# PERRY v. NATIONAL CREDIT UNION ADMINISTRATION

> District Court, D. New Jersey · October 28, 2019

URL: https://www.frixlaw.com/law-library/cases/10267086

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** October 28, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10267086

## How later opinions describe it (automated extraction)

- finding that there is no express private right of action under the FCUA

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOE PERRY,

Plaintiff,

v. Civil No. 19-167 (NLH/KMW)

OCNAC #1 FEDERAL C.U., and/or OPINION
its agents; NCUA, and or its
agents; JOHN DOES 1-99,

Defendants.

APPEARANCES:

MONTELL FIGGINS
17 ACADEMY STREET
SUITE 305
NEWARK, NJ 07102

Attorneys for Plaintiff Joe Perry.

JESSICA ROSE O’NEILL
OFFICE OF THE U.S. ATTORNEY
DISTRICT OF NEW JERSEY
401 MARKET STREET
4TH FLOOR
P.O. BOX 2098
CAMDEN, NJ 08101

Attorneys for Defendant National Credit Union
Administration.

JOHN DONOVAN SHEA
LITCHFIELD CAVO, LLP
1800 CHAPEL AVENUE WEST
SUITE 360
CHERRY HILL, NJ 08002
ASHLEY D. HOBSON
LITCHFIELD CAVO, LLP
1800 CHAPEL AVENUE WEST
SUITE 360
CHERRY HILL, NJ 08002

Attorneys for Defendant OCNAC #1 Federal Credit Union.

HILLMAN, District Judge
In this action, Plaintiff Joe Perry (“Plaintiff”) alleges
that Defendants National Credit Union Administration (“NCUA”)
and OCNAC #1 Federal Credit Union (“OCNAC”) (collectively,
“Defendants”) are liable for damages arising from unauthorized
transfers from Plaintiff’s financial accounts. This matter
comes before the Court on Defendants’ motions to dismiss
Plaintiff’s first amended complaint. For the reasons expressed
below, these motions will be granted.
BACKGROUND
We take our recitation of the facts from Plaintiff’s and
first amended complaint.
On or about July 9, 2014, Plaintiff opened two accounts
with OCNAC. (ECF No. 21 (“FAC” or “Amended Complaint”) at ¶1).1
Shortly after doing so, Plaintiff relocated and informed OCNAC
that it needed to update his mailing address accordingly. (FAC
at ¶2). At his new address, Plaintiff received various

1 The Amended Complaint contains multiple paragraphs bearing the
number one (1). For clarity, all references to the Amended
Complaint refer to the paragraphs located under the Amended
Complaint’s Facts Common To All Counts section.
communications from OCNAC but alleges he never received
quarterly account statements. (FAC at ¶2).
On March 30, 2017, Plaintiff visited OCNAC’s offices and

learned of several unauthorized transfers from his accounts.
(FAC at ¶3). Plaintiff’s initial complaint explains that these
transactions occurred between July 10, 2014 and April 22, 2015.2
(ECF No. 1-1 (“Initial Comp.” or “Initial Complaint”) at 11).
Plaintiff asserts that these transfers - which occurred by
check, transfer, and Automated Clearing House (ACH) payment -
were initiated by his estranged wife who he never authorized to
access these accounts. (FAC at ¶3). Plaintiff disputed these
transactions with OCNAC. (FAC at ¶4).
On May 20, 2017, Plaintiff also filed a complaint with NCUA
relating to these unauthorized transactions. (FAC at ¶6).
Plaintiff sought, as a remedy, a refund of the total amount

withdrawn without his authority. (FAC at ¶6).
Around that same time, on July 26, 2017, Plaintiff wrote
OCNAC requesting resolution of his claim. (FAC at ¶9). On
August 2, 2017, OCNAC denied Plaintiff’s claim on the basis that
he failed to notify OCNAC within 60 days of the unauthorized
transactions, as was required under OCNAC’s account-holder

2 The Amended Complaint does contain the dates during which the
unauthorized transactions allegedly occurred. As such, the
Court relies upon Plaintiff’s Initial Complaint for this
information.
agreement.3 (FAC at ¶10).
On October 2, 2017, NCUA denied Plaintiff’s complaint on
the grounds that the transactions at issue were not

