Carol Tims v. LGE Community Credit Union , 935 F.3d 1228 ( 2019 )


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  •               Case: 17-14968     Date Filed: 08/27/2019    Page: 1 of 29
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 17-14968
    ________________________
    D.C. Docket No. 1:15-cv-04279-TWT
    CAROL TIMS,
    Individually, and on behalf of all others similarly situated,
    Plaintiff – Appellant,
    versus
    LGE COMMUNITY CREDIT UNION,
    Defendant - Appellee.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    ________________________
    (August 27, 2019)
    Before MARTIN, JILL PRYOR and JULIE CARNES, Circuit Judges.
    JILL PRYOR, Circuit Judge:
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    According to Carol Tims, when she opened an account at LGE Community
    Credit Union, LGE promised to use one account balance calculation method in
    assessing overdraft fees against her account, but then used a different one, which
    resulted in more fees. Tims alleged that LGE agreed to impose overdraft fees only
    when her ledger balance—the amount of money in her account without considering
    pending debits—was insufficient to cover a transaction. She alleged that LGE
    broke that promise by assessing overdraft fees when, based on her ledger balance,
    there was enough money in her account to cover the transaction in question, but
    based on her available balance—the money in her account after considering
    pending debits and deposits—there was not.
    Tims sued LGE in district court for breach of contract, breach of the implied
    covenant of good faith and fair dealing, and violation of the Electronic Fund
    Transfer Act (EFTA), 15 U.S.C. §§ 1693-1693r. The district court dismissed her
    claims under Federal Rule of Civil Procedure 12(b)(6) after determining that the
    two parties’ agreements unambiguously permitted LGE to assess overdraft fees
    using the available balance calculation method.
    We disagree with the district court’s interpretation of the contracts. Because
    we conclude that the agreements are ambiguous as to whether LGE could rely on
    an account’s available balance, rather than its ledger balance, to assess overdraft
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    fees, we reverse the district court’s dismissal of the case and remand for further
    proceedings consistent with our opinion.
    I.      BACKGROUND
    A. Congressional Regulation of Overdraft Fees After the Advent of Online
    Banking
    “Overdraft” is a banking term describing a deficit in a bank account caused
    by drawing more money than the account holds. Before the development of
    electronic fund transfer (EFT) systems, banks generally provided overdraft
    coverage for check transactions only. See Electronic Fund Transfers, 74 Fed. Reg.
    59,033, 59,033 (Nov. 17, 2009). When a bank customer overdrew her account by
    writing a check in an amount that exceeded the amount of funds in the account, her
    financial institution applied its discretion in deciding whether to honor the
    customer’s draft, in effect extending a small line of credit to its customer and
    imposing a small fee for the convenience. 
    Id. Online banking
    transformed how financial institutions handled overdrafts
    and overdraft fees. New EFT systems provided customers with more ways to
    make payments from their accounts, including automatic teller machine (ATM)
    withdrawals, debit card transactions, online purchases, and transfers to other
    accounts. 
    Id. Most financial
    institutions chose to extend their overdraft coverage
    to all EFT transactions. Some further decided to cover automatically all overdrafts
    their customers might generate from their EFTs. 
    Id. These changes
    had the
    3
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    benefit to financial institutions of “reduc[ing] cost[s]” from manually reviewing
    individual transactions and furthering “consistent treatment of consumers.” 
    Id. at 59,033-34.
    But they came at a significant and sometimes unexpected cost to
    consumers: financial institutions generally assessed a flat fee each time an
    overdraft occurred, sometimes charging additional fees—for each day an account
    remained overdrawn, for example, or incrementally higher fees as the number of
    overdrafts increased. 
    Id. at 59,033.
    Congress enacted EFTA with the aim of outlining the rights, responsibilities,
    and obligations of individuals and institutions using EFT systems. 
    Id. In EFTA’s
    implementing regulations (Regulation E, 12 C.F.R. pt. 1005), Congress set out to
    “assist consumers in understanding how overdraft services provided by their
    institutions operate and to ensure that consumers have the opportunity to limit the
    overdraft costs associated with ATM and one-time debit card transactions where
    such services do not meet their needs.” 
    Id. at 59,035.
    Doing away with the
    practice of automatic enrollment of consumers in overdraft coverage, Regulation E
    required financial institutions to secure consumers’ “affirmative consent” to
    overdraft services through an opt-in notice. 
    Id. at 59,036.
    The opt-in notice was to
    be “segregated from all other information[] describing the institution’s overdraft
    service,” 12 C.F.R. § 1005.17(b)(1)(i), and be “substantially similar” to a model
    form (Model Form A-9) provided by the Federal Reserve, 
    id. § 1005.17(d).
    4
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    “But the opt-in requirement and model form have not dispelled all the
    controversy and confusion surrounding overdraft fees.” Chambers v. NASA Fed.
    Credit Union, 
    222 F. Supp. 3d 1
    , 6 (D.D.C. 2016). Model Form A-9 does not
    address which account balance calculation method a financial institution should
    use to determine whether a transaction results in an overdraft. See 12 C.F.R. pt.
    1005, app. A. Without any such provision in the model form, “some financial
    institutions have failed to disclose the balance calculation method that they use to
    determine whether a transaction results in an overdraft.” Chambers, 
    222 F. Supp. 3d
    at 6.
