Small v. BOKF, N.A.

Filing 134

ORDER granting in part and denying in part 98 Motion for Summary Judgment and granting in part and denying in part 102 Motion for Partial Summary Judgment, as outlined in the attached order. By Judge Robert E. Blackburn on 8/7/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-01125-REB-MJW

LELAND SMALL, individually and on behalf of a class of other similarly situated
persons,
Plaintiff,

v.

BOKF, N.A.,
Defendant.

ORDER RE: SUMMARY JUDGMENT MOTIONS
Blackburn, J.
The matters before me are (1) BOKF’s Renewed Combined Motion for
Summary Judgment and Brief in Support [#96],1 filed May 23, 2014; and (2)
Plaintiff’s Combined Motion for Summary Judgment and Brief in Support on
Counts I (TILA) and II (EFTA) [#100], filed May 28, 2014. I grant both motions in part
and deny them in part.2

1

“[#96]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
2

The issues raised by and inherent to the motions for summary judgment are fully briefed,
obviating the necessity for evidentiary hearing or oral argument. Thus, the motions stand submitted on the
briefs. Cf. FED. R. CIV. P. 56(c) & (d). Geear v. Boulder Community Hospital, 844 F.2d 764, 766 (10th
Cir.) (holding that hearing requirement for summary judgment motions is satisfied by court's review of
documents submitted by parties), cert. denied, 109 S.Ct. 312 (1988).

I. JURISDICTION
I putatively have jurisdiction over this matter under 28 U.S.C. §1332(d)(2) (Class
Action Fairness Act).
II. STANDARD OF REVIEW
Summary judgment is proper when 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);
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265
(1986). A dispute is “genuine” if the issue could be resolved in favor of either party.
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586,
106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d
1131, 1135 (10th Cir. 1994). A fact is “material” if it might reasonably affect the outcome
of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.
A party who does not have the burden of proof at trial must show the absence of
a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d
1513, 1517 (10th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). By contrast, a movant
who bears the burden of proof must submit evidence to establish every essential
element of its claim or affirmative defense. See In re Ribozyme Pharmaceuticals, Inc.
Securities Litigation, 209 F.Supp.2d 1106, 1111 (D. Colo. 2002).3 In either case, once

3

The mere fact that each party has filed a motion for summary judgment does not necessarily
indicate that summary judgment is proper. See Atlantic Richfield Co. v. Farm Credit Bank of Wichita,
226 F.3d 1138, 1148 (10th Cir. 2000). See also Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th
Cir. 1979) (“Cross-motions for summary judgment are to be treated separately; the denial of one does not
require the grant of another.”).

2

the motion has been properly supported, the burden shifts to the nonmovant to show, by
tendering depositions, affidavits, and other competent evidence, that summary
judgment is not proper. Concrete Works, 36 F.3d at 1518. All the evidence must be
viewed in the light most favorable to the party opposing the motion. Simms v.
Oklahoma ex rel Department of Mental Health and Substance Abuse Services, 165
F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S.Ct. 53 (1999).
III. ANALYSIS
This lawsuit involves a product formerly offered by defendant called FastLoan.4
Defendant described FastLoan as “an open-end line of credit loan,” which was
“designed to help our customers meet their short-term borrowing needs.” In the Terms
and Conditions setting forth the parameters of the program, defendant made the
following disclosures:
Interest Rate and Finance Charges
The finance charge is $1 for every $10 borrowed. This
equates to an Annual Percentage Rate (APR) of 120%. The
actual Annual Percentage Rate (APR) may increase if
repayment is made sooner than 30 days. The finance
charge will remain constant and will not increase based on
the number of days any single advance is outstanding.
Cash Advance
A 10% finance charge will be assessed for each dollar that
you advance through your FastLoan account feature. This
finance charge will be assessed regardless of the length of
time in which the advance remains outstanding. For
example, if you were to Advance $100, you would be
charged $10 as a finance charge whether that Advance is
4

The Office of the Comptroller of the Currency has required defendant to cease offering the
FastLoan product after May 31, 2014.

