Wingard et al v. Triumph Bancorp, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 23-cv-02116-NYW-NRN
SANDRA WINGARD, and
KENNETH WINGARD,
Plaintiffs,
v.
TBK BANK, SSB,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant’s Motion for Summary Judgment (the
“Motion”). [Doc. 35, filed August 1, 2024]. The Court has reviewed the Motion and the
related briefing, the applicable case law, and the record before the Court, and concludes
that oral argument would not materially assist in the resolution of the Motion. For the
reasons set forth below, the Motion for Summary Judgment is respectfully GRANTED in
part and DENIED in part.
BACKGROUND
Plaintiffs Sandra Wingard and Kenneth Wingard (“Plaintiffs”) seek to recover funds
stolen from their bank accounts with Defendant TBK Bank, SSB. (“Defendant” or “TBK”).
See generally [Doc. 28]. Plaintiffs allege that, after Defendant suffered a data breach in
December 2021, unknown third parties made unauthorized withdrawals from Plaintiffs’
accounts. [Id. at ¶¶ 6–8]. In April 2022, the fraudsters transferred $66,500 from Plaintiffs’
savings account to their checking account. [Id. at ¶ 7]. Between April and August 2022,
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Defendant allegedly paid counterfeit checks against Plaintiffs’ checking account totaling
$93,891.62. [Id. at ¶ 8]. Plaintiffs maintain that they authorized none of these
transactions. [Id. at ¶¶ 7–8]. Plaintiffs allege, however, that Defendant refused to fully
reimburse Plaintiffs for the loss because Plaintiffs failed to timely notify Defendant of the
unauthorized withdrawals. [Id. at ¶¶ 12, 17].
Plaintiffs bring two claims. First, they assert that Defendant violated the Electronic
Fund Transfer Act (“EFTA”), 15 U.S.C. §§ 1693–93r, by holding Plaintiffs liable for
unauthorized transactions and failing to adequately respond to the unauthorized
transactions (“Count One”), [Doc. 28 at ¶¶ 19–36]. Second, they bring a claim under the
Colorado Uniform Commercial Code (“UCC”), Colo. Rev. Stat. § 4-4-401(a) (2024), based
on Defendant’s charging of Plaintiffs’ checking account for transactions that were not
“properly payable” (“Count Two”), [Doc. 28 at ¶¶ 37–41]. Defendant now seeks summary
judgment on both claims. See [Doc. 35]. Plaintiffs have responded in opposition, [Doc.
38], and Defendant has replied, [Doc. 43]. The Court considers the Parties’ arguments
below.
LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A
dispute is genuine if there is sufficient evidence so that a rational trier of fact could resolve
the issue either way. A fact is material if under the substantive law it is essential to the
proper disposition of the claim.” Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194
(10th Cir. 2011) (citation and quotations omitted).
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When a defendant seeks summary judgment based on an affirmative defense, the
plaintiff “need only identify a disputed material fact relative to the affirmative defense” to
defeat the motion for summary judgment. Hamric v. Wilderness Expeditions, Inc., 6 F.4th
1108, 1122 (10th Cir. 2021). “[W]here the moving party has the burden of proof—the
plaintiff on a claim for relief or the defendant on an affirmative defense—his showing must
be sufficient for the court to hold that no reasonable trier of fact could find other than for
the moving party.” Leone v. Owsley, 810 F.3d 1149, 1153 (10th Cir. 2015) (cleaned up).
A sufficient showing includes establishing “all of the essential elements of the . . .
defense.” Id. (quotation omitted). In considering the evidence in the record, the Court
cannot and does not weigh the evidence or determine the credibility of witnesses. See
Fogarty v. Gallegos, 523 F.3d 1147, 1165 (10th Cir. 2008). At all times, the Court views
the record in the light most favorable to the nonmoving party. Banner Bank v. First Am.
Title Ins. Co., 916 F.3d 1323, 1326 (10th Cir. 2019).
UNDISPUTED MATERIAL FACTS
The following material facts are drawn from the summary judgment record and are
undisputed unless otherwise noted.
