UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

BILLIE JOANN HARMON, on behalf 

of herself and others similarly situated,

 Plaintiff,

 vs.

FIFTH THIRD BANCORP,

1

 

 Defendant.

)

)

)

)

)

)

)

)

)

)

Case No.: 1: 18-cv-00402

Judge Michael R. Barrett

OPINION AND ORDER 

This matter is before the Court on Defendant Fifth Third Bank’s Motion to Dismiss. 

(Doc. 28). Plaintiff Billie Joann Harmon filed a Response in Opposition (Doc. 32) and 

Defendant filed a Reply (Doc. 35). Plaintiff also filed a Notice of Supplemental Authority 

to which Defendant responded and Plaintiff replied. (Docs. 40, 21, 42).

I. BACKGROUND

Plaintiff has a personal Essential Checking account2 with one of Defendant’s 

Kentucky branches. (Doc. 23, ¶¶ 11, 49). Defendant “is a state-chartered, federally 

insured bank headquartered in Ohio, with branches in several states, including Ohio, 

Michigan, Kentucky, and Tennessee.” In re Fifth Third Early Access Cash Advance Litig., 

925 F.3d 265, 269-70 (6th Cir. 2019). Plaintiff’s lawsuit is based on her use of one of 

1 Defendant asserts that “Fifth Third Bank, not Fifth Third Bancorp, is the proper party here” as “Fifth Third 

Bancorp is a bank holding company with which [Plaintiff] has no contractual relationship.” (Doc. 28, PageID 

264, n.1).

2 Other types of checking accounts offered by Defendant appear to be Enhanced Checking and Preferred 

Checking. See (Doc. 23-1, PageID 216-17); (Doc. 23-2) (“Consumer Account Pricing & Services”). 

Case: 1:18-cv-00402-MRB Doc #: 52 Filed: 05/15/20 Page: 1 of 19 PAGEID #: 445
2

Defendant’s mobile banking products, “Mobile Deposit,” using her Essential Checking 

account. (Doc. 23).

Defendant’s Mobile Deposit product enables certain account holders to deposit 

properly endorsed checks into certain types of accounts with their mobile device’s camera 

and Defendant’s mobile banking application (“app”). (Id., ¶¶ 16, 17). Mobile Deposit is

governed by the Deposit Account Rules & Regulations Agreement and Digital Services 

User Agreement. See (Doc. 23-1) (“Deposit Account Rules & Regulations, Privacy Policy, 

How to Contact Us,” issued February 2018 (hereinafter “Deposit Account Rules & 

Regulations”)); (Doc. 23-3, PageID 233, 238) (“Digital Services User Agreement & 

Electronic Communication Disclosures (e-Sign Consent Agreement)” (hereinafter “Digital 

Services User Agreement”)).

a. Agreements

The first agreement, the Deposit Account Rules & Regulations Agreement,

contains a section titled “Funds Availability for Transaction Accounts” that discusses the 

availability of different types of deposits—e.g., cash, transfers between Fifth Third 

accounts, mobile deposits, electronic direct deposits, and wire transfers—for withdrawal 

(Doc. 23-1, PageID 200-04). Pertinent here, the Deposit Account Rules & Regulations 

Agreement’s Funds Availability section states that Defendant will make the following 

deposits immediately available (for same-day cash withdrawals and purchases, to pay 

checks, withdrawals, purchases, and to cover any items that may post to one’s account 

that night): (1) “Mobile Deposits using Fifth Third’s ‘Immediate Funds’ Service” and 

(2) “Personal Accounts: $100 of your total check deposits made in any manner (Banking 

Case: 1:18-cv-00402-MRB Doc #: 52 Filed: 05/15/20 Page: 2 of 19 PAGEID #: 446
3

Center, ATM, Mobile Deposit using standard availability service).”3 (Id., Page 202)

(emphasis added).

The Deposit Account Rules & Regulations Agreement also contains a section titled 

“Pricing and Services Applicable to Consumer Deposit Accounts” that discusses the 

pricing involved for banking products for different types of banking accounts. (Id., PageID 

216-17). This section directs checking account holders, including Express Checking 

account holders, to “[r]efer to the ‘Funds Availability’ section” of that Agreement for the 

“Funds Availability Policy.” (Id., PageID 217).4

The second agreement, the Digital Services User Agreement, made available to 

account holders through Defendant’s mobile banking app or online, states that, “[b]y using 

Fifth Third . . . Mobile Banking . . . you agree to be bound by the terms and conditions 

contained in this Agreement.” (Doc. 23-3, PageID 235). The Digital Services User 

Agreement also states that it “is provided by [Defendant] to govern the use of Fifth Third 

Digital Services which include . . . Mobile . . . services” and that “Digital Services provided 

by Fifth Third are additionally governed by any other separate agreement(s) you may 

have with Fifth Third or any of its affiliates or subsidiaries, including, but not limited to, 

Rules and Regulations . . . ” (Id., PageID 233).

