UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

RAY M. HARRISON, Individually and 

on behalf of all others similarly situated, 

 Plaintiffs, 

vs. Case No. 5:09-cv-12684-SJM-VMM 

 Hon. Stephen J. Murphy III 

FIRST INDEPENDENCE BANK, 

 Defendant. 

MORRISSEY BOVE & EBBOTT, P.C. 

By: Richard H. Ebbott (P13085) 

Attorney for Plaintiffs 

221 W. Fifth Street 

Flint, Michigan 48502 

Tel. (810) 238-0455 

GERALD VAN WYKE, P.C. 

By: Gerald Van Wyke (P21785) 

Counsel for Defendant 

5440 Corporate Drive, Suite 250 

Troy, Michigan 48098-2648 

Tel. (248) 641-7000 

FIRST INDEPENDENCE BANK’S ANSWER 

TO COMPLAINT AND AFFIRMATIVE DEFENSES

 FIRST INDEPENDENCE BANK (“FIB”), by its attorneys, Gerald Van Wyke, 

P.C., answers Plaintiff’s Complaint as follows: 

 1. FIB denies that it has violated the Electronic Fund Transfer Act, 15 U.S.C. 

§1693 et seq. and related regulations found in 12 C.F.R. §205 et seq. (hereinafter referred to 

collectively as the “EFTA”), denies that this action may properly be brought as a class action, 

admits only that Plaintiff has filed this action on his own behalf and purports to bring the action 

under the EFTA, and is without knowledge and information sufficient to form a belief as to the 

truth of any remaining allegations in this paragraph. 

 2. Paragraph 2 contains conclusions of law to which no response is required. 

Furthermore, Paragraph 2 merely purports to characterize the provisions of the EFTA, which 

5:09-cv-12684-JCO-MAR Doc # 5 Filed 09/04/09 Pg 1 of 12 Pg ID 14
speak for themselves. To the extent that a response is required, FIB denies the allegations, 

inferences and conclusions of law contained in this Paragraph. 

 3. Paragraph 3 contains conclusions of law to which no response is required. 

Furthermore, Paragraph 3 merely purports to characterize the provisions of the EFTA, which 

speak for themselves. To the extent that a response is required, FIB denies the allegations, 

inferences and conclusions of law contained in this Paragraph. 

 4. Paragraph 4 contains conclusions of law to which no response is required. 

Furthermore, Paragraph 4 merely purports to characterize the provisions of the EFTA, which 

speak for themselves. To the extent that a response is required, FIB denies the allegations, 

inferences and conclusions of law contained in this Paragraph. 

 5. Paragraph 5 contains conclusions of law to which no response is required. 

Furthermore, Paragraph 5 merely purports to characterize the provisions of the EFTA, which 

speak for themselves. To the extent that a response is required, FIB denies the allegations, 

inferences and conclusions of law contained in this Paragraph. 

 6. Paragraph 6 contains conclusions of law to which no response is required. 

Furthermore, Paragraph 6 merely purports to characterize the provisions of the EFTA, which 

speak for themselves. To the extent that a response is required, FIB denies the allegations, 

inferences and conclusions of law contained in this Paragraph. 

 7. Paragraph 7 contains conclusions of law to which no response is required. 

Furthermore, Paragraph 7 merely purports to characterize the provisions of the EFTA, which 

speak for themselves. To the extent that a response is required, FIB denies the allegations, 

inferences and conclusions of law contained in this Paragraph. 

-2- 

5:09-cv-12684-JCO-MAR Doc # 5 Filed 09/04/09 Pg 2 of 12 Pg ID 15
 8. Paragraph 8 contains conclusions of law to which no response is required. 

Furthermore, Paragraph 8 merely purports to characterize the provisions of the EFTA, which 

speak for themselves. To the extent that a response is required, FIB denies the allegations, 

inferences and conclusions of law contained in this Paragraph. 

JURISDICTION AND VENUE

 9. FIB admits the allegations in this paragraph. 

 10. In response to the allegations in Paragraph 10, FIB admits only that it 

operates automated teller machines (“ATMs”) in this judicial district, and is without knowledge 

and information sufficient to form a belief as to the truth of the remaining allegations in this 

Paragraph 10. 

 11. In response to the allegations in Paragraph 11, FIB denies that it has 

committed any violations and/or omissions giving rise to the claims asserted herein, and admits 

that venue is proper in this judicial district in that Plaintiff’s purported claim arose in this judicial 

district. 