1. In 2022, Plaintiffs maintained a joint checking account and a joint savings
account with TBK. [Doc. 35 at ¶ 1; Doc. 38 at ¶ 1; Doc. 35-5 at 5]; see also [Doc. 35-3].
2. From April 2022 to September 2022, TBK mailed Plaintiffs monthly bank
statements to the address associated with Plaintiffs’ accounts. [Doc. 35 at ¶ 3; Doc. 28
at ¶ 3; Doc. 35-1 at ¶ 8; Doc. 35-3].1
1 Plaintiffs deny receiving the statements, but they do not dispute that the mailing address
was correct. [Doc. 38 at ¶ 3]. Nor do they provide evidence to controvert Defendant’s
affidavit evidence that TBK mailed Plaintiffs monthly statements, which is corroborated
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3. On August 26, 2022, Plaintiffs discovered unauthorized transactions on
their accounts when they visited the TBK branch in Buena Vista, Colorado to make a
withdrawal. Plaintiffs filed affidavits of alteration that same day. [Doc. 35 at ¶ 4; Doc. 38
at ¶ 4; Doc. 35-5 at 5; Doc. 35-6 at 5].
4. The Court adopts the chart used in the Motion to summarize the
transactions at issue:
Savings Account
Post Date From To Type Amount
Apr. 19, 2022 Savings Checking Telebank
Transfer
$35,000
May 10, 2022 Savings Checking Telebank
Transfer
$22,000
Aug. 15, 2022 Savings Checking Telebank
Transfer
$9,500
Checking Account
Check Date From To Type Amount
Apr. 8, 2022 Tommie Penson Tommie Penson Paper Check $4,000.00
Apr. 20, 2022 Tommie Penson Mark McVay Paper Check $7,443.98
Apr. 25, 2022 Tommie Penson Tommie Penson Paper Check $12,443.98
May 7, 2022 Tommie Penson Tommie Penson Paper Check $9,735.00
May 9, 2022 Tommie Penson Tommie Penson Paper Check $5,000.00
May 13, 2022 Tommie Penson Tommie Penson Paper Check $19,423.00
May 21, 2022 Tommie Penson Tommie Penson Paper Check $19,432.00
June 3, 2022 Tommie Penson Tommie Penson Paper Check $6,721.14
Aug. 17, 2022 Jimmy
Applewhite
Jimmy
Applewhite
Paper Check $900.87
by the statements themselves. [Doc. 35-1 at ¶ 8; Doc. 35-3]; see also Pasternak v. Lear
Petroleum Expl., Inc., 790 F.2d 828, 834 (10th Cir. 1986) (“Conclusory allegations,
general denials, or mere argument of an opposing party’s case cannot be utilized to avoid
summary judgment.”). Accordingly, the Court deems this fact undisputed. See Fed. R.
Civ. P. 56(e)(2).
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Aug. 17, 2022 Jimmy
Applewhite
Jimmy
Applewhite
Paper Check $8,800.65
[Doc. 35 at ¶ 5; Doc. 38 at ¶ 5; Doc. 35-3 at 12].2
5. The withdrawals from Plaintiffs’ savings account transferred funds
electronically to Plaintiffs’ checking account (“Savings Transactions”). [Doc. 35 at ¶ 6;
Doc. 38 at ¶ 6; Doc. 35-6 at 4].
6. The withdrawals from Plaintiffs’ checking account were initiated by paper
checks (“Check Transactions”). None of the Check Transactions were subject to
electronic conversion. [Doc. 35 at ¶ 7; Doc. 38 at ¶ 7; Doc. 35-1 at ¶ 11]; see also [Doc.
35-3].
7. TBK reimbursed Plaintiffs $9,700.87 for the two Check Transactions on
August 17, 2022. [Doc. 35 at ¶ 8; Doc. 38 at ¶ 8; Doc. 35-1 at ¶ 12; Doc. 35-4 at 3]. In
reliance on the Terms and Conditions, TBK did not reimburse Plaintiffs for the remaining
transactions because they occurred more than 60 days before the day Plaintiffs reported
them, August 26, 2022. [Doc. 35 at ¶ 8; Doc. 38 at ¶ 8; Doc. 35-1 at ¶ 12; Doc. 35-4 at
3].