The Digital Services User Agreement’s section titled “Fees for Services” provides: 

3 The Funds Availability section states that, for personal accounts using Mobile Deposit using the Standard 

Availability Service, account holders will receive the remainder of their funds either later that same business 

day or on the next business day, depending on whether the check was a Fifth Third check or a non-Fifth 

Third check. Id.

4 The document titled “Consumer Account Pricing & Services” (Doc. 23-2) contains the same information 

as the Deposit Account Rules & Regulations Agreement’s Pricing and Services Applicable to Consumer 

Deposit Accounts section and the Deposit Account Rules & Regulations Agreement’s Terms & Conditions 

Applicable to Fifth Third Express Banking section, with the exception of the exclusion of the Express 

Banking Tier Pricing effective through April 13, 2018. Compare (Doc. 23-1, PageID 209-10, 216-17), with

(Doc. 23-2).

Case: 1:18-cv-00402-MRB Doc #: 52 Filed: 05/15/20 Page: 3 of 19 PAGEID #: 447
4

Some of the Digital Services may have fees associated with them that are 

not included in the Fifth Third Bank Rules and Regulations Applicable to All 

Accounts or Terms and Conditions Applicable to Express Banking. 

Information regarding such fees will be included within the applicable 

service. Please review such fees prior to engaging in a transaction.

(Id., PageID 237).

The Digital Services User Agreement’s section titled “Fifth Third Mobile Deposit & 

Mobile Deposit with Immediate Funds” states that:

If you use Mobile Deposit or Mobile Deposit with Immediate Funds [ ], the 

following terms apply to you: 

1. Features and Services. Fifth Third Mobile Deposit allows you to deposit 

money into certain accounts with your mobile device camera using the Fifth 

Third Mobile Application [ ]. To use Mobile Deposit, you must be a Fifth 

Third account holder and have agreed to the Digital Services User 

Agreement. . . . 

. . . 

4. General Information on Fifth Third Mobile Deposit with Immediate 

Funds.

Fifth Third Mobile Deposit with Immediate Funds (“Immediate Funds”) is a 

service that Fifth Third may provide to its checking, savings, or Express 

Banking account holders.

o Immediate Funds allows you to immediately access the full amount 

of the mobile deposit.

o A service fee may apply for Immediate Funds. We may not charge 

for checks under a certain dollar amount. Fifth Third does not charge 

a service fee for using the standard Mobile Deposit process.

o The fee, if any, is based on the amount of the check and the check 

type.

o You have the option to accept this fee before proceeding with each 

transaction. 

o Please see the Mobile Banking FAQs for more information on the 

current fees and additional details on Immediate Funds.

Case: 1:18-cv-00402-MRB Doc #: 52 Filed: 05/15/20 Page: 4 of 19 PAGEID #: 448
5

. . . 

(Id., PageID 238) (bold emphasis in original) (italicized emphasis added). Further, the 

Digital Services User Agreement’s section titled “Fees,” states that Defendant “reserve[s] 

the right to impose a fee and to change fees upon notice to you.” (Id., PageID 246).

b. Mobile Deposit: Standard Availability Service and Immediate Funds 

Service

Account holders have two options regarding how the deposit checks using Mobile 

Deposit on Defendant’s banking app. The options differ regarding the availability of the

funds from deposited checks and the service fee, or lack thereof, charged. The options 

are Standard Availability Service, the app’s default option, and Immediate Funds Service, 

the app’s non-default option that account holders can elect. (Docs. 23-1, 23-3).

Using the Standard Availability Service, account holders can immediately obtain 

“$100 of [their] total check deposits, made in any manner (Banking Center, ATM, Mobile 

Deposit using standard availability service).” (Doc. 23-1, Page ID 202). Defendant does 

not charge a service fee for using the Standard Availability Service. (Doc. 23-3, PageID 

238).

