WHEELING — A woman is suing Pendleton Community Bank alleging its overdraft fees were done in bad faith.
Penny Lewis filed the lawsuit on behalf of herself and others who are similarly situated for the improper assessment and collection of overdraft fees, according to a complaint filed in U.S. District Court for the Northern District of West Virginia.
Lewis claims besides being deceptive, this practice breaches the defendant’s standardized adhesion contract and the defendant’s duty of good faith and fair dealing. She claims it also unjustly enriches the defendant to the detriment of its customers.
"Through the imposition of these fees, Defendant has made substantial revenue to the tune of millions of dollars, seeking to turn its customers’ financial struggles into revenue," the complaint states. "Plaintiff, like thousands of others, has fallen victim to Defendant’s fee revenue maximization schemes."
Lewis is seeking compensatory damages with pre- and post-judgment interest. She is represented by Rodney A. Smith of Rod Smith Law in Charleston; J. Gerard Stranch IV of Branstetter Stranch & Jennings in Nashville; Lynn A. Toops of Cohen & Malad in Indianapolis; and Christopher D. Jennings of Johnson Firm in Little Rock, Ark.
The defendant filed a motion to dismiss and a reply in support of its motion to dismiss.
In the reply, filed Dec. 22, Pendleton argued that the parties’ contract states that actual balance will be used to determine if an overdraft fee is charged, and PCB complied with that obligation under the contract.
"Rulings from other courts about other contracts in other states have no bearing on this case," the reply states. "Further, Plaintiff’s argument to support her position that multiple fees for the same item are being charged is an impermissible attempt to rewrite the contractual language."
PCB argues that regardless, the plaintiff's claims are untimely because she failed to report any issues within the time frame set forth in the contract.
Since Lewis' contractual claims fail as a matter of law, so does her claim for breach of the duty of good faith and fair dealing, which cannot stand alone as a claim under black-letter law in West Virginia.
"Plaintiff does not even attempt to argue that her claim for unjust enrichment is valid, and it appears that Plaintiff has abandoned that claim," the reply states. "Accordingly, Plaintiff’s Class Action Complaint should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure."
PCB is represented by Angela L. Beblo, Charles Dunbar and M. Shane Harvey of Jackson Kelly in Charleston.
The case is assigned to District Judge Thomas Kleeh.
U.S. District Court for the Northern District of West Virginia case number: 2:22-cv-00012