PARTIES

 12. FIB is without knowledge and information sufficient to form a belief as to 

the truth of the matter asserted in this paragraph. 

 13. FIB admits the allegation contained in this paragraph. 

 14. Paragraph 14 contains conclusions of law to which no response is 

required. Furthermore, Paragraph 14 merely purports to characterize the provisions of the 

EFTA, which speak for themselves. To the extent that a response is required, FIB admits the 

allegations contained in this paragraph. 

-3- 

5:09-cv-12684-JCO-MAR Doc # 5 Filed 09/04/09 Pg 3 of 12 Pg ID 16
FACTS RELATED TO PLAINTIFFS’ TRANSACTION

 15. FIB is without knowledge and information sufficient to form a belief as to 

the truth of the matter asserted in this paragraph. 

 16. FIB admits the allegations contained in this paragraph based on the extent 

of its current knowledge. 

 17. In response to Paragraph 17, FIB admits that a fee of $2.75 is associated 

with the ATM at 2901 Grand River in Detroit, Michigan for non-customers, and FIB is without 

knowledge and information sufficient to form a belief as to the truth of the remaining allegations 

in this paragraph. 

 18. In response to Paragraph 18, FIB denies the allegation that the ATM at 

2901 Grand River in Detroit, Michigan provided no notice apprising consumers that a fee would 

be charged for using the ATM, and FIB is without knowledge and information sufficient to form 

a belief as to the truth of the remaining allegations in this paragraph. 

 19. In response to Paragraph 19, FIB denies the allegation that the ATM at 

2901 Grand River in Detroit, Michigan provided no notice apprising consumers that a fee would 

be charged for using the ATM, and FIB is without knowledge and information sufficient to form 

a belief as to the truth of the remaining allegations in this paragraph. 

CLASS ALLEGATIONS

 20. FIB denies that it has violated the Electronic Fund Transfer Act, 15 U.S.C. 

§1693 et seq. and related regulations found in 12 C.F.R. §205 et seq., denies that this action may 

properly be brought as a class action, admits only that Plaintiff has filed this action on his own 

behalf and purports to bring this claim as a class action and is without knowledge and 

-4- 

5:09-cv-12684-JCO-MAR Doc # 5 Filed 09/04/09 Pg 4 of 12 Pg ID 17
information sufficient to form a belief as to the truth of any remaining allegations in this 

paragraph. 

 21. FIB denies that it has violated the Electronic Fund Transfer Act, 15 U.S.C. 

§1693 et seq. and related regulations found in 12 C.F.R. §205 et seq., denies that this action may 

properly be brought as a class action, admits only that Plaintiff has filed this action on his own 

behalf and purports to bring this claim as a class action, and is without knowledge and 

information sufficient to form a belief as to the truth of any remaining allegations in this 

paragraph. 

 22. Paragraph 22 of the Complaint states a conclusion of law to which no 

responsive pleading is required. To the extent that a response to these allegations is required, 

FIB denies the allegations in this Paragraph. 

 23. FIB denies the propriety of the certification of any class, and is without 

knowledge and information sufficient to form a belief as to the truth of the remaining matters 

asserted in this paragraph. 

 24. FIB denies the propriety of the certification of any class, and is without 

knowledge and information sufficient to form a belief as to the truth of the matter asserted in this 

paragraph. 

 25. FIB is without knowledge and information sufficient to form a belief as to 

the truth of the matter asserted in this paragraph. In further response, to the extent this paragraph 

states conclusions of law, no response is required, and FIB denies the propriety of the 

certification of any class. 

 26. In response to the allegations in Paragraph 26, FIB admits only that 

Plaintiff purports to seek to represent a class of persons and has asserted claims of typicality, but 

-5- 

5:09-cv-12684-JCO-MAR Doc # 5 Filed 09/04/09 Pg 5 of 12 Pg ID 18
denies the propriety of such action and these allegations. In further response, FIB denies that it 

engaged in any unlawful and willful misconduct and denies the propriety of the certification of 

any class, and FIB is without knowledge or information sufficient to form a belief as to the truth 

of any remaining allegations in this paragraph. 

 27. In response to the allegations in Paragraph 27, FIB admits only that 

Plaintiff purports to seek to represent a class of persons, but denies the propriety of such action 

and these allegations. In further response, FIB denies that it engaged in any unlawful and willful 

misconduct and denies the propriety of the certification of any class, and FIB is without 

knowledge or information sufficient to form a belief as to the truth of any remaining allegations 

in this paragraph. 