3

repaid in 1 day or in 35 days.
This finance charge will be reflected as an Annual
Percentage Rate (“APR”) in the FastLoan section of your
Associated Checking Account statement. The APR is a
measure of the cost of credit, expressed as a yearly rate.
The Annual Percentage Rate is calculated by dividing the
finance charge by the Advance amount and multiplying the
quotient by the number of statement cycles within a year.
For example, a $100 Advance with a $10 fee = $10/$100 =
10% X 12 cycles = 120% APR
Monthly account statements included similar disclosures. Repayments were deducted
automatically from the borrower’s checking account at the time of the next direct deposit
of $100 or more. However, the borrower also could repay the advance manually. In all
events, each advance was required to be repaid within no more than 35 days.
Plaintiff obtained sixteen FastLoan advances between November 2011 and
December 2012 for amounts between $260 and $500 each. Each of these advances
was repaid within two to thirteen days, at the time of the next qualified direct deposit into
plaintiff’s associated checking account. Because these loans were repaid sooner than
the 30 days required by the Terms and Conditions document, the APRs associated
therewith were substantially higher than 120%, ranging from 280% to 1825%.5 Indeed,
the average length of repayment of all FastLoan advances in 2011, 2012, and 2013 was
approximately 14 days, and the majority (roughly 80%) of such advances were repaid
prior to 30 days.
In this putative class action, plaintiff alleges that these disclosures were

5

For example, plaintiff’s February 27, 2012, FastLoan was repaid on February 29, 2012. A twoday loan equates to 182.5 cycles per year. At a finance charge of 10%, the APR on this loan therefore
was 1825% (182.5 x 10%).

4

inadequate under the provisions of the Truth in Lending Act (“TILA”), 15 U.S.C. §§
1601-1667f. He further claims that FastLoans violated the Electronic Fund Transfer Act
(“EFTA”), 15 U.S.C. §§ 1693-1693r, and that defendant is liable for breach of contract
under Colorado and Oklahoma law, as well as for violation of the Colorado and
Oklahoma consumer protection laws. Defendant has moved for summary judgment as
to all these claims. Plaintiff seeks summary judgment as to the TILA and EFTA claims.
I examine each of these claims in turn.
A. TILA
TILA was enacted to foster the “informed use of credit” by “assur[ing] a
meaningful disclosure of credit terms so that the consumer will be able to compare more
readily the various credit terms available to him and avoid the uninformed use of credit.”
15 U.S.C. § 1601(a). Accordingly, TILA and its implementing regulation (Regulation Z)
“require[] creditors to provide borrowers with clear and accurate disclosures of terms
dealing with things like finance charges, annual percentage rates of interest, and the
borrower's rights.” Beach v. Ocwen Federal Bank, 523 U.S. 410, 412, 118 S.Ct. 1408,
1410, 140 L.Ed.2d 566 (1998). “All TILA disclosures must be accurate, and lenders are
generally strictly liable under TILA for inaccuracies, even absent a showing that the
inaccuracies are misleading.” Smith v. Cash Store Management, Inc., 195 F.3d 325,
328 (7th Cir. 1999) (internal citations omitted).
Plaintiff maintains that defendant violated TILA by failing to accurately disclose
that the actual APR associated with FastLoan advances repaid sooner than 30 days
would be much higher than 120%. See 15 U.S.C. § 1632(a) (requiring that APR “be

5

disclosed clearly and conspicuously, in accordance with the regulations of the Bureau
[of Consumer Financial Protection].”); see also James v. Ford Motor Credit Co., 638
F.2d 147, 148 (10th Cir. 1980), cert. denied, 101 S.Ct. 3134 (1981). Defendant
counters that its APR disclosure satisfied the requirements of 15 U.S.C. § 1637(a)(4),
which requires the creditor to disclose the periodic rate or rates used to compute the
finance charge “and the corresponding nominal annual percentage rate determined by
multiplying the periodic rate by the number of periods in a year.”
By relying on this section of TILA, defendant assumes that FastLoan is properly
characterized as an open-ended credit plan. Plaintiff counters that the program is
instead close-ended, making section 1637(a)(4) inapplicable. The parties argue
extensively about whether FastLoan is an open-ended or close-ended credit plan.
Compare 12 C.F.R. § 226.5 (disclosures required in open-ended credit transactions)
with 12 C.F.R. §§ 226.17-226.18 (disclosures required in close-ended credit
transactions). However, I find and conclude that in this instance, the characterization of
the plan is ultimately irrelevant. Regardless whether a credit plan is open-ended or
close-ended, TILA provides with respect to both set of transactions that “[i]f any
information necessary for an accurate disclosure is unknown to the creditor, the creditor
shall make the disclosure based on the best information reasonably available at the
time the disclosure is provided to the consumer, and shall state clearly that the
disclosure is an estimate.” 12 C.F.R. §§ 1026.5(c) (applicable to open-ended credit
transactions) & 1026.17(c)(2)(i) (applicable to close-ended credit transactions).
These provisions apply plainly to defendant’s disclosure of the APR applicable to

