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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

RAY M. HARRISON, ) CASE NO. 

Individually and on behalf of all ) 

others similarly situated, ) JUDGE 

 ) 

 Plaintiff, ) 

 ) 

 ) 

 ) 

 v. ) 

 ) CLASS ACTION COMPLAINT

FLAGSTAR BANK FSB, ) 

 ) 

 Defendant, ) 

 Now comes RAY M. HARRISON (“Plaintiff”), on behalf of himself and all 

others similarly situated and alleges as follows: 

INTRODUCTION

 1. Plaintiff brings this action individually and on behalf of all others 

similarly situated against Defendant Flagstar Bank FSB alleging violations of the 

Electronic Fund Transfer Act, 15 U.S.C.§ 1693 et seq. and its implementing regulations 

12 C.F.R. § 205 et seq. (hereinafter referred to collectively as the “EFTA”). 

 2. The Congressional findings and declaration of purpose regarding the 

EFTA are as follows: 

 (a) Rights and liabilities undefined 

 The Congress finds that the use of electronic systems to transfer funds provides 

the potential for substantial benefits to consumers. However, due to the unique 

characteristics of such systems, the application of existing consumer protection 

legislation is unclear, leaving the rights and liabilities of consumers, financial 

institutions and intermediaries in electronic fund transfers undefined. 

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(b) Purposes 

It is the purpose of this subchapter to provide a basic framework establishing the 

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

systems. The primary objective of this subchapter, however, is the provision of 

individual consumer rights. 

15 U.S.C. § 1693. 

 3. Among other things, the EFTA imposes certain disclosure requirements 

upon operators of automated teller machines (“ATMs”). 

 4. 15 U.S.C. § 1693b(d)(3)(A) requires any ATM operator who imposes fees 

on consumers in connection with electronic fund transfers to provide notice of the fact 

that the fee is being imposed and the amount of the fee.1

 5. 15 U.S.C. § 1693(d)(3)(B) identifies the location where the required notice 

must be posted as follows: 

 (B) Notice requirements 

 (i) On the machine 

 The notice required under clause (i) of subparagraph (A) with respect to any fee 

 described in such paragraph shall be posted in a prominent and conspicuous 

 location on or at the automated teller machine at which the electronic fund 

 transfer is initiated by the consumer. 

 (ii) On the screen 

 The notice required under clauses (i) and (ii) subparagraph (A) with respect to 

 any fee described in such subparagraph shall appear on the screen of the 

 automated teller machine, or on a paper notice issued form such machine, after 

 the transaction is initiated and before the consumer is irrevocably committed 

 to completing the transaction.... 

 

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 “Electronic fund transfer” is defined as “any transfer of funds, other than a transaction originated by 

check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic 

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

or credit an account. Such term includes, but is not limited to, point-of-sale transfers, automated teller 

machine transactions, direct deposits or withdrawals of funds, and transfers initiated by telephone....” 15 

U.S.C. § 1693a(6). 

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 6. The relevant implementing regulation, 12 C.F.R. § 205.16(c) reinforces 

EFTA’s statutory posting requirement, mandating that the mandatory fee notice: 1) be 

posted in a “prominent and conspicuous location” on or at the ATM machine; and 2) “on 

the screen of the automated teller machine or by providing it on paper, before the 

consumer is committed to paying the fee.” 12 C.F.R. § 205.16(c)(1) and (2). 

 7. 15 U.S.C. § 1693(d)(3)(C), and its implementing regulation, 12 C.F.R. 

205.16(e), prohibit ATM operators from imposing a fee on a consumer unless EFTA’s 

notice and posting requirements are followed by the ATM operator. 

 8. Specifically, 15 U.S.C. § 1693b(d)(3)(C) states, in relevant part: 

(C) Prohibition on fees not properly disclosed and explicitly assumed by the 

consumer 

 No fee may be imposed by any automated teller machine operator in connection 

 with any electronic fund transfer initiated by a consumer for which a notice is 

required under subparagraph (A), unless— 

(i) The consumer receives such notice in accordance with subparagraph (B)... 

JURISDICTION AND VENUE

9. This Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 

and 15 U.S.C. § 1693 et. seq. 

10. Plaintiff’s claims asserted herein arose in this judicial district and 

Defendant is the operator of ATMs in this judicial district. 

