18‐3383‐cv
McPherson v. Tompkins Tr. Co.

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 6th day of February, two thousand twenty.

PRESENT:            DENNIS JACOBS,
                    DENNY CHIN,
                    JOSEPH F. BIANCO,
                                         Circuit Judges.
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STANLEY WEST MCPHERSON,
                   Plaintiff‐Appellant,

                              ‐v‐                                                  18‐3383‐cv

TOMPKINS TRUST COMPANY, BRIAN A.
HOWARD, MYRIAH A. MARNELL, JESSE
TEDORA, DEBORAH J. HOOVER,
                    Defendants‐Appellees.

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FOR PLAINTIFF‐APPELLANT:                                     Stanley West McPherson, pro se, Ithaca, New
                                                             York.
FOR DEFENDANTS‐APPELLEES:                Thomas P. Smith, Harris Beach PLLC, Ithaca,
                                         New York.

             Appeal from the United States District Court for the Northern District of

New York (McAvoy, J.).

             UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

             Plaintiff‐appellant Stanley McPherson, pro se, sued defendant‐appellee

Tompkins Trust Company (ʺTTCʺ) and several of its employees (collectively,

ʺdefendantsʺ) under the Electronic Fund Transfer Act, 15 U.S.C. § 1693h(a) (the ʺEFTAʺ),

the Pennsylvania Bills of Exchange Act of March 30, 1821, and Articles 3 and 4 of the

New York Uniform Commercial Code (the ʺUCCʺ). McPherson alleged that TTC

improperly halted an electronic fund transfer and refused to accept a promissory note

as payment for a debt. On May 3, 2018, defendants moved to dismiss the complaint.

The district court sua sponte converted the motion to one for summary judgment and,

after the parties supplemented their papers, granted judgment in favor of defendants.

We assume the partiesʹ familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.

             We review a grant of summary judgment de novo, ʺresolv[ing] all

ambiguities and draw[ing] all inferences against the moving party.ʺ Garcia v. Hartford

Police Depʹt, 706 F.3d 120, 127 (2d Cir. 2013) (per curiam). ʺSummary judgment is

proper only when, construing the evidence in the light most favorable to the non‐
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movant, ʹthere is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.ʹʺ Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011)

(quoting Fed. R. Civ. P. 56(a)).

              The district court properly granted summary judgment for defendants.

McPherson failed to present evidence from which a reasonable jury could find a

violation of the EFTA. The EFTA provides that ʺa financial institution shall be liable to

a consumer for all damages proximately caused by . . . the financial institutionʹs failure

to make an electronic fund transfer . . . when properly instructed to do so by the

consumer.ʺ 15 U.S.C. § 1693h(a)(1). A financial institution is not liable, however, when

ʺthe consumerʹs account has insufficient funds.ʺ Id. § 1693h(a)(1)(A). The undisputed

evidence showed that when TTC attempted to electronically transfer funds into

McPhersonʹs TTC account from external accounts that McPherson identified as

belonging to him, McPhersonʹs TTC account received a provisional credit. Then the

transfers were charged back or ʺreturnedʺ because the external accounts from which

TTC attempted to draw funds were ʺunknown/fraudulent account[s].ʺ Suppl. Appʹx at

38. Because the accounts were unknown or fraudulent and there were therefore

insufficient funds to cover the request, TTC is not liable under the EFTA for the failed

electronic transfers.

              McPherson also failed to demonstrate the existence of a triable issue of

fact as to his claim under the Pennsylvania Bills of Exchange Act (the ʺActʺ) of March


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30, 1821. The Act provides that a person who endorses a ʺbill of exchange,ʺ i.e., a check,

within Pennsylvania, but is not paid, is entitled to damages and interest. 1821 Pa. Laws

156, No. 94, cl. 12. The Act is inapplicable here because McPherson did not attempt to

cash a check written by defendants in Pennsylvania. Nor did McPherson show a viable

claim under Articles 3 and 4 of the UCC. Article 3 governs commercial paper and

Article 4 governs bank deposits. See N.Y. U.C.C. §§ 3‐101 et seq., 4‐101 et seq. Neither

article obligates TTC to accept a promissory note as payment. See N.Y. U.C.C. § 3‐802(1)

(providing that an instrument can satisfy an obligation ʺwhere [it] is takenʺ to do so).

Further, when TTC dishonored the note, it did so in writing. See Gen. Motors Acceptance

Corp. v. Bank of Richmondville, 611 N.Y.S.2d 338, 339 (3d Depʹt 1994) (requiring notices of

dishonor from banks to be in writing under the UCC).

                                           *   *   *

               We have considered McPhersonʹs remaining arguments and conclude

they are without merit. For the foregoing reasons, we AFFIRM the judgment of the

district court.1

                                            FOR THE COURT:
                                            Catherine OʹHagan Wolfe, Clerk




1      In light of our decision, McPhersonʹs motion to expedite this appeal is denied as moot.
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