6

any particular FastLoan advance. At the time the advance was made, defendant could
not know the exact APR because the date of repayment varied with the arrival of each
individual borrower’s next direct deposit. Nevertheless, the evidence demonstrates that
defendant knew that the vast majority of FastLoan advances would be repaid within 10
to 14 days, typically from the borrower’s next paycheck. See Official Commentary, 12
C.F.R. § 1026.17(c)(5)-2 (where term of the transaction is determined solely by some
future event, ”disclosures should be based on the creditor's estimate of the time at
which the specified event will occur, and may indicate the basis for the creditor's
estimate.“) (available at http://www.consumerfinance.gov/eregulations/
1026-17/2013-30108_20140118#1026-17) (last accessed August 6, 2014). In light of
that knowledge, defendant’s reliance on a thirty-day term to express the APR was
misleading and constituted a failure to provide the best information available to help
consumers compare the costs associated with the FastLoan program to other available
products.
Moreover, the reiteration of this same 120% figure on each monthly bank
statement plaintiff received plainly was inaccurate. Creditors are required to disclose on
such statements “each periodic rate that may be used to compute the interest charge
expressed as an annual percentage rate and using the term Annual Percentage Rate[.]”
12 C.F.R. § 1026.7(b)(4)(i). The APR is “computed by multiplying each periodic rate by
the number of periods in a year.” Id. § 1026.14(b). At the time the statements were
issued, defendant knew the actual length of time between origination and repayment of
each particular FastLoan advance. It therefore was inaccurate and misleading for

7

defendant to rely on its thirty-day repayment assumption when it had all the information
necessary to make an accurate disclosure.
I cannot conclude that the disclosure is saved by defendant’s advisement that the
APR “may” increase if the loan is earlier repaid. TILA and Regulation Z are to be
liberally construed in favor of the consumer. Jackson v. Grant, 890 F.2d 118, 120 (9th
Cir. 1989). Disclosures must be reasonably understandable “in light of the inherent
difficulty or complexity of the information disclosed.” Rossman v. Fleet Bank (R.I.)
National Association, 280 F.3d 384, 394 n.9 (3rd Cir. 2002) (citation and internal
quotation marks omitted). Although defendant insists that the actual APR was readily
discoverable from the formula it disclosed, I cannot find that the average consumer
would readily understand how to make the mathematical calculations necessary to
derive an accurate representation of the APR for an advance repaid sooner than 30
days.
For these reasons, I find that plaintiff is entitled to summary judgment on its TILA
claims. Defendant’s motion for summary judgment as to these claims therefore will be
denied, and plaintiffs’ motion granted.
B. EFTA
The EFTA provides, in relevant part, that “[n]o person may . . . condition the
extension of credit to a consumer on such consumer's repayment by means of
preauthorized electronic fund transfers.” 15 U.S.C. § 1693(k)(1). Under the EFTA, a
“preauthorized electronic fund transfer” is “an electronic fund transfer authorized in
advance to recur at substantially regular intervals.” Id. § 1693a(10). See also 12

8

C.F.R. Pt. 205, Supp. I, § 205.2(k). Defendant claims that these two conditions –
authorization in advance and recurrence at substantially regular intervals – are not met
here. Assuming arguendo that the condition of preauthorization is met,6 I nevertheless
find and conclude that the repayments were not designed to recur at “substantially
regular intervals.”
Plaintiff argues that this condition is satisfied because the majority of direct
deposits came from borrowers’ bi-weekly paychecks or monthly benefits payments.
However, those withdrawals were per force limited in number and duration because
each FastLoan advance was required to be paid off, at the latest, 35 days after initiation
of the loan. Thus, even if defendant had deducted from a particular borrower’s direct
deposits weekly or biweekly, those transactions necessarily were cabined by the 35-day

