Majestic Building Maintenance, Inc. v. Huntington Bancshares Incorporated

864 F.3d 455 (2017)

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Nature of the Case

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Facts

P opened a business checking account with D and received a 'Master Services Agreement' that contained the rules and regulations for business accounts. The Agreement states in part that: 'We have available certain products designed to discover or prevent unauthorized transactions, including unauthorized checks and ACH debits, forgeries, and alterations (all such activities referred to as 'fraud'). While no such product is foolproof, we believe that the products we offer will reduce the risk of loss to you from fraud. You agree that if your account is eligible for those products and you choose not to avail yourself of them, then we will have no liability for any transaction that occurs on your account that those products were designed to discover or prevent, nor will we have any duty to re-credit your account for any such losses.' P was not given a signed copy of the Agreement, nor was he advised of the details contained in the Agreement, including the nature of the fraud prevention services offered. P ordered hologram checks from a third party to help avoid fraudulent activity on the account. Four unauthorized checks were debited totaling $3,973.96. None contained the hologram. The check numbers on the fraudulent checks were duplicative of checks that Plaintiff had already written and that D had properly paid. P contacted D for reimbursement. D refused in that P had failed to avail himself of the extra cost check protective services that D offered. P hired an attorney and both D and the FDIC and OCC told P to take a hike. P filed a putative class action suit claiming that the Agreement was in violation of UCC 4-103(a). D moved to dismiss under 12(b)(6). The court granted D’s motion holding that the agreement did not violate 4-103(a) or 4-401. P appealed.