    In determining whether a customer has made a withdrawal or incurred a
    debit that exceeds the balance in her account—an overdraft—financial institutions
    typically use one of two methods of calculating the balance in a customer’s
    account: the “ledger” balance method or the “available” balance method. The
    ledger balance method considers only settled transactions; the available balance
    method considers both settled transactions and authorized but not yet settled
    transactions, as well as deposits placed on hold that have not yet cleared.
    Consumer Fin. Prot. Bureau, Supervisory Highlights 8 (Winter 2015), available at
    https://files.consumerfinance.gov/f/201503_cfpb_supervisory-highlights-winter-
    2015.pdf (last visited May 24, 2019). These two competing methods of calculating
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    a consumer’s balance and charging overdraft fees based on that balance lie at the
    heart of this case.
    B. Factual Background
    LGE allegedly charged Tims overdraft fees of $30.00 each on two
    occasions. Tims’s complaint alleged that at the time LGE assessed the overdraft
    fees, her ledger balance was sufficient to cover each transaction. She alleged that
    LGE agreed to use the ledger balance calculation method in assessing overdraft
    fees, and so LGE’s use of the available balance calculation method breached her
    agreements with LGE.
    LGE argues that its agreements with Tims unambiguously provided that
    LGE would use the available balance calculation method in imposing overdraft
    fees. LGE thus asserts that it did not breach its agreements by imposing fees based
    on Tims’s available balance.
    There were two agreements between Tims and LGE: the “Opt-In
    Agreement” and the “Account Agreement.” LGE asked consumers to sign the
    Opt-In Agreement to obtain their consent to LGE’s overdraft policies. The Opt-In
    Agreement said little about which balance calculation method LGE employs,
    stating only that “[a]n overdraft occurs when you do not have enough money in
    your account to cover a transaction, but we pay it anyway.” Doc. 29 at 44. 1
    1
    All citations in the form “Doc. #” refer to numbered entries on the district court docket.
    6
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    LGE adopted the Opt-In Agreement to comply with Regulation E, 12 C.F.R.
    § 1005.17. Again, Regulation E requires financial institutions to secure a
    consumer’s “affirmative consent” before charging overdraft fees and stipulates that
    consent can be secured through use of an opt-in form “substantially similar” to
    Model Form A-9. 
    Id. § 1005.17(b)(1)(iii),
    (d). LGE’s Opt-In Agreement is nearly
    an exact copy of Model Form A-9. Compare 
    id. pt. 1005,
    app. A, with Doc. 29 at
    44.
    The second agreement between Tims and LGE, the Account Agreement,
    contained a “Payment Order” provision explaining that in processing items drawn
    on a consumer’s account, LGE’s “policy is to pay [the items] as we receive them.”
    Doc. 29 at 31. The Account Agreement went on to say, “[i]f an item is presented
    without sufficient funds in your account to pay it” or “if funds are not available to
    pay all of the items” presented for payment, LGE “may, at [its] discretion, pay” the
    item or items, creating an overdraft for which LGE will charge a fee. 
    Id. at 32.
    A separate provision in the Account Agreement, the “Funds Availability
    Disclosure,” addressed the conditions under which funds were available for
    consumers’ use. 
    Id. at 37.
    In this provision, LGE explained that its general policy
    was “to make funds from your deposits available to you on the same business day
    that [LGE] receive[s] your deposit,” but certain deposits would not be “available”
    to consumers until the second business day at the earliest. 
    Id. 7 Case:
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    C. Procedural History
    Tims brought this case as a consumer class action, asserting three claims
    against LGE that are the subject of this appeal. 2 First, Tims alleged that LGE
    breached its Opt-In and Account Agreements by assessing overdraft fees using the
    available balance calculation method. Second, she alleged that LGE violated the
    implied covenant of good faith and fair dealing implicit in every contract under
    Georgia law. 3 Third, she alleged that LGE’s practices failed to accurately describe
    its overdraft service as required by Regulation E, thus violating EFTA.
    LGE filed a Rule 12(b)(6) motion to dismiss all claims, which the district
    court granted. Using Georgia’s canons of contract construction, the district court
    determined that the agreements unambiguously permitted LGE to assess overdraft
    fees using the available balance calculation method. The court concluded that
    LGE had neither breached the parties’ contract nor the covenant of good faith and
    fair dealing and that no EFTA violation had occurred. Tims timely appealed.
    2
    Tims also asserted claims against LGE for unjust enrichment and money had and
    received. On appeal, she does not argue that the district court erred in dismissing these claims,
    so we do not address their merits. See Access Now, Inc. v. Sw. Airlines Co., 
    385 F.3d 1324
    , 1330
    (11th Cir. 2004) (stating that a legal claim or argument that has not been briefed on appeal is
    “deemed abandoned and its merits will not be addressed”).
    3
    The Account Agreement provided that Georgia law governs the contract. Because the
    parties agree that Georgia law applies here, we assume that it does. See Bahamas Sales Assoc.,
    LLC v. Byers, 
    701 F.3d 1335
    , 1342 (11th Cir. 2012) (“If the parties litigate the case under the
    assumption that a certain law applies, we will assume that law applies.”).
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    II.    STANDARD OF REVIEW
    We review de novo a district court’s grant of a motion to dismiss for failure
    to state a claim under Federal Rule of Civil Procedure 12(b)(6). See Glover v.