Using the Immediate Funds Service, account holders can elect to immediately 

obtain the full amount of their check deposits. (Doc. 23-1, Page ID 202). Defendant may 

charge the account holder a service fee that is based on the entire check amount and 

type of check, and account holders have the option to accept the service fee before 

proceeding with each deposit. (Doc. 23-3, PageID 238). For example, if the account 

holder initiates the process to elect to use the Immediate Funds Service, Defendant’s 

banking app displays the amount of the specific service fee for that deposit before giving 

the account holder the option to finalize her selection of the Immediate Funds Service

Case: 1:18-cv-00402-MRB Doc #: 52 Filed: 05/15/20 Page: 5 of 19 PAGEID #: 449
6

(versus depositing the check using the default Standard Availability Service). (Doc. 23, 

¶ 39). Similarly, before finalizing her selection of the Immediate Funds Service, 

Defendant’s app displays an “information” icon, that the account holder can tap and, if the 

account holder so taps, explains that the deposited funds are guaranteed, guaranteed 

funds are verified by a third party, the depositor has no liability for losses associated with 

these items, and there is a minimum service fee of $4 for checks over $20. (Id., ¶¶ 43, 

45).

Plaintiff, using her Essential Checking account, has used Mobile Deposit’s 

Immediate Funds Service and, as a result, has incurred service fees on her mobile 

deposits. (Id., ¶¶ 49-51). The Court does not have the specific pricing structure for the 

service fees for the Immediate Funds Service for Essential Checking account holders at 

the times that Plaintiff elected to use the Immediate Funds Service; however, Plaintiff 

asserts that, “[f]or each deposit made on the 5/3 app with ‘Immediate Funds Availability,’ 

5/3 charges either a $4 minimum or between 2%-4% of the total check amount.” (Id., ¶ 7).

c. Express Banking

In addition to Defendant’s various types of checking accounts, it also offers a 

product called “Express Banking.”5 (Doc. 23-1, PageID 208-10). In February 2016, 

Defendant “launched Express Banking . . . to meet the biggest needs of the underbanked: 

5 Express Banking account holders, unlike typical checking account holders, have no check writing 

capabilities and have restrictions on how they can deposit checks. (Doc. 23-1, PageID 208). For instance, 

although Express Banking account holders’ employers or government agencies can utilize Direct Deposit 

to place funds in Express Banking accounts, Express Banking account holders cannot deposit checks 

directly into their accounts at a Fifth Third Banking Center, ATM, Fifth Third Night Depository, or by mail. 

Id. Rather, they can cash checks in-person using Fifth Third’s check cashing solution and then deposit that 

cash directly into their Express Banking account, with a fee. Id. Express Banking account holders can also 

deposit a check using Mobile Deposit using Fifth Third’s Immediate Funds Service, also with a fee. Id. It is 

not clear, based on the record, whether Express Banking account holders can deposit a check using the 

Standard Availability Service.

Case: 1:18-cv-00402-MRB Doc #: 52 Filed: 05/15/20 Page: 6 of 19 PAGEID #: 450
7

a solution that is simple, transparent, convenient and affordable.” (Doc. 23, ¶ 20) (citing 

Press Release, Fifth Third Bank Launches Express BankingSM to Serve the Unbanked 

and Underbanked, Feb. 3, 2016). Plaintiff does not have an Express Banking Account, 

and characterizes Defendant’s creation of the Express Banking product as doing 

business “in a high-fee manner that exploits low-income customers’ desperation to 

access their own funds.” (Id., ¶ 2).

Express Banking’s “Loyalty Pricing” structure gives Express Banking account 

holders “the opportunity to earn discounts for the continued usage of qualifying 

transactions” and Defendant will graduate them through one of three Loyalty Tiers that 

provide discounts for certain banking services as account holders perform certain 

transactions. (Doc. 23-1, PageID 208). The Deposit Account Rules & Regulations 

Agreement contains a section titled “Terms & Conditions Applicable to Fifth Third Express 

Banking” that contains a subsection titled “Express Banking Pricing & Services.” (Id., 

PageID 208-10). That subsection contains the specific Express Banking Tier pricing 

structure for Mobile Deposits using the Immediate Funds Service. (Id., PageID 210).

d. Amended Class Action Complaint and Motion to Dismiss

Plaintiff brings this suit as a class action. (Doc. 23). In short, she asserts that 

Defendant promised to make the first $100 of a customer’s check deposit, made in any 

manner, immediately available, for free; and, with respect to the first $100 of any mobile 

check deposit using the Immediate Funds Service, Defendant’s service fee is improper 

and breaches that promise. Id. Plaintiff’s Amended Class Action Complaint brings the 

following claims: breach of contract, breach of the covenant of good faith and fair dealing,

Case: 1:18-cv-00402-MRB Doc #: 52 Filed: 05/15/20 Page: 7 of 19 PAGEID #: 451
8

unjust enrichment, fraudulent inducement, and violation of the Truth in Lending Act and 

Regulation Z.

