Morvarid Paydar KASHANCHI, Plaintiff-Appellant, v. TEXAS COMMERCE MEDICAL BANK, N.A., Defendant-Appellee No. 82-2242 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 703 F.2d 936; 1983 U.S. App. LEXIS 28349 May 2, 1983 SUBSEQUENT HISTORY: As Amended PRIOR HISTORY: Appeal from the United States District Court for the Southern District of Texas. DISPOSITION: Affirmed COUNSEL: Joseph W. Ryan, Houston, Texas, for Appellant. James B. Edwards, Houston, Texas, Mark E. Taylor, Houston, Texas, Robin L. Harrison, Houston, Texas, for Appellee. JUDGES: Goldberg, Gee and Randall, Circuit Judges. OPINION: RANDALL, Circuit Judge: The plaintiff, Morvarid Paydar Kashanchi, appeals from a final judgment of the district court dismissing her complaint for lack of subject matter jurisdiction. The issue on appeal is whether the term "electronic fund transfer" as used in the Electronic Fund Transfer Act ("EFTA" or "the Act"), 15 U.S.C. § 1693 (Supp. V 1981), includes a transfer of funds from a consumer's account, initiated by a telephone conversation between someone other than the owner of the account and an employee of a financial institution, when that transfer is not made pursuant to a prearranged plan or agreement under which periodic transfers are contemplated. For the reasons set forth below, we affirm. On or about February 9, 1981, the plaintiff and her sister, Firoyeh Paydar, were the sole owners of a savings account at Texas Commerce Medical Bank in Houston, Texas. On or about that date, $4900 was transferred from their account. The transfer was allegedly initiated by a telephone conversation between an employee of the bank and someone other than the plaintiff or her sister. Upon receipt of a March 31, 1981, bank statement showing the $4900 withdrawal, Firoyeh Paydar sent a letter to the bank, dated April 15, 1981, notifying the bank that the withdrawal was unauthorized. After the bank refused to recredit the account with the amount of the allegedly 1unauthorized withdrawal, the plaintiff filed this action on December 4, 1981, alleging violations by the bank of the EFTA. The district court granted the defendant's motion to dismiss on the ground that the plaintiff's cause of action was excluded from the coverage of the Act under 15 U.S.C. § 1693a(6)(E). The plaintiff timely appealed. This is apparently the first case in which we have been called upon to interpret any of the substantive provisions of the EFTA. We begin our inquiry with the language of the statute itself, recognizing that "absent a clearly expressed legislative intent to the contrary, the plain meaning of the language is ordinarily controlling." Johnson v. Department of Treasury, Internal Revenue Service, 700 F.2d 971 (5th Cir.1983); see also United States v. Martino, 681 F.2d 952, 954 (5th Cir.1982) (en banc). The parties agree that the telephonic transfer that allegedly occurred in this case falls within the broad definition of "electronic fund transfers" in the Act: The term "electronic fund transfer" means any transfer of funds, other than a transaction originated by check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic instrument, or computer or magnetic tape so as to order, instruct, or authorize a financial institution to debit or credit an account. Such term includes, but is not limited to, point-of-sale transfers, automated teller machine transactions, direct deposits or withdrawals of funds, and transfers initiated by telephone. 15 U.S.C. § 1693a(6). Some of what Congress has given, however, it has also taken away. Excluded from the definition of an electronic fund transfer is any transfer of funds which is initiated by a telephone conversation between a consumer and an officer or employee of a financial institution which is not pursuant to a prearranged plan and under which periodic or recurring transfers are not contemplated . . . . 15 U.S.C. § 1693a(6)(E). The plaintiff concedes that the unauthorized transfer of her funds was not made "pursuant to any prearranged plan," and that it was made by an employee of the bank. The question in this case is whether the telephone conversation was between the employee and a "consumer." n1 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 Relying on the Federal Reserve Board's use of the conjunction "and" in its regulations implementing the EFTA, rather than the relative pronoun "which" used in the Act, the plaintiff maintains that the test for whether a particular transfer falls within the exclusion is two-pronged. The federal regulations exclude: Any transfer of funds that (1) is initiated by a telephone conversation between a consumer and an officer or employee of a financial institution and (2) is not under a telephone bill-payment or other prearranged plan or agreement in which periodic or recurring transfers are contemplated. 212 C.F.R. § 205.3(e) (1982) (emphasis added). We do not think that the difference in grammatical construction changes the nature of the exclusion. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Act defines a consumer as "a natural person." 15 U.S.C. § 1693a(5). If we were to apply this definition to the language in the exclusion, we would have to conclude that the withdrawal of the plaintiff's funds was excluded from the coverage of the Act since a natural person, even if the person was neither the plaintiff nor her sister, made the withdrawal. The plaintiff argues, however, that we should read the term "consumer" more narrowly in this portion of the Act; she would have us interpret the provision to exclude only transfers made by the account holder. The plaintiff maintains that the legislative history of the Act supports her narrow reading of the exclusion. She points out that the House version of the bill used the word "holder," meaning "the individual who is recognized as the owner of the account by the financial institution where the account is held," H.R. 13007, § 903(i), 95th Cong., 2d Sess., 124 Cong.Rec. 25737 (1978), where the Senate version, eventually adopted by Congress as the EFTA, uses the word "consumer." The plaintiff would have us infer that the Senate intended the word "consumer" to be synonymous with "holder." There is no indication in the legislative history, however, that this is what the Senate intended. n2 The only criticism leveled at the
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