Kristen Schertzer v. Bank of America, Na

BACKGROUND

BOA charged Plaintiff two separate $2.50 out-of- network (“OON”) balance inquiry fees when she used her BOA debit card at a non-BOA ATM. Plaintiff claims that only the first of the two fees was permissible under the parties’ contract. The contract allows BOA to charge OON balance inquiry fees, but whether the fee at issue was permissible depends on how “balance inquiry” is defined. Under Plaintiff’s definition, she did not make a second “balance inquiry” within the meaning of the contract; under BOA’s definition, she did. The factual circumstances surrounding Plaintiff’s transaction are undisputed.

1 At the time of the district court’s final order, Kristin Schertzer was also a named plaintiff in the action, but this appeal is maintained solely by Covell.

SCHERTZER V. BANK OF AMERICA, NA

I. The ATM Transaction

A. First Balance Inquiry Charge A customer initiates a transaction at a non-BOA ATM by inserting her debit card. The ATM then prompts the customer: “Would you like to view your Account Balance?”, with buttons for “Yes” or “No.” If the customer selects “Yes,” the next screen prompts the customer to “Select inquiry account,” with buttons for…