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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LORI SIMON,

Plaintiff,

No. 15-CV-10202

vs. Hon. Gerald E. Rosen

 Magistrate Judge David R. Grand

JPMORGAN CHASE BANK, N.A.,

Defendant.

___________________________________/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR 

SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff Lori Simon brought this case under the Electronic Funds Transfer 

Act (“EFTA”), 15 U.S.C. § 1693 et seq., alleging that Defendant JPMorgan Chase 

Bank, N.A. (“Chase”) -- with whom Plaintiff maintained two bank accounts --

made an unauthorized electronic transfer of $51,526 from her personal checking 

account. Defendant maintains that the transfer was made not from Simon’s 

personal account, but rather from a savings account that Plaintiff maintained 

jointly with her husband, and was made pursuant to a levy that the State of 

Michigan had placed on the account because Plaintiff’s husband owed over 

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$80,000 in child support payments to the State. Defendant has now filed for 

summary judgment in the matter, and that motion has been fully briefed. 

Having reviewed and considered the parties’ briefs and supporting 

documents and the entire record of this matter, the Court has determined that the 

pertinent allegations and legal arguments are sufficiently addressed in these 

materials and that oral argument would not assist in the resolution of this motion. 

Accordingly, the Court will decide the parties’ motions “on the briefs.” See L.R. 

7.1(f)(2). This Opinion and Order sets forth the Court’s ruling. 

II. PERTINENT FACTS

The facts leading up to the allegedly unlawful transfer in this matter are 

undisputed. Plaintiff maintained two bank accounts with Defendant: (1) a joint 

savings account with her husband Keith Simon, ending in the number 2337 (the 

“Joint Account”), and (2) a personal checking account ending in the number 3770 

(the “Personal Account”).

On May 28, 2014, Defendant received a letter from the State of Michigan 

Office of Child Support Lien and Levy Enforcement notifying Defendant that 

Keith Simon owed the State $85,189 in unpaid child support. 1

 May 28, 2014 

Notice of Lien and Levy Disclosure, Dkt. # 11, Ex. 3. The document notified 

Defendant that the lien “attaches itself to any and all applicable accounts of the 

 1 The parties do not provide any description of why child support was owed, or to 

whom it was to be ultimately paid.

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above-named obligor pursuant to MCL 552.625c.” Id. It further notified 

Defendant that, pursuant to Michigan law, it was required to “freeze the obligor’s 

or other account holder’s assets or funds up to the amount identified on the Notice 

of Lien” and that Keith Simon had 21 days to challenge the lien. Id. Last, it 

provided that, if 28 days passed from the time Keith Simon was given notice of the 

lien without any payment from him, Defendant was to “send the frozen assets to 

the Michigan State Disbursement Unit.” Id.

Defendant subsequently placed a hold on all assets in the Joint Account. On 

May 30, 2014, Defendant provided notice of the May 28 letter to Keith Simon and 

advised him that a hold had been placed on the Joint Account pursuant to the May 

28 letter. May 30, 2014 Asset Freeze Notice Letter, Dkt. # 11, Ex. 4. Simon did 

not respond to the letter. The parties do not dispute any of these facts.

From this point forward, however, the parties have divergent accounts of 

what happened. According to Defendant, on June 25, 2014, Chase’s Court Orders 

and Levies department (“COAL”) debited $51,523.36 from the Joint Account (the 

“Debit”), pursuant to the instructions from the May 28 letter, and subsequently 

removed the hold that had been placed on the account. Defendant supports this 

claim with a monthly account statement of the Joint Account that indicates a debit 

was made on June 25 from the Joint Account for the amount of $51,523.36 with 

the description “Nas-Coal,” Joint Account Monthly Statement, Dkt. # 11, Ex. 5, as 

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well as a cashier’s check in the amount of $51,523.36, dated June 26, 2015, and 

made out to the Michigan State Disbursement Unit. Cashier’s Check, Dkt. # 11, 

Ex. 6.

