The opinion of the court was delivered by: Blanche M. Manning United States District Judge
Plaintiff Carl Boecherer alleges that the defendant, Burling Bank, failed to post a notice on one of its automated teller machines ("ATMs") disclosing that it charged a fee to certain users. The plaintiff brings suit under the Electronic Funds Transfer Act, 15 U.S.C. § 1693 et seq. ("EFTA") on behalf of himself and a putative class. The parties have filed cross-motions for summary judgment.*fn1 For the reasons stated below, the bank's motion for summary judgment is denied and the plaintiff's partial motion for summary judgment is granted in part and denied in part.
The plaintiff alleges that the required fee notice was not posted on the defendant's ATM machine located at 141 W. Jackson, Chicago, Illinois, when he used it to withdraw cash on August 23, 2007, and that he was charged $1.75. The plaintiff has submitted a photograph of the relevant ATM machines, which he certifies he took on August 24, 2007, the day after he withdrew money from the ATM, showing that there is no fee notice posted on the machine. The plaintiff's certification also indicates, as shown by attached photographs, that there were no fee notices posted on the relevant ATMs on or around September 23, 2007. Further, at least one of the ATMs was missing a fee notice on February 11, 2008. As stated in more detail below, on more than one occasion, bank personnel witnessed fee notices on the floor in front of the ATM. The parties dispute whether the notices fell off on their own or were taken off by unknown third parties. Bank personnel also noticed on certain occasions that the fee notices had become only partially affixed to the ATM.
Burling Bank's principal place of business is located at 141 W. Jackson, Chicago, IL, commonly known as the Chicago Board of Trade ("CBOT") building. Since it began operations in 1989, Burling Bank has owned and operated two ATMs in the lobby of the CBOT building. The ATMs that were initially placed in the lobby by the bank were replaced in February 2006. Maribeth Chambers is presently a vice-president of Burling Bank and has been employed with the bank since 1989 when it originally opened.
Burling Bank has been aware of its obligations to post on-machine fee notices since the requirement was imposed pursuant to the ATM Fee Reform Act of 1999.
Burling Bank states that the fee notices required by the EFTA were affixed to the original ATMs, see DSOF at ¶ 7. In support, Burling Bank points to the deposition testimony of Chambers, who, when asked the question, "If you look at the picture in Exhibit 7 of the original ATMS, you can see in there the fee notice, right?" responded "yes." Now, however, the plaintiff asserts that the language on the stickers in the photograph is unreadable and thus, he cannot admit or deny whether the stickers were EFTA-compliant. Based on the question presented by the plaintiff in the deposition, the court concludes that the plaintiff was aware that the original ATMS contained EFTA-compliant fee notices.
The fee notices on the original ATMs were transferred to the new machines when the machines were replaced in February 2006. Specifically, the fee notices were peeled off the original ATMs and affixed to the new machines by Maribeth Chambers. Then, in March 2006, new fee notices were placed on the machines. In October 2006, fee notices that had been printed on white paper, approximately 5" by 3" with black lettering were affixed to the machine using double-sided Scotch tape. In October 2006, the original beige fascia of the machines was replaced by new charcoal fascia and the fee notices were transferred to the new fascia by Dora Asmussen, Vice-President of Burling Bank.
Asmussen then replaced the fee notices in the first quarter of 2007. The plaintiff denies this statement on the ground that Asmussen did not state that she "replaced" the old fee notices but that she "placed" the fee notice on the ATM at that time.
Leon Schnayer, the bank's compliance officer, testified that he placed a fee notice on at least one machine on February 11, 2008. He does not recall if the fee notice was missing from one or both of the ATM machines.
On September 2, 2008, Chambers affixed to the ATMs fee notices that were printed on mailing labels rather than affixing the laminated fee notice using double-sided tape as previously done. In response to the question "[I]nformally, prior to the filing of this lawsuit, various bank officers would periodically look at the ATMs and if they noted that the fee notices were not present, would take action?", Asmussen said "Yes."
Chambers testified that on a number of occasions, she had seen that one of the fee notices had fallen off the ATM. Immediately upon noticing the fallen fee notice, Chambers would reaffix the fee notice to the ATM. Chambers also testified that between October of 2006 and September of 2008, on certain occasions, she noticed that the fee notices had become partially unaffixed and she would personally reattach them.
While Asmussen, as a Rule 30(b)(6) witness, testified that it was the bank's belief that the fee notices were "taken down by other than bank personnel" if the fee notices were not on the ATMs, the plaintiff notes that Chambers testified that she used a mailing label for the fee notice because the "adhesive wasn't working," and on at least one occasion, she had witnessed the fee notice laying on the floor in front of the machine or at other times hanging off or about to fall off of the ATM.
The bank ordered notices required under the Funds Availability Act from a third-party supplier but, as previously noted, made their own fee notices for the EFTA using Word and affixing them ...