UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

SARAH LEE GOSSETT PARRISH, 

 Plaintiff - Appellant, 

v. 

ARVEST BANK, 

 Defendant - Appellee. 

No. 17-6042 

(D.C. No. 5:15-CV-00913-HE) 

(W.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BRISCOE, O’BRIEN, and BACHARACH, Circuit Judges. 

_________________________________ 

Sarah Lee Gossett Parrish appeals from the dismissal of her second amended 

class action complaint (“Complaint”) for failure to state a claim under Fed. R. Civ. P. 

12(b)(6). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse 

in part, and remand for further proceedings. 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 20, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

I. Background 

Parrish filed her Complaint against Arvest Bank on behalf of herself and all 

others similarly situated. She included claims for actual fraud, constructive fraud, 

false representation/deceit, breach of fiduciary duty, breach of contract, and unjust 

enrichment. In support of her fraud claims, she alleges Arvest made false or 

misleading statements in its Electronic Fund Transfer Agreement and Disclosure 

(“EFTA”) and in certain marketing materials, which led customers to believe their 

transactions would be debited chronologically, i.e., in the order transactions are 

initiated (or in the case of checks, in the order they are presented). But, and contrary 

to the misrepresentations, Arvest actually posts all transactions in “batches” by 

transaction type at the end of each business day. She claims the batching process 

manipulates the posting order of transactions to maximize the number of insufficient 

funds and overdraft fees (“NSF/OD Fees”) it imposes on customers. More 

specifically, she alleges the batching causes transactions to be posted in the following 

order: POS transactions,1

 other debit transactions, check transactions, ACH 

transactions,2

 and other types of transactions. Moreover, she claims transactions of 

the same type are not necessarily posted in chronological order within a batch. 

 1

 According to the EFTA, which Parrish attached to her Complaint, POS stands 

for “Point-of-Sale.” Aplt. App., Vol. 2 at 251. A POS transaction occurs when a 

customer uses a CheckCard to purchase goods and services from a participating 

merchant. See id. 

2

 ACH stands for “Automated Clearing House,” a network through which bank 

customers can pay certain bills electronically. Aplt. App., Vol. 2 at 252. 
3 

In sum, Parrish claims Arvest’s false and misleading statements regarding the 

chronological posting of transactions leaves its customers unable to determine 

(before initiating and completing a transaction) whether it will result in an NSF/OD 

Fee. She alleges generally that Arvest assessed one or more NSF/OD Fees on 

multiple occasions when her check register showed a positive balance, and she claims 

she would have incurred fewer NSF/OD Fees on other occasions had Arvest posted 

her transactions chronologically. 

She also alleges fraud based on the account information Arvest displays via its 

online and mobile banking platforms, in which it misrepresents customers’ account 

balances to be accurate, “real-time” balances, when they are actually inaccurate, 

“false” balances because of Arvest’s posting process. She claims to have relied on 

inaccurate account balances in initiating and completing transactions and, as a result, 

incurred unexpected NSF/OD Fees.3

In addition to her fraud claims, Parrish alleges claims for breach of fiduciary 

duty, breach of the EFTA, and unjust enrichment based on the same factual 

allegations. 

The district judge decided Parrish’s Complaint fails to state a claim under Rule 

12(b)(6) because: 1) her fraud claims do not allege with particularity any 

misrepresentation by Arvest that it posts transactions instantaneously or in 

 3

 Parrish clarifies that her fraud claims “do not challenge Arvest’s chosen 

posting order, nor do they attempt to require Arvest to make particular disclosures to 

its customers.” Aplt. Reply Br. at 11. 
4 

chronological order; 2) the facts she alleges in her fiduciary duty claim do not 

support a fiduciary relationship between Arvest and its customers; 3) her 

breach-of-contract claim is infirm because Arvest did not promise in the EFTA to 

provide account balances reflecting instantaneous posting, and she does not 

adequately plead facts supporting her general allegation that Arvest breached the 

implied covenant of good faith and fair dealing; and 4) her unjust enrichment claim 

does not state a plausible basis to infer that Arvest’s conduct was unfair, 

unconscionable, and oppressive. 