“unauthorized[,]” as that term is defined by the Electronic Fund
Transfer Act, 15 U.S.C. § 1693 et seq. (the “EFTA”). (FAC at
¶11). Plaintiff was advised of his appeal rights and
subsequently retained counsel to appeal NCUA’s decision. (FAC at
¶¶11-12). Plaintiff’s appeal was unsuccessful. (FAC at ¶12).
On December 4, 2018, Plaintiff filed the Initial Complaint
in the Superior Court of New Jersey, Camden County. NCUA
removed the action to this Court on January 7, 2019. Plaintiff
filed the Amended Complaint on May 14, 2019. The Amended
Complaint contains four (4) counts:
•
Count One sounds in negligence, and is brought against
all Defendants;

•
Count Two sounds in breach of contract, and is brought
against all Defendants;

•
Count Three is brought against OCNAC for alleged
violations of the EFTA; and

•
Count Four is brought against NCUA for alleged
violations of the Federal Credit Union Act (“FCUA”),
12 U.S.C. § 1751 et seq.

3 The Amended Complaint and OCNAC’s papers refer generally to an
account-holder agreement. The Amended Complaint does not
explain the relevancy of this agreement. Neither Plaintiff nor
OCNAC identify the parties to any such agreement. Absent a more
detailed explanation of the purported agreement, the Court is
unable to discern what relevancy, if any, the agreement has to
the present action.
Defendants moved to dismiss the Amended Complaint on May
28, 2019 and June 17, 2019 respectively (the “Motions to
Dismiss”). (ECF Nos. 22 & 25). Plaintiff opposed Defendants’

Motions to Dismiss. (ECF No. 26). As such, the present motions
are fully briefed and ripe for adjudication.
DISCUSSION
A. Subject Matter Jurisdiction
Plaintiff filed this action against several defendants,
including NCUA, which is a federal agency. NCUA removed this
action to this Court pursuant to 28 U.S.C. § 1442(a)(1).
This Court exercises subject matter jurisdiction pursuant to
that statute.
B. Motion to Dismiss Standard
NCUA seeks to dismiss Plaintiff’s Amended Complaint for
lack of subject matter jurisdiction pursuant to Federal Rule of

Civil Procedure 12(b)(1), or otherwise for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
OCNAC also asks this Court to dismiss the Amended Complaint
pursuant to Rule 12(b)(6).
1. Federal Rule of Civil Procedure 12(b)(1) Standard
Under Federal Rule of Civil Procedure 12(b)(1), a claim can
be dismissed for “lack of jurisdiction over the subject matter.”
A motion under Rule 12(b)(1) “attacks the right of a plaintiff
to be heard in Federal Court.” Doughty v. U.S. Postal Serv.,
359 F. Supp. 2d 361, 364 (D.N.J. 2005) (quoting Cohen v.
Kurtzman, 45 F. Supp. 2d 423, 428 (D.N.J. 1999)). There are two
types of Rule 12(b)(1) motions: one which presents a “facial

challenge” and one which presents a “factual challenge.” See
Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir.
2014) (citing In re Schering Plough Corp. Intron, 678 F.3d 235,
243 (3d Cir. 2012)); Petruska v. Gannon Univ., 462 F.3d 294, 302
n.3 (3d Cir. 2006) (citing Mortensen v. First Fed. Sav. & Loan
Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)).
If a motion to dismiss presents a “facial attack,” a court
must assume the allegations in a complaint are true and may only
dismiss claims when the pleadings fail to present an action
within a court’s jurisdiction. Mortensen, 549 F.2d at 891.
“[I]n that respect such a Rule 12(b)(1) motion is similar to a
Rule 12(b)(6) motion.” Petruska, 462 F.3d at 302 n.3 (citing

Mortensen, 549 F.2d at 891). By contrast, when the motion to
dismiss presents a factual attack,
there is substantial authority that the trial court is
free to weigh the evidence and satisfy itself as to
the existence of its power to hear the case. In
short, no presumptive truthfulness attaches to
plaintiff’s allegations, and the existence of disputed
material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional
claims. Moreover, the plaintiff will have the burden
of proof that jurisdiction does in fact exist.
Mortensen, 549 F.2d at 891; see also Aichele, 757 F.3d at 358
(explaining differences between a facial and factual attack
under Rule 12(b)(1)).
2. Federal Rule of Civil Procedure 12(b)(6) Standard
When considering a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well
settled that a pleading is sufficient if it contains “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2).
“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a
cause of action will not do . . . .” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
(citations omitted) (first citing Conley v. Gibson, 355 U.S. 41,
47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc.,
40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)).
To determine the sufficiency of a complaint, a
court must take three steps. First, the court must
“tak[e] note of the elements a plaintiff must plead to
state a claim.” Second, the court should identify
allegations that, “because they are no more than
conclusions, are not entitled to the assumption of
truth.” Third, “whe[n] there are well-pleaded factual
allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an
entitlement for relief.”

Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (alterations
in original) (citations omitted) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 664, 675, 679 (2009)). A court may “generally
consider only the allegations contained in the complaint,
exhibits attached to the complaint and matters of public
record.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014)
(citing Pension Benefit Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).
A district court, in weighing a motion to dismiss, asks
“not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claim.”
Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416
U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our
decision in Twombly expounded the pleading standard for ‘all
civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in
the coffin for the ‘no set of facts’ standard that applied to
federal complaints before Twombly.”). “A motion to dismiss
should be granted if the plaintiff is unable to plead ‘enough
facts to state a claim to relief that is plausible on its
face.’” Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at
570).
C. Analysis
1. Count I: Negligence Against All Defendants

Plaintiff alleges that Defendants negligently failed to
detect and prevent the unauthorized transactions at issue. (FAC
at ¶¶20-24). Plaintiff further alleges that NCUA is negligent
for not having supervised OCNAC adequately. (FAC at ¶25).
a. Negligence Claim Against NCUA

NCUA argues that Plaintiff’s negligence claim fails as a
matter of law because Plaintiff failed to comply with the
administrative claim requirements set forth in the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2401, 2671, et seq.,
thereby depriving this Court of subject matter jurisdiction.
(ECF No. 22-1 (“NCUA Br.”) at 6).
Plaintiff argues that he substantially complied with the
FTCA and that any non-performance should be excused as a mere
procedural misstep. (ECF No. 26 (“Pl. Br.”) at 7-9). Plaintiff
argues that, should the Court find insufficient compliance with
the FTCA, the appropriate remedy would be to place the matter in
abeyance as opposed to dismissing it, as doing so would
implicate the statute of limitations. (Pl. Br. at 9).
i. The FTCA
The United States has sovereign immunity except where it
consents to be sued. Giovanni v. United States Dep’t of the

Navy, 906 F.3d 94, 117 (3d Cir. 2018); United States v. Bormes,
568 U.S. 6, 133 S. Ct. 12, 16, 184 L. Ed. 2d 317 (2012); United
States v. Mitchell, 463 U.S. 206, 212, 103 S. Ct. 2961, 77 L.
Ed. 2d 580 (1983).
In the absence of such a waiver of immunity, Plaintiff
cannot proceed in an action for damages against the United
States. See FDIC v. Meyer, 510 U.S. 471, 484-87, 114 S. Ct.
996, 127 L. Ed. 2d 308 (1994). The FTCA constitutes a limited
waiver of the sovereign immunity of the United States. 28
U.S.C. § 2679(b)(1); White-Squire v. United States Postal
Service, 592 F.3d 453, 456 (3d Cir. 2010). The FTCA gives a
district court exclusive jurisdiction over civil actions:

[1] against the United States, [2] for money damages,
... [3] for injury or loss of property, ... [4] caused
by the negligent or wrongful act or omission of any
employee of the Government [5] while acting within the
scope of his office or employment, [6] under
circumstances where the United States, if a private
person, would be liable to the claimant in accordance
with the law of the place where the act or omission
occurred.

Deutsch v. United States, 67 F.3d 1080, 1091 (3d Cir.
1995) (quoting 28 U.S.C. § 1346(b)); see also United States v.
Muniz, 374 U.S. 150, 83 S. Ct. 1850, 10 L. Ed. 2d 805 (1963).
ii. Whether Plaintiff Can Pursue A Tort Action
Against NCUA

A plaintiff may sue only the United States under the FTCA,
as opposed to specific governmental agencies, and the plaintiff
must first present the claims to a federal agency and receive a
final decision before filing a lawsuit. 28 U.S.C. §§
1346(b), 2675(a); McNeil v. United States, 508 U.S. 106, 111,
113 S. Ct. 1980, 124 L. Ed. 2d 21 (1993); see also Coffey v.
Fed. Bureau of Prisons, No. 15-231, 2015 U.S. Dist. LEXIS 61161,
2015 WL 2185518, at *4 (D.N.J. May 11, 2015).
As used in the FTCA, the term “federal agency” includes the
“executive departments, the judicial and legislative branches,
the military departments, independent establishments of the
United States, and corporations primarily acting as
instrumentalities or agencies of the United States[.]” 28
U.S.C. § 2671.
NCUA is a federal agency. See Winston v. Interfaith Fed.
Credit Union, No. 15-6558, 2015 U.S. Dist. LEXIS 176523, *1
(D.N.J. Oct. 26, 2015); National Credit Union Administration,
https://www.ncua.gov/about-ncua (“[c]reated by the U.S. Congress
in 1970, the National Credit Union Administration is an

independent federal agency that insures deposits at federally
insured credit unions, protects the members who own credit
unions, and charters and regulates federal credit unions.”).
This Court does not have jurisdiction to hear tort claims
brought against federal agencies. Floyd v. United States, No.
10-66, 2010 U.S. Dist. LEXIS 71039, *5-6 (W.D.N.C. July 14,

