Second Circuit Revives Class Action Over Frozen Bank Accounts


On March 27, the U.S. Court of Appeals for the Second Circuit certified questions to New York’s highest court related to its review of a district court’s holding in two cases that New York’s Exempt Income Protection Act (EIPA) does not support a private right of action. Cruz v. TD Bank, N.A., No 12-1200; Martinez v. Capital One Bank, N.A., No. 12-1342, 2013 WL 1223320 (2nd Cir. Mar. 27, 2013). Two groups of judgment debtor plaintiffs allege that their banks failed to provide them and other members of putative classes with the notices and exemptions forms as required by the EIPA, and assert that the banks unlawfully froze their accounts and charged them various fees in violation of the statute. The district court held that the EIPA, which provides a special exemption from satisfaction of money judgments for certain amounts and types of a debtor’s income, permits judgment debtors and creditors to bring claims against each other but provides no private right of action against the banks. On appeal, the court held (i) there is no controlling precedent in New York that governs the cases, (ii) the questions presented involve important issues of New York state law and policy that are likely to recur, and (iii) the questions are more appropriately resolved in New York. The Second Circuit certified to the New York State Court of Appeals two questions: (i) whether the judgment debtors have a private right of action for money damages and injunctive relief against banks that violate EIPA’s procedural requirements, and (ii) whether judgment debtors can seek money damages and injunctive relief against banks that violate EIPA in special proceedings and, if so, whether those special proceedings are the exclusive mechanism for such relief or whether judgment debtors may also seek relief in a plenary action. The circuit court retained jurisdiction to resolve the issues that remain following the state court’s decision.

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