Then, according to Defendant, “On June 26, 2014, Plaintiff and/or [Keith]

Simon attempted an online transfer from the Joint Account to Plaintiff’s Account 

in the amount of $51,526.00.” Pl.’s Mot. for Summ. J., Dkt. #11, at 2. Defendant 

supports this assertion by pointing to a line in the monthly statement of the Joint 

Account denoting a “Returned Item Fee For An Unpaid . . . Transfer to Chk,” 

reflecting a fee for an attempt to transfer with insufficient funds (because the funds 

in the Joint Account had been paid in partial satisfaction of the levy) as well as a 

letter sent to Plaintiff on June 26, 2014, informing her that “The items(s) listed 

below were presented for payment against your account; however, you didn’t have 

enough money to cover them” and indicating the attempted $51,526 transfer. June 

26, 2014 Insufficient Funds Notice, Dkt. # 11, Ex. 7. Further, the monthly 

statement for Plaintiff’s Personal Account indicates both a deposit and a 

withdrawal in the amount of $51,526 on June 27, which Defendant asserts is the 

typical way in which an insufficiently funded transfer would be reflected on a 

statement. Personal Account Monthly Statement, Dkt. # 11, Ex. 8. Plaintiff never 

responded to the insufficient funds notice that Defendant sent her.

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Plaintiff’s account of this time period is substantially different. She asserts 

that, after learning about the hold on the Joint Account from the May 28 letter, she 

accessed the Account on June 26, 2014, at 12:01 AM. According to her affidavit, 

she “went on-line and discovered that the hold was removed; the screen for the 

joint account had the words, "HOLD REMOVED" on it.” Lori Simon Aff., Dkt. # 

16-2, ¶¶ 2-6. She also asserts that, at that time, the Personal Account “had a 

negative balance of $-249.13,” and, at that time, she was unable to perform 

transactions against the Personal Account. Id. ¶ 7. Then, at 2:51 AM on the same 

day, Plaintiff allegedly “awoke and found that [her] money was now available in 

the joint account, a total of $51,526.73. This was the amount of the hold plus 

$3.37 in interest.” Id. ¶ 8. Plaintiff claims that she then transferred $51,526 from 

the Joint Account into her Personal Account. Id. ¶ 9. Plaintiff provides no 

evidence, other than her bare affidavit, of any of these claims. She further asserts 

that the bank statements provided by Defendant were incorrect and “back-dated.” 

Pl.’s Resp. to Def.’s Mot. for Summ. J., Dkt. # 16, at 4.

Then, “[t]o make sure that the transfer actually occurred,” Simon Aff. ¶ 10, 

Plaintiff performed several transactions using her Personal Account, including a 

$500 withdrawal using an ATM, a $65.91 purchase from a gas station, and a 

DirecTV payment of $141.64. Id. ¶¶ 10-12. Plaintiff provides documentation of 

the ATM and DirecTV transactions in the form of receipts, see Debit Receipts, 

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Dkt. # 16-3, and her Personal Account monthly statement reflects all three 

transactions, see Personal Account Monthly Statement, Dkt. # 11, Ex. 8. 

According to Plaintiff, these three transactions “demonstrate the successful deposit 

of the subject funds from the joint account into Plaintiff’s checking account on 

June 26, 2014 and act as an admission of that successful deposit as Chase 

communicated to the various institutions that these funds were available in an 

account that had a negative balance prior to the deposit.” Pl.’s Resp. to Def.’s 

Mot. for Summ. J., at 3. Further, Plaintiff claims that on June 26, 2014, Keith 

Simon “spoke by phone with representatives of the Defendant bank” and that 

“[d]uring those phone conversations, two representatives of Chase told [him] that it 

did not matter that the funds had been transferred” and thus “admitted that on June 

26, 2014, $51,526 had been transferred from [the Joint Account] to [Plaintiff’s] 

personal checking account.” Keith Simon Aff., Dkt. # 16-4, ¶¶ 2-4. Plaintiff 

provides no evidence of these conversations other than Keith Simon’s affidavit.

From this point forward, the facts are again undisputed. On September 22, 

2014, Plaintiff mailed a letter to Defendant stating that Defendant “withdrew 

$51,520 from [her] account” and that Plaintiff “did not authorize this withdrawal.” 

September 22, 2014 Letter from Lori Simon to JPMorgan Chase Bank, Dkt. # 11, 

Ex. 9. Plaintiff wrote, “Please consider this correspondence my request that you 

investigate this illegal withdrawal and return these funds immediately.” Id. 