2010) (“28 United States Code, Section 1346(b) confers
jurisdiction on a federal district court to hear claims sounding
in tort against the United States, not against its agencies.”).
As previously explained by this District, this Court’s
jurisdiction
does not encompass would-be FTCA claims which are
asserted against federal agencies or employees.
Mignogna v. Sair Aviation, Inc., 937 F.2d 37, 41 (2d
Cir. 1991) (FTCA confers jurisdiction only when United
States, rather th[a]n federal agency, is named);
Galvin v. Occupational Safety & Health Admin., 860
F.2d 181, 183 (5th Cir. 1988) (federal courts have no
FTCA jurisdiction over claims brought against federal
agency or employee); Kieffer v. Vilk, 8 F. Supp. 2d
387 (same); Denney v. United States Postal Serv., 916
F. Supp. 1081, 1083 (D. Kan. 1996) (same): Mokwue v.
United States, 884 F. Supp. 228, 231 (N.D. Tex. 1995)
(same); Murphy v. Mayfield, 860 F. Supp. 340, 343
(N.D. Tex. 1994) (same); McKenith v. United States,
771 F. Supp. 670, 673 (D.N.J. 1991) (same); see
also Allgeier v. United States, 909 F.2d 869, 871 (6th
Cir. 1990) (“failure to name the United States as
defendant in an FTCA suit results in a fatal lack of
jurisdiction”).

Gilberg v. Stepan Co., 24 F. Supp. 2d 325, 346-47 (D.N.J.
1998). Therefore, to the extent Plaintiff’s Amended
Complaint purports to bring a negligence claim against
NCUA, that claim must fail. NCUA argues that the United
States must be substituted for NCUA as the real party in
interest. See (NCUA Br. at 7, n.4). For purposes of
completeness, the Court will continue its analysis by
substituting the United States of America for NCUA as the
real party defendant to determine whether Plaintiff’s claim

may nonetheless proceed.
iii. Statutory Exhaustion of Administrative Remedies

Chapter 171 of Title 28 pertains to the tort claims
procedure for FTCA claims. 28 U.S.C. §§ 2671-2680. Section
2675 requires that an FTCA action “shall not be instituted upon
a claim against the United States for money damages . . . unless
the claimant shall have first presented the claim to the
appropriate Federal agency and his claim shall have been finally
denied by the agency in writing . . . .” 28 U.S.C. §
2675(a). “The FTCA bars claimants from bringing suit in federal
court until they have exhausted their administrative
remedies.” McNeil, 508 U.S. at 113. This administrative
exhaustion “requirement is jurisdictional and cannot be
waived.” Shelton v. Bledsoe, 775 F.3d 554, 569 (3d Cir. 2015)
(citation omitted). “Accordingly, exhaustion of administrative
remedies is a jurisdictional prerequisite to the bringing of a
claim under the FTCA.” Agae v. United States, 125 F. Supp. 2d
1243, 1246 (D. Haw. 2000) (citing McNeil, 508 U.S. at 112)
iv. Statutory Sum-Certain Demand

28 U.S.C. § 2675(b) further states that an FTCA action
“shall not be instituted for any sum in excess of the amount of
the claim presented to the federal agency . . . .” 28 U.S.C. §
2675(b). This provision “anticipates that the claim will be for
a definite amount.” White-Squire, 592 F.3d at 457 (quoting
Adams v. United States, 615 F.2d 284, 292 n.17 (5th Cir.
1980)). “Because the requirements of presentation and a demand
for a sum certain are among the terms defining the United
States’s consent to be sued, they are jurisdictional.” Id.
(citations omitted); Bialowas v. United States, 443 F.2d 1047,
1049 (3d Cir. 1971) (noting that the requirement to present a
claim to the agency “is jurisdictional and cannot be waived”).
vi. Analysis
In the context of a motion to dismiss for lack of subject

matter jurisdiction pursuant to Rule 12(b)(1), it is Plaintiff’s
burden to prove that jurisdiction does in fact exist.
Mortensen, 549 F.2d at 891 (“[b]ecause at issue in a factual
12(b)(1) motion is the trial court’s jurisdiction - its very
power to hear the case - there is substantial authority that the
trial court is free to weigh the evidence and satisfy itself as
to the existence of its power to hear the case. In short, no
presumptive truthfulness attaches to plaintiff’s allegations,
and the existence of disputed material facts will not preclude
the trial court from evaluating for itself the merits of
jurisdictional claims. Moreover, the plaintiff will have the
burden of proof that jurisdiction does in fact exist.”).

