United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 30, 2020*

Decided July 7, 2020

Before

JOEL M. FLAUM, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

AMY C. BARRETT, Circuit Judge

Nos. 19-3370 and 20-1206

DEBORAH WALTON,

Plaintiff-Appellant,

v.

FIRST MERCHANT’S BANK,

Defendant-Appellee.

Appeal from the United States District

Court for the Southern District of Indiana, 

Indianapolis Division.

No. 1:17-cv-01888-JMS-MPB

Jane Magnus-Stinson,

Chief Judge.

O R D E R

Deborah Walton sued her bank for violating the Telephone Consumer Protection 

Act, 47 U.S.C. § 227, and the implementing regulation of the Electronic Funds Transfer 

Act (Regulation E, 12 C.F.R. § 205.7). She alleged that the bank robocalled her hundreds 

of times and charged overdraft fees without her consent. Walton demanded a jury trial, 

but after some claims survived summary judgment, the district court accepted the 

* We have agreed to decide the case without oral argument because the briefs and 

record adequately present the facts and legal arguments, and oral argument would not 

significantly aid the court. FED. R. APP. P. 34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
Nos. 19-3370 and 20-1206 Page 2

bank’s argument that Walton had contractually waived the right to a jury trial. After a 

bench trial, the court found for the bank and awarded it attorney’s fees because, the 

court found, Walton pursued a Regulation E claim in bad faith. See 15 U.S.C. § 1693m(f). 

Walton appeals, contending that she was entitled to a jury trial and challenging the fee

award. Because the bank waived its right to invoke the contractual waiver, we vacate 

the judgment as to the TCPA claim, but we affirm in all other respects.

Walton held several accounts at First Merchant’s Bank in Indiana. Though she 

was a longtime customer, the bank had the wrong social security number on file for her. 

(The reasons for this have been litigated in other cases but are not pertinent here.) 

Walton signed an account maintenance form with that number on it; the form

authorized overdraft protection for a personal checking account. Besides her accounts at 

FMB, Walton had personal and business loans from Ameriana Bank. On those loan 

applications, she provided two phone numbers, one of which she said was a residential 

line. In 2016, FMB merged with Ameriana and took over Walton’s loans.

After the merger, FMB sent all customers, including Walton, a “Consumer 

Disclosure Booklet” explaining its overdraft policies. The booklet also contained a 

provision for the mandatory arbitration of any disputes about its services, with the 

qualification that any claim that was not arbitrated would be “decided in the courts of 

Delaware County, Indiana, without a jury.”

In the following months FMB sent several notices to Walton about delinquencies 

on her loan payments and, after a service fee emptied her personal checking account, it 

also began charging daily overdraft fees. The bank tried to reach her by phone at her 

various numbers about these issues, but, when she answered, Walton was hostile and 

told it to stop calling. Eventually, in May 2017, the bank closed all her accounts.

Walton then sued the bank in federal court and demanded a jury trial. She 

asserted that the bank violated Regulation E by charging overdraft fees without her

advance notice or consent, and that it violated the TCPA by robocalling her cell phone

without her consent. In an amended complaint, she attached the disclosure booklet, 

reiterated her demand for a jury trial, and asserted that her claim was exempt from the 

arbitration clause. FMB denied her factual allegations in its answer but did not 

challenge the jury demand or invoke its arbitration clause. Instead, it filed a case

management plan in which it anticipated a three-to-four-day jury trial.

Discovery was contentious. Walton moved to compel production of a “TCPA 

consent form,” even though the bank attested that no such document exists. The bank, 
Nos. 19-3370 and 20-1206 Page 3

meanwhile, asked her to return a handwritten attorney’s note it had produced 

inadvertently, but she refused and attached it to several court filings. After FMB 

obtained a protective order for the note, the district court determined that Walton’s 

conduct and motion to compel were not substantially justified. It awarded the bank

$13,108.00 in attorneys’ fees as a discovery sanction. See FED. R. CIV. P. 37(a)(5)(A)–(B). 

Observing that Walton had been sanctioned for similar conduct in other cases, it 

warned her not to persist. 