    Liggett Grp., Inc., 
    459 F.3d 1304
    , 1308 (11th Cir. 2006). We accept factual
    allegations in the complaint as true and construe them in the light most favorable to
    the plaintiff. See Hill v. White, 
    321 F.3d 1334
    , 1335 (11th Cir. 2003). To
    withstand a motion to dismiss under Rule 12(b)(6), a complaint must include
    “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
    v. Twombly, 
    550 U.S. 544
    , 570 (2007). “A claim has facial plausibility when the
    plaintiff pleads factual content that allows the court to draw the reasonable
    inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
    Iqbal, 
    556 U.S. 662
    , 678 (2009).
    We review de novo the issue of whether a contract is ambiguous. See Frulla
    v. CRA Holdings, Inc., 
    543 F.3d 1247
    , 1252 (11th Cir. 2008). Questions of
    contract interpretation are pure questions of law, also reviewed de novo. Gibbs v.
    Air Canada, 
    810 F.2d 1529
    , 1532 (11th Cir. 1987).
    III.   DISCUSSION
    Tims challenges the district court’s dismissal of her claims against LGE for
    (1) breach of contract; (2) breach of the implied covenant of good faith and fair
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    dealing; and (3) violation of Regulation E of EFTA. We consider these claims in
    turn.
    A. Tims Stated a Claim for Breach of Contract.
    To state a claim for breach of contract under Georgia law, Tims had to
    plausibly allege that LGE owed her a contractual obligation, then breached it,
    causing her damages. Norton v. Budget Rent a Car Sys., Inc., 
    705 S.E.2d 305
    , 306
    (Ga. Ct. App. 2010). Tims alleged that LGE promised to calculate her account
    balance—and assess overdraft fees in light of that balance—by considering only
    the ledger balance, then breached that promise by considering the available balance
    instead. We must interpret the two agreements between Tims and LGE to decide
    whether LGE had a contractual obligation to use the available balance calculation
    method or the ledger balance calculation method for unsettled withdrawals 4 in
    imposing overdraft fees.
    Under Georgia law, courts interpret contracts in three steps: first, the court
    determines whether the contract language is clear and unambiguous. If the
    language is clear, the court applies its plain meaning; if it is unclear, the court
    4
    The parties appear to agree that, as to deposits, the Funds Availability Disclosure
    permits LGE to place holds on some types of deposits pending clearance of the deposit (ledger
    balance method), but that as to other types of deposits, LGE has agreed that the deposit will be
    made immediately available to the customer (available balance method). The dispute here
    concerns how debit transactions are to be treated under the Opt-In Agreement and the Account
    Agreement, with Tims arguing that the relevant documents indicate that the ledger method will
    be used and LGE arguing that the terms of the agreements provide for use of the available
    balance method.
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    proceeds to step two. At step two, the court attempts to resolve the ambiguity
    using Georgia’s canons of contract construction. If the ambiguity cannot be
    resolved using the canons, then the court proceeds to step three, where the parties’
    intent becomes a question of fact for the jury. City of Baldwin v. Woodward &
    Curran, Inc., 
    743 S.E.2d 381
    , 389 (Ga. 2013).
    “The cardinal rule of construction is to ascertain the intention of the parties.”
    Maiz v. Virani, 
    253 F.3d 641
    , 659 (11th Cir. 2001) (alteration adopted) (internal
    quotation marks omitted). A contract is ambiguous when it “leave[s] the intent of
    the parties in question—i.e., that intent is uncertain, unclear, or is open to various
    interpretations.” Capital Color Printing, Inc. v. Ahern, 
    661 S.E.2d 578
    , 583 (Ga.
    Ct. App. 2008) (internal quotation marks omitted). A contract is unambiguous
    when, after examining the contract as a whole and affording its words their plain
    meaning, “the contract is capable of only one reasonable interpretation.” 
    Id. (internal quotation
    marks omitted).
    1. The Plain Language of the Opt-In and Account Agreements Is
    Ambiguous as to Which Account Balance Calculation Method LGE
    Uses to Assess Overdraft Fees.
    Both parties argue that the Opt-In and Account Agreements are
    unambiguous, but they disagree about which account balance calculation method
    the agreements unambiguously promised to use. Each party contends that the
    agreements’ plain language clearly supports its own interpretation of LGE’s
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    balance calculation method. After careful review, we disagree with both parties
    that the agreements are unambiguous.
    We turn to the language of the Opt-In and Account Agreements and begin
    with the Opt-In Agreement. 5 In relevant part, the Opt-In Agreement explained that
    “[a]n overdraft occurs when you do not have enough money in your account to
    cover a transaction, but we pay it anyway.” Doc. 29 at 44. Each party contends
    that this language plainly supports its own interpretation of LGE’s balance
    calculation method. Tims argues that the phrase “enough money in your account”
    unambiguously referred to the ledger balance because the term “account” is
    presented without limitation or modification, such as a reference to “available”
    funds. LGE argues that “enough” unambiguously referred to the available balance.
    LGE consults the dictionary definition of the word “enough”—“occurring in such
    quantity, quality, or scope as to satisfy fully the demands, wants, or needs of a
    situation or of a proposed use or end” 6—then points out that “enough” is
    synonymous with “available.” Because “enough” and “available” are synonyms,
    5
    Under Georgia law, “‘where multiple documents are executed at the same time in the
    course of a single transaction, they should be construed together.’” Curry v. State, 
    711 S.E.2d 314
    , 317 (Ga. Ct. App. 2011) (quoting Martinez v. DaVita, Inc., 
    598 S.E.2d 334
    , 337 (Ga. Ct.