ANALYSIS
I. EFTA Claim
The EFTA seeks to protect consumers who “use . . . electronic systems to transfer
funds.” 15 U.S.C. § 1693. To that end, it sets forth “a basic framework establishing the
2 Plaintiffs deny the chart as “incorrect” but dispute only the amount of the May 21, 2022
transaction. [Doc. 38 at ¶ 5]. Record evidence confirms that Plaintiffs have identified the
correct amount of the May 21, 2022 transaction. [Doc. 35-3 at 12]. Because Plaintiffs
dispute none of the other transaction dates or amounts, the Court deems the rest of the
chart undisputed. See Fed. R. Civ. P. 56(e)(2).
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rights, liabilities, and responsibilities of participants in electronic fund and remittance
transfer systems.” § 1693(b). Plaintiffs allege that TBK violated the EFTA’s error
resolution provisions, § 1693f, and its implementing regulation’s (“Regulation E”)
limitations on consumer liability, 12 C.F.R. § 205.6(b)(3); see [Doc. 28 at ¶¶ 25–32]. To
assert claims under either theory, though, Plaintiffs must point to an “unauthorized
electronic fund transfer.” 15 U.S.C. § 1693f(f)(1); 12 C.F.R. § 205.6(b)(3). The EFTA
defines an unauthorized electronic transfer as “an electronic fund transfer from a
consumer’s account initiated by a person other than the consumer without actual authority
to initiate such transfer and from which the consumer receives no benefit.” 15 U.S.C.
§ 1693a(12) (emphasis added). In the Motion, Defendant argues that neither set of
transactions are actionable “unauthorized electronic transfers” because the Check
Transactions were not “electronic” and the Savings Transactions conferred a “benefit” to
Plaintiffs. [Doc. 35 at 6–9].
Plaintiffs concede that Count One fails with respect to the Check Transactions.
[Doc. 38 at 9–10]. The EFTA excludes paper checks from its definition of electronic fund
transfer. 15 U.S.C. § 1693a(7). Regulation E provides an exception for so-called
electronic check conversions, where a check is “used as a source of information to initiate
a one-time electronic fund transfer.” 12 C.F.R. § 1005.3(b)(2)(i). But the Parties agree
that no such conversion occurred here. [Doc. 35 at 7; Doc. 38 at 10 n.1]. The Court
therefore agrees with the Parties that the Check Transactions were not electronic and
cannot sustain an EFTA claim. Accordingly, Count One is DISMISSED with respect to
the Check Transactions.
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As for the Savings Transactions, Defendant argues that Plaintiffs received a
benefit because the funds were transferred from one of Plaintiffs’ accounts to another.
[Doc. 35 at 8–9]. Defendant reasons that this means “Plaintiffs received the benefit of the
transactions at issue” because “the funds were still within their possession and Plaintiffs[]
suffered no loss as a result of the transfers.” [Id. at 9]. Plaintiffs counter that this argument
“flies in the face of common sense.” [Doc. 38 at 5]. Without the Savings Transactions,
Plaintiffs argue, their checking account would have lacked sufficient funds for the thieves
to execute the Check Transactions. [Id. at 5–6].