11. Venue in this judicial district is proper under 28 U.S.C. § 1391(b) and (c) 

and 1400(a) in that this is the judicial district in which a substantial part of the acts and 

omissions giving rise to the claims occurred. 

PARTIES

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12. Plaintiff, Ray M. Harrison, is and at all times relevant hereto was a 

resident of Fowlerville, Livingston County, Michigan. 

13. Defendant, Flagstar Bank FSB is headquartered at 5151 Corporate Drive, 

Troy, Michigan 48098-2639. 

14. Defendant is an automated teller machine operator, as that term is defined 

by 12 C.F.R. § 205.16(a) which states: “Automated teller machine operator means any 

person that operates an automated teller machine at which a consumer initiates an 

electronic fund transfer or a balance inquiry and that does not hold the account to or from 

which the transfer is made, or about which the inquiry is made.” 

FACTS RELATED TO PALINTIFF’S TRANSACTION

15. On or about June 27, 2009 Plaintiff made an electronic fund transfer at 

Defendant’s ATM at 5105 Highland Road, Waterford, Michigan 48327-1915. 

Specifically, Plaintiff made a cash withdrawal from Defendant’s ATM at this time. 

16. At the time of the above-described electronic transaction, Plaintiff did not 

maintain any accounts with Defendant. 

17. Defendant charged Plaintiff a fee of $2.50 in connection with the abovedescribed transaction. 

18. However, at the time of the above-described transaction, there was no 

notice posted “on or at” the ATM operated by Defendant apprising consumers that a fee 

would be charged for use of the ATM. 

19. Because Defendant did not post the required notice, it was not permitted to 

charge a usage fee to Plaintiff and other class members. 

CLASS ALLEGATIONS

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20. Plaintiff brings this class action on behalf of himself and all other similarly 

situated pursuant to Rules 23(a) and 23(b) of the Federal Rules of Civil Procedure. 

21. Plaintiff seeks to represent a class of persons to be defined as follows: 

 All persons who: 1) where charged a “terminal owner fee” at an ATM 

 operated by Defendant when such persons made an electronic fund 

 transfer and/or balance inquiry where, 2) no notice indicating that such 

 fee was to be charged was posted on the outside of the ATM machine. 

22. Numerosity: The class described above is so numerous that joinder of all 

individual members in one action would be impracticable. The disposition of the 

individual claims of the respective class members through this class action will benefit 

both the parties and this Court. 

23. Plaintiff is informed and believes, and thereon alleges, that there are at 

minimum, thousands of members of the class described above. 

24. The exact size of the class and the identities of the individual members 

thereof are ascertainable through Defendant’s records. 

25. Members of the class may be notified of the pendency of this action by 

techniques and forms commonly used in class actions, such as by published notice, email notice, website notices, first class mail, or combinations thereof, or by other 

methods suitable to this class and deemed necessary and/or appropriate by this Court. 

26. Typicality: Plaintiff’s claims are typical of the claims of the members of 

the class. The claims of the Plaintiff and members of the class are based on the same 

legal theories and arise from the same unlawful and willful conduct. 

27. Plaintiff and members of the class were each consumers who used an 

ATM machine operated by Defendant to make an electronic fund transfer or balance 

inquiry and were charged a terminal owner fee, notwithstanding that the posting 

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providing notice of the fee required by EFTA “on or at” Defendant’s terminals was not 

present. 

28. Common Questions of Fact and Law: There is a well-defined community 

of interest and common questions of fact and law affecting members of the class. 

29. The questions of fact and law common to the class predominate over 

questions which may affect individual members and include the following: 

 a. Whether, under 15 U.S.C. § 1693b(d)(3)(A) and 12 C.F.R. 205.16, 

 Defendant was, at all relevant times, an automated teller machine 

 operator that imposed a fee on consumers for providing host 

 electronic fund transfer services to those consumers; 

 b. Whether Defendant complied with the notice requirements of 15 

 U.S.C. § 1693(d)(3)(B) and 12 C.F.R. 205.16; and, 

 c. Whether Plaintiff and members of the class are entitled to statutory 

 damages, costs and/or attorneys’ fees for Defendant’s acts and 

 conduct. 

30. Adequacy of Representations: Plaintiff is an adequate representative of 

the class because his interests do not conflict with the interests of the members of the 

class. Plaintiff will fairly, adequately, and vigorously represent and protect the interests 

of the members of the class and has no interests antagonistic to the members of the class. 