II. Discussion 

We review de novo the dismissal of a complaint for failure to state a claim 

under Rule 12(b)(6). George v. Urban Settlement Serv., 833 F.3d 1242, 1247 

(10th Cir. 2016). “We accept a plaintiff’s well-pleaded factual allegations as true and 

determine whether the plaintiff has provided enough facts to state a claim to relief 

that is plausible on its face.” Id. (internal quotation marks omitted). “[A] claim is 

facially plausible if the plaintiff has pled factual content that allows the court to draw 

the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

(internal quotation marks omitted). “The plausibility standard is not akin to a 

probability requirement, but it asks for more than a sheer possibility that a defendant 

has acted unlawfully. Where a complaint pleads facts that are merely consistent with 

a defendant’s liability, it stops short of the line between possibility and plausibility of 

entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and 

internal quotation marks omitted). A putative class action complaint should be 
5 

dismissed if the named plaintiff’s individual claims fail to state a claim for relief. 

See Robey v. Shapiro, Marianos & Cejda, L.L.C., 434 F.3d 1208, 1213 (10th Cir. 

2006) (holding class-action allegations were properly dismissed where plaintiff failed 

to state a claim on his own behalf). 

 A. Fraud Claims 

 A stricter pleading standard applies to Parrish’s fraud claims. Under 

Fed. R. Civ. P. 9(b), “a party must state with particularity the circumstances 

constituting fraud . . . . Malice, intent, knowledge, and other conditions of a person’s 

mind may be alleged generally.” “More specifically, this court requires a complaint 

alleging fraud to set forth the time, place and contents of the false representation, the 

identity of the party making the false statements and the consequences thereof.” 

Koch v. Koch Indus., Inc., 203 F.3d 1202, 1236 (10th Cir. 2000). 

1. Alleged Misrepresentations Regarding Chronological 

Processing of Transactions

 Parrish does not claim Arvest explicitly stated that it posts transactions 

chronologically, rather that it made misleading statements in the EFTA and in certain 

marketing materials, which created the false impression it does so, when in fact it 

does not—it batch posts transactions at the end of each business day. 

She first points to the following statement in the EFTA: “Each time you use 

your CheckCard, the amount of the transaction will be debited from your designated 

account.” Aplt. App., Vol. 2 at 252. Emphasizing the words “each time,” she alleges 

that, although this statement “may or may not imply that the posting will be 
6 

instantaneous, it clearly does imply that transactions will be debited in the order in 

which they occur.” Id. at 240. Moreover, she says, Arvest reinforced this 

implication in a pamphlet titled “How to Keep Good Bank Records” by advising 

customers to “enter every transaction as soon as possible.” Id. at 230 (internal 

quotation marks omitted). She alleges that, by specifically telling customers “Check 

numbers do not always clear in numerical order or immediately,” id. at 230-31 

(internal quotation marks omitted), the pamphlet suggests other transactions do post 

chronologically. 

The district judge concluded the statement in the EFTA about accounts being 

debited “each time” a customer uses a debit card “does not say or imply that the 

posting will be instantaneous,” nor does the pamphlet suggest that non-check 

transactions are posted immediately or chronologically. Id. at 371. Parrish 

complains that the judge failed to view the facts she alleged in the light most 

favorable to her position and did not address her contention regarding chronological 

(as opposed to immediate) posting. When considered together, she urges, the EFTA 

and the pamphlet create a false impression that customers’ accounts are debited in the 

order their transactions occur. 

Arvest contends its “each time” statement in the EFTA addresses only the 

mechanics of how a CheckCard works, i.e., indicating that each POS transaction will 

result in a debit to the customer’s account. It points to language in the pamphlet 

telling customers, “The debit card purchase amount may show one day as verification 
7 

and then will be processed as the actual purchase amount in one or more days and 

they may not be the same amount.” Id. at 289.4

The district judge is correct: Parrish fails to allege a misrepresentation by 

Arvest. Her fraud allegations do not plausibly show what she claims: that the EFTA 

or the pamphlet actually represents that CheckCard or other transactions will be 

posted in chronological order. Her allegations are, at best, “merely consistent with” 

her claim that Arvest made false representations. Iqbal, 556 U.S. at 678 (internal 

quotation marks omitted). That is not enough and our saying so does not merely 

choose one plausible interpretation over another. Arguments about plausibility must 

be rationally based; they are not all equally meritorious. 

