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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RAY M. HARRISON,

Individually and behalf of all

others similarly situated, Case No: 09-cv-12687

Plaintiff, Honorable John Corbett O’Meara 

Magistrate Judge Donald A. Scheer

v.

FLAGSTAR BANK FSB,

Defendant.

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Richard H. Ebbott (P13085)

Morrissey Bove & Ebbott PC

221 West 5th Street

Flint, MI 48502

Telephone: (810) 238-0455

Fax: (810) 238-0458

Email: mbebbott@sbcglobal.net

Counsel for Plaintiff

Michael T. Harrison (CA 158983)

Law Offices of Michael T. Harrison

25876 The Old Road, Suite 304

Stevenson Ranch, CA 91381

Telephone: (661) 257-2854

Fax: (661) 257-3068

Email: mharrison30@aol.com

Co-Counsel for Plaintiff

Matthew F. Leitman (P48999)

Miller Canfield Paddock & Stone, P.L.C.

840 West Long Lake Road, Suite 200

Troy, Michigan 48098

Telephone: (248) 267-3294

Fax: (248) 879-2001

Email: leitman@millercanfield.com

Counsel for Defendant

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DEFENDANT FLAGSTAR BANK’S ANSWER TO CLASS ACTION COMPLAINT

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Defendant Flagstar Bank, by its attorneys, Miller Canfield Paddock & Stone, PLC, for its 

Answer and Affirmative Defenses to Plaintiff’s Complaint, says as follows:

INTRODUCTION

1. Flagstar does not dispute Plaintiff’s description of his claims but denies as untrue 

that it violated the Electronic Funds Transfer Act and/or the Act’s implementing regulations.

2. The statute speaks for itself. To the extent that the allegations are inconsistent 

with the language of the statute, they are denied as untrue.

3. The statute speaks for itself. To the extent that the allegations are inconsistent 

with the language of the statute, they are denied as untrue. 

4. The statute speaks for itself. To the extent that the allegations are inconsistent 

with the language of the statute, they are denied as untrue.

5. The statute speaks for itself. To the extent that the allegations are inconsistent 

with the language of the statute, they are denied as untrue.

6. The regulation speaks for itself. To the extent that the allegations are inconsistent 

with the language of the regulation, they are denied as untrue.

7. The statute and regulation speak for themselves. To the extent that the allegations 

are inconsistent with the language of the statute and/or the regulation, they are denied as untrue.

8. The statute speaks for itself. To the extent that the allegations are inconsistent 

with the language of the statute, they are denied as untrue.

JURISDICTION AND VENUE

9. Flagstar does not contest this Court’s subject matter jurisdiction.

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10. Flagstar admits only that it operates ATM machines in this judicial district and 

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

allegations.

11. Flagstar does not contest venue in this Court.

PARTIES

12. Flagstar lacks knowledge or information sufficient to form a belief as to the truth 

of the remaining allegations.

13. Admitted.

14. To the extent that the allegations of paragraph 14 call for a legal conclusion, no 

response by Flagstar is required. Flagstar admits that it operated an ATM machine at 5105 

Highland Road in Waterford, Michigan on or about June 27, 2009.

FACTS RELATED TO PLAINTIFF’S ALLEGATIONS

15. Flagstar lacks information or knowledge sufficient to form a belief as to the truth 

of the allegations.

16. Flagstar lacks information or knowledge sufficient to form a belief as to the truth 

of the allegations.

17. Flagstar lacks information or knowledge sufficient to form a belief as to the truth 

of the allegations.

18. Flagstar lacks information or knowledge sufficient to form a belief as to the truth 

of the allegations.

19. Flagstar denies the allegations as untrue.

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CLASS ALLEGATIONS

20. Flagstar does not dispute that Plaintiff purports to bring the action on behalf of a 

putative class, but Flagstar denies as untrue Plaintiff’s claim that this action should proceed as a 

class action.

21. Flagstar does not dispute that Plaintiff purports to bring the action on behalf of the 

specified putative class.

22. Flagstar lacks information or knowledge sufficient to form a belief as to the truth 

of the allegations concerning numerosity. Flagstar denies as untrue the allegation that addressing 

individual claims through a class action would be appropriate, lawful, and/or helpful.

23. Flagstar lacks information or knowledge sufficient to form a belief as to the truth 

of the allegations.

24. Flagstar lacks information or knowledge sufficient to form a belief as to the truth 

of the allegations.

25. Flagstar lacks information or knowledge sufficient to form a belief as to the truth 

of the allegations.

26. Flagstar lacks information or knowledge sufficient to form a belief as to the truth 

of the allegations with the exception of the allegations concerning unlawful and/or willful 

conduct. Flagstar denies as untrue that it has engaged in any unlawful or willful improper 

conduct.