Where a plaintiff fails to show that they exhausted their
administrative remedies under the FTCA, dismissal for lack of
subject matter jurisdiction is an appropriate remedy.4 See Id.;
White-Squire, 592 F.3d at 458 (“a claimant’s failure to present
her FTCA claim to the appropriate agency with a sum certain, as
required by § 2675(b), compels the conclusion that a district
court lacks subject matter jurisdiction over the claim.”).
Plaintiff has not alleged, let alone established, that this
Court has proper subject matter jurisdiction over this claim.
Plaintiff does not allege or otherwise provide evidence to
support a finding that a proper FTCA claim was filed. Nor has
Plaintiff alleged that he presented a sum-certain demand, as is

required by the statute. See White-Squire, 592 F.3d at 457.
These are jurisdictional defects that deprive this Court of
subject matter jurisdiction over this claim. As such, the Court
will dismiss this claim as against the NCUA (more properly, the
United States) pursuant to Rule 12(b)(1).

4 For this reason, the Court will reject Plaintiff’s argument
that holding this matter in abeyance would constitute an
appropriate remedy. Plaintiff has not cited to any authority
suggesting that a contrary conclusion would be proper.
b. Negligence Claim Against OCNAC

OCNAC argues that Plaintiff’s negligence claim must be
dismissed because it was filed outside of the statute of
limitations periods of the EFTA (for electronic transactions)
and the Uniform Commercial Code (“UCC”) (for non-electronic
transactions). (ECF No. 25-1 (“OCNAC Br.”) at 4-5). Plaintiff
does not address OCNAC’s UCC argument and argues solely that the
Amended Complaint complies with the EFTA’s statute of
limitations.
Plaintiff’s negligence claim is governed by the EFTA to the
extent it involves electronic transfers, and the UCC to the
extent it involves non-electronic transfers. The Court
addresses each in turn.
i. Claims Governed the EFTA
a. The EFTA

The EFTA was enacted “to provide a basic framework
establishing the rights, liabilities, and responsibilities of
participants in electronic fund and remittance transfer
systems,” particularly with regard to individual consumer
rights. Golden-Koether v. JPMorgan Chase Bank, N.A., No. 11-
3586, 2011 U.S. Dist. LEXIS 136472, *3-4 (D.N.J. Nov. 29, 2011)
(quoting 15 U.S.C. § 1693(b)). It provides a “private cause of
action for a consumer to seek damages for financial
institutions’ unauthorized electronic transfer of funds from the
consumer’s account.” Id. (citing 15 U.S.C. §§ 1693a, 1693m;
Raine v. Reed, 14 F.3d 280, 283 (5th Cir. 1994)).
As relevant to this action, the term “unauthorized

electronic fund transfer” means “an electronic fund transfer
from a consumer’s account initiated by a person other than the
consumer without actual authority to initiate such transfer and
from which the consumer receives no benefit[.]” 15 U.S.C. §
1693a. The parties do not dispute that, as pled, the
unauthorized withdrawals at issue fall within this statutory
definition.
b. 60-day Notice
The EFTA’s implementing regulations require consumers to
“report an unauthorized electronic fund transfer that appears on
a periodic statement within 60 days of the financial
institution’s transmittal of the statement to avoid liability

for subsequent transfers.” 12 C.F.R. § 205.6(b)(3). Notice to
a financial institution is given when “a consumer takes steps
reasonably necessary to provide the institution with the
pertinent information, whether or not a particular employee or
agent of the institution actually receives the information.” 12
C.F.R. § 205.6(b)(5)(i). “If the consumer fails to report
within 60 days, there is no requirement that they be reimbursed
for losses that could have been prevented if they had reported
the unauthorized transaction.” 15 U.S.C. § 1693g(a).
In this present action, the parties disagree about whether
Plaintiff provided adequate notice under the EFTA. While
Plaintiff argues the he provided notice “within the 60 days