6

Defendant claims the condition of preauthorization is not met because the extension of credit to
an applicant for a FastLoan advance was not conditioned on preauthorization to withdraw funds from
incoming direct deposits, but rather required only that the applicant have a history of qualified direct
deposits. Defendant points out that an applicant was not obligated to make a direct deposit and could
repay the loan by means other than direct deposit if he so chose. However, it is not necessary under the
EFTA that the authorization to deduct funds via electronic transfer must be a precondition of the extension
of credit, as defendant assumes. The statute requires only that such electronic transfers be
preauthorized. The question, therefore, appears to focus on what the applicant agreed to allow, not what
the lender required for eligibility in the first instance.
Under the FastLoan Terms and Conditions, an applicant must
promise to pay [defendant] all amounts borrowed under the Line of
Credit, plus any finance charges, late charges, collection costs, or other
amounts due. You must repay each Advance and related Finance
charge within 35 days. Any Advance and related Finance charges will
automatically be deducted by the Bank from your Associated Checking
Account at the time of your next Qualified Deposit . . . regardless of
payment sources.
(Plf. Motion App., Exh. C at 2 [“Repayment”] (emphasis added).) This language clearly shows that
applicants authorized defendant in advance to deduct repayments from their direct deposits. Thus, the
fact that FastLoan advances could be repaid manually is irrelevant. Indeed, nearly 95% of FastLoan
advances were repaid via direct deposit. (See Plf. Resp. App., Exh A-1 at 208 [#116], filed June 13,
2014.)

9

limit. Once that period elapsed, defendant’s authorization to deduct was no longer
valid.7
The handful of deductions that might have occurred within that window of time do
not meet the statutory definition of transfers that occur at substantially regular intervals.
“The provisions related to preauthorized electronic fund transfers were aimed to protect
‘consumers who arrange for regular payments (such as insurance premiums or utility
bills) to be deducted automatically from their bank accounts.’” Okocha v. HSBC Bank
USA, N.A., 2010 WL 5122614 at *2 (S.D.N.Y. Dec. 14, 2010) (quoting S. Rep. 95-915,
at 15 (1978)). Even if a borrower’s account could have been debited multiple times – a
proposition for which there is no factual support in the record before me8 – there is no
evidence that such deductions were to occur of necessity on any regularly scheduled
basis. See Puglisi v. Debt Recovery Solutions, LLC, 822 F.Supp.2d 218, 232 (E.D.
N.Y. 2011) (authorization for two withdrawals to pay debt did not satisfy this condition to
liability under the EFTA); Okocha, 2010 WL 5122614 at *2 (rejecting EFTA claim were
evidence showed only that plaintiff had authorized multiple transfers, but not that such
transfers were to occur “at weekly, monthly, or annual intervals”).
For these reasons, I find that defendant is entitled to summary judgment as to
plaintiff’s EFTA claim. Its motion as to that claim therefore will be granted, plaintiff’s
corresponding motion denied, and the EFTA claim dismissed with prejudice.

7

Indeed, plaintiff has argued elsewhere that each extension of credit under the FastLoan
program constituted a new and independent transaction.
8

Indeed, there does not appear to be any evidence that plaintiff’s account was ever debited more
than once to repay any of the multiple advances he received under the program.

10

C. STATE LAW CLAIMS
Defendant moves for summary judgment as to plaintiff’s state law claims for
breach of contract under Oklahoma and Colorado law, and under the Oklahoma and
Colorado state consumer protection acts. I find and conclude that defendant is entitled
to summary judgment on all these claims.
Counts III and IV of the complaint purport to state claims for breach of contract
on behalf of putative national9 and Oklahoma subclasses. Under either state’s law,
plaintiff must establish, inter alia, the breach of an enforceable promise. See Digital
Design Group, Inc. v. Information Builders, Inc., 24 P.3d 834, 843 (Okla. 2001);
Western Distributing Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo.1992). Plaintiff
bases his claim on the contention that the FastLoan Terms and Conditions embodies a
promise to charge borrowers an APR of 120%.10 It does not. The FastLoan Terms and
Conditions plainly state that “[t]he actual Annual Percentage Rate (APR) may increase if
repayment is made sooner than 30 days.” (Plf. Motion App., Exh. C at 2.) This
language is unambiguous and cannot be read to constitute a promise to charge an APR
of no more than 120%.
Plaintiff also claims that defendant breached the provision in the Terms and
Conditions that borrower’s periodic statements will “include the following FastLoan
details: . . . APR . . .“ (Id. at 3.) This language is too thin a reed on which to conclude
9

Count III purports to state a breach of contract claim on behalf of a putative national class
without reference to any particular state law. Nevertheless, plaintiff appears to agree with defendant’s
assessment that this claim implicates Colorado law.
10

Although plaintiff points out that for second and all subsequent FastLoans, borrowers were not
provided with a copy of the Terms and Conditions, there can be no doubt that those alleged contracts
were equally governed by the terms of the FastLoan Terms and Conditions.

