Ianelli v. Bank

• Citation: 996 A.2d 722,2010 VT 34
• Decision Date: 12 April 2010
• Docket Number: No. 09-376.,09-376.
• Parties: Ryland IANELLIv.U.S. BANK.
• Court: United States State Supreme Court of Vermont

996 A.2d 722
2010 VT 34

Ryland IANELLI
v.
U.S. BANK.

No. 09-376.

Supreme Court of Vermont.

April 12, 2010.

996 A.2d 723

COPYRIGHT MATERIAL OMITTED

996 A.2d 724

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ. ENTRY ORDER

¶ 1. Plaintiff Ryland Ianelli appeals from the trial court's grant of summary judgment to defendant U.S. Bank (the Bank) on his consumer fraud, common law fraud, negligent misrepresentation, and breach of contract claims following a dispute arising out of the Bank's conduct in handling plaintiff's overdrawn bank account. We affirm.

¶ 2. In August 2004, plaintiff opened a student checking account with the Bank in Portland, Oregon. Upon opening the account, plaintiff was provided with a Deposit Account Agreement, which required plaintiff to review his monthly statements, notify the Bank of any changes in his address, and notify the Bank if he wished to close his account. In May 2006, plaintiff overdrew his account by forty-five dollars. Between May and July 2006, the Bank imposed fees and sent several notices of overdraft to plaintiff's most recently provided address, but the notices were returned as undeliverable and were not received by plaintiff. The Bank closed plaintiff's account in July 2006 and sent notification of the closure to plaintiff, which plaintiff again did not receive. Rather than pursuing the collection and fees itself, the Bank sold the debt, which now totaled $292.37 with fees and interest, to United Credit Recovery (UCR) in December 2007.

¶ 3. K.B. Merrill Associates (KBMA), a contractor providing debt collection services to UCR, left a message regarding the debt on the home telephone of plaintiff's mother, who lives in Vermont, on March 3, 2008, which she relayed to plaintiff in Oregon. Plaintiff then spoke with Heather Norquist, a branch manager of the Bank, on March 6, 2008. Norquist informed plaintiff that his account had been overdrawn in 2006, that notices had been sent

996 A.2d 725

and the debt had grown due to interest and fees, and that the bank had sold the debt to UCR. Later that same day, plaintiff called a representative at KBMA and arranged to resolve his debt by paying $200 to KBMA by March 28, 2008. He also provided to the representative an access number and authorization to debit his Vermont checking account if payment was not received by that date.

¶ 4. On March 7, plaintiff's mother, unaware of plaintiff's arrangement with KBMA, spoke with Nancy Lutz, the Bank's District Operations Manager in Oregon, and Phillip Lewis, an employee in the Bank's Ohio Recovery Department. During that conversation, Lutz and Lewis agreed to accept payment of $150 from plaintiff's mother in exchange for the Bank's repurchase of plaintiff's account from the collection agency. Following that conversation, plaintiff's mother mailed a $150 check to Lutz. The Bank sent a check by overnight mail in the amount of $292.37 to UCR on March 21 to repurchase plaintiff's debt. At this point, plaintiff's mother informed plaintiff of her arrangement with the Bank, but plaintiff did not disclose his prior agreement with KBMA to her, nor did he notify the Bank of the agreement. Plaintiff's mother called Lewis on March 25 after she received a collection notice from KBMA in the mail. Lewis informed her that the matter was settled but that there might be “a lag” for KBMA/UCR to process payment, and to direct any further inquiries from KBMA to himself. The next day, plaintiff's mother sent a letter to KBMA that provided Lewis's contact information and stated that the matter had been settled with the Bank. Nonetheless, on March 28, KBMA debited $200 from plaintiff's account.

¶ 5. On March 29, plaintiff's mother wrote a letter to the Bank which stated that she had entered into a “crystal clear agreement” with the Bank on March 7, under which she paid the Bank $150 to have her son's account “pulled” from the collection agency. Specifically, she stated that she was “hoping and expecting that the bank would, as promised, resolve this matter so that only $150 is collected, return $200 to [her] son, and call off the wolves.” The letter was received by the Bank on March 31, after which all collection activity ceased, and a $200 check was issued to plaintiff from the Bank on April 18.

¶ 6. Plaintiff subsequently filed a Fair Debt Collection Practices Act claim against KBMA, which settled for $500. On June 16, 2008, plaintiff filed a four count complaint against the Bank alleging (1) violation of the Vermont Consumer Fraud Act (VCFA); (2) common law fraud; (3) negligent misrepresentation; and (4) breach of contract. After written discovery, plaintiff moved for partial summary judgment on the VCFA claim. The Bank filed an opposition to plaintiff's motion and a cross-motion for summary judgment on all counts. The trial court denied plaintiff's motion for partial summary judgment, concluding that there was no indication that the Bank had made any misleading statements or misrepresentations to plaintiff or his mother. The court also granted the Bank's motion for summary judgment on all claims, concluding again that no misrepresentation had occurred and, further, that plaintiff had not demonstrated that he had suffered any damages. This appeal followed.

¶ 7. We review an order of summary judgment de novo, applying the same standard of review as the trial court. Doe v. Forrest, 2004 VT.37, ¶ 9, 176 Vt. 476, 853 A.2d 48. Summary judgment will be affirmed where there is no genuine issue as to...