Eventually, the parties cross-moved for summary judgment. Walton argued that 

she should prevail because the bank could not produce a signed form showing that she 

consented to be contacted by phone. She attested that she received over 900 robocalls

about her loans on her home and cell phones, even though she repeatedly asked the 

bank to stop calling her. As for her claim under Regulation E, she attested that she

never received notice of or opted into overdraft protection. FMB countered that Walton 

consented to being called about her loans by providing her phone numbers on the loan

applications with Ameriana and by updating her contact information to include a cell 

phone number (different from the one on her loan applications) after the merger. The 

bank also argued that Walton could bring claims only for calls related to her personal 

loan, not her business loans, because she did not (and as a pro se litigant, could not) sue 

on behalf of any business. To show that Walton opted into overdraft protection for her 

personal checking account, the bank submitted her signed account maintenance form.

After a hearing, the district court granted in part and denied in part the crossmotions for summary judgment. For purposes of the Regulation E claim, the court 

determined that there was a genuine issue of material fact about whether Walton had 

affirmatively opted into overdraft protection because she testified that the social 

security number on the account maintenance form was not hers and that she did not 

recognize it. As to her TCPA claim, fact issues existed about whether Walton gave prior 

express consent to be contacted about her accounts and at what phone numbers, and 

also whether FMB used an autodialer to place the calls. The court determined, however, 

that these issues existed only as to calls to Walton’s cell phone about her personal loan. 

Two months later, in January 2019, after an unsuccessful settlement conference, the 

court scheduled a jury trial for October 2019.

In July 2019, after Walton retained counsel in preparation for trial, FMB moved 

under Federal Rule of Civil Procedure 12(f) to strike her jury demand. For the first time,

it invoked the jury-trial-waiver clause in its disclosure booklet. Walton responded that

the motion was untimely, FMB had waived its right to enforce that clause by acting
Nos. 19-3370 and 20-1206 Page 4

inconsistently with it for over two years of litigation, and the clause was intertwined 

with the mandatory arbitration clause that was inapplicable to her claims. The district 

court reasoned that it had discretion to consider the untimely Rule 12(f) motion and 

granted it. It concluded that FMB’s conduct did not show intentional relinquishment of 

its right to a bench trial and rejected Walton’s argument that the bench-trial clause was 

intertwined with the arbitration clause. Moreover, a bench trial would conserve judicial 

resources and would not prejudice Walton because it required less preparation. 

At trial, the court heard primarily from Walton and a bank manager. When 

Walton revealed that the “home” number listed on her loan applications was another

cell phone number, the court refused the late attempt to broaden the scope of her TCPA 

claim to include calls to that number. The manager admitted that the bank called 

Walton several times using software maintained by an outside vendor, and that she was 

agitated by those calls. He did not know if the software was an autodialer under the 

TCPA—only that it interfaced with FMB’s core banking software and had both manual 

and automatic modes. Walton submitted records of hundreds of phone calls and 

recounted her efforts to get the bank to stop calling. She believed FMB used an 

autodialer because she heard pre-recorded messages whether she answered the calls or 

let them go to voicemail. She also admitted that she had known for years that FMB had 

the wrong social security number on file for her and that she signed the account 

maintenance form with the opt-in provision.

After post-trial briefing, the district court entered findings of fact and 

conclusions of law. Though Walton may have initially agreed to be contacted on her cell 

phone, the court found, she had revoked her consent by March 2016. The evidence 

showed that she received at least five calls to her cell phone about her personal loan

after that. The bank manager’s testimony was inconclusive about whether the bank 

used an autodialer to place those calls, however, and the district court did not credit 

Walton’s testimony that she heard pre-recorded messages when she picked up the 

phone because of her “dishonesty and lack of candor” throughout the case. The court 

further found that Walton pursued her Regulation E claim to trial in bad faith. Walton 

knew that the claim survived summary judgment only because of confusion about the 

social security number on the opt-in form—which Walton had created with misleading 

testimony. Because she continued to litigate the claim, the court awarded attorneys’ fees 

to FMB under 15 U.S.C. § 1693m(f). 

The bank requested $57,751.00 in fees. It submitted time logs detailing the trial 

preparation of three attorneys to defend against the Regulation E claim and information 
Nos. 19-3370 and 20-1206 Page 5

about their billing rates, which they attested were heavily discounted. Walton objected 

that the amount was grossly disproportionate to her potential recovery for that claim

and that the bank used too many lawyers, but the court awarded FMB the full amount.