Parrish relies heavily on Gutierrez v. Wells Fargo Bank, NA, 704 F.3d 712, 

730 (9th Cir. 2012), in which the Ninth Circuit affirmed a holding that Wells Fargo 

violated California’s unfair competition law “by making misleading statements likely 

to deceive its customers.” We do not see the facts in Gutierrez as sufficiently similar 

to those presented here. There Wells Fargo posted debit-card purchases in the order 

of highest to lowest dollar amount, which increased the number of NSF/OD Fees 

 4

 Although Parrish did not attach a copy of the pamphlet to the Complaint, she 

did refer to it and the document is central to her fraud claims. Because Parrish has 

not disputed the authenticity of the pamphlet document Arvest submitted with its 

motion to dismiss, we consider that document as part of Parrish’s Complaint. See 

GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 

1997) (“[I]f a plaintiff does not incorporate by reference or attach a document to its 

complaint, but the document is referred to in the complaint and is central to the 

plaintiff’s claim, a defendant may submit an indisputably authentic copy to the court 

to be considered on a motion to dismiss.”). 
8 

customers incurred. See id. at 716-17.5

 But contrary to its actual practice, Wells 

Fargo explicitly told customers in marketing materials that check card transactions 

“generally reduce the balance in your account immediately,” “the money comes right 

out of your checking account the minute you use your debit-card,” and POS 

purchases are deducted “immediately” or “automatically” from a customer’s account. 

Id. at 729 (internal quotation marks omitted). 

As Parrish readily acknowledges, she does not allege any such explicit 

representations by Arvest in the EFTA or the pamphlet regarding chronological 

posting. She nonetheless points to allegations in her Complaint similar to the facts 

recited in Gutierrez, in particular Arvest’s display of transactions in chronological 

order via its online and mobile banking platforms and its advice to customers to 

maintain accurate check registers. In Gutierrez, the district judge found similar 

practices to have bolstered Wells Fargo’s numerous explicit statements regarding 

immediate debiting of transactions. See Gutierrez v. Wells Fargo Bank, N.A., 730 F. 

Supp. 2d 1080, 1117 (N.D. Cal. 2010), aff’d in part and rev’d in part by Gutierrez, 

704 F.3d at 730. But it did not rely on these practices alone in finding that Wells 

Fargo had “promoted a false perception that debit-card purchases would be deducted 

from [customers’] accounts in the order transacted.” Id.; see also id. at 1116-17 

 5

 In striking contrast, Parrish does not allege Arvest posts debit-card 

transactions in high-to-low order. She does claim check transactions have a higher 

median transaction value than ACH transactions, and that Arvest batch posts checks 

before ACH transactions. But she also alleges that Arvest posts POS and other types 

of debit transactions first, and she does not claim these types of transactions have a 

higher median transaction value than check or ACH transactions. 
9 

(listing numerous explicit statements by Wells Fargo regarding immediate balance 

reductions). 

Moreover, Parrish also fails to allege facts demonstrating her reliance on any 

misrepresentation by Arvest regarding chronological posting. Under Rule 9(b), she 

must allege with particularity the “consequences” of Arvest’s false statements. Koch, 

203 F.3d at 1236; see also George, 833 F.3d at 1256 (holding allegations 

“identify[ing] the actions the plaintiffs took in reliance on [the] misrepresentations, 

[and] detail[ing] the injuries they suffered as a result” were sufficient to satisfy 

Rule 9(b)). 