At least two other courts have held that unauthorized transfers between a
consumer’s bank accounts, especially as part of a larger fraud scheme, do not confer a
benefit under the EFTA. First, in Moore v. JPMorgan Chase Bank, N.A., the district court
found that the plaintiffs adequately stated an EFTA claim based on unauthorized transfers
from their savings account to their checking account, transfers that enabled thieves to
wire the money out of the checking account and complete the theft. No. 22-cv-01849-
JSC, 2022 WL 16856105, at *1–2 (N.D. Cal. Nov. 10, 2022). The court observed that
“without the unauthorized (and unknown) transfer of money from their savings to their
checking account there would not have been sufficient monies in the checking account to
fund the unauthorized (and unknown) wire transfers. Such a consequence is a detriment,
not a benefit.” Id. at *1 (citation omitted). Similarly, in New York ex rel. James v. Citibank,
the complained-of transactions were “intrabank transfers”—such as from a consumer’s
savings account to his checking account—where “scammers consolidate funds from
multiple accounts into one account in order to steal a larger sum of money without the
need for multiple Payment Orders.” No. 24-cv-00659-JPO, 2025 WL 251302, at *16
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(S.D.N.Y. Jan. 21, 2025). Relying in part on Moore, the court held that “unauthorized
consolidations of consumers’ funds without their knowledge in order to facilitate easier
and less detectable fraud[ ]occurred without any ‘benefit’ to the consumer.” Id. at *17.
This Court respectfully concurs with the conclusions reached in Moore and
Citibank. As Citibank observes, the few courts to construe “benefit” under the EFTA have
considered the “downstream effects” of the transaction. Id.; see also Aikens v. Portfolio
Recovery Assocs., 716 F. App’x 37, 40 (2d Cir. 2017) (finding benefit when bank charged
consumer’s account to offset some of her credit card debt held by the bank, because the
consumer received the benefit of reduced debt); Guarnieri v. Be Money Inc., No. 2:22-cv-
01824-FWS-KS, 2022 WL 11381916, at *5 (C.D. Cal. Oct. 18, 2022) (finding benefit when
hotel charged plaintiff for damage to hotel room but plaintiff received benefit of avoiding
liability). Accounting for the downstream effects of the Savings Transactions, Plaintiffs
plainly received no benefit from those transfers. As in Moore and Citibank, the Savings
Transactions were an intermediate step that led to the fraudulent Check Transactions and
Plaintiffs’ loss of tens of thousands of dollars. Even if Plaintiffs reaped a brief, unrealized
benefit from money being moved between their accounts before it was stolen, they were
unaware of it. Cf. Park v. Webloyalty.com, Inc., 685 F. App’x 589, 592 (9th Cir. 2017)
(finding no benefit when plaintiff was unaware he had subscribed to coupon savings
program, so he could not have taken advantage of the coupons). Accordingly, a
reasonable jury could conclude that Plaintiffs received no benefit from the Savings
Transactions and that Plaintiffs may bring an EFTA claim based on those transfers. The
Motion is respectfully DENIED as to this portion of Count One.
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II. UCC Claim
Although Plaintiffs concede that the Check Transactions are not actionable under
Count One, they argue that Count Two allows them to recover for the Check Transactions
under the UCC. [Doc. 38 at 10–11]. Colorado’s UCC provides that a bank may charge
a customer’s account only for items that are “properly payable.” Colo. Rev. Stat. § 4-4-
401(a). An unauthorized check is not properly payable. Id. When a customer is charged
for an unauthorized check, the UCC gives the customer one year to notify the bank that
the item was not properly payable. § 4-4-406(f). If the customer fails to notify the bank
within one year of the date when the statement with the error became available, the UCC
precludes the customer from recovering from the bank the cost of the unauthorized
payment. Id. But the UCC also permits parties to modify its terms by contract. § 4-4-
103(a).
Defendant asserts that the Parties made such a modification here. [Doc. 35 at 9–
12]. TBK’s Terms and Conditions for its accountholders require an accountholder to notify
the bank of an error within 60 days of TBK’s issuing of the statement with the error. [Doc.
35-2 at 6–7, 15]. And because the Terms and Conditions provide that a customer agrees
to their terms by using a TBK account, [id. at 3], Defendant argues that Plaintiffs agreed
to the 60-day notice period, [Doc. 43 at 5]. For Check Transactions that occurred more
than 60 days before August 26, 2022, Defendant concludes that Plaintiffs are precluded
from attempting to recover under the UCC. [Doc. 35 at 10–12; Doc. 43 at 5–7]. Defendant
points to several decisions in other UCC jurisdictions approving contractual provisions
that shorten the UCC’s one-year notice period for unauthorized payments. [Doc. 35 at
10]; see also, e.g., Aliaga Med. Ctr., S.C. v. Harris Bank N.A., 21 N.E.3d 1203, 1210–11
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(Ill. App. Ct. 2014) (upholding 60-day notice period in account agreement); Nat’l Title Ins.
