one  right she is a specific warning that the availability of funds may be delayed as described in our policy yes your honor so the term availability there means what's available to you so there is also what's the statement about niger show me the language that tells the world we're not using the available balance method we're using the ledger balance and yes your honor so if you look at the section titled payment of overdr they say if on any rate a day yes or they say if on any day the available funds in your share deposit account are not sufficient to pay the full amount of the check draft or transaction or other items posted to your account  we may pay a return the overdraft so what they're saying there is if on any day the funds that are available to you are not sufficient then you may incur an overdraft what my client thought was right at most the word available is on big u that's not enough for fraud well is the word available might plausibly signal the method that's called available it might but that would be an issue for the fact finder to decide and is not properly decided on summary judgment because in the very next sentence they say the credit union in this statement is literally true we're going to want to let you have access to your available funds the question of course is what you mean by available i get that that's confusing when you think about the subtle differences between larger and available but i don't see this being a clear statement that signals to people rob usually using the ledger and not the available so that the reason why that signals to people is because available balanc in their plain meaning just means what's available to me when you look at the why does it necessarily foreclose these pending holds and deposits it doesn't necessarily foreclose it could be that this is ambiguous but even then we would need a fact finder to decide whether they think this is describing a larger balance or an available balance and the other courts that have looked at this have agreed that it's in big us at best and the c f p be found that it was actually misleading and deceptive she should have twenty dollars in the bank so the way that that works is you may look at your available balance online and see ok i have twenty dollars so i spend ten dollars now you would think that that ten dollars is not going to incur an overdraft fee because it says twenty dollars is available to you you've spent ten you still have ten in the bank but then if you do you two more successive ten dollars transactions where you sit down to negative ten dollars in your account all of those three  transactions are placed on hold when they're released from hold maybe two or three days later they're looking at ok what's the available balance now the available balancing the way that consumers try to be restricted the way that mobile oil to try and help them understand how much they actually have in the bank is go online and they'll see what their actual balance is and what their available balances but the problem is your available balance only reflects what was at that point in time when you're looking at it they never tell you what the undisclosed sub ledger of holds is so if you start spending money thinking ok i have available the allens right here it tells me i have twenty dollars you make three transactions of ten dollars you're thinking ok only one of those over drafted but it turns out they're all aggregated in this undisclosed sub ledger of holds so then when they get charged to the account you get three overdraft fees so that's ninety dollars that have been charged for really one transaction that went under ten dollars your account and i see that i'm running out of time so i briefly just want to explain why this would support a fraud claim and not just some kind of contract action so the polite word which the circuit look to explain its reasoning actually involved a claim under the why and unfair deceptive practices act which is similar to fraud in that it's looking for misrepresentations the court stated and i quote the court  already rejected bank of y's argument that the account agreement explicitly states the bank of hawaii will charge overdraft fees based on available balance at best the agreements are in big us it is certainly possible that a trier of fact could resolve against think of hawaii and find that the agreements can same contained deceptive representations that is a jury could find that the agreements use the term ledger balance when determin they actually use the available balance this would constitute a material representation likely to mislead consumers separately the jury could find that the agreement simply over the years likable do you think stated your time oh i apologize you have to finish t the credit to authorize the transaction because the credit rating would authorize the transaction is required to pay and they reduce the available balance by the amount of the authorization that throughout the day as they were presented posed but you wait till the end of the day aggregated and say well if you have a positive balance to the end of the day even though you did during the day you're not going to get it over in the court looking at that same language again  the ruling on the motion to dismiss that available balance wasn't defined that someone could reasonably interpret that there's different the setter but that was a breach of contract something that wasn't is their argument about reentry the issue here with preemption is that the truth in savings and creates an affirmative duty for them to disclose fees and how they're actually going to be imposed that section seven of the seven  s before the truth in savings act and what's especially important here is that they are a credit union credit unions are supposed to be institutions that members can trust to act in their interests and given their duty to disclose which is statutory and regulatory they need to fully disclose these practices otherwise they're misleading members which is what the c f p be found which is what bank why cases found the th circuit has endorsed that logic and smith versus bank of why it wasn't simply a motion to dismiss that was ruled on there were two motions for summary judgment and the court reaffirmed their holding about the fact that it could still be misleading if you're using the words available funds are available balance but you don't disclose how the fees are going to be charged the lower court erred in looking at duty here as versus wells fargo bank as the controlling authority for this because that case was looking at regulations promulgated under the national bank act by the o c c we're looking at a credit union which is controlled by regulations promulgated by the n c u a and they have different disclosure requirements the correct case to look to for preemption is rose versus bank of america which was decided by the california supreme court in which they said that the truth i'm saving is i test a savings cla which is section four thousand three hundred and twelve dollars of that act and it says that any state law a claim that is compatible with the requirements of the truth in savings act is permissible we're not asking for anything that is out of step with the truth in savings act we're acting asking that they be held to the regulations seven dollars to seven dollars before which says you have to disclose what fees you're going to charge and then how they're going to be imposed u s bank of america and the united states supreme court denied the petition so that's been left to stand and that case is directly on point about whether these kinds of fraudulent practices are unlawful practices that are state law claims can be brought in light of the truth in savings act and what it requires the idea that we did not address this until our reply brief it is also incorrect because we talked about this in our response to the motion to dismiss in our response to the motion for summary judgment and they were the ones who brought it up in their response for this appeal we address that issue under the exception that if significant portions of their brief address an issue that we have not raised then we should be allowed to respond to those in our reply brief so the assertion that we're raising things on appeal that we've never raised in the trial  simply not true we addressed all of these issues in the trial court they had the opportunity to respond to them and did and now we're addressing them here in the appellate court i think their point is not that you forfeited it in district court but that you forfeited it in this court know this is civic page because we went through and mulled over portions of the brief talking about the fact that they failed to disclose information at best to their argument is that we didn't explicitly say we are trying lungeing the preemption ruling of the lower court in verbatim in that kind of a sentence we didn't make that sort of a statement but we talked at length throughout the brief about how they failed to disclose information and why that was incorrect and in our reply brief we address that specifically because they were the ones who raised it and several