after discovering the unauthorized transactions[,]” (Pl. Br. at
13), the statute’s notice requirement is more demanding: it
requires Plaintiff to provide notice within sixty days of the
date on which the unauthorized transfer first appeared on the
account statement. See 12 C.F.R. § 205.6(b)(3).
Plaintiff’s Initial Complaint states that the unauthorized
transactions at issue occurred between July 10, 2014 and April
22, 2015. (Initial Comp. at 11). Plaintiff’s Amended Complaint
confirms that Plaintiff did not alert OCNAC to these
transactions until, at the earliest, March 30, 2017. See (FAC
at ¶¶3-4). Nonetheless, this Court lacks any information
regarding when these unauthorized transactions first appeared on

an account statement, which is the operative piece of
information necessary to determine whether Plaintiff complied
with the notice requirement. See 12 C.F.R. § 205.6(b)(3).
While proof of Plaintiff’s untimely notice may limit OCNAC’s
liability for transactions following the first unauthorized
transaction, it does not necessarily complete the EFTA analysis,
and, as set forth below, is otherwise irrelevant for purposes of
determining whether the Amended Complaint can proceed before
this Court.
c. The EFTA’s One Year Statute of Limitation Period
By statute, EFTA claims must be brought “within one year
from the date of the occurrence of the violation.” 15 U.S.C. §

1693m(g) (“[w]ithout regard to the amount in controversy, any
action under this section may be brought in any United States
district court, or in any other court of competent jurisdiction,
within one year from the date of the occurrence of the
violation”); Golden-Koether, 2011 U.S. Dist. LEXIS 136472, at
*5. “The statute of limitations begins to run ten days after
the consumer provides the oral or written notice of the alleged
error to the financial institution.” Id. (citing Berenson v.
Nat’l Fin. Servs., LLC, 403 F. Supp. 2d 133, 145 (D. Mass.
2005)); Scheffler v. TD Bank, N.A., No 18-6688, 2019 U.S. Dist.
LEXIS 6998, *12 (D.N.J. Jan. 15, 2019).
Plaintiff learned of the unauthorized transactions at issue

on March 30, 2017. (FAC at ¶3). As Plaintiff alleges,
“[i]mmediately upon learning of these unauthorized transactions,
[Plaintiff] disputed the[m] with . . . OCNAC[.]” (FAC at ¶4).
As such, the EFTA’s one-year statute of limitations period began
running on April 9, 2017. Plaintiff’s Initial Complaint was
filed in December of 2018, far more than one-year after he
notified OCNAC of the unauthorized transactions. As such,
Plaintiff failed to comply with the EFTA’s statute of
limitations and this claim is therefore time-barred.
d. Claims Governed by the UCC
Under the UCC, an action involving a negotiable instrument
triggers the statute of limitations at the time the check is

negotiated; that is, “the statute of limitations begins to run
at the time the check amount is debited from the maker’s
account.” Psak, Graziano, Piasecki & Whitelaw v. Fleet Nat.
Bank, 915 A.2d 42, 45 (N.J. Super. Ct. App. Div. 2007) (quoting
New Jersey Lawyers’ Fund for Client Protection v. Pace, 863 A.2d
402 (N.J. Super Ct. App. Div. 2005), aff’d per curiam, 892 A.2d
661 (N.J. 2006)); accord Menichini v. Grant, 995 F.2d 1224, 1230
(3d Cir. 1993). Any action to enforce an obligation, duty, or
right must be commenced within three years after the cause of
action accrues. N.J. Stat. § 12A:4-111.
Despite Plaintiff’s arguments to the contrary, the time at
when a plaintiff discovers the alleged error is not relevant “in

determining the date of accrual of a cause of action under
the UCC[.]” Pace, 863 A.2d at 404. Put differently, the
discovery rule simply does not apply. New Jersey Lawyers’ Fund
for Client Protection v. Pace, 892 A.2d 661, 662 (N.J. 2006)
(quoting Menichini, 995 F.2d at 1230) (“The court’s approach is
consistent with the premise that application of ‘the discovery
rule to negotiable instruments [would be] inimical to UCC
policies of finality and negotiability.’”).
The transactions at issue occurred between July 10, 2014
and April 22, 2015. (Initial Comp. at 11). Therefore, under
the UCC, the statute of limitations began running, at the very
latest, on April 22, 2015. Plaintiff did not file the Initial

Complaint until December 4, 2018, more than three years later.
As such, Plaintiff failed to comply with the UCC’s statute of
limitations. Therefore, to the extent Plaintiff’s negligence
claim is governed by the UCC, it must be dismissed.
2. Count II: Breach of Contract Against All Defendants