Here, she alleges only two specific instances in which she incurred unexpected 

NSF/OD Fees on her Arvest accounts. Her allegations regarding transactions on July 

2-3, 2012, fail to show she would have incurred fewer fees had her transactions been 

posted chronologically. See Aplt. App., Vol. 2 at 232-34. Parrish now maintains 

these allegations are not intended to demonstrate her reliance. See Aplt. Reply Br. at 

4. That leaves her allegations regarding an NSF/OD Fee she incurred on July 13, 

2015. But these allegations also do not relate to Parrish’s claim of reliance on 

chronological posting of transactions. See Aplt. App., Vol. 2 at 236-37. Nor are her 

other broad allegations regarding her reliance sufficient to satisfy Rule 9(b). See 

Koch, 203 F.3d at 1236-37 (affirming dismissal of fraud claims based on broad 

allegations that “set forth none of the specific and required allegations,” id. at 1237). 
10 

2. Alleged Inaccurate and Unreliable Account Balances 

Parrish also attempts to allege a fraud claim related to the account balance 

information available to customers through Arvest’s online and mobile banking 

platforms. She alleges she believed, due to Arvest’s misrepresentations, that it 

provided “real-time account balances” through these services. Aplt. App., Vol. 2 

at 236. Parrish claims she initiated and completed transactions in reliance on these 

account balances, incurring unexpected NSF/OD Fees as a result. 

To the extent she relies on alleged misrepresentations by Arvest regarding 

chronological posting, this claim fails for the reasons explained above. But Parrish 

also points to the following language in the EFTA: 

ONLINE & MOBILE BANKING – You may use your access code to 

perform the following functions through our internet banking or mobile 

banking solutions: 

 Initiate transfers of funds between your Arvest Bank accounts. 

 Check your Arvest Bank account balance(s), and the credits and 

debits that have posted to your accounts. 

Id. at 252. She argues Arvest misrepresents through this language that it displays 

accurate account balances via its online and mobile banking systems when in fact it 

does not. 

Once again, Parrish must allege a plausible fraud claim with particularity. 

According to the Complaint: 

[O]n July 8, 2015, Parrish mistakenly wrote a check from her bank account 

ending in 9398, believing she had done so from a different account. When 

she realized her error over the weekend, Parrish checked the balance 

reflected on Arvest’s online banking system. It reflected that the check had 

not processed and there were sufficient funds in the account. Parrish relied 
11 

on this representation, which ultimately proved to be false, and waited until 

the following Monday morning to deposit additional funds in the account. 

On Monday, July 13, 2015, Arvest’s online banking system indicated that 

Arvest had in fact processed and posted the check prior to Parrish’s deposit, 

contrary to the representation upon which Parrish relied over the weekend. 

As a result of this reliance, Parrish incurred an unexpected NSF/OD Fee. 

Id. at 236-37. These fraud allegations do not survive a motion to dismiss. Parrish 

claims she checked her online balance once at some undisclosed point during a 

weekend, noting her check had not yet cleared. She alleges vaguely there were 

“sufficient funds” in her account at that time, but she does not say her check was the 

only transaction affecting the account. She states that she decided to delay—not 

forgo—making a deposit. Ultimately, Parrish fails to explain how Arvest’s posting 

of her check at some point before she put more money in her account on the 

following Monday demonstrates that the online balance Arvest displayed over the 

weekend was “false” at that time. Parrish’s allegations do not allege with specificity 

a plausible fraud claim against Arvest. 

We affirm the district judge’s dismissal of Parrish’s fraud claims. She did not 

“nudge[]” these claims “across the line from conceivable to plausible.” Iqbal, 

556 U.S. at 680 (internal quotation marks omitted).6

 6

 Parrish’s constructive fraud claim fails for the same reasons as her other 

fraud claims. Moreover, she does not allege facts supporting her two theories why 

Arvest had a duty to disclose information about its posting practices. She alleges no 

partial, misleading disclosure by Arvest giving rise to a duty to speak. Nor, as we 

explain next, does she allege facts supporting a finding that Arvest has a fiduciary 

relationship with its customers. 
12 

B. Breach of Fiduciary Duty 

Under Oklahoma law, a bank does not owe its customers fiduciary duties 

absent a written agreement: 

Unless a state or national bank shall have expressly agreed in writing to 

assume special or fiduciary duties or obligations, no such duties or 

obligations will be imposed on the bank with respect to a depositor of the 

bank . . . and no special or fiduciary relationship shall be deemed to exist. 