11

that defendant expressly agreed to provide the precise APR associated with each
FastLoan advance. When “an alleged promise is claimed to be part of an express
contract . . . it must . . . be sufficiently specific so that the judiciary can understand the
obligation assumed and enforce the promise according to its terms.” Soderlun v.
Public Service Co. of Colorado, 944 P.2d 616, 620 (Colo. App. 1997). See also
Hayes v. Eateries, Inc., 905 P.2d 778, 784-85 (Okla. 1995). The representation that
the periodic statement will contain the APR says nothing about how that APR will be
expressed. This aspect of plaintiff’s claim therefore fails as well.
My determinations in this regard are not inconsistent with my conclusion that the
same language fails to satisfy the requirements of TILA. While the two claims are not
mutually exclusive, see McLean-Laprade v. HSBC, 2013 WL 3930565 at *2 (N.D.N.Y.
July 30, 2013), the focus of the relevant inquiries is quite different. Under TILA, the
court must focus on whether defendant’s disclosure is adequate given the purposes and
requirements of that statute, being mindful that “TILA is a remedial act ... and, as such,
its provisions are to be construed liberally in favor of consumers.” Belmont v.
Associates National Bank (Delaware), 119 F.Supp.2d 149, 159 (E.D.N.Y.2000)
(internal citation omitted). By contrast, a breach of contract claim focuses more
narrowly and specifically on the language of the alleged contract to discern the precise
nature of the parties’ agreement. Thus, although the disclaimer that the APR “may be
higher” without further edification is not sufficient for TILA purposes, it does undermine
any suggestion that defendant promised to impose an APR no more than 120% or state
the actual APR on borrower’s periodic statements. Accordingly, defendant is entitled to

12

summary judgment on these claims.
Finally, plaintiff asserts claims under the Colorado Consumer Protection Act
(“CCPA”), §6-1-101 - § 6-1-115., C.R.S., and the Oklahoma Consumer Protection Act
(“OCPA”), 15 Okla. Stat. §§ 751 - 764.1. Defendant posits several bases it claims
warrant dismissal of these claims. I examine these to the extent they are relevant to
plaintiff’s claims under each statute respectively.
Looking first at Oklahoma law, the OCPA provides that “[n]othing in this act shall
apply to . . . Actions or transactions regulated under laws administered by . . . any other
regulatory body or officer acting under statutory authority of . . . the United States.” 15
Okla. Stat. § 754(2). There is no dispute but that defendant, a national association
formed under and subject to the National Bank Act, is extensively regulated by the
United States Comptroller of the Currency (“OCC”) and, more recently, the Consumer
Financial Protection Bureau (“CFPB”). Moreover, both the OCC and CFPB specifically
regulate allegedly unfair, deceptive, and/or abusive acts or practices in consumer
transactions. See 12 U.S.C. § 5531 (CFPB); 12 C.F.R. § 227.1(c)(1) (OCC).
The fact that the OCC may not regulate the FastLoan program specifically does
not remove this claim from the ambit of the exemption, which broadly encompasses
both “actions” and “transactions” which are regulated by federal law. See Arnett v.
Mylan, Inc., 2010 WL 2035132 at *3 (S.D. W.Va. May 20, 2010) (interpreting the
OCPA). Thus, the fact that defendant is subject to federal regulation governing false
and deceptive practices is enough to bring plaintiff’s OCPA claim within the ambit of the
regulatory exemption. This claim therefore must be dismissed.