    App. 2004)). Neither party disputes that Tims entered into the Opt-In and Account Agreements
    at the same time when she opened an account with LGE.
    6
    Enough, Webster’s Third New International Dictionary 755 (2002). In Georgia,
    “[w]hen interpreting a contract, the language must be afforded its literal meaning and plain
    ordinary words given their usual significance,” and “[d]ictionaries may supply the plain and
    ordinary meaning of a word.” Grange Mut. Cas. Co. v. Woodard, 
    861 F.3d 1224
    , 1231 (11th
    Cir. 2017) (internal quotation marks omitted).
    12
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    LGE argues, a consumer would understand merely by reading the word “enough”
    that LGE would take only a consumer’s available funds into account in calculating
    the account’s balance.
    We find neither argument persuasive. The Opt-In Agreement sheds no light
    on what “enough money in [an] account” means in the context of determining
    when an overdraft has occurred. 
    Id. Both parties’
    arguments raise the question of
    how LGE determines what “enough money” is—is it enough money to cover only
    settled transactions or to cover authorized but not yet settled transactions as well?
    The Opt-In Agreement is thus ambiguous concerning the account balance
    calculation method LGE’s overdraft service uses for unsettled debit transactions.
    The plain language of the Account Agreement is no more helpful. In
    describing LGE’s overdraft service, the Account Agreement’s Payment Order
    section stated that an overdraft occurs “[i]f an item is presented without sufficient
    funds in your account to pay it” or “if funds are not available to pay all of the
    items.” 
    Id. at 32.
    The conditions under which deposits would be available for
    consumers’ use were set forth in a separate section, the Funds Availability
    Disclosure. The Funds Availability Disclosure explained that LGE’s “policy is to
    make funds from [the consumer’s] deposits available to [the consumer] on the
    same business day” that LGE receives the deposit. 
    Id. at 37.
    It stipulated that
    consumers can immediately “withdraw funds” for most deposits, including cash,
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    wire transfers, and money order deposits; however, consumers must wait to
    “withdraw funds” under certain limited circumstances, including deposits of
    checks exceeding $5,000 and deposits into repeatedly and recently overdrawn
    consumer accounts. 
    Id. The Funds
    Availability Disclosure made no mention of
    debit transactions specifically, referring only to “withdrawals” generally. 
    Id. Each party
    contends the language of this agreement, too, clearly requires the
    use of its favored account balance calculation method in charging overdraft fees.
    Tims argues that the phrase “sufficient funds,” by itself, plainly refers to the ledger
    balance. She also argues that even though the Funds Availability Disclosure said
    some deposited funds will be considered unavailable to consumers for a period of
    time, it did not say whether or how the funds’ unavailability relates to the financial
    institution’s account balance calculation method for overdraft purposes. Finally,
    Tims points out that even though the Funds Availability Disclosure explained that
    certain deposits could not immediately be withdrawn by consumers, it said nothing
    about whether pending debits affected consumers’ ability to withdraw funds.
    In an argument similar to the one it makes about the Opt-In Agreement,
    LGE asserts that “sufficient” is synonymous with “available,” 7 and so a consumer
    7
    “Sufficient” is defined as “[a]dequate; of such quality, number, force, or value as is
    necessary for a given purpose.” Sufficient, Black’s Law Dictionary 1661 (10th ed. 2014).
    “Available” is defined as “capable of use for the accomplishment of a purpose: immediately
    utilizable.” Available, Webster’s Third New International Dictionary 150 (2002).
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    reading the word “available” and then the term “sufficient” in adjacent sentences
    would understand the Account Agreement as clearly referring to the available
    balance calculation method. LGE also notes that the Funds Availability Disclosure
    stipulated that consumers could use funds only when they were “available,” a word
    also used in the Payment Order subsection of the Account Agreement describing
    when an overdraft occurs. See Doc. 29 at 32 (stating that an overdraft occurs “if
    funds are not available to pay all of the items”).
    Neither argument persuades us. We cannot say the Account Agreement
    unambiguously articulated the account balance calculation method LGE uses for
    unsettled debit transactions. Nothing in the Account Agreement explained how
    LGE determines whether funds are “sufficient.” Nor did the mere presence of the
    word “available” in the Account Agreement, in two separate subsections, clearly
    communicate that LGE would calculate a consumer’s account balance for the
    purpose of assessing overdraft fees based on unsettled transactions. LGE
    “apparently assumes that the [consumer] will read the word ‘available’ in [two
    separate] sections spanning the [12]-page Account Agreement” and conclude that
    the financial institution uses the available balance calculation method in its
    overdraft service just because the agreement uses the term “available.” Smith v.
    Bank of Hawaii, No. 16-00513 JMS-RLP, 
    2017 WL 3597522
    , at *7 (D. Haw. Apr.
    13, 2017). LGE assumes too much. As Tims points out, although the Account
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    Agreement explained that certain deposits would not immediately be available to
    consumers, it did not explain that a pending debit would render funds unavailable
    to consumers.
