Suit accuses TCF of overdraft trickery

A TCF Financial Corp. customer who incurred $476 in overdraft charges in just six days has accused the bank of manipulating the sequence of her debit-card transactions to generate more fees.

Kimberly Pellett, a health care marketing specialist from Savage, alleges in a lawsuit that TCF grouped together her debit-card transactions and then processed them from largest dollar amount to smallest, rather than in the actual order in which the payments occurred. She claims this "re-ordering" depleted her checking account faster, resulting in thousands of dollars in unnecessary overdraft fees.

The lawsuit, filed in Hennepin County District Court in Minneapolis, resembles more than 30 legal actions filed all over the country involving bank overdraft policies. Many of the lawsuits focus on a practice known as "high-to-low" check clearing, in which larger checks and debit-card payments are processed before smaller ones.

About one-quarter of the nation's banks engage in the practice, according to a 2008 survey by the Federal Deposit Insurance Corp.

Pellett and her attorney, Marshall Tanick of Minneapolis, are asking the court to order the bank to stop the practice of reordering transactions. They also want TCF to reimburse its customers for any unnecessary overdraft fees it collected in connection with the practice. They are seeking class-action status for lawsuit on behalf of all Minnesota residents who maintain checking accounts at TCF and incurred overdraft fees.

Jason Korstange, a spokesman for TCF, said the bank was preparing to file a legal response to the complaint in court. He declined to comment further.

The practice of reordering transactions has come under fire in recent years from consumer groups and attorneys, who have been pushing for legislation that would limit the tens of billions of dollars that banks collect each year in overdraft fees. Last month, new federal rules went into effect that prohibit banks from charging overdraft fees on debit-card and ATM transactions unless customers "opt in" for overdraft protection by signing a consent form. However, the rules do not specifically prohibit high-to-low check clearing.

The lawsuit against TCF accuses the bank of lumping together debit-card transactions that occur on one day with ones that occur on subsequent days, making it difficult for customers to determine exactly how much money is in their accounts.

Tanick said many people get hit with overdraft fees because they assume their transactions are processed in the actual order in which they occur. Instead, they are often grouped together and processed several days later. "That's how people balance their checkbooks, so it's only natural that they reasonably assume banks do it the same way," he said.

Thomas Hussman, a building repair contractor from Minneapolis who is not part of the recent lawsuit, estimates that he's paid more than $300 in unnecessary overdraft fees to TCF in the past decade. On occasion, he would call the bank to be certain he had money in his account before making a purchase. Then, opening his account statement weeks later, he would discover a $35 overdraft fee on the same day he checked his account.

He suspects the extra charges are a result of the bank's re-ordering his transactions. "I don't mind paying a fee if I made a mistake and failed to keep track of how much money I had," Hussman said. "But what's with all this subterfuge and trickery?"

However, despite the lawsuits and calls for more regulation, many customers are still signing up for overdraft protection, preferring to pay the $35 fee than have their debit-card and ATM transactions rejected. About 50 percent of TCF's checking account customers had opted in to the bank's overdraft protection as of June 30, according to data released during the bank's second-quarter conference call.