Corp. Agency v. First Union Nat’l Bank, 559 S.E.2d 668, 671–72 (Va. 2002) (same); Am.
Airlines Emps. Fed. Credit Union v. Martin, 29 S.W.3d 86, 95–97 (Tex. 2000) (same).
Plaintiffs respond that Defendant cannot obtain summary judgment on Count Two
because it has not shown that Plaintiffs agreed to the Terms and Conditions. [Doc. 38 at
10]. In other words, they argue that the Terms and Conditions do not form an enforceable
contract between the Parties, so the UCC’s default one-year notice period applies.
Under Colorado law, “[t]he existence of a contract is a question of fact.” Tuscany
Custom Homes, LLC v. Westover, 490 P.3d 1039, 1049 (Colo. App. 2020); see also
Extreme Constr. Co. v. RCG Glenwood, LLC, 310 P.3d 246, 254 (Colo. App. 2012) (“The
issue of whether an offer was accepted is a question of fact.”). An enforceable contract
requires mutual assent—i.e., offer and acceptance—and consideration. Indus. Prods.
Int’l, Inc. v. Emo Transp., Inc., 962 P.2d 983, 988 (Colo. App. 1997) (citing Denver Truck
Exch. v. Perryman, 307 P.2d 805 (Colo. 1957)). “Acceptance of an offer is generally
defined as words or conduct that, when objectively viewed, manifests an intent to accept
an offer.” Marquardt v. Perry, 200 P.3d 1126, 1129 (Colo. App. 2008). “While assent
may be implied from the totality of circumstances and the acts of the parties, it must
appear in some form.” Vernon v. Qwest Commc’ns Int’l, 857 F. Supp. 2d 1135, 1149 (D.
Colo. 2012) (citing Mumm v. Adam, 307 P.2d 797, 801 (Colo. 1957)).
According to TBK’s Terms and Conditions, merely using an account with TBK
constitutes assent to the Terms and Conditions. [Doc. 35-2 at 3]. But regardless of the
“form” taken by an offeree’s assent, a party cannot assent to terms when it lacks notice
of those terms. Cf. Grosvenor v. Qwest Corp., 854 F. Supp. 2d 1021, 1026 (D. Colo.
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2012) (suggesting that “objective indicia of assent can be overcome where the terms of
the agreement were inconspicuous or concealed from the offeree”);3 Taubman Cherry
Creek Shopping Ctr., LLC v. Neiman-Marcus Grp., Inc., 251 P.3d 1091, 1095 (Colo. App.
2010) (holding that when contracting parties attempt to incorporate external terms into
their contract, “it must be clear that the parties to the agreement had knowledge of and
assented to the incorporated terms” (quotation omitted)). Courts have confronted similar
issues in internet contracts. See, e.g., Vernon, 857 F. Supp. 2d at 1149 (applying
Colorado law). Like TBK’s Terms and Conditions, some internet agreements provide that
a user assents to a digital product’s terms and conditions by using the product. Id. In
these cases, “the threshold issue is . . . did the consumer have reasonable notice, either
actual or constructive, of the terms of the putative agreement and did the consumer
manifest assent to those terms.” See Macasero v. ENT Credit Union, 533 P.3d 982, 988
(Colo. App. 2023) (quoting Vernon, 857 F. Supp. 2d at 1149).
TBK has failed to carry its burden at summary judgment to establish that there is
no genuine issue of material fact that the Wingards had reasonable notice, actual or
constructive, of TBK’s Terms and Conditions. Plaintiffs expressly argue that there is no
evidence in the record that TBK’s Terms and Conditions were ever given or sent to
Plaintiffs by Defendant, or that the Parties ever agreed that they would govern the
3 In Grosvenor, the court observed that it could not find Colorado authority explicitly
endorsing this proposition, though it noted the proposition is not “particularly remarkable.”