    In the absence of anything in the Account Agreement addressing the account
    balance calculation method LGE used in its overdraft service for unsettled
    transactions and given the ambiguity of the terms “sufficient funds” and
    “available,” the Account Agreement failed to clearly indicate which balance
    calculation method LGE was using to determine when an unsettled debit
    transaction would result in an assessment of overdraft fees. Other courts,
    confronting similar terms across subsections of similar account agreements, have
    agreed. See, e.g., Pinkston-Poling v. Advia Credit Union, 
    227 F. Supp. 3d 848
    ,
    854-56, 856 n.4 (W.D. Mich. 2016) (deciding that the terms “enough money” and
    “sufficient funds” did not clearly indicate that an available balance method would
    be used in imposing overdraft fees); see also Walbridge v. Ne. Credit Union, 
    299 F. Supp. 3d 338
    , 343-46 (D.N.H. 2018) (determining that the terms “enough
    money,” “insufficient funds,” and “nonsufficient funds” did not clearly indicate
    that an available balance method would be used in charging overdraft fees).
    Neither the Opt-In Agreement nor the Account Agreement clearly
    articulated which balance calculation method LGE was using to determine when
    unsettled transactions would trigger an overdraft. The contracts are ambiguous.
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    2. The Agreements Remain Ambiguous After Considering Georgia’s
    Canons of Contract Construction.
    Having determined that the language of the Opt-In and Account Agreements
    is susceptible to two different constructions, we turn to the second step of contract
    interpretation under Georgia law and attempt to resolve the ambiguity using
    Georgia’s canons of construction.8 Applying these canons, the district court
    8
    Tims also asks us to construe the agreements as contracts of adhesion. In Georgia,
    contracts of adhesion are “standardized contract[s] offered on a ‘take it or leave it’ basis and
    under such conditions that a consumer cannot obtain the desired product or service except by
    acquiescing in the form contract,” and are “construed strictly against the drafter.” Walton Elec.
    Membership Corp. v. Snyder, 
    487 S.E.2d 613
    , 617 n.6 (Ga. Ct. App. 1997). Because she failed
    to clearly present this argument before the district court, we will not assess its merits here. See
    In re Pan Am. World Airways, Inc., Maternity Leave Practices & Flight Attendant Weight
    Program Litig., 
    905 F.2d 1457
    , 1462 (11th Cir. 1990). Tims contends that she presented the
    argument to the district court because her complaint stated that LGE drafted the agreements,
    which were adhesive in nature. Tims does not argue, but we note, that she subsequently
    mentioned the Georgia canon of construction regarding contracts of adhesion once, in a footnote
    in her opposition to LGE’s motion to dismiss, without advancing any argument that her
    agreement with LGE was a contract of adhesion. Tims’s description of the agreements and her
    brief reference without argument in a footnote was insufficient to preserve the argument for
    appeal. See U.S. Sec. & Exchange Comm’n v. Big Apple Consulting USA, Inc., 
    783 F.3d 786
    ,
    812 (11th Cir. 2015) (explaining that a litigant’s “fleeting footnote explaining” an argument to
    the district court “in one sentence . . . is insufficient to properly assert a claim on appeal”).
    In addition, Tims argues that we should apply the doctrine of contra proferentem, a canon
    of contract construction “that counsels in favor of construing ambiguities in contract language
    against the drafter.” Allen v. Thomas, 
    161 F.3d 667
    , 671 (11th Cir. 1998). Tims likewise failed
    to preserve this argument for appellate review. She mentioned the doctrine of contra
    proferentem only once, in the aforementioned footnote, without advancing any argument that it
    applied. See Doc. 31 at 15 n.3 (noting only that “ambiguities in a contract will be construed
    against the drafter” (alterations adopted) (internal quotation marks omitted)). Tims’s fleeting
    reference in a footnote to the doctrine of contra proferentem was insufficient to preserve her
    argument for appeal, and we thus do not address it. See Big Apple Consulting USA, 
    Inc., 783 F.3d at 812
    .
    Our conclusion that Tims failed to preserve these arguments for purposes of our review
    of the motion to dismiss does not foreclose her from raising these arguments in the district court
    at the summary judgment stage.
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    determined that any ambiguity in the contracts could be resolved. The district
    court concluded that the use of the word “available” in the Account Agreement
    plainly referred to the available balance method for two reasons: first, based on the
    close proximity of the words “available” and “sufficient” in the Payment Order
    subsection, and second, because “available” must be interpreted consistently
    throughout the Account Agreement, which uses the word in different subsections.
    We find neither reason compelling.
    First, the proximity of the word “available” to the word “sufficient” in the
    Payment Order subsection of the Account Agreement does not clearly
    communicate that LGE would use an available balance calculation method when
    considering unsettled transactions in its overdraft service. As discussed above, the
    Account Agreement’s Payment Order provision stated that LGE would assess
    overdraft fees if there were not “sufficient funds in your account to pay [an item]”
    and just after noting that its “payment policy . . . may reduce the amount of
    overdraft . . . fees you have to pay if funds are not available to pay all of the
    items.” Doc. 29 at 32 (emphasis added). The district court concluded that the
    proximity of “sufficient” to “available” meant the words are somehow linked. See
    Doc. 67 at 11 (“By including the term ‘available’ in such close proximity to the
    term ‘sufficient,’ the parties indicate that they view both terms to be related.”). No
    18
    Case: 17-14968        Date Filed: 08/27/2019       Page: 19 of 29
    Georgia canon of contract construction supports this conclusion, however.9 There
    is no rule that words in close proximity should be construed as related to one
    another without considering word order and context. And even if we agreed that
    the terms were related to one another, the related terms still did not unambiguously
    specify that LGE would apply the available balance calculation method to
    unsettled transactions in assessing overdrafts. A consumer could reasonably
    understand the phrase “available . . . sufficient funds” to refer to her ledger
    balance: that available funds are those in her account and sufficient to cover her
    draft. Thus, even read together, the terms “available” and “sufficient” fail to
    clearly communicate how unsettled transactions are treated in the balance
    calculation method LGE employs in its overdraft services. So the contract remains
    capable of two reasonable constructions.