On appeal, Walton proceeds pro se again, and she first contends that the district 

court erred in striking her jury demand. She maintains that, through its conduct, FMB 

waived its right to enforce the jury waiver clause.

Parties may impliedly waive their contractual rights by acting inconsistently 

with them. Kawasaki Heavy Industries, Ltd., 660 F.3d 988, 994 (7th Cir. 2011). Courts

evaluate the totality of the circumstances to determine if such a waiver occurred. Sharif 

v. Wellness Intern. Network, Ltd., 376 F.3d 720, 726 (7th Cir. 2004). A party’s diligence, or 

lack thereof, in asserting its rights under a contract weighs heavily in that consideration. 

Cabinetree of Wis., Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 391 (7th Cir. 1995). 

Considering this standard, FMB implicitly waived its contractual right to a bench 

trial. Through her pleadings, Walton put the bank on notice that she believed she was 

entitled to a jury trial and that the contractual waivers did not apply to her claims. FMB 

did not raise the jury waiver in its answer to either of her complaints, however, either as 

an affirmative defense in its answer or in a motion to strike. Nor did it seek to arbitrate 

her claims or move them to a Delaware County court. Indeed, in its case management 

plan, the bank anticipated a jury trial in a federal court. 

What’s more, the bank did not change position until over two years later, after 

Walton’s claims survived summary judgment and she retained counsel. Even after it 

failed to secure a complete victory at summary judgment, and the prospect of a trial 

was certain, the bank waited nine more months to invoke the clause—six of which came 

after the court scheduled the case for a jury trial in the wake of the failed settlement 

conference. Conceivably, Walton’s position on settlement would have been different 

had she known the factfinder would be the district judge, not a jury, but FMB left her 

and the court in the dark. In any event, FMB’s engagement in protracted litigation in 

federal court, its express references to an impending jury trial, and its eleventh-hour 

invocation of the jury-trial waiver constituted an implied waiver of its contractual right 

to avoid a jury trial. 

FMB’s arguments to the contrary are unpersuasive. It simply repeats the 

contractual language and observes that courts have granted motions to strike jury 

demands even “on the eve of trial.” But in the single case it cites from this circuit, the 

relief sought was equitable, so the litigants had no right to a jury to begin with. 
Nos. 19-3370 and 20-1206 Page 6

See Kramer v. Banc of Am. Secs., L.L.C, 355 F.3d 961, 968 (7th Cir. 2004). Walton, by 

contrast, sought statutory damages under § 227(b)(3) of the TCPA, the type of legal 

remedy for which a jury trial is ordinarily available. See, e.g., Lucas v. U.S. Bank, N.A., 

953 N.E.2d 457, 460 (Ind. 2011); Kobs v. Arrow Serv. Bureau, Inc., 134 F.3d 893, 896 

(7th Cir. 1998). FMB also points to Tracinda Corp. v. DaimlerChrystler AG, in which the 

Third Circuit determined that a jury trial waiver clause in the contract that was the 

subject of the parties’ dispute was valid. 502 F.3d 212, 227 (3d Cir. 2007). The Tracinda 

court, however, did not consider whether any party implicitly waived reliance on that 

clause. That is the only issue here; the validity of the contractual waiver is not disputed. 

Our inquiry does not end there; we must also determine whether, as FMB 

asserts, denying Walton a jury trial was harmless. Partee v. Burch, 28 F.3d 636, 639 

(7th Cir. 1994). As to the TCPA claim, it was not. Walton had to prove that (1) the bank 

called her cell phone (2) without her prior express consent (3) using an “automatic 

telephone dialing system” or a pre-recorded message to initiate the call. 47 U.S.C. 