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Apparently Defendant did not respond to that letter, and Plaintiff initiated 

this action on January 21, 2015. In her Complaint, Plaintiff claims that Defendant, 

by transferring money from her Personal Account without her authorization, 

“engaged in an unauthorized electronic fund transfer,” in violation of the EFTA. 

Pl.’s Compl., Dkt. # 1, ¶ 19. Plaintiff’s Complaint also list claims for statutory 

conversion, in violation of M.C.L. § 600.2919a, and common law conversion, id.

¶¶ 22-25, though Plaintiff has indicated in her briefing that she “agrees to dismiss” 

both of those claims, Pl.’s Resp. to Def.’s Mot. for Summ. J., at 8. Defendant 

subsequently filed a Motion for Summary Judgment, asserting that Plaintiff has 

failed to provide adequate factual support for her claims, and that even if her 

claims are factually true, she has not properly made out a claim under the EFTA. 

Dkt. # 11.

III. DISCUSSION

A. Rule 56 Standard

Through its present motion, Defendant seeks summary judgment in their 

favor pursuant to Rule 56 of the Federal Rules of Civil Procedure. Under that 

Rule, summary judgment is proper if the moving party “shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). As the Supreme Court has explained, “the 

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plain language of Rule 56[] mandates the entry of summary judgment, after 

adequate time for discovery and upon motion, against a party who fails to make a 

showing sufficient to establish the existence of an element essential to that party’s 

case, and on which that party will bear the burden of proof at trial.” Celotex Corp. 

v. Catrett, 477 U.S. 317, 322 (1986). In addition, where a moving party seeks an 

award of summary judgment in its favor on a claim or issue as to which it bears the 

burden of proof at trial, this party’s “showing must be sufficient for the court to 

hold that no reasonable trier of fact could find other than for the moving party.” 

Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (emphasis and 

citation omitted).

In deciding a motion brought under Rule 56, the Court must view the 

evidence in a light most favorable to the nonmoving party. Pack v. Damon Corp.,

434 F.3d 810, 813 (6th Cir. 2006). Yet, the nonmoving party may not rely on mere 

allegations or denials, but must “cit[e] to particular parts of materials in the record” 

as establishing that one or more material facts are “genuinely disputed.” Fed. R. 

Civ. P. 56(c)(1).

B. Analysis

Since Plaintiff has withdrawn her state law claims, her only remaining claim 

relies exclusively on the Electronic Funds Transfer Act (“EFTA”), 15 U.S.C. § 

1693 et seq., which federal government enacted the EFTA as part of the 

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comprehensive Consumer Credit Protection Act, Pub. L. No. 95–630 § 2001, 92 

Stat. 3641 (1978) (codified as amended at 15 U.S.C. § 1601 et seq.). “The EFTA 

protects individual consumer rights by ‘provid[ing] a basic framework establishing 

the rights, liabilities, and responsibilities of participants in electronic fund transfer 

systems.’” Clemmer v. Key Bank Nat. Ass’n, 539 F.3d 349, 351 (6th Cir. 2008)

(alteration in original) (quoting 15 U.S.C. § 1693(b)).

There are several problems with Plaintiff’s claim. First, the Court is unable 

to identify the substantive law in the EFTA on which Plaintiff relies. Plaintiff’s 

Complaint refers to 15 U.S.C. § 1693a -- the “Definitions” section of the EFTA --

for the proposition that an “‘electronic fund transfer’ [is] ‘any transfer of funds, 

other than a transaction originated by check, draft, or similar paper instrument, 

which is initiated through an electronic terminal, telephonic instrument, or 

computer or magnetic tape so as to order, instruct, or authorize a financial 

institution to debit or credit an account.’” Pl.’s Compl. ¶ 18 (quoting 15 U.S.C. § 

1693a(7)).2

 The Complaint then simply quotes the entirety of § 1693m -- the 

section of the EFTA that provides for a federal civil cause of action for any 

violation of the EFTA. Id. ¶ 20. Section 1693m provides, in relevant part, that 

“[e]xcept as otherwise provided by this section and section 1693h of this title, any 

person who fails to comply with any provision of this subchapter with respect to 

 2 Plaintiff’s complaint incorrectly cites § 1693a(6) and (9) for this quote. Pl.’s 

Compl. ¶ 18.