13

Defendant also is entitled to summary judgment as to plaintiff’s CCPA claim,
although for different reasons.11 The FastLoan Terms and Conditions document
specifically states that “[t]he law that will apply to this Agreement as to issues related to
interest and related charges will be the law of the State of Oklahoma.” (Plf. Motion
App., Exh. C at 4 [“Applicable Law”].) Despite plaintiff’s protestations to the contrary,
there can be little question but that his claims relate to the interest rate charged on
FastLoan advances. This language, while not overly broad, certainly is broad enough to
encompass plaintiff’s claims in this lawsuit.12 Plaintiff offers no evidence or argument
suggesting that enforcement of this provision is unfair or unreasonable, see Adams
Reload Co. v. International Profit Associates, Inc., 143 P.3d 1056, 1060 (Colo. App.
2005), or that a valid forum selection clause cannot otherwise be invoked to preclude a

11

Although the Colorado act also contains an exemption clause, its wording and interpretation
require a different outcome. The CCPA provides that “[t]his article does not apply to: (a) Conduct in
compliance with the orders or rules of, or a statute administered by, a federal, state, or local governmental
agency.” § 6-1-106(1)(a), C.R.S. As interpreted by the Colorado Supreme Court, “[t]he plain meaning of
the exclusion section of the CCPA is that conduct in compliance with other laws will not give rise to a
cause of action under section 6–1–106(1)(a):”
The purpose of the exemption is to insure that a business is not
subjected to a lawsuit under the Act when it does something required by
law, or does something that would otherwise be a violation of the Act, but
which is allowed under other statutes or regulations. It is intended to
avoid conflict between laws, not to exclude from the Act's coverage every
activity that is regulated by another statute or agency.
Showpiece Homes Corp. v. Assurance Co. of America, 38 P.3d 47, 56 (Colo. 2001) (emphasis in
original; citation omitted). Cf. Arnett, 2010 WL 2035132 at *3 (noting that OCPA “is not . . limited to
statutory regimes that provide plaintiffs with a cause of action”). Because “[c]onduct amounting to
deceptive or unfair trade practices, however, would not appear to be ‘in compliance’ with other laws,”
Showpiece Homes Corp., 38 P.3d at 56, my finding that defendant’s disclosures violated TILA precludes
defendant from relying on this exemption for purposes of plaintiff’s CCPA claim.
12

There is absolutely no support for plaintiff’s suggestion that this provision is inapplicable
because he has not presented claims for usury. Even if the term “interest” could be so narrowly
construed, the additional coverage provided for “related charges” certainly would sweep plaintiff’s claims in
this lawsuit within its ambit.

14

CCPA claim. For this reason, therefore, I find and conclude that defendant also is
entitled to summary judgment on plaintiff’s CCPA claim.
IV. CONCLUSION AND ORDERS
For these reasons, plaintiff’s motion will be granted as to his claim under TILA
and denied as to his claim under the EFTA. Defendant’s motion will be denied as to
plaintiff’s TILA claim and granted as to all other claims asserted in this lawsuit, which
claims will be dismissed with prejudice.
THEREFORE, IT IS ORDERED as follows:
1. That BOKF’s Renewed Combined Motion for Summary Judgment and
Brief in Support [#96], filed May 23, 2014, GRANTED IN PART and DENIED IN
PART as follows:
a. That the motion is GRANTED with respect to the Counts II, III, IV, V,
and VI of the Class Action Complaint [#1], filed April 26, 2013; and
b. That in all other respects, the motion is DENIED;
2. That Plaintiff’s Combined Motion for Summary Judgment and Brief in
Support on Counts I (TILA) and II (EFTA) [#100], filed May 28, 2014, is GRANTED IN
PART and DENIED IN PART as follows:
a. That the motion is GRANTED with respect to Count I of the Class
Action Complaint [#1], filed April 26, 2013; and
b. That in all other respects, the motion is DENIED;
3. That accordingly Counts II, III, IV, V, VI of the Class Action Complaint [#1],
filed April 26, 2013, are DISMISSED WITH PREJUDICE; and

15

4. That at the time judgment enters, judgment SHALL ENTER as follows:
a. In favor of defendant, BOKF, N.A., against plaintiff, Leland Small,
individually and on behalf of other similarly situated persons, as to
plaintiff’s claims alleging:
(1) Violation of the Electronic Funds Transfer Act (Count II);
(2) Breach of contract under Colorado law (Count III);
(3) Breach of contract under Oklahoma law (Count IV);
(4) Violation of the Oklahoma Consumer Protection Act (Count V);
and
(5) Violation of the Colorado Consumer Protection Act (Count VI);
b. In favor of plaintiff, Leland Small, individually and on behalf of other
similarly situated persons, against defendant, BOKF, N.A., as to plaintiff’s
claim alleging violation of the Truth in Lending Act (Count I).
Dated August 7, 2014, at Denver, Colorado.
BY THE COURT:

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