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Tanya Freeman v. Wachovia Bank

February 8, 2011

TANYA FREEMAN, PLAINTIFF-APPELLANT,
v.
WACHOVIA BANK, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. DC-000039-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 25, 2011

Before Judges Espinosa and Skillman.

This case, involving plaintiff's attempt to recover an unauthorized $757.50 deduction from her debit card account by defendant Wachovia Bank, is before us for the second time.

Plaintiff used her debit card to pay an $800 deposit for the rental of a limousine from Bergen Limousine Company (Bergen Limo) for her son's prom. Plaintiff's contract provided for payment of the balance of the price for the rental in cash.

The prom was held on a hot night in late May 2007, and the limousine that Bergen Limo sent to plaintiff's home was not air conditioned. Although Bergen Limo provided approximately one hour of service to plaintiff by driving her son and his date to the prom in Staten Island, plaintiff terminated her contract with Bergen Limo at that point because the limousine was uncomfortably hot, and she hired another limousine company to drive her son and his date for the remainder of the evening.

Although plaintiff never authorized Bergen Limo to make any additional charges on her Wachovia debit card, Bergen Limo charged the $757.50 balance of the price for rental of the limousine to the debit card plaintiff had used for the $800 deposit. Plaintiff protested this charge, and Wachovia provisionally credited plaintiff's account while the bank researched the disputed transaction. However, in a subsequent letter dated September 19, 2007, Wachovia advised plaintiff as follows:

After researching your dispute further, we have determined that no error occurred to your account because the merchant was willing and able to provide the service.

You decided to cancel after the merchant arrived therefore resulting in no refund being due. It will now be necessary to redebit your account five business days from the date of this notification.

Thus, even though Wachovia's investigation failed to ascertain that Bergen Limo was authorized to charge the sum of $757.50 to plaintiff's debit card, Wachovia removed this sum from plaintiff's checking account because it concluded that she was liable to Bergen Limo for that amount.

Plaintiff filed a multi-count complaint against Wachovia. Plaintiff's complaint alleged that she "did not authorize the [$757.50 charge to her debit account] at any point." Plaintiff's complaint also asserted a claim under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, for which she sought treble damages and attorney's fees, and a claim for gross negligence, for which she sought both compensatory and punitive damages.

The case was tried in a bench trial, which resulted in a judgment dismissing plaintiff's complaint.

On appeal, we reversed in a short unpublished opinion. Freeman v. Wachovia Bank, No. A-5290-07T2 (June 4, 2009). Our opinion concluded: "[T]he record does not support the trial court's finding that the second payment to Bergen Limo in the amount of $757.50 was authorized." Based on this conclusion, we reversed and ...


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