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any consumer, except for an error resolved in accordance with section 1693f of this 

title, is liable to such consumer . . . .” 15 U.S.C. § 1693m. But Plaintiff refers to 

no provision of the EFTA demonstrating that Defendant committed a substantive 

violation, even if every fact pled by Plaintiff is true.3

 That is to say, she points to 

no provision that would make Defendant’s conduct as pled unlawful under the 

ETFA. Nor does Plaintiff refer to a single case with similar factual circumstances 

in which an EFTA violation was found.

Defendant does not argue this flaw as a basis for its Motion, however, and so 

the Court disregards the problem for the moment and instead focuses on the issues

raised by Defendant. Defendant’s first -- and primary -- argument supporting its 

Motion is that it has shifted the burden of production to Plaintiff by bringing forth 

evidence that Plaintiff’s attempted transfer of money from the Joint Account to the 

Personal Account never occurred (which, is, presumably, a prerequisite for 

Plaintiff’s EFTA claim that Defendant made a transfer that was not authorized 

through the State’s levy, because her husband was a named holder on the Joint 

Account but not on the Personal Account). Defendant further argues that Plaintiff 

has failed to shift the burden back to Defendant by pointing to evidence in the 

record that demonstrates a genuine issue of material fact. The Court agrees. “A 

 3 The EFTA does contain a section providing for the “Liability of Financial 

Institutions.” 15 U.S.C. § 1693h. That section provides substantive liability for an 

institution’s failure to properly make certain transactions where a plaintiff 

requested one. Id. § 1693h(a).

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movant for summary judgment meets its initial burden ‘by showing -- that is, 

pointing out to the district court -- that there is an absence of evidence to support 

the nonmoving party’s case.’” Rachells v. Cingular Wireless Employee Servs., 

LLC, 732 F.3d 652, 660 (6th Cir. 2013) (quoting Dixon v. Anderson, 928 F.2d 212, 

216 n.5 (6th Cir. 1991)) (internal quotation marks omitted). “The non-movant then 

must set forth specific facts showing that there is a genuine issue for trial.” Id. 

While the Court may not resolve disputes of fact or determine matters of credibility 

where the parties disagree as to a material fact, “[t]he mere existence of a scintilla 

of evidence in support of the plaintiff’s position will be insufficient; there must be 

evidence on which the jury could reasonably find for the plaintiff.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (emphasis added).

Here, Defendant has “point[ed] out to the district court” substantial evidence 

indicating that there was no transfer of money between the Joint Account and the 

Personal Account. It has provided the monthly statements of both accounts, the 

cashier’s check, and the insufficient funds notice that was issued when the 

attempted transfer failed. The two affidavits that Plaintiffs relies on assert a 

contrary story and claim that the monthly statements were somehow falsified, but 

in their essence, both affidavits merely restate the allegations made in the 

complaint. See, e.g., Zenith Vinyl Fabrics Corp. v. Ford Motor Co., 357 F. Supp. 

133, 138 (E.D. Mich. 1973) (“There is substantial authority to the effect that an 

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affidavit which merely restates the allegations of the complaint should be 

disregarded.”); Moore v. N. Am. Rockwell Co., 16 Fed. R. Serv. 2d 145 (E.D. 

Mich. 1972) (“In the affidavit before this court, plaintiff has merely restated the 

conclusory allegations of his complaint or has simply denied the truth of 

defendants’ affidavits. Having stated only conclusions, his affidavit does not by 

itself create any issues of fact which would make summary judgment 

inappropriate.”); Maclin v. Tipton Cty., Tenn., No. 2:10-CV-02468-CGC, 2011 WL 

130161, at *5 (W.D. Tenn. Jan. 14, 2011) (“Although the Court considers an 

affidavit filed by a plaintiff as sound evidence that could refute a proper motion for 

summary judgment, the substance of this Affidavit is minimal at best and in 

essence merely restates his allegations in the Complaint.”). If such an affidavit 

were sufficient to survive summary judgment, Rule 56 would become entirely 

toothless, as a plaintiff would merely have to provide an affidavit asserting that the 

facts as laid out in the complaint are true, regardless of any lack of evidence 

supporting the veracity of the claims made in the affidavit. Plainly, Plaintiff has 

pointed to no evidence that any reasonable juror could possibly find has rebutted 

Defendant’s clear record evidence supporting its position.