6 Id.

Defendant moves to dismiss Plaintiff’s Amended Class Action Complaint in its 

entirety pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. 

(Doc. 28). In short, Defendant asserts that it did not promise in the Agreements to make 

the first $100 of a customer’s check deposit, made in any manner, immediately available, 

for free. Id.

II. ANALYSIS

In deciding a Rule 12(b)(6) motion to dismiss, this Court must "construe the

complaint in the light most favorable to the plaintiff, accept [the plaintiff’s] allegations as

true, and draw all reasonable inferences in favor of the plaintiff." Bassett v. Nat'l Collegiate

Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008) (quoting Directv, Inc. v. Treesh, 487 F.3d

471, 476 (6th Cir. 2007)). To avoid dismissal under Rule 12(b)(6), a plaintiff’s complaint

must contain "(1) 'enough facts to state a claim to relief that is plausible,' (2) more than 'a

formulaic recitation of a cause of action's elements,' and (3) allegations that suggest a

'right to relief above a speculative level.'" Tackett v. M&G Polymers, USA, LLC, 561 F.3d

478, 488 (6th Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)).

"A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged." Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).

6 She withdrew her claim under the Kentucky Consumer Protection Act. (Doc. 32, PageID 329, n1).

Case: 1:18-cv-00402-MRB Doc #: 52 Filed: 05/15/20 Page: 8 of 19 PAGEID #: 452
9

a. Breach of Contract

To prove a breach of contract under Ohio law,

7 the following elements must be

established: (1) the existence of a valid contract; (2) performance by the plaintiff;

(3) breach by the defendant; and (4) damages or loss to the plaintiff. Samadder v. DMF

of Ohio, Inc., 154 Ohio App. 3d 770, 778 (10th Dist. App. 2003). “A party breaches a

contract if he fails to perform according to the terms of the contract or acts in a manner

that is contrary to its provisions.” Savedoff v. Access Grp., Inc., 524 F.3d 754, 762 (6th

Cir. 2008) (applying Ohio law)).

“The ‘interpretation of written contract terms, including the determination of

whether those terms are ambiguous, is a matter of law for initial determination by the

court.’” Devine Grp., Inc. v. Omni Hotels Corp., No. 1:18-CV-186 (WOB), 2019 WL

2870047, at *3 (S.D. Ohio July 3, 2019) (quoting Savedoff, 524 F.3d at 763). “When

confronted with an issue of contract interpretation, [the court’s] role is to give effect to the

intent of the parties.” Id. (quoting Sunoco, Inc. (R&M) v. Toledo Edison Co., 953 N.E.2d

285, 292 (Ohio 2011)). “[T]he meaning of a contract is to be gathered from a consideration

of all its parts, and no provision is to be wholly disregarded as inconsistent with other

provisions unless no other reasonable construction is possible.” Id. at *4 (quoting

Savedoff, 524 F.3d at 763).

“Contractual language is ambiguous only where its meaning cannot be determined

from the four corners of the agreement or where the language is susceptible of two or

more reasonable interpretations.” Id. Contractual “ambiguity must be patent, i.e., apparent

on the face of the contract.” Id. “A contractual term is not ambiguous merely because—

7 The parties agree that Ohio law governs Plaintiff’s breach of contract claim. (Doc. 23, ¶ 66); (Doc. 28,

PageID 276).

Case: 1:18-cv-00402-MRB Doc #: 52 Filed: 05/15/20 Page: 9 of 19 PAGEID #: 453
10

as in this case—two parties offer substantially different interpretations.” Id. (quoting Coma

Ins. Agency v. Safeco Ins. Co., 526 F. App'x 465, 468 (6th Cir. 2013) (citation omitted)

(internal quotation marks omitted)). “Under Ohio law, contract interpretation is a matter of

law when a contract's terms are clear and unambiguous.” Pavlovich v. Nat'l City Bank,

435 F.3d 560, 565 (6th Cir. 2006) (citing Long Beach Ass'n, Inc. v. Jones, 697 N.E.2d

208, 209-10 (Ohio 1998)). “And, a court may look no further than the writing itself to find

the intent of the parties.” Devine Grp., Inc., 2019 WL 2870047, at *4 (quoting Sunoco,

Inc., 953 N.E.2d at 292.) (internal quotation marks omitted).

