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CUNA to join in overdraft case amicus brief
WASHINGTON (12/17/07)—The Credit Union National Association (CUNA), in concert with national banking and thrift trade groups, intends to file an amicus curiae brief today in the case of Miller v. Bank of America (BofA). The California court case involves Social Security deposits that were tapped for overdrafts and nonsufficient fund (NSF) fees at BofA and is now before the state’s Supreme Court. BofA originally appealed an earlier ruling by the California Superior Court in San Francisco that the bank pay $1.3 billion to the plaintiff and a class of 1.3 million disabled and elderly customers who had overdraft fees withdrawn from their accounts. In November 2006, a California Court of Appeals reversed the lower court's ruling and award, and decided in favor of BofA. The appellate court ruled that BofA's practice of netting government benefit deposits against overdrafts and overdraft fees was not restricted by either the holding in a 1970's case, Kruger v. Wells Fargo Bank, or by California state law, therefore such practices were appropriate. In late 2006 the plaintiff, Miller filed an appeal with the California Supreme Court, which agreed to hear the case. “The case has tremendous importance to credit unions, “said Mike McLain, assistant general counsel and senior compliance counsel at CUNA. Friday. “It could have a huge negative impact on the products and services credit unions could offer to recipients of Social Security benefits if the appellate court ruling is not affirmed by the California Supreme Court.” The amicus brief raises the issue of federal preemption for federally chartered institutions, including federal credit unions , and provides information about the operational problems that would arise in providing accounts to Social Security beneficiaries—especially those with direct deposit. Other parties to the brief are the American Bankers Association, Consumer Bankers Association, Financial Services Roundtable, and Independent Community Bankers of America. . The government issues more than 62 million benefit checks each month, and the Social Security Administration has pushed for direct deposit to ensure beneficiaries receive their funds... The Miller v. BOA lawsuit was filed after the bank mistakenly credited almost $1,800 to plaintiff Paul Miller's account. It later discovered the mistake, and reversed the deposit, emptying Miller's account. The CA Supreme Court next will review the parties’ briefs and all the amicus briefs and perhaps reach a decision based on available information, although there is an unlikely chance the court could schedule the case for oral argument, bur not very likely. This state Supreme Court’s decision should be the end of the years-long case, McLain said.


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