854 F. Supp. 2d at 1026. Although this Court’s research revealed no Colorado decisions
repeating this exact phrase from Grosvenor, the Colorado Court of Appeals recently
adopted the reasoning used in Vernon, another federal case that incorporated
Grosvenor’s analysis of contracts where an offeree lacks notice of the contractual terms.
See Macasero v. ENT Credit Union, 533 P.3d 982, 988 (Colo. App. 2023) (citing Vernon,
857 F. Supp. 2d at 1149–50 (finding Grosvenor’s analysis “equally applicable” to facts at
issue)).
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relationship. [Doc. 38 at 10–11]. Defendant replies that Plaintiffs “have been banking
customers with TBK for almost eight years.” [Doc. 43 at 5]. But such argument misses
the mark with respect to the threshold inquiry of notice. TBK has put forward no evidence
suggesting that it ever provided Plaintiffs with actual notice by supplying them a copy of
the Terms and Conditions. Nor has it pointed to other facts that would have placed
Plaintiffs on constructive notice by alerting them to the existence of the Terms and
Conditions. See Macasero, 533 P.3d at 989 (recognizing that inquiry notice, a form of
constructive notice, “requires sufficient facts to attract the attention of interested persons
and prompt a reasonable person to inquire further” (quotation omitted)). Plaintiffs’ bank
statements include a version of the 60-day notice requirement, e.g., [Doc. 35-3 at 3, 7,
11], but TBK offers no evidence that the Terms and Conditions were somehow
incorporated therein—and it does not appear from the face of the bank statements that
they were. Similarly, TBK provides no legal authority as to whether the statements’
language regarding the 60-day notice requirement amounts to notice of the Terms and
Conditions. And at this stage, the Court is bound to view the record, including the bank
statements, in the light most favorable to Plaintiffs. See Banner Bank, 916 F.3d at 1326.
For that same reason, the Court cannot simply credit TBK’s assertion that assent
to the Terms and Conditions is a prerequisite to using an account with TBK. [Doc. 35 at
10; Doc. 43 at 5]. As the Parties’ briefing establishes, Plaintiffs have maintained accounts
at TBK’s Buena Vista branch since 2011, but TBK only acquired the branch in 2016. [Doc.
38 at 10; Doc. 43 at 5].4 There is no evidence in the record as to how TBK presented the
4 For purposes of this Motion only, the Court construes these statements as judicial
admissions. United States v. Nelson, 868 F.3d 885, 890–91 (10th Cir. 2017)
(“[S]tatements in briefs . . . may, in [the] court’s discretion, operate as judicial admissions
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Terms and Conditions to existing accountholders during the acquisition, or whether those
terms differed from the terms used by the previous owner of the branch. To be sure,
Defendant may believe it unlikely that Plaintiffs banked with TBK for seven years while
avoiding any constructive notice of TBK’s Terms and Conditions. But an unsupported
belief is an insufficient basis for summary judgment. Because Plaintiffs’ assent to the
Terms and Conditions remains a genuine dispute of fact material to Defendant’s
affirmative defense, Hamric, 6 F.4th at 1122, the Motion is respectfully DENIED as to
Count Two.
CONCLUSION
For the reasons set forth herein, IT IS ORDERED that:
(1) Defendant’s Motion for Summary Judgment [Doc. 35] is GRANTED in part
and DENIED in part;
(2) Count One is DISMISSED with prejudice with respect to the Check
Transactions;
(3) The Motion is DENIED with respect to Count Two and Count One insofar as
Plaintiffs’ EFTA claim is based on the Savings Transactions; and
(4) A telephonic Status Conference is SET for March 11, 2025 at 10:00 a.m. for
purposes of setting a Final Pretrial/Trial Preparation Conference and trial in
this matter. Counsel for the Parties shall participate using the following dial-
in information: 571-353-2301; Access Code: 783456374.
that have the effect of withdrawing a fact from issue and dispensing wholly with the need
for proof of the fact.” (quotation omitted)).
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DATED: February 25, 2025 BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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