The parties agree that the Deposit Account Rules & Regulations Agreement and

Digital Services User Agreement are valid contracts, Plaintiff selected the Immediate

Funds Service on Defendant’s banking app when depositing checks multiple times, and

Plaintiff incurred multiple service fees as a result of her selections. Compare (Docs. 23,

32), with (Doc. 28, 35). The parties disagree that Defendant breached a promise in the

Agreements. Compare (Docs. 23, 32), with (Doc. 28, 35). Plaintiff contends that

Defendant promised to make the first $100 of a customer’s check deposit, made in any

manner, immediately available, for free and, regarding the first $100 of any mobile check

deposit using the Immediate Funds Service, Defendant’s service fee breaches that

promise. Id. Defendant responds that no such promise exists, and the Agreements

allowed it to charge Plaintiff the service fees for each use of the Immediate Funds Service.

(Doc. 35). After a review of the Deposit Account Rules & Regulations Agreement and

Digital Services User Agreement, and mindful that it must draw all reasonable inferences

in favor of Plaintiff at this stage in the proceedings, the Court agrees with Defendant that

Case: 1:18-cv-00402-MRB Doc #: 52 Filed: 05/15/20 Page: 10 of 19 PAGEID #: 454
11

Plaintiff’s argument is premised on a contractual promise that does not exist. (Doc. 35,

PageID 361).

Plaintiff used Defendant’s mobile banking app and consequently agreed to be 

bound by the terms and conditions contained in the Digital Services User Agreement, in 

addition to her earlier agreement to be bound by the Deposit Account Rules & Regulation 

Agreement. See (Doc. 23-3, PageID 235). Starting with a review of the Deposit Account

Rules & Regulations Agreement, that Agreement does not discuss a service fee for either

the Standard Availability Service or Immediate Funds Service for an Essential Checking

account holder using Mobile Deposit; rather, the Agreement discusses only what amount

of funds from Plaintiff’s mobile check deposits will be available for withdrawal and when.

(Doc. 23-1, PageID 202). And, in so explaining when her funds will be available, the

Agreement differentiates between the Standard Availability Service and Immediate Funds

Service. Id. In fact, in the entire Agreement, the only specific pricing structure regarding

service fees for Mobile Deposit using the Immediate Funds Service is found in the Terms

& Conditions Applicable to Express Banking. (Id., PageID 208-10). However, that tier

pricing structure is specific to Express Banking customers, Plaintiff does not have this

type of account, and Plaintiff does not state that, or explain how, the Express Banking tier

pricing structure also applies to Express Checking account holders.

Turning to the Digital Services User Agreement, this Agreement expressly 

discloses that: Defendant does not charge a service fee for using Mobile Deposit’s 

Standard Availability Service on its banking app; a service fee may apply for selecting 

Mobile Deposit’s Immediate Funds Service on the app; any service fee for the Immediate 

Funds Service will be based on the amount of the check and the type of check; and 

Case: 1:18-cv-00402-MRB Doc #: 52 Filed: 05/15/20 Page: 11 of 19 PAGEID #: 455
12

Plaintiff should check online for the most current fees for the Immediate Funds Service. 

(Doc. 23-3, PageID 238). Thus, the Digital Services User Agreement also expressly 

differentiates between the service fee for a mobile deposit using the app’s Standard 

Availability Service (no fee) and for a mobile deposit using the app’s Immediate Funds 

Service (a service fee, so long as the check is over $20, the amount of which will be based 

on the amount of check deposit and check type). Id.

Moreover, the Digital Services User Agreement expressly provides that: Defendant 

reserves the right to impose a fee and to change fees upon notice to Plaintiff; some of the 

Digital Services may have fees associated with them that are not included in Deposit 

Account Rules & Regulations Agreement; and information regarding such fees will be 

included within the applicable digital service; and the Agreement directs Plaintiff to review 

such fees prior to engaging in a transaction. (Doc. 23-3, PageID 237, 246).

Reading the two Agreements together, they differentiate between the Standard 

Availability Service—$100 of an account holder’s total check deposits made in any 

manner (Banking Center, ATM, Mobile Deposit using standard availability service) in a 

day are immediately available and Defendant will not charge a service fee for this 

service—and the Immediate Funds Service—the full amount of mobile deposits using the 

Immediate Funds Service are immediately available, and Defendant may charge a fee, 

based on the deposit amount and check type, for this service. (Docs. 23-1, 23-3).