    Second, we disagree that the Account Agreement was necessarily referring
    to an available balance calculation method for unsettled debit transactions based on
    the use of the word “available” in a Funds Availability Disclosure provision that
    9
    The most comparable Georgia canon of contract construction is the last antecedent
    canon, which provides that “[r]eferential and qualifying words and phrases, where no contrary
    intention appears, refer solely to the last antecedent.” Deal v. Coleman, 
    751 S.E.2d 337
    , 342
    (Ga. 2013) (internal quotation marks omitted); see also Key v. Ga. Dep’t of Admin. Servs., 
    798 S.E.2d 37
    , 41 (Ga. Ct. App. 2017) (canon applicable in contract as well as statutory
    construction). But the last antecedent rule does not apply here because “sufficient funds” is not a
    limiting clause or phrase and “available” is not a noun. See Barnhart v. Thomas, 
    540 U.S. 20
    , 26
    (2003) (explaining that the doctrine applies to “limiting clause[s] or phrase[s]” that are “read as
    modifying only the noun or phrase that [they] immediately follow[]”).
    19
    Case: 17-14968     Date Filed: 08/27/2019   Page: 20 of 29
    addresses a completely different matter: the availability of deposited funds. The
    Funds Availability Disclosure provision used variations of the word “available”
    more than 20 times—in nearly every sentence. But “available” was never used in
    conjunction with the word “balance.” And “available” was never defined to
    exclude unsettled debit transactions for overdraft purposes. At best, this section
    equated “available” with “able to be withdrawn.” See, e.g., Doc. 29 at 37 (“This
    disclosure describes your ability to withdraw funds at LGE . . . . Our policy is to
    make funds from your deposits available to you on the same business day we
    receive your deposit.”). LGE’s explanation in the Funds Availability Disclosure
    provision for when deposited funds became “available” to consumers for
    withdrawal simply did not address how LGE would treat unsettled debits when it
    calculated a consumer’s balance for overdraft fee purposes.
    LGE’s argument that the agreements clearly promised to use the available
    balance calculation method does not convince us, either. LGE asserts that the
    repeated use of the word “available” unambiguously communicated that overdraft
    fees would be assessed using the available balance method. To support its
    interpretation of the word “available,” LGE cites to Chambers. 
    222 F. Supp. 3d
    at
    1. The dispute in Chambers, as in this case, concerned whether a credit union’s
    Opt-In and Account Agreements obligated the credit union to use the ledger or the
    available balance method in its overdraft service. 
    Id. at 10.
    The court dismissed
    20
    Case: 17-14968     Date Filed: 08/27/2019   Page: 21 of 29
    Chambers’s breach of contract claims after concluding that the Opt-In Agreement
    unambiguously stated that the credit union would use the available balance
    calculation method. 
    Id. Several significant
    details distinguish Chambers from this case, however.
    Importantly, in Chambers, the Opt-In Agreement used the phrase “available
    balance.” 
    Id. In addition,
    the Account Agreement in Chambers contained a
    subsection addressing “Available Balances to Make Transactions,” which linked
    the concept of available balance to the mechanics of when and how the bank would
    assess overdrafts. 
    Id. at 10-11.
    Finally, the Opt-In Agreement in Chambers
    provided examples illustrating when an account would not have “enough money”
    and thus be subject to an overdraft. 
    Id. at 10.
    None of those factors is present in this case. The agreements here did not
    use the phrase “available balance”; the Account Agreement nowhere explained the
    mechanics of how and when LGE would assess overdrafts, nor linked the concept
    of an “available balance” to those mechanics; and the Opt-In Agreement provided
    no examples illustrating when a consumer would not have “enough money” to
    cover a transaction and thereby trigger an overdraft. Because of these three
    distinctions, we cannot say the Opt-In and Account Agreements in this case clearly
    demonstrated the parties’ intent that LGE would use the available balance
    calculation method when assessing overdraft fees. See Walbridge, 
    299 F. Supp. 3d 21
                  Case: 17-14968      Date Filed: 08/27/2019      Page: 22 of 29
    at 345-46 (concluding based on the same three factors that the financial institution
    did not clearly communicate an intent to use the available balance in charging
    overdraft fees).
    Neither the Opt-In Agreement nor the Account Agreement read separately,
    nor the two agreements read together, clearly articulated LGE’s balance calculation
    method for charging overdraft fees. Applying the Georgia canons of construction
    does nothing to clarify the contracts’ ambiguity. Because the language remains
    ambiguous after considering both the plain language of the contracts and the
    Georgia canons of construction before us,10 the parties’ intent will become a
    question for the jury should neither party be granted summary judgment. The
    district court therefore erred in dismissing Tims’s claim for breach of contract.