 28. In response to the allegations in Paragraph 28, FIB admits only that 

Plaintiff purports to seek to represent a class of persons, but denies the propriety of such action 

and these allegations. In further response, FIB denies that it engaged in any unlawful and willful 

misconduct and denies the propriety of the certification of any class, and FIB is without 

knowledge or information sufficient to form a belief as to the truth of any remaining allegations 

in this paragraph. 

 29. In response to the allegations in Paragraph 29, FIB admits only that 

Plaintiff purports to seek to represent a class of persons, but denies the propriety of such action 

and these allegations. In further response, FIB denies that it engaged in any unlawful and willful 

misconduct and denies the propriety of the certification of any class, and FIB is without 

knowledge or information sufficient to form a belief as to the truth of any remaining allegations 

in this paragraph. 

-6- 

5:09-cv-12684-JCO-MAR Doc # 5 Filed 09/04/09 Pg 6 of 12 Pg ID 19
 30. In response to the allegations in Paragraph 30, FIB admits only that 

Plaintiff purports to seek to represent a class of persons and claims he is an adequate 

representative, but denies the propriety of such action and these allegations. In further response, 

FIB denies that it engaged in any unlawful and willful misconduct and denies the propriety of the 

certification of any class, and FIB is without knowledge or information sufficient to form a belief 

as to the truth of any remaining allegations in this paragraph. 

 31. FIB admits only that Plaintiff purports to seek to represent a class of 

persons, but denies the propriety of such action and these allegations. In further response, FIB 

denies that it engaged in any unlawful or willful misconduct and denies the propriety of the 

certification of any class. To the extent that a further response is required, FIB denies the 

allegations, inferences and conclusions of law contained in this Paragraph. 

 32. Paragraph 32 contains conclusions of law to which no response is 

required. Furthermore, Paragraph 32 merely purports to characterize the provisions of the 

EFTA, which being in writing speak for themselves. To the extent that a response is required, 

FIB denies the allegations, inferences and conclusions of law contained in this Paragraph. In 

further response to the allegations in Paragraph 32, FIB denies that it has committed any 

violations and/or omissions giving rise to the claims asserted herein. 

 33. Paragraph 33 contains conclusions of law to which no response is 

required. Furthermore, Paragraph 33 merely purports to characterize the provisions of the 

EFTA, which being in writing speak for themselves. To the extent that a response is required, 

FIB denies the allegations, inferences and conclusions of law contained in this Paragraph. 

 34. Paragraph 34 contains conclusions of law to which no response is 

required. Furthermore, Paragraph 34 merely purports to characterize the provisions of the 

-7- 

5:09-cv-12684-JCO-MAR Doc # 5 Filed 09/04/09 Pg 7 of 12 Pg ID 20
EFTA, which being in writing speak for themselves. To the extent that a response is required, 

FIB denies the allegations, inferences and conclusions of law contained in this Paragraph. 

 35. Paragraph 35 states conclusions of law to which no response is required. 

To the extent a response is required, FIB admits only that 12 C.F.R. §205.16 contains regulations 

applicable to the EFTA, and FIB is without knowledge and information sufficient to form a 

belief as to the truth of any remaining allegations in this paragraph. 

 36. FIB denies the allegations in Paragraph 36. 

 37. FIB denies the allegations in Paragraph 37. 

 38. In response to the allegations in Paragraph 38, FIB denies that it has 

committed any violations and/or omissions giving rise to the claims asserted herein, and denies 

that the Court has unlimited discretion to award damages pursuant to 15 U.S.C. §1693m in a 

class action lawsuit. Furthermore, Paragraph 38 merely purports to characterize the provisions 

of the EFTA, which speak for themselves. To the extent that a further response is required, FIB 

denies the allegations, inferences and conclusions of law contained in this Paragraph. 

 39. In response to the allegations in Paragraph 39, FIB denies that it engaged 

in any unlawful and willful misconduct, denies that Plaintiff is entitled to statutory damages, 

costs of suit and/or attorney’s fees, and admits only that Plaintiff is seeking these types of 

damages. 

 WHEREFORE, First Independence Bank respectfully requests that this Court 

dismiss Plaintiff’s Complaint, enter a judgment in favor of First Independence Bank and against 

-8- 

5:09-cv-12684-JCO-MAR Doc # 5 Filed 09/04/09 Pg 8 of 12 Pg ID 21
Plaintiff, deny any request for class treatment, and award First Independence Bank its costs and 

attorney fees. 