Plaintiff contends that she has put forth evidence other than the two 

affidavits in support of her factual claims. She points to the three transactions that 

she made using her personal account between June 27 and June 30 (the ATM 

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withdrawal, gas station purchase, and DirecTV payment), asserting that if the 

alleged $51,526 transfer into the Personal Account had not occurred, she would not 

have had sufficient funds to make those transactions, as the Personal Account had 

a negative balance prior to the alleged transfer. Pl.’s Resp. to Def.’s Mot. for 

Summ. J., at 4-6. But Defendant rebuts this contention, explaining that “is no 

support . . . in fact that she would be unable to complete any transactions while her 

account was overdrawn.” Def.’s Reply, at 4. Plaintiff, once again, points to no 

evidence establishing that she would have been unable to make the three 

transactions without the alleged transfer having successfully been made to her 

Personal Account.

While it is clear that Plaintiff has failed to demonstrate an issue of material 

fact that would prevent summary judgment, the Court need not even rely on such a 

finding in order to grant Defendant’s Motion. Even assuming all of the 

contentions in Plaintiff’s and her husband’s affidavits are true, Michigan law bars 

Plaintiff’s recovery. M.C.L. § 552.625d(4) states that

A financial institution, insurer, or carrier that forwards financial 

assets, money to be paid, or compensation to the title IV-D agency in 

response to a levy . . . is discharged from any obligation or liability to 

the depositor, account holder, or other person with an interest in the 

financial assets, money to be paid, or compensation forwarded to the 

title IV-D agency.

The evidence presented here -- namely the cashier’s check made out to the 

Michigan State Disbursement Unit -- clearly demonstrates that any “unauthorized 

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transaction” made by Chase was a “forward[ing]” of “financial assets . . . in 

response to a levy.” Accordingly, Chase cannot be held liable for that forwarding.

* * *

As a final matter, the Court finds it necessary to note the troubling nature of 

this case. The conduct of Plaintiff and her husband appears to be, based on all of 

the records presented to the Court, a calculated attempt to avoid child support 

obligations by seeking to hide money in Plaintiff’s personal account. And when 

that apparent attempt failed, Plaintiff elected to file a lawsuit in a second attempt to 

avoid payment. Plaintiff’s counsel also bears responsibility -- he is bound by Rule 

11 to make an “inquiry reasonable under the circumstances” to ensure that “the 

factual contentions have evidentiary support” and that “the claims, defenses, and 

other legal contentions are warranted by existing law or by a nonfrivolous 

argument for extending, modifying or reversing existing law.” Fed. R. Civ. P. 

11(b). It does not appear that he met either obligation here, as even a cursory 

review of the bank records, not to mention controlling law, should have caused him 

to immediately reconsider his decision to pursue this litigation.

However, in the spirit of the holiday season, the Court will not order 

Plaintiff to show cause as to why sanctions under Rule 11 should not be entered 

against Plaintiff’s attorney or against Plaintiff herself. Nevertheless, both Plaintiff 

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and her attorney should consider themselves warned that the Court takes these 

rules seriously, and future cases of this nature could result in monetary sanctions.

IV. CONCLUSION

For all of the foregoing reasons, 

IT IS HEREBY ORDERED that Defendant’s Motion for Summary 

Judgment (Dkt. # 11) is GRANTED.

IT IS FURTHER ORDERED that Plaintiff’s Complaint is DISMISSED 

WITH PREJUDICE.

IT IS SO ORDERED.

Dated: December 14, 2015 s/Gerald E. Rosen

Chief Judge, United States District Court

I hereby certify that a copy of the foregoing document was served upon the parties 

and/or counsel of record on December 14, 2015, by electronic and/or ordinary 

mail.

s/Julie Owens

Case Manager, (313) 234-5135

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