    B. Tims Stated a Claim Against LGE for Breach of the Covenant of Good
    Faith and Fair Dealing.
    Tims next argues that the district court erred in dismissing her claim that
    LGE breached the implied covenant of good faith and fair dealing under Georgia
    law. We agree.
    Under Georgia law, “[e]very contract imposes upon each party a duty of
    good faith and fair dealing in its performance and enforcement.” Brack v.
    10
    In note 
    8, supra
    , we noted that the doctrine of contra proferentem had not been
    preserved for purposes of our review but Tims could advance it during the summary judgment
    stage of litigation.
    22
    Case: 17-14968      Date Filed: 08/27/2019   Page: 23 of 29
    Brownlee, 
    273 S.E.2d 390
    , 392 (Ga. 1980) (internal quotation marks omitted).
    That implied promise “becomes a part of the provisions of the contract, but the
    covenant cannot be breached apart from the contract provisions [that] it modifies
    and therefore cannot provide an independent basis for liability.” Myung Sung
    Presbyterian Church v. N. Am. Assoc. of Slavic Churches & Ministries, 
    662 S.E.2d 745
    , 748 (Ga. Ct. App. 2008). A plaintiff “must set forth facts showing a breach of
    an actual term of an agreement” to state a claim for breach of the implied duty of
    good faith and fair dealing. Am. Casual Dining, L.P. v. Moe’s Sw. Grill, L.L.C.,
    
    426 F. Supp. 2d 1356
    , 1370 (N.D. Ga. 2006).
    Given our conclusion on the breach of contract claim, Tims’s allegations
    sufficiently “set forth facts showing a breach of an actual term of [the] agreement.”
    
    Id. Tims alleged
    that LGE had a contractual obligation to use the ledger balance
    calculation method and breached that promise; therefore, Tims’s claim for breach
    of the implied covenant of good faith and fair dealing has been properly pled. The
    district court erred in dismissing this claim.
    C. Tims Stated a Claim Against LGE for Violating EFTA.
    Tims alleges, and we think it plausible, that LGE violated EFTA Regulation
    E. Under EFTA, Congress charged the Federal Reserve Board—and, later, the
    Consumer Financial Protection Bureau (CFPB)—with promulgating regulations to
    23
    Case: 17-14968     Date Filed: 08/27/2019    Page: 24 of 29
    carry out EFTA’s purposes. 15 U.S.C. § 1693b(a)(1); see also 
    id. § 1693a(4).11
    One of EFTA’s central features is a requirement that financial institutions disclose
    “[t]he terms and conditions of electronic fund transfers involving a consumers
    account . . . in accordance with the regulations of the” CFPB. 
    Id. § 1693c(a).
    Regulation E is part of the CFPB’s implementation of this requirement.
    Regulation E requires financial institutions to give consumers a “notice . . .
    describing the institution’s overdraft service.” 12 C.F.R. § 1005.17(b)(1)(i). The
    notice must be “substantially similar to Model Form A-9” and describe the
    “financial institution’s overdraft service” in a “clear and readily understandable”
    way. 
    Id. § 1005.17(d)(1),
    1005.4(a)(1). See also 15 U.S.C. § 1693c (requiring
    financial institutions to make disclosures “in accordance with the regulations of
    the” CFPB “in readily understandable language”). Before financial institutions
    may charge overdraft fees, they must give consumers “a reasonable opportunity . . .
    to affirmatively consent, or opt in, to the service.” 12 C.F.R. § 1005.17(b)(1)(ii).
    Congress created a private right of action for consumers against financial
    institutions that fail to provide proper notice describing their overdraft service. See
    15 U.S.C. § 1693m. Congress further directed the CFPB to draft boilerplate
    language to help financial institutions “compl[y] with the disclosure requirements”
    11
    Congress reassigned responsibility for enforcing EFTA from the Federal Reserve
    Board to the CFPB in 2010. See Dodd-Frank Wall Street Reform and Consumer Protection Act
    of 2010, Pub. L. No. 111-203, Title X, § 1084, 124 Stat. 1376, 2081–83.
    24
    Case: 17-14968     Date Filed: 08/27/2019    Page: 25 of 29
    for overdraft services. 15 U.S.C. § 1693(b). Model Form A-9, the template for
    LGE’s Opt-In Agreement, was issued pursuant to this directive.
    As we have explained, the Opt-In Agreement LGE gave Tims is ambiguous
    because it could describe either the available or the ledger balance calculation
    method for unsettled debits. As a result, it is plausible that the notice does not
    describe the overdraft service in a “clear and readily understandable” way. 12
    C.F.R. § 1005.4(a)(1). It is also plausible that Tims had no reasonable opportunity
    to affirmatively consent to LGE’s overdraft services. 
    Id. § 1005.17(b)(1)(ii).
    Affirmative consent requires “plain and clear consent . . . before certain acts or
    events, such as changes in policies that could impair an individual’s rights or
    interests.” Affirmative-Consent Requirement, Black’s Law Dictionary (11th ed.
    2019). A notice that does not adequately convey the circumstances in which a
    financial institution will charge overdraft fees may not provide a consumer all the
    information she needs to give plain and clear consent. Here, Tims plausibly did
    not have a reasonable opportunity to affirmatively consent because the notice gave
    her no way to know whether LGE would use the available balance or the ledger
    balance method to charge her overdraft fees.
