16-1620
Wechsler v. HSBC

                     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 COURT’S 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 “SUMMARY ORDER”). 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 January, two thousand seventeen.

    PRESENT: RALPH K. WINTER,
             DENNIS JACOBS,
             JOSÉ A. CABRANES,
                           Circuit Judges.

    - - - - - - - - - - - - - - - - - - - -X
    DONALD WECHSLER,
             Plaintiff-Appellant,

                   -v.-                                             16-1620

    HSBC BANK USA, N.A.,
             Defendant-Appellee.
    - - - - - - - - - - - - - - - - - - - -X

    FOR APPELLANT:                        BROCK SPECHT (with Kai H.
                                          Richter on the brief), Nichols
                                          Kaster, PLLP, Minneapolis, MN.

    FOR APPELLEES:                        LOUIS SMITH (with Rebecca Zisek
                                          on the brief), Greenberg
                                          Traurig, LLP, Florham Park, NJ.


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     Appeal from a judgment of the United States District
Court for the Southern District of New York (Furman, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Donald Wechsler appeals from the judgment of the United
States District Court for the Southern District of New York
(Furman, J.), dismissing as untimely his complaint against
HSBC Bank USA, N.A. We assume the parties’ familiarity with
the underlying facts, the procedural history, and the issues
presented for review.

     Wechsler claims that HSBC improperly charged
maintenance fees on his savings account. He alleges breach
of contract and violations of the New York Deceptive
Practices Act (“NYDPA”).

     The parties agree that the following clause (the
“Limitations Clause”) purports to apply to Wechsler’s
account:

    You agree to make any claim or bring any legal
    action relating to the Bank’s handling of your
    account . . . within one (1) year of the date the
    problem occurred . . . . You agree that if the
    problem involves a series of events, such as a
    number of forgeries over a period of time, then
    the date the first event occurred shall be the
    date by which the period to make any claim or
    bring any legal action shall begin to run.

J. App’x at 98. Because Wechsler’s first overcharge
occurred on January 31, 2014, and he did not file his
lawsuit until July 28, 2015, the district court held that
the Limitations Clause made Wechsler’s claim untimely, and
granted HSBC’s motion to dismiss. We review de novo a
district court’s dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(6). Faulkner v. Beer, 463 F.3d 130, 133 (2d
Cir. 2006).

     1. “An agreement which modifies the Statute of
Limitations by specifying a shorter, but reasonable, period
within which to commence an action is enforceable.”
Executive Plaza, LLC v. Peerless Ins. Co., 22 N.Y. 3d 511,


                             2
518 (2014) (quoting John J. Kassner & Co. v. City of New
York, 46 N.Y.2d. 544, 551 (1979)) (alteration omitted).1
Reasonableness is considered “in view of the circumstances
of each particular case.” Id. at 519. In general, New York
courts have found one-year limitations clauses to be
reasonable. See Corbett v. Firstline Sec., Inc., 687 F.
Supp. 2d 124, 128 (E.D.N.Y. 2009) (collecting cases).
Nonetheless, Wechsler argues that the circumstances of this
case would render application of the Limitations Clause to
his claim unreasonable.

     Specifically, Wechsler contends that application of the
Limitations Clause would allow HSBC to continue to levy
illegal maintenance fees, and Wechsler would not be able to
sue to stop these future violations. That might be, but the
limitation on suit to which Wechsler agreed is not
unreasonable. Nothing prevented Wechsler from filing his
lawsuit within a year of the first maintenance fee. Indeed,
Wechsler concedes that he called HSBC to complain about the
maintenance fees within the one-year limitations period, and
that the bank asserted that it had the right to assess such
fees. Soon after this call, HSBC assessed another
maintenance fee on Wechsler’s account. That charge occurred
a month before the year expired. We fail to see any unique
circumstance in this case that would defeat the normal rule
that one-year limitation periods are reasonable.

     2. Wechsler argues that the Limitations Clause should
not be measured from the first overcharge (January 2014)
because HSBC did not charge him a maintenance fee for a
three-to-five month period in the middle of his one-year
window for filing suit. This gap, Wechsler contends, made
it unclear whether his maintenance fees were a “series of
events” within the meaning of the Limitations Clause. If
they were not, Wechsler argues, his claims would be timely.2



    1
       The parties agree that New York law governs the
dispute.
    2
       The parties dispute the scope of this argument and
whether Wechsler failed to raise it in the district court,
thereby forfeiting it on appeal. See Singleton v. Wulff,
428 U.S. 106, 120 (1976). Because we reject Wechsler’s
argument on the merits, we need not consider whether it was
forfeited.
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     There is no such lack of clarity. The fee was first
charged to Wechsler in January 2014. In December 2014, he
called HSBC to complain about identical charges that had
occurred in the interim. During that call, HSBC asserted
its right to assess such fees, and the bank charged Wechsler
again approximately one week later. The charges obviously
are all part of a single “series of events” that first began
in January 2014. Wechsler failed to bring suit within a
year of that first charge, and he consequently lost his
right to challenge the maintenance fees in court.

     For the foregoing reasons, and finding no merit in
Wechsler’s other arguments, we hereby AFFIRM the judgment of
the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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