Both Defendants argue, albeit for different reasons, that
Plaintiff’s breach of contract claim must be dismissed.
NCUA argues that Plaintiff fails to allege he is a party to
any contract with NCUA, and further, that even if Plaintiff had
a contract with NCUA, jurisdiction to hear Plaintiff’s breach of
contract action likely rests exclusively with the Court of
Federal Claims. (NCUA Br. at 9-10).
OCNAC argues that the breach of contract claim must be
dismissed because Plaintiff failed to comply with a customer
agreement by not alerting the bank to the fraudulent
transactions within 60 days.5 (OCNAC Br. at 8).
“To prevail on a breach of contract claim under New Jersey
law, a plaintiff must establish three elements: (1) the

5 Because the Court finds that Plaintiff fails to state a prima
facie claim for breach of contract, the Court need to reach
OCNAC’s more nuanced argument.
existence of a valid contract between the parties; (2) failure
of the defendant to perform its obligations under the contract;
and (3) a causal relationship between the breach and the

plaintiff’s alleged damages.” McMullen v. Ocwen Loan Servicing,
LLC, No. 16-4120, 2017 U.S. Dist. LEXIS 25339, *8 (D.N.J. Feb.
23, 2017) (Hillman, J.) (quoting Grande Village LLC v. CIBC
Inc., No. 14-3495, 2015 U.S. Dist. LEXIS 27384, 2015 WL 1004236,
at *5 (D.N.J. March 6, 2015)). Under New Jersey law, the
applicable statute of limitations period for generic breach of
contract claims is six (6) years. N.J. Stat. § 2A:14-1.
Plaintiff has not pled that he has a contractual
relationship with either Defendant. The Amended Complaint
asserts only that “Defendants breached their contractual
obligation to make their best efforts to protect the assets of
[Plaintiff] from being withdrawn by unauthorized individuals.”

(FAC at ¶29). Plaintiff fails to plead what contract required
Defendants to perform such actions, and when any alleged breach
occurred.6 Of additional relevancy, Plaintiff fails to plead the

6 While OCNAC’s arguments appear to assume that Plaintiff’s
breach of contract action relates to purported violations of a
customer agreement, the Court cannot draw such an inference from
Plaintiff’s Amended Complaint. To infer such a limitation would
be an abuse of judicial authority and could work to limit
Plaintiff’s claims in a manner Plaintiff has not intended. It
is possible, from the Amended Complaint, that Plaintiff’s
allegations relate to some other contract between the parties.
Either way, Plaintiff failed to sufficiently plead the breach of
contract claim in a manner “showing that [he] is entitled to
amount he seeks to recover in damages.7 As such, Plaintiff
cannot state a prima facie case for breach of contract.8
Therefore, Plaintiff’s breach of contract claim will be

dismissed, without prejudice.
To the extent Plaintiff can establish that a valid contract
between the parties exists, and that Defendants somehow breached
their contractual obligations, Plaintiff may file a second
amended complaint consistent with this Opinion and the Order
that follows, within twenty (20) days hereof.

relief[.]” Fed. R. Civ. P. 8(a)(2).

7 “Under the Tucker Act, the Court of Federal Claims has
exclusive jurisdiction over non-tort claims against the
Government for greater than $10,000.” Marquis v. Farm Serv.
Agency, No. 14-6715, 2017 U.S. Dist. LEXIS 15849, *6 (D.N.J.
Feb. 2, 2017) (quoting Clinton v. Goldsmith, 526 U.S. 529, 539
n.13, 119 S. Ct. 1538, 143 L. Ed. 2d 720 (1999)); 28 U.S.C.
§1346(a). Plaintiff’s Initial Complaint suggests that the
amount at issue far exceeds $10,000. See (Initial Comp. at 11,
22) (providing a list of allegedly unauthorized transactions
exceeding $10,000). The Initial Complaint’s allegations
regarding damages do not appear in the Amended Complaint, which
is the operative pleading before this Court. As such, the Court
cannot conclusively determine, from the operative pleading
before it, whether Plaintiff’s alleged damages exceed $10,000.
If they do, this Court lacks jurisdiction to hear Plaintiff’s
breach of contract claim against NCUA. See 28 U.S.C. §1346(a).
Should Plaintiff elect to file a second amended complaint,
Plaintiff must clearly identify the amount in damages he seeks
so that this Court may determine whether it has proper
jurisdiction to hear this claim.