Plaintiff’s belief that, reading the two Agreements together, Defendant promised to 

make the first $100 of any mobile deposit, immediately available, for free, because the 

Deposit Account Rules & Regulations Agreement’s Funds Availability’s section provides 

that “$100 of your total check deposits made in any manner” will be immediately available, 

Case: 1:18-cv-00402-MRB Doc #: 52 Filed: 05/15/20 Page: 12 of 19 PAGEID #: 456
13

is incorrect. (Docs. 23, 32) (relying on (Doc. 23-1, PageID 202)). Her interpretation would 

require the Court to simultaneously read “for free” into the Deposit Account Rules & 

Regulations Agreement’s Funds Availability section and ignore the fact that the two 

Agreements distinguish the Standard Availaibility Service and the Immediate Funds 

Service in terms of the amount of check deposits made immediately available and 

whether a fee applies, and the Court cannot do so. See (Doc. 23-1, PageID 202); (Doc. 

23-3); see also Savedoff, 524 F.3d at 763 (“[N]o provision is to be wholly disregarded as 

inconsistent with other provisions unless no other reasonable construction is possible.”);

Impressions Bldg., LLC v. Heart Specialists of Ohio, Inc., 2006-Ohio-4719, ¶ 8 (“It is wellestablished that a court cannot add or change terms of the contract when the language 

is clear and unambiguous.”) (citing Shifrin v. Forest City Enterprises, Inc., 597 N.E.2d 499 

(Ohio 1992)).

The only reasonable interpretation of the Agreements is that Defendant did not 

promise to make the first $100 of all mobile deposits, immediately available, for free, and 

the Agreements unambiguously allow Defendant to charge Plaintiff the Immediate Funds 

Service fees after giving her notice of the specific service fee for each mobile deposit.

See Savedoff, 524 F.3d at 763. Accord Webb v. Republic Bank & Tr. Co., No. 3:11-CV00423, 2013 WL 5447709, at *4 (W.D. Ky. Sept. 30, 2013) (“A breach of contract action 

may not be based on an act which the contract authorizes to be done.”) (citation omitted) 

(internal quotation marks omitted); PNC Bank NA v. Martin, No. CIV.A. 08-649-C, 2011 

WL 5507364, at *2 (W.D. Ky. Nov. 10, 2011) (“Because PNC acted within its rights 

provided by the Agreement, it did not breach its contract.”). Plaintiff concedes that 

Defendant notified her of the Immediate Funds Service fee before she selected to utilize 

Case: 1:18-cv-00402-MRB Doc #: 52 Filed: 05/15/20 Page: 13 of 19 PAGEID #: 457
14

the product on her app and that she agreed to pay the service fee. (Doc. 23, ¶¶ 39, 43, 

45, 50); (Doc. 32, PageID 327-28, 332). The Court finds that Plaintiff has not stated a 

plausible claim for breach of contract, and dismissal is warranted.

b. Breach of Covenant of Good Faith and Fair Dealing

The Court finds that Plaintiff’s breach of the covenant of good faith and fair dealing 

claim must also be dismissed due to the Court’s finding that dismissal is warranted for 

her breach of contract claim. See Farnell v. Kenyon Coll., No. 2:18-CV-263, 2019 WL 

1024961, at *3 (S.D. Ohio Mar. 4, 2019) (“As a matter of Ohio law, the covenant of good 

faith and fair dealing ‘is part of a contract claim and does not stand alone as a separate 

cause of action from a breach of contract claim.’”) (quoting Interstate Gas Supply, Inc. v. 

Calex Corp., 2006-Ohio-638 at ¶ 98); see also Krukrubo v. Fifth Third Bank, 2007-Ohio7007, ¶ 19 (“In essence, a claim for breach of contract subsumes the accompanying claim 

for breach of the duty of good faith and fair dealing. Because appellant's complaint fails 

to state a claim for breach of contract, it also fails to state a claim for breach of the duty 

of good faith and fair dealing.”).

c. Unjust Enrichment

Under Ohio law “[u]njust enrichment is an equitable doctrine to justify a quasicontractual remedy that operates in the absence of an express contract or a contract 

implied in fact to prevent a party from retaining money or benefits that in justice and equity 

belong to another.” Wuliger v. Manufacturers Life Ins. Co., 567 F.3d 787, 799 (6th Cir.

