In Salls v. Digital Federal Credit Union, 2018 WL 5846820 (D.Mass., 2018), Judge Hillman allowed an EFTA claim to proceed against a Credit Union.

Brandi Salls (“Plaintiff”) brings a putative class action challenging the practice of Digital Federal Credit Union and DOES 1 through 100 (“Defendant”) to charge overdraft fees when members accounts have sufficient funds to cover the transactions. . . .The following facts are taken from Plaintiff’s complaint. . .Plaintiff is a member of and entered into two written contracts with Defendant. . . . The second agreement (“Opt In Agreement”) describes Defendant’s overdraft policies as required by Regulation E of EFTA. 12 C.F.R. § 1005.17. The Opt In Agreement provides: “An overdraft occurs when you do not have enough money in your account to cover a transaction, but we pay it anyway.” (Docket No. 24-2 at 4).  Plaintiff’s claims in this case arise from overdraft fees based on the “available balance” as opposed to the “ledger” or “actual balance.” The “available balance” of an account is calculated by deducting pending debits and deposit holds. Therefore, the “available balance” can be much lower than the “actual balance” in an account. Plaintiff alleges that on December 18, 2014, December 19, 2014, and on information and belief at least one time within twelve months of filing her complaint, she was charged an overdraft fee when her “actual balance” was enough to cover the transaction. Because her “available balance” was insufficient, however, she was charged an overdraft fee.

Judge Hillman found a potential Breach of Contract claim and EFTA claim.

Plaintiff alleges Defendant violated Regulation E of EFTA, 12 C.F.R. § 1005.1 et seq., because it did not accurately describe its overdrafting practices in the Opt-In Agreement. Regulation E provides, in relevant part:[A] financial institution … shall not assess a fee or charge on a consumer’s account for paying an ATM or one-time debit card transaction pursuant to the institution’s overdraft service, unless the institution:(i) Provides the consumer with a notice in writing, or if the consumer agrees, electronically, segregated from all other information, describing the institution’s overdraft service;(ii) Provides a reasonable opportunity for the consumer to affirmatively consent, or opt in, to the service for ATM and one-time debit card transactions;(iii) Obtains the consumer’s affirmative consent, or opt-in, to the institution’s payment of ATM or one-time debit card transactions; and(iv) Provides the consumer with confirmation of the consumer’s consent in writing, or if the consumer agrees electronically, which includes a statement informing the consumer of the right to revoke such consent.C.F.R. § 1005.17(b). Further, the mandated disclosure must “be clear and readily understandable.” 12 C.F.R. § 1005.4(a)(1).Defendant’s Opt In Agreement states that “[a]n overdraft occurs when you do not have enough money in your account to cover a transaction.” (Docket No. 24-2 at 4). Plaintiff argues that this description does not accurately describe Defendant’s practice. (Docket No. 25 at 16). Defendant contends that when read in conjunction with the Agreement, the Opt-In Agreement sufficiently and accurately describes Defendant’s policies. For the reasons stated above in the context of the breach of contract claim, the language Defendant uses is ambiguous. Therefore, I do not find that “enough money” accurately describes Defendant’s policy of using the “available balance” method such that a member could meaningfully provide affirmative consent.