8 Having found that Plaintiff fails to state a claim against NCUA
for breach of contract, the Court need not address NCUA’s
alternative argument that jurisdiction more properly lies with
the Court of Federal Claims.
3. Count III: Allegations Against OCNAC Pursuant to the
EFTA

The Amended Complaint alleges that OCNAC failed to employ
proper procedures for addressing unauthorized electronic fund
transfers and otherwise failed to adequately investigate
Plaintiff’s claims. (FAC at ¶¶34-37).
OCNAC argues that Plaintiff’s claim must be dismissed as it
was filed outside of the appropriate statute of limitations.
(OCNAC Br. at 4-6).
For the reasons discussed in section (C)(1)(b)(i) of this
Opinion, supra, Plaintiff’s EFTA claims are untimely, and must
be dismissed.
4. Count IV: Plaintiff’s Allegations Against NCUA
Pursuant to the FCUA fail as the FCUA Does Not
Provide For A Private Right Of Action

NCUA argues that Plaintiff’s FCUA claim fails as the FCUA
does not create a private right of action. (NCUA Br. at 11).
Plaintiff argues that an express private right of action does
exist, or otherwise, must be implied. (Pl. Br. at 10).
In the Third Circuit, the “relevant inquiry for determining
whether a private right of action exists appears to have two
steps: (1) Did Congress intend to create a personal right?; and
(2) Did Congress intend to create a private remedy?” Wisniewski
v. Rodale, Inc., 510 F.3d 294, 301 (3d Cir. 2007) cert. denied
555 U.S. 814 (2008); Bakos v. Am. Airlines, Inc., 748 Fed. Appx.
468, 473-74 (3d Cir. 2018).9 As Wisniewski directs, “[o]nly if
the answer to both of these questions is ‘yes’ may a court hold
that an implied private right of action exists under a federal

statute.” Wisniewski, 510 F.3d at 301.
Plaintiff has not provided citation to any authority
demonstrating that Congress intended the FCUA to provide a
personal or private right of action. Although not binding on
this Court, existing authority is to the contrary and is
persuasive. Rosenberg v. A T & T Employees Fed. Credit Union,
726 F. Supp. 573 (D.N.J. 1989) (finding that there is no express
private right of action under the FCUA); Acciard v. Whitney,
2010 U.S. Dist. LEXIS 143332, *12-13, 2010 WL 6813952 (M.D. Fla.
Sept. 17, 2010) (same). As explained in Rosenberg, “[t]here is
nothing in the Federal Credit Union Act itself or in its
legislative history which reveals Congress’ intent to create a

private cause of action where a federal credit union[] . . .
[allegedly] breaches its duty to the credit union’s members.”
Rosenberg, 726 F. Supp. at 577.
Having found that no explicit right of action exists, this
Court will not imply a right of action where doing so would be
contrary to Congressional intent.10

9 The Third Circuit issued its decision in Bakos after briefing
in this matter concluded. Bakos confirms the standard
articulated by Wisniewski, which NCUA relied on its papers.
10 Numerous federal courts throughout the country – including at
As such, Plaintiff’s purported FCUA claim will be
dismissed.
CONCLUSION

For the reasons set forth in this Opinion, Defendants’
Motions to Dismiss (ECF Nos. 22 and 25) will be granted. Counts
I, III, and IV of the Amended Complaint will be dismissed with
prejudice. Count II of the Amended Complaint will be dismissed
without prejudice. Plaintiff may file a second amended
complaint consistent with this Opinion and the Order that
follows – only on the breach of contract claim (Count II) -
within twenty (20) days hereof. An appropriate Order will be
entered.

Date: October 28, 2019_____ s/ Noel L. Hillman___
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

least one within this District - have examined whether a private
right of action is implied under the FCUA and have resoundingly
concluded that “no such implied cause of action exists.” Smith
v. Dearborn Financial Services, Inc., 982 F.2d 976, 979 (6th
Cir. 1993) (citing Barany v. Buller, 670 F.2d 726 (7th Cir.
1982); Ridenour v. Andrews Fed. Credit Union, 897 F.2d 715 (4th
Cir. 1990); Heller v. CACL Fed. Credit Union, 775 F. Supp. 839
(E.D. Pa. 1991); Rosenberg, 726 F. Supp. At 573; Montford v.
Robins Fed. Credit Union, 691 F. Supp. 347 (M.D. Ga. 1988)); see
Barroga-Hayes v. Susan D. Settenbrino, P.C., No. 10-5298, 2012
U.S. Dist. LEXIS 47071, *23 (E.D.N.Y. March 30, 2012);
Mioduszewski v. Polish & Slavic Fed. Credit Union, No. 18-6081,
2018 U.S. Dist. LEXIS 190679, *5-6 (E.D.N.Y. Nov. 6, 2018).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10267086. Public record. Not legal advice.