 Respectfully submitted, 

 s/Gerald Van Wyke 

 Gerald Van Wyke (P21785) 

 UFER & SPANIOLA, P.C. 

 Attorneys for Defendant 

 5440 Corporate Drive, Suite 250 

 Troy, MI 48098 

 (248) 641-7000 

 jwv@uferspan.com

Dated: September 4, 2009 

155785/090409/5 

-9- 

5:09-cv-12684-JCO-MAR Doc # 5 Filed 09/04/09 Pg 9 of 12 Pg ID 22
AFFIRMATIVE DEFENSES

 As and for its affirmative defenses, First Independence Bank states as follows: 

 1. Plaintiff has, or may have, failed to state a claim against FIB. 

 2. Plaintiff’s claims are barred because FIB has complied with the EFTA and 

related regulations. 

 3. Any claim by Plaintiff for actual damages is barred because Plaintiff has 

not suffered any actual damages as a result of any conduct by FIB. 

 4. Plaintiff’s claim is barred by 15 U.S.C. §1693h(d) because FIB complied 

with all notice requirements and any removal, damage or alteration of the notice was by a person 

other than FIB. 

 5. Plaintiff’s claims are barred to the extent they seek any remedy to which 

Plaintiff is not entitled under the civil liability provisions of the EFTA, including but not limited 

to the cap on damages applicable to class actions as set forth in 15 U.S.C. §1693m(a)(2)(B). 

 6. Plaintiff’s claims may not properly be maintained as a class action. 

 7. FIB asserts the statutory defenses set forth in the EFTA, including those 

set forth in Section 915, codified at 15 U.S.C. §1693m, and all actions taken by FIB were done 

and taken in good faith. 

 8. Plaintiff’s claims are barred by his ratification and/or consent to the 

conduct of which he now complains. 

 9. Plaintiff’s claims are or may be barred by the voluntary payment doctrine. 

 10. Plaintiff’s claims may not properly be maintained as a class action because 

the proposed class is not sufficiently cohesive to satisfy the predominance requirement and 

identification of potential class members will be extremely burdensome and expensive. 

-10- 

5:09-cv-12684-JCO-MAR Doc # 5 Filed 09/04/09 Pg 10 of 12 Pg ID 23
 11. Plaintiff’s claims may not properly be maintained as a class action because 

the named class representative is not or may not be an adequate representative under 

Rule 23(a)(4). 

 12. Plaintiff’s claims in his own behalf and on behalf of a purported class are 

or may be barred in whole or part by the applicable statute of limitations. 

 13. Plaintiff is not a representative of a class of persons who may assert claims 

against FIB because FIB has not received any notice from any other person claiming a violation 

of the EFTA. 

 14. Plaintiff’s claims in his own behalf and on behalf of a purported class may 

be barred as a result of application of the doctrine of laches. 

 15. Plaintiff has or may have waived the claims. 

 Because this lawsuit is in its early stages and no discovery has yet occurred, First 

Independence Bank reserves the right to amend the affirmative defenses listed above. 

 Respectfully submitted, 

 s/Gerald Van Wyke 

 Gerald Van Wyke (P21785) 

 GERALD VAN WYKE, P.C. 

 Attorneys for Defendant 

 5440 Corporate Drive, Suite 250 

 Troy, MI 48098 

 (248) 641-7000 

 jwv@uferspan.com

Dated: September 4, 2009 

155785/090409/5 

-11- 

5:09-cv-12684-JCO-MAR Doc # 5 Filed 09/04/09 Pg 11 of 12 Pg ID 24
CERTIFICATE OF SERVICE

 I hereby certify that on September 4, 2009, I electronically filed the foregoing 

paper with the Clerk of the Court using the E.C.F. system, which will send notification of 

such filing to the following: 

Richard H. Ebbott mbebbott@spcglobal.net

and I hereby certify that I have mailed by United States Postal Service the paper to the 

following non-ECF participants: None 

 Respectfully submitted, 

 s/Gerald Van Wyke 

 Gerald Van Wyke (P21785) 

 GERALD VAN WYKE, P.C. 

 Attorneys for Defendant 

 5440 Corporate Drive, Suite 250 

 Troy, MI 48098 

 (248) 641-7000 

 jwv@uferspan.com

Dated: September 4, 2009 

155984 

1

5:09-cv-12684-JCO-MAR Doc # 5 Filed 09/04/09 Pg 12 of 12 Pg ID 25