Okla. Stat. tit. 6, § 425. Parrish’s breach-of-fiduciary-duty claim was dismissed 

because she failed to allege an express written agreement to assume such duties. The 

judge also held her allegation of a special relationship between Arvest and its 

customers—based on Arvest’s superior knowledge of its posting processes and its 

customers’ lack of sophistication—failed as a matter of law. See First Nat’l Bank & 

Tr. Co. of Vinita v. Kissee, 859 P.2d 502, 510-11 (Okla. 1993).

In support of her fiduciary duty argument Parrish points to Arvest’s agreement 

in the EFTA to provide accurate, real-time account balance information through its 

online and mobile banking platforms. Banks have always been expected to provide 

accurate account information, but that does not transform a creditor-debtor 

relationship between a bank and its customers into a special relationship giving rise 

to fiduciary duties, and we fail to see how the offering of what has now become 

routine banking services will do so. Parrish has offered no contrary authority. We 

see no error. 
13 

 C. Breach of Contract 

 Parrish initially contends her Complaint states a claim for breach of the 

implied covenant of good faith and fair dealing. She cites cases in which other courts 

have refused to dismiss implied-covenant claims with fact patterns similar to those 

she has alleged. In particular, she notes her allegations regarding Arvest’s posting 

process, its failure to fully inform customers regarding that process, and its 

misleading statements regarding chronological posting. But she does not tether these 

allegations to anything Arvest agreed to do, but has not performed in good faith. In 

the cases she relies on, the plaintiffs alleged that banks failed to exercise good faith 

in performing express contractual terms granting them discretion to post transactions 

in any order. See, e.g., In re Checking Account Overdraft Litig., 694 F. Supp. 2d 

1302, 1314-16 (S.D. Fla. 2010). Since she does not point to any similar allegation in 

her Complaint she fails to demonstrate how the district judge erred in concluding her 

general allegation regarding Arvest’s breach of the implied covenant is insufficient to 

state a claim under Rule 12(b)(6). 

Parrish also alleges Arvest breached its agreement in the EFTA to provide 

accurate and reliable account balance information via its online and mobile banking 

platforms. As noted above, the EFTA provides that, via these systems, customers can 

initiate transfers between their Arvest accounts, as well as check their “account 

balance(s), and the credits and debits that have posted to [their] accounts.” Aplt. 

App., Vol. 2 at 252. She construes this language as an agreement to provide current, 

real-time balance information, which she claims Arvest breached by displaying 
14 

inaccurate account balances. By example, she alleges that Arvest does not 

instantaneously process transfers between Arvest accounts, even when it represents 

through a customer’s online or mobile account balance it has done so. See id. at 236. 

And she claims to have relied on that inaccurate online and mobile account balance 

information in initiating and completing transactions. As a result, she overdrew her 

accounts and incurred unexpected NSF/OD Fees. 

In dismissing this claim, the district judge incorporated the following 

reasoning from a previous dismissal order: 

The complaint asserts that Arvest breached the [EFTA] by providing 

inaccurate account balances, but it is not apparent what makes the balances 

inaccurate. Plaintiff’s argument is essentially that an “accurate” balance is 

only one which reflects instantaneous posting of transactions. But the 

agreement promises no such thing and there is no apparent reason for 

concluding that transactions posted by size or some other batching process 

result in balances that are other than “accurate” for purposes of the 

agreement. 

Aplt. App., Vol. 1 at 220. 

 But the EFTA tells customers they can use Arvest’s online and mobile banking 

platforms to check their account balances and the credits and debits that have posted 

to their accounts. Parrish alleges, to the contrary, that account information Arvest 

makes available through its online and mobile banking platforms does not accurately 

reflect actual account balances. Her example of Arvest not carrying out an intra-bank 

transfer, while displaying the transfer as completed, illustrates how an online or 

mobile banking account balance could be inaccurate. Unlike her fraud claims, 

Parrish was not required to plead this claim with particularity. And her allegations 
15 

are not, as Arvest maintains, merely conclusory. Accepting her allegations as true 

and construing them in a light most favorable to her, she has alleged enough facts to 

plausibly state a facially valid claim to relief. 