    But that is not the end of the matter. Congress provided a safe harbor from
    EFTA liability for “any failure to make disclosure in proper form if a financial
    institution utilized an appropriate model clause issued by the” CFPB. 15 U.S.C.
    25
    Case: 17-14968        Date Filed: 08/27/2019       Page: 26 of 29
    § 1693m(d)(2).12 The CFPB interprets the safe harbor to preclude liability “for
    failure to make disclosures in proper form” provided the institution “uses [the
    model form’s] clauses accurately to reflect its services.” 12 C.F.R. pt. 1005, app.
    A (Supp. I).
    In its notice defining the term “overdraft,” LGE copied verbatim the
    definition of that term provided in Model Form A-9: “[a]n overdraft occurs when
    you do not have enough money in your account to cover a transaction, but we pay
    it anyway.” LGE seeks refuge in the safe harbor because, it argues, it used an
    appropriate model form to describe its overdraft service. We disagree that LGE is
    protected from liability by the safe harbor.
    LGE emphasizes that its form is accurate, and that may be so. After all, we
    have concluded it could correctly refer to either the ledger balance or the available
    balance method. But that does not conclude the inquiry.
    The relevant question is whether the claim Tims asserts is one for LGE’s
    “failure to make disclosure in proper form.” The answer must be no. The statute’s
    text, which is where all statutory interpretation must begin, makes that much plain.
    See BedRoc Ltd., LLC v. United States, 
    541 U.S. 176
    , 183 (2004). “Form” has
    12
    The safe-harbor provision also shields financial institutions from liability for “any act
    done or omitted in good faith in conformity with any rule, regulation, or interpretation thereof.”
    15 U.S.C. § 1693m(d)(1). LGE does not argue this provision precludes liability here, and we
    express no view on the matter.
    26
    Case: 17-14968     Date Filed: 08/27/2019   Page: 27 of 29
    many meanings, but it is best read here to refer to “[p]rocedure as determined or
    governed by custom or regulation,” as distinct from content or substance.
    Webster’s New College Dictionary 448 (3d ed. 2008); see also Form, Black’s Law
    Dictionary (11th ed. 2019) (defining “form” as “[t]he outer shape, structure or
    configuration of something, as distinguished from its substance or matter” or an
    “[e]stablished . . . procedure”); Form, Oxford English Dictionary (2d ed. 1989)
    (defining “in due or proper form” to mean “according to the rules or prescribed
    methods”). Thus, making disclosure in proper form means making the disclosure
    according to proper procedures. The safe-harbor provision insulates financial
    institutions from EFTA claims based on the means by which the institution has
    communicated its overdraft policy. But it does not shield them for claims based on
    their failure to make adequate disclosures. A financial institution thus strays
    beyond the safe harbor when communications within its overdraft disclosure
    inadequately inform the consumer of the overdraft policy that the institution
    actually follows. See Berenson v. Nat’l Fin. Servs., LLC, 
    403 F. Supp. 2d 133
    , 151
    (D. Mass. 2005) (holding the safe harbor “insulates an institution only from a
    challenge as to the form—not the adequacy—of the disclosure”).
    Regulation E sets out procedures for how financial institutions must present
    their disclosures. To comply with the regulation, financial institutions must make
    the disclosure “in writing, or if the consumer agrees, electronically” and must
    27
    Case: 17-14968    Date Filed: 08/27/2019    Page: 28 of 29
    further “segregate[]” the notice “from all other information.” 12 C.F.R.
    § 1005.17(b)(1)(i). The format of the notice required by § 1005.17(b)(1)(i) must
    be “substantially similar to Model Form A-9.” 
    Id. § 1005.17(d).
    Financial
    institutions must also “[p]rovide[] the consumer with confirmation of the
    consumer’s consent in writing, or if the consumer agrees, electronically.” 
    Id. § 1005.17(b)(1)(iv).
    These provisions set out the “proper form” for presenting a
    disclosure.
    Tims does not allege LGE failed to do any of that. Instead, she challenges
    the substance of the Opt-In Agreement, which she says failed to give her enough
    information to give affirmative consent to LGE’s overdraft service. As its text
    makes clear, the safe-harbor provision LGE invokes does not preclude liability
    when, as in this case, the content of the Regulation E disclosure is at issue.
    Because Tims challenges only LGE’s failure to make an adequate disclosure, and
    not its failure to make the disclosure “in proper form,” LGE cannot seek refuge
    under the safe harbor provision. This is so whether or not the form accurately
    describes the overdraft service. In this, our ruling is consistent with the great
    weight of district court authority to have considered the matter. See Salls v. Dig.
    Fed. Credit Union, 
    349 F. Supp. 3d 81
    , 91 (D. Mass 2018) (collecting cases).
    Tims’s complaint challenged the substance of LGE’s Opt-In Agreement.
    Because the safe harbor does not protect financial institutions from challenges to
    28
    Case: 17-14968     Date Filed: 08/27/2019    Page: 29 of 29
    the substance of Opt-In Agreements, Tims’s EFTA claim survives a motion to
    dismiss, and the district court erred in granting the motion.
    IV.   CONCLUSION
    For the foregoing reasons, we reverse the district court’s order granting
    LGE’s motion to dismiss and remand for further proceedings consistent with this
    opinion.
    REVERSED AND REMANDED.
    29