Laskaris v. Fifth Third Bank (In Re Fifth Third Early Access Cash Advance Litig.)

925 F.3d 265
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 28, 2019
Docket18-3390
StatusPublished
Cited by84 cases

This text of 925 F.3d 265 (Laskaris v. Fifth Third Bank (In Re Fifth Third Early Access Cash Advance Litig.)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Laskaris v. Fifth Third Bank (In Re Fifth Third Early Access Cash Advance Litig.), 925 F.3d 265 (6th Cir. 2019).

Opinions

GRIFFIN, Circuit Judge.

*269This putative class action concerns defendant Fifth Third Bank's "Early Access" cash advance loan program, a short-term lending option the bank offered to certain customers who held eligible checking accounts with it. Fifth Third, as both lender and bank, had direct access to borrowers' checking accounts. It deposited Early Access loans straight into borrowers' accounts and then paid itself back automatically-plus a 10% "transaction fee"-after a direct deposit posted or thirty-five days elapsed, whichever came first. The contract governing the program disclosed the annual percentage rate ("APR") as 120% in all cases.

Plaintiffs held checking accounts with Fifth Third and obtained Early Access loans, which were paid back automatically fewer than thirty days later. They contend that the 120% figure is false and misleading, pointing to the contract's novel method for calculating APR-one in which the APR is always the same regardless of the length of the loan. Calculated using a more conventional method, in which the APR is tied to the length of the loan, plaintiffs assert that the APR was in fact as high as 3650%.

Plaintiffs brought a variety of state and federal claims below, but this appeal is limited to a single breach-of-contract claim under Ohio law. The district court granted Fifth Third's Rule 12(b)(6) motion in relevant part and dismissed the breach-of-contract claim, holding that the contract unambiguously disclosed the method for calculating APR despite admitting that the result "may be misleading." On review, we hold that the contract was ambiguous because it provided two different descriptions of "APR" that are inconsistent with each other and cannot be reconciled. The first was a definition, lifted verbatim from a federal regulation, that describes the APR as being "expressed as a yearly rate"; the second was the method used to calculate it, which is not based on a year or any other time period. The ambiguity raises a question of fact that should be resolved in the district court on remand.

I.

A.

Fifth Third is a state-chartered, federally insured bank headquartered in Ohio, *270with branches in several states, including Ohio, Michigan, Kentucky, and Tennessee. "Early Access" was a short-term "cash advance" program in which eligible customers who held checking accounts with Fifth Third could obtain a loan up to $ 1000 deposited directly into their accounts. Plaintiffs describe Early Access as a type of "payday" loan: a "small loan[ ] due on the borrower's next 'payday.' " Fifth Third disputes this characterization, but admitted in the program's terms and conditions that Early Access "is an expensive form of credit ... designed to help our customers meet their short-term borrowing needs .... We do not recommend continued use of the service."

Early Access was different in that Fifth Third, the lender, also had access to its customers' checking accounts. When a customer requested a cash advance, Fifth Third deposited the amount into that individual's checking account. When a customer later received a direct deposit of $ 100 or more, Fifth Third automatically deducted the amount of the loan from the account, plus a "transaction fee" equal to 10% of the loan's amount. Fifth Third did this even if the deduction resulted in a negative balance on the account, though it did not charge an overdraft fee for this transaction. Customers also had the option of making manual payments. If the loan had not been repaid in full after thirty-five days, Fifth Third automatically deducted the outstanding balance and the loan's transaction fee from the account, even if no qualifying direct deposit had posted. Thus, the term of the loan was always thirty-five days or shorter.

Two documents explained the contours of the Early Access program: the "Summary of Key Features and Terms & Conditions" and the "Frequently Asked Questions," which were incorporated into the terms and conditions by reference (collectively, "the contract"). According to plaintiffs, the contract here was one of adhesion, as it was "drafted and imposed by Fifth Third" and "presented to ... customers on a 'take it or leave it' basis." The contract explained that "there is no interest charge associated with an Advance," and customers are charged the same 10% transaction fee regardless of the length of the term. It included several examples of how this works in practice, including this one:

Lee Advanced multiple times in the week leading up to payday. She Advanced $ 20 two times on Monday, $ 20 on Tuesday, and $ 40 on Thursday, for a total of $ 100 in Fifth Third Early Access Advances prior to her next qualifying direct deposit. When Lee receives her next qualifying direct deposit, the bank will withdraw $ 110 as payment from her Associated Checking Account ($ 100 in Fifth Third Early Access Advances and $ 10 in corresponding transaction fees).

In several places, the contract discussed the Early Access program's "annual percentage rate" ("APR"). This term is familiar to many consumers and widespread across the financial sector, undoubtedly because the federal Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq. , and federal regulations "require[ ] lenders to make certain prominent disclosures when extending credit, including the APR." Rucker v. Sheehy Alexandria, Inc. , 244 F. Supp. 2d 618, 622 (E.D. Va. 2003) ; see Truth in Lending Regulations, Regulation Z, 12 C.F.R. § 226.1 et seq. TILA specifically requires that lenders use the term "annual percentage rate." 15 U.S.C. § 1638(a)(4). One regulation defines "annual percentage rate [a]s a measure of the cost of credit, expressed as a yearly rate." 12 C.F.R. § 226.14(a). Another provides a bit more detail: "[t]he annual percentage rate is a measure of the cost of credit, expressed as a yearly rate, that relates the *271amount and timing of value received by the consumer to the amount and timing of payments made." 12 C.F.R. § 1026.22(a)(1).

The contract described the APR for the Early Access program as follows:

INTEREST RATE AND FEES

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Bluebook (online)
925 F.3d 265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/laskaris-v-fifth-third-bank-in-re-fifth-third-early-access-cash-advance-ca6-2019.