2009) (quoting Beatley v. Beatley, 828 N.E.2d 180, 192-93 (Ohio 2005) (emphasis added)

(citations omitted) (internal quotation marks omitted). “Ohio law is clear that a plaintiff may 

not recover under the theory of unjust enrichment or quasi-contract when an express 

Case: 1:18-cv-00402-MRB Doc #: 52 Filed: 05/15/20 Page: 14 of 19 PAGEID #: 458
15

contract covers the same subject.” Id. (quoting Lehmkuhl v. ECR Corp., No. 06 CA 039, 

2008 WL 5104747, at *5 (2008)). The Deposit Account Rules & Regulations Agreement 

and Digital Services User Agreement cover the same subject as Plaintiff’s breach of 

contract and unjust enrichment claims. See (Doc. 23). Consequently, dismissal of 

Plaintiff’s claim for unjust enrichment under Ohio law is warranted. See Wuliger, 567 F.3d 

at 799.

d. Fraudulent Inducement

To prevail on a claim of fraudulent inducement in Ohio, the plaintiff must establish

that “the defendant made a knowing, material misrepresentation with the intent of 

inducing the plaintiff's reliance, and that the plaintiff relied upon that misrepresentation to 

her detriment.” Thornton v. Cangialosi, No. 2:09-CV-585, 2010 WL 2162905, at *3 (S.D. 

Ohio May 26, 2010) (citing ABM Farms, Inc. v. Woods, 692 N.E.2d 574, 578 (Ohio 1998)).

“[T]he existence of a contract action generally excludes the opportunity to present the 

same case as a tort claim.” Wolfe v. Continental Cas. Co., 647 F.2d 705, 710 (6th Cir.

1981); accord Thornton, No. 2010 WL 2162905, at *2. “A tort claim based upon the same 

actions as those upon which a claim of contract breach is based will exist independently 

of the contract action only if the breaching party also breaches a duty owed separately 

from that created by the contract, that is, a duty owed even if no contract existed.” Textron 

Fin. Corp. v. Nationwide Mut. Ins. Co., 684 N.E.2d 1261, 1270 (9th Dist. App. 1996) (citing 

Battista v. Lebanon Trotting Ass'n, 538 F.2d 111, 117 (6th Cir. 1976)); accord Thornton, 

2010 WL 2162905, at *2.

Plaintiff’s allegations regarding Defendant’s alleged promise to make the first $100 

of any mobile deposit immediately available for free in her fraudulent inducement claim 

Case: 1:18-cv-00402-MRB Doc #: 52 Filed: 05/15/20 Page: 15 of 19 PAGEID #: 459
16

are the same allegations that form the basis of her breach of contract claim. Compare

(Doc. 23, ¶¶ 65-70), with (Doc. 23, ¶¶ 88-95). She does not assert that Defendant made 

any misrepresentations collateral to, or outside of, the Agreements, or that Defendant had 

a separate duty outside of the Agreements. (Docs. 23, 32). Plaintiff’s claim fails as a 

matter of law because the premise underlying her tort claim is the alleged failure to fulfill 

a contractual promise, and not any material, collateral misstatement of fact. See 

Thornton, 2010 WL 2162905, at *4; Telxon Corporation v. Smart Media of Delaware, Inc., 

9th Dist. Nos. 22098, 22099, 2005–Ohio–4931, at ¶ 38; Textron Fin. Corp., 684 N.E.2d 

at 1270. Accordingly, this Court will dismiss this claim.

e. Truth in Lending Act and Regulation Z

The Truth in Lending Act (“TILA”) governs consumer credit transactions and “was 

enacted to promote the informed use of credit by consumers by requiring meaningful 

disclosure of credit terms.”8 Begala v. PNC Bank, Nat’l Ass’n, 163 F.3d 948, 950 (6th Cir. 

1998). “Under TILA, creditors that extend credit to consumers must make certain 

disclosures, including, inter alia, (1) the amount financed; (2) the sum of the amount 

financed; and (3) the number, amount and due dates or period payments scheduled to 

repay the total of payments.” Wolfington v. Reconstructive Orthopaedic Assocs. II, P.C., 

268 F. Supp. 3d 756, 761 (E.D. Pa. 2016), aff'd sub nom. Wolfington v. Reconstructive 

Orthopaedic Assocs. II PC, 935 F.3d 187 (3d Cir. 2019) (citing 15 U.S.C. § 1638(a))

(internal quotations marks removed). “A cause of action under TILA arises when a 

defendant fails to make these disclosures.” In re Fifth Third Early Access Cash Advance 

8 “TILA is codified at 15 U.S.C. §§ 1601-1693 and its provisions are implemented by Title 12 of the Code of 

Federal Regulations Part 226 known as Regulation Z.” League v. Olds, No. 3:13-CV-177, 2013 WL 829389, 

at *5 (M.D. Tenn. Mar. 5, 2013).