27. Flagstar lacks information or knowledge sufficient to form a belief as to the truth 

of the allegations.

28. Flagstar denies the allegations as untrue.

29. Flagstar denies as untrue that the listed questions of fact and law predominate.

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30. Flagstar lacks information or knowledge sufficient to form a belief as to the truth 

of the allegations.

31. Flagstar denies the allegations as untrue.

SUBSTANTIVE VIOLATION

32. The statute speaks for itself. To the extent that the allegations are inconsistent 

with the language of the statute, they are denied as untrue.

33. The statute speaks for itself. To the extent that the allegations are inconsistent 

with the language of the statute, they are denied as untrue.

34. The statute speaks for itself. To the extent that the allegations are inconsistent 

with the language of the statute, they are denied as untrue.

35. The regulation speaks for itself. To the extent that the allegations are inconsistent 

with the language of the regulation, they are denied as untrue.

36. Flagstar denies the allegations as untrue.

37. Flagstar denies the allegations as untrue.

38. The statute speaks for itself. To the extent that the allegations are inconsistent 

with the language of the statute, they are denied as untrue. In further answer, Flagstar denies as 

untrue that it violated the Electronic Funds Transfer Act.

39. Flagstar does not dispute Plaintiff’s description of his request for relief, but 

Flagstar denies as untrue that he is entitled to any relief.

AFFIRMATIVE DEFENSES

1. Plaintiff has failed to state a claim on which relief can be granted.

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2. Pursuant to 15 U.S.C. 1693h(d), Plaintiff’s claim is barred in whole or in part by

the fact that Flagstar posted all required notices in compliance with the Electronic Funds 

Transfer Act, and if and to the extent that any required notice was not present, was damaged, 

and/or was altered when Plaintiff claims to have engaged in a transaction at a Flagstar ATM, the 

absence of the notice was caused by some person other than Flagstar and/or by some other action 

beyond Flagstar’s control.

3. Plaintiff’s claims are barred in whole or in part by the facts that if and to the 

extent that Plaintiff establishes a violation of the Electronic Funds Transfer Act by Flagstar, said 

violation was not part of a frequent and/or persistent pattern of violations, and any violation was 

wholly unintentional.

4. Plaintiff’s claims are barred in whole or in part on the ground that any violation 

by Flagstar of the Electronic Funds Transfer Act was unintentional and resulted from a bona fide 

error notwithstanding Flagstar’s maintenance of procedures reasonably adapted to avoid such 

violations.

5. Plaintiff’s claims are barred in whole or in part by Plaintiff’s failure to mitigate 

his damages in that Plaintiff had a full and adequate opportunity to avoid incurring the charge he 

claims to have incurred, but failed to do so.

6. Plaintiff’s claims are barred in whole or in part by his assumption of risk in that 

Plaintiff knowingly and intentionally incurred the fee he claims to have incurred and could have 

avoided doing so.

7. Plaintiff’s claims are barred in whole or in part by the doctrines of waiver and 

estoppel in that Plaintiff had a full and adequate opportunity to avoid incurring the charge he 

claims to have incurred, but failed to do so.

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8. Plaintiff’s claims are barred in whole or in part by his inability to show that he 

relied upon Flagstar’s alleged violation of the Electronic Funds Transfer Act and his resultant 

inability to establish that Flagstar caused him to suffer any damages.

9. Plaintiff’s claims are barred in whole or in part by the fact that Flagstar made a 

good faith effort to install and maintain all required notices and that Flagstar is not responsible 

for the alleged absence of the required notice at the ATM in question.

WHEREFORE, Flagstar respectfully requests that this Court enter judgment against 

Plaintiff and in favor of Flagstar, that the Court enter an order dismissing the Complaint with 

prejudice, that the Court award Flagstar its costs and attorneys fees, and that the Court award 

Flagstar any other relief deemed appropriate.

Respectfully submitted,

MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.

By: s/Matthew F. Leitman

Matthew F. Leitman (P48999)

840 West Long Lake Road, Suite 200

Troy, Michigan 48098-6358

Telephone: (248) 267-3294

Email: Leitman@millercanfield.com

Counsel for Defendant

Dated: September 11, 2009

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CERTIFICATE OF SERVICE

I hereby certify that on September 11, 2009, I electronically filed the foregoing document 

with the Clerk of the court using the ECF system which sent notification of such filing to the 

following: 

▪ Richard H. Ebbott: mbebbott@sbcglobal.net, mharrison30@aol.com

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

non-ECF participants:

None.

s/Matthew F. Leitman

Matthew F. Leitman (P48999)

Miller Canfield Paddock & Stone, P.L.C.

840 West Long Lake Road, Suite 200

Troy, Michigan 48098-6358

Telephone: (248) 267-3294

Email: Leitman@millercanfield.com

Counsel for Defendant

Dated: September 11, 2009

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