§ 227(b)(1)(A)(iii), 227(b)(1)(B); see Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 373 

(2012). Based on the trial testimony and phone records, the district court found that she 

proved the first two elements for at least five phone calls. Her proof on the third 

element failed. Because Walton failed to introduce any evidence that the bank used an 

automatic telephone dialing system to place the calls, she could succeed only by 

showing that she received prerecorded messages from the bank. Her only evidence on 

that score was her own testimony, which the court refused to credit. That was a 

reasonable choice given Walton’s deceptive behavior throughout the litigation; at the 

same time, however, a different factfinder might draw a different conclusion. Denying 

Walton a jury trial is harmless only if the bank would have been entitled to a directed 

verdict, Partee, 28 F.3d at 639, and we cannot say that no reasonable jury could believe 

Walton’s account of what she heard over the phone.

Walton’s Regulation E claim fares differently. That claim went to trial only 

because, at the summary judgment stage, Walton’s testimony that she did not recognize 

the social security number on the account maintenance form created an apparent factual 

issue about whether she had expressly authorized overdraft protection. At trial, though,

Walton admitted that she knew the social security number on the account maintenance 

form she signed was the one FMB had on file for her and that the form pertained to her 

account. No reasonable jury could have found, therefore, that she did not opt into 

coverage. The error was therefore harmless as to this claim. See Partee, 28 F.3d at 639. 
Nos. 19-3370 and 20-1206 Page 7

Walton next challenges the post-trial award of attorneys’ fees to FMB under 

15 U.S.C. § 1693m(f), which requires a court to award fees “reasonable in relation to the 

work expended” if it finds that a plaintiff brought a meritless action under the EFTA in 

bad faith. Walton first argues that the district court’s bad-faith finding is logically 

flawed because her claim made it to trial and so could not have been “brought” in bad 

faith. However, bad faith can arise after the filing of a complaint. See Mach v. Will Cty.

Sheriff, 580 F.3d 495, 501 (7th Cir. 2009). Here, the court’s summary judgment order put 

her on notice that, except for the ambiguity about the social security number on the 

account maintenance form, her claim failed as a matter of law because FMB had her 

written consent to charge overdraft fees. Walton still pressed her claim to trial, inflicting 

unnecessary costs on the bank, only to admit that she had known all along that the 

form, though inaccurate, concerned her account. The district court therefore did not 

clearly err in its finding. See In re Golant, 239 F.3d 931, 936 (7th Cir. 2001).

Walton also renews her challenges to the reasonableness of the fees, which we 

review for abuse of discretion. Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 639 

(7th Cir. 2011). District courts typically calculate fee awards using the lodestar method, 

multiplying the “number of hours reasonably expended on the litigation ... by a 

reasonably hourly rate” and then making whatever adjustments the facts call for. Id.

(quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). First, Walton maintains that FMB 

used too many lawyers on its trial team. But its three attorneys provided detailed time 

logs, and she does not identify a single entry as unnecessary or redundant.

See Gautreaux v. Chicago Housing Auth., 491 F.3d 649, 661 (7th Cir. 2007). FMB’s lawyers

further attested to the basis of their respective billing rates, which were discounted in 

this case. Walton provides no reasons to question the reasonableness of those rates. 

Pickett, 664 F.3d at 640. Next, Walton objects that the award of $57,751.00 grossly 

exceeds her maximum potential recovery under Regulation E, which was $2,000 by 

statute. But she cites no authority requiring proportionality in the context of a bad-faith 

sanction. The purpose of bad faith sanctions is to reimburse a party for losses caused by 

the other side’s abuse of judicial process. See Goodyear Tire & Rubber Co. v. Haeger,

137 S. Ct. 1178, 1186 (2017). Walton does not contend that the fee award goes beyond

the bills FMB incurred because of her misconduct. See id. She therefore has not met her 

burden of showing that the fees were unreasonable.

We briefly address two of Walton’s remaining arguments. First, she contends 

that the judge was biased against her and cites several adverse rulings as evidence. But 

adverse rulings alone show neither bias nor a need for recusal. Liteky v. United States,

510 U.S. 540, 555 (1994). Walton also asserts that she was not given an opportunity to be 
Nos. 19-3370 and 20-1206 Page 8

heard before the district court awarded FMB $13,108.00 in attorneys’ fees as a discovery 

sanction. The record shows otherwise: Walton may have had more to say, but the court 

held a hearing and entertained several rounds of briefing before imposing that sanction.

Accordingly, we VACATE the judgment with respect to Walton’s TCPA claim

and REMAND for further proceedings. We AFFIRM in all other respects.