Case: 1:18-cv-00402-MRB Doc #: 52 Filed: 05/15/20 Page: 16 of 19 PAGEID #: 460
17

Litig., 925 F.3d at 274 (citing Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412 (1998)). TILA 

defines “credit” as “the right granted by a creditor to a debtor to defer payment of debt or 

to incur debt and defer its payment.” 15 U.S.C. § 1602(f).

The parties dispute whether Defendant’s Immediate Funds Service is an extension 

of credit such that Plaintiff’s use of the Immediate Funds Service is a consumer credit 

transaction covered by TILA. Compare (Doc. 28, PageID 292), with (Doc. 23, ¶ 100), and

(Doc. 32, PageID 345-51). Plaintiff states that Defendant extends credit via the Immediate 

Funds Service “by ‘loaning’ to Plaintiff the amount of her check deposit with the 

expectation that Plaintiff will ‘repay’ this loan less the financing charge incurred by making 

Plaintiff’s check deposit ‘immediately available.’” (Doc. 32, PageID 349). However, 

Plaintiff’s statement ignores her earlier concession that, by electing to use the Immediate 

Funds Service, her check amount is “guaranteed” and “‘guaranteed funds are verified by 

a third party, and the depositor [i.e., Plaintiff] has no liability [i.e., no debt or obligation to 

repay the check amount after it is deposited] for losses associated with these items.” 

(Doc. 23, ¶ 45).

Plaintiff contends that check funds deposited via the Immediate Funds Service are 

not actually guaranteed, i.e., that she could incur debt or become obligated to repay the 

check amount after it is deposited, because of the following statements in the Digital 

Services User Agreement:

• Please note that any check that you attempt to deposit using Mobile 

Deposit is subject to verification by Fifth Third. We may reject an item 

for deposit for any reason and will not be liable to you.

• We are not responsible for items that we do not receive. Processing 

and/or transmission errors can occur after we acknowledge receipt that 

may impact transaction completion.

Case: 1:18-cv-00402-MRB Doc #: 52 Filed: 05/15/20 Page: 17 of 19 PAGEID #: 461
18

Id. (citing Doc. 23-3, PageID 238). However, the first statement does not indicate that 

Plaintiff will incur a debt; nothing in this statement contradicts the fact that, by electing to 

use the Immediate Funds Service, Plaintiff’s deposited check amount is “guaranteed” and 

“[g]uaranteed funds are verified by a third party, and [Plaintiff] has no liability for losses 

associated with these items.” Compare id., with (Doc. 23, ¶ 45), and (Doc. 28-3)9 (the 

display screen that Plaintiff saw when she tapped the “information” icon next to the 

Immediate Funds Service on Defendant’s banking app); (Doc. 28-1, ¶ 8) (Defendant’s 

representative declaring that (Doc. 28-3) is the display screen that Plaintiff saw). Plaintiff’s 

reliance on the second statement in the Digital Services User Agreement similarly ignores 

the fact that, when using the Immediate Funds Service, her “[f]unds are immediately 

available in full as soon as the deposit is submitted successfully.” Compare (Doc. 23-3, 

PageID 238), with (Doc. 23, ¶ 45), (Doc. 28-1, ¶ 8), and (Doc. 28-3).

In light of the above, the Court finds that the Immediate Funds Service is not an 

extension of credit to Plaintiff by Defendant and Defendant was not required to make any 

disclosures under TILA. See 15 U.S.C. § 1602(f). Plaintiff’s TILA and Regulation Z claim 

will be dismissed for failure to state a claim for which relief can be granted.

9 On a Rule 12(b)(6) motion, the Court “may consider . . . exhibits attached to defendant's motion to dismiss 

so long as they are referred to in the complaint and are central to the claims contained therein, without 

converting the motion to one for summary judgment.” Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 

681 (6th Cir. 2011) (citation omitted) (internal quotation marks omitted). Plaintiff’s First Amended Class 

Action Complaint refers to this display screen, (Doc. 23, ¶¶ 43-45), and the Court may consider Defendant’s 

exhibit, see Rondigo, L.L.C., 641 F.3d at 681.

Case: 1:18-cv-00402-MRB Doc #: 52 Filed: 05/15/20 Page: 18 of 19 PAGEID #: 462
19

III. CONCLUSION

For the foregoing reasons, it is hereby ORDERED that Defendant’s Motion to 

Dismiss (Doc. 28) is GRANTED. This matter is CLOSED and TERMINATED from the 

active docket of this Court.

IT IS SO ORDERED.

_s/ Michael R. Barrett______

Michael R. Barrett, Judge

United States District Court

Case: 1:18-cv-00402-MRB Doc #: 52 Filed: 05/15/20 Page: 19 of 19 PAGEID #: 463