## Facts

- Jeffrey J. Rusthoven maintained checking and savings accounts with TCF National Bank and had an ATM card and PIN enabling withdrawals from his checking account.
- Rusthoven kept the PIN written in his wallet rather than memorizing it.
- On January 30, 2006, police arrested Rusthoven while he was in his truck with his fiancée, Muzit Kubrom.
- To avoid towing, Rusthoven allowed Kubrom to drive the truck home; he left his wallet (containing the ATM card and PIN) in the truck’s center console.
- Rusthoven was incarcerated for a parole violation and did not arrange to receive or forward his mail; TCF continued mailing periodic account statements to his address.
- During incarceration, $27,785.08 was withdrawn from his checking account via ATM transactions, and funds were transferred from savings to checking and then withdrawn.
- After release on August 2, 2006, Rusthoven discovered the activity and, on August 3, 2006, notified TCF that the withdrawals and transfers were unauthorized and suspected Kubrom.
- Rusthoven sued under the Electronic Fund Transfer Act (EFTA) for the disputed transactions (including treble damages) and also asserted a state-law negligence claim.
- TCF moved for summary judgment.

## Issues

1. Whether Rusthoven “furnished” the means of access (ATM card and PIN) to Kubrom such that the disputed transfers were “authorized” under the EFTA.
2. Whether the EFTA’s 60-day notice rule limits or bars recovery because Rusthoven did not notify TCF within 60 days of the bank’s transmittal of statements listing the disputed transfers.
3. Whether the evidence supported treble damages under 15 U.S.C. § 1693f(e)(2).
4. Whether a state-law negligence claim may proceed alongside the EFTA claim based on the same alleged unauthorized transfers and the bank’s handling of the dispute.

## Decision

- Summary judgment was granted in part and denied in part.
- The EFTA claim was not dismissed, but recovery was limited to losses occurring within 60 days after TCF transmitted a periodic statement listing one of the disputed transfers.
- The request for treble damages under the EFTA was dismissed.
- The negligence claim was dismissed with prejudice.
- Summary judgment was denied on remaining aspects of the EFTA claim, leaving a narrowed claim to proceed.

## Legal Principles

- Under the EFTA, whether a consumer “furnished” the means of access and thereby authorized transfers may turn on intent and the scope of permission, not merely another person’s physical access to the card and PIN.
- The EFTA’s 60-day notice provision is measured from the bank’s transmittal of the periodic statement reflecting the disputed transfer; failure to notify within that period limits recoverable losses for later unauthorized transfers.
- Treble damages under 15 U.S.C. § 1693f(e)(2) require proof of statutorily defined misconduct in the error-resolution process (beyond ordinary mistakes), and are unavailable absent sufficient supporting evidence.
- Where the EFTA supplies a specific federal remedial scheme for unauthorized electronic fund transfers, overlapping state-law negligence claims based on the same conduct may be rejected as a matter of law.

## Conclusion

The court allowed Rusthoven to pursue an EFTA claim only for a narrowed set of transactions falling within the statute’s 60-day statement-notice window, while eliminating enhanced and alternative remedies by dismissing treble damages and the state-law negligence claim.


Rusthoven v. TCF Nat’l Bank, No. 07-3154 (JRT/JJK), 2009 U.S. Dist. LEXIS 62378 (D. Minn. July 20, 2009)