Plaintiff has retained counsel who are competent and experienced in the prosecution of 

class action litigation. 

31. Superiority: A class action is superior to other available means for the fair 

and efficient adjudication of the claims of the class. While the aggregate damages which 

may be awarded to the members of the class are likely to be substantial, the damages 

suffered by the individual members of the class are relatively small. As a result, the 

expense and burden of individual litigation makes it economically infeasible and 

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procedurally impracticable for each member of the class to individually seek redress for 

the wrongs done to them. Plaintiff does not know of any other litigation concerning this 

controversy already commenced by or against any member of the class. The likelihood 

of the individual members of the class prosecuting separate claims is remote. 

Individualized litigation would also present the potential for varying, inconsistent, or 

contradictory judgments, and would increase the delay and expense to all parties and the 

court system resulting from multiple trials of the same factual issues. In contrast, the 

conduct of this matter as a class action presents fewer management difficulties, conserves 

the resources of the parties and the court system, and would protect the rights of each 

member of the class. Plaintiff knows of no difficulty to be encountered in the 

management of this action that would preclude its maintenance as a class action. 

SUBSTANTIVE VIOLATION

32. 15 U.S.C. § 1693b(d)(3)(A) provides that as a prerequisite to imposition of 

a usage fee upon a consumer for host transfer services, an automated teller machine 

operator must provide notice to the consumer consistent with subparagraph (B) of that 

statutory section. 

33. Subparagraph (B) of 15 U.S.C. § 1693(d)(3) provides in relevant part: 

(B) Notice requirements 

(i) On the machine 

The notice required under clause (i) of subparagraph (A) with respect to any fee 

described in such subparagraph shall be posted in a prominent and conspicuous 

location on or at the automated teller machine at which the electronic fund 

transfer is initiated by the consumer. 

34. In turn, subparagraph (c) of 15 U.S.C. § 1693b(d)(3) states, in relevant 

part: 

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 (C) Prohibition on fees not properly disclosed and explicitly assumed by 

the consumer 

 No fee may be imposed by any automated teller machine operator in 

 connection with any electronic fund transfer initiated by a consumer for 

 which a notice is required under subparagraph (A), unless— 

(i) The consumer receives such notice in accordance with subparagraph (B)... 

35. EFTA’s statutory notice requirements are reinforced by the implementing 

regulations set forth at 12 C.F.R. § 205.16. 

36. Defendant violated the notice requirements of EFTA in connection with 

providing host transfer services to Plaintiff and the Class. 

37. Defendant was prohibited from imposing any usage fee or similar fee for 

providing host transfer services because it failed to comply with EFTA’s notice 

requirements. 

38. 15 U.S.C. § 1693m provides that Defendant shall be liable to Plaintiff and 

Class for violations of 15 U.S.C. § 1693 et seq. in the amount of, inter alia, statutory 

damages to be determined by the Court, the costs of this action and reasonable attorneys’ 

fees. 

39. Plaintiff seeks the imposition of statutory damages, costs of suit and 

attorneys’ fees. 

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, on behalf of himself and the members of the class, prays 

for: 

a. An order certifying the class and appointing Plaintiff as the representative 

 of the class, and appointing counsel for Plaintiff as counsel for the class; 

b. An award to Plaintiff and the members of the class of statutory damages; 

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c. Payment of costs of suit; and, 

d. Payment of reasonably attorneys’ fees. 

A TRIAL BY JURY IS DEMANDED. 

 Respectfully submitted, 

 s/ Richard H. Ebbott

 Richard H. Ebbott (P13085) 

 Morrissey, Bove & Ebbott 

 221 W 5th Street 

 Flint, MI 48502 

 Tel. No. (810) 238-0455 

 Fax No. (810) 238-0458 

 Email: mbebbott@sbcglobal.net 

 Counsel for Plaintiff 

 s/ Michael T. Harrison

 Michael T. Harrison (CA 158983) 

 Law Offices of Michael T. Harrison 

 25876 The Old Road, Suite 304 

 Stevenson Ranch, CA 91381 

 Tel. No. (661) 257-2854 

 Fax No. (661) 257-3068 

 Email: mharrison30@aol.com 

 Co-Counsel for Plaintiff 

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