 Arvest asserts the form agreements governing Parrish’s use of its online and 

mobile banking platforms do not warrant these systems as error free and also 

disclaim liability for customers’ reliance upon them. But Parrish’s claim is based on 

the EFTA, which she attached to her complaint. She does not rely on or attach the 

other agreements Arvest cites. We do not consider these other agreements because 

“[o]ur role is to assess whether the plaintiff’s complaint alone is legally sufficient to 

state a claim upon which relief may be granted.” U.S. ex rel. Sikkenga v. Regence 

BlueCross BlueShield of Utah, 472 F.3d 702, 713 (10th Cir. 2006). 

 We affirm the district judge’s dismissal of Parrish’s claim asserting breach of 

the implied covenant of good faith and fair dealing, but reverse its dismissal of her 

claim asserting Arvest breached the EFTA by providing inaccurate account balance 

information to customers through its online and mobile banking platforms. 

 D. Unjust Enrichment

 Parrish asserts an unjust-enrichment claim as an alternative to her 

breach-of-contract claim. She first maintains this claim is based upon Arvest’s 

alleged misrepresentations regarding chronological posting of transactions and the 

resulting increase in NSF/OD Fees Arvest imposes. Because she fails to allege a 

misrepresentation by Arvest regarding chronological posting, these allegations do not 

support a claim for unjust enrichment. 
16 

Parrish also asserts her unjust-enrichment claim is based on the allegedly false 

account balance information Arvest provides through its online and mobile banking 

platforms. We have affirmed dismissal of her fraud claim based on these allegations 

because she did not plead with particularity any false account balance information 

pertaining to her own accounts. But we have reversed the dismissal of Parrish’s 

breach-of-contract claim based on inaccurate balance information displayed via 

Arvest’s online or mobile banking systems. Under Oklahoma law, Arvest says, 

quasi-contractual remedies such as unjust enrichment are not available where an 

enforceable contract governs the parties’ relationship. Parrish does not address this 

contention in her reply brief. 

In Oklahoma “a party is not entitled to pursue a claim for unjust enrichment 

when it has an adequate remedy at law for breach of contract.” Am. Biomedical Grp., 

Inc. v Techtrol, Inc. 374 P.3d 820, 828 (Okla. 2016).7

 We have cited “the hornbook 

rule that quasi-contractual remedies . . . are not to be created when an enforceable 

express contract regulates the relations of the parties with respect to the disputed 

issue.” Member Serv. Life Ins. Co. v. Am. Nat’l Bank & Tr. Co. of Sapulpa, 130 F.3d 

950, 957 (10th Cir. 1997) (citing 1 Joseph M. Perillo, Corbin on Contracts § 1.20 

(rev. ed. 1993)). We applied this rule in a case where the plaintiff tried to allege an 

unjust-enrichment claim to recover unpaid royalties. See Elliott Indus. Ltd. P’ship v. 

 7

 This rule does not apply when a party is seeking to rescind the contract, see 

Roberson v. PaineWebber, Inc., 998 P.2d 193, 200 (Okla. Civ. App. 1999), but 

Parrish does not seek to rescind the EFTA. 
17 

BP Am. Prod. Co., 407 F.3d 1091, 1107-09 (10th Cir. 2005). We affirmed a 

summary judgment because “the claim for unpaid royalties is grounded in the parties’ 

contractual relationship.” Id. at 1117. Parrish presents no argument as to why this 

rule does not bar her unjust-enrichment claim. We therefore affirm the dismissal of 

her claim on that basis. 

III. Conclusion

 The district court’s judgment is affirmed in part and reversed in part. The case 

is remanded for further proceedings consistent with this order and judgment. 

Entered for the Court 

Terrence L. O’Brien 

Circuit Judge