IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60158
Summary Calendar
KATHERINE N. HERRINGTON, Individually and on behalf
of all others similarly situated,
Plaintiff-Appellant,
HELEN P. QUIOVERS, Individually and on behalf of all
others similarly situated,
Appellant,
v.
UNION PLANTERS BANK, NA; UNION PLANTERS BANK OF
MISSISSIPPI, A Corporation,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:98-CV-231-GR
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July 6, 2001
Before JOLLY, DAVIS and JONES, Circuit Judges.
PER CURIAM:*
Katherine Herrington and Helen P. Quiovers appeal the
district court’s order compelling arbitration and dismissing
their action under the Truth in Savings Act (TISA), 12 U.S.C.
§ 4301. Union Planters’ motion to dismiss the appeal for lack of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-60158
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appellate jurisdiction is DENIED. Green Tree Financial Corp.-
Alabama v. Randolph, 121 S. Ct. 513, 521 (2000).
Appellants rely on the Eleventh Circuit’s decision in
Randolph, in which that court reversed the district court’s
decision to compel arbitration in a Truth in Lending Act (TILA)
case, in support of their argument that the arbitration
provisions in their deposit agreement should not be enforced.
The Supreme Court reversed, stating that the risk that the
plaintiff would be saddled with prohibitive costs was too
speculative to invalidate the arbitration agreement. 121 S. Ct.
at 522. Likewise, the appellants in this case rely only on
speculative allegations of a risk of prohibitive arbitration
expenses. This argument is without merit. Green Tree, 121 S.
Ct. at 522.
Appellants make three arguments regarding why the
arbitration provisions should not be enforced against them. They
argue that the arbitration provision does not bind them because
they never signed a document agreeing to arbitrate their claims;
that their deposit agreements with Magnolia Federal were never
amended to include an arbitration provision because the terms
“revised” and “amended” are not synonymous; and that TISA grants
them the right to recover punitive damages and that the
arbitration provisions specifically prohibit claims and awards of
punitive damages.
A financial institution’s agreements with its customers may
be amended if, following notice of a change in the terms of the
agreement, the customer continues performance under the
No. 00-60158
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agreement. See Marsh v. First USA Bank, N.A., 103 F.Supp. 909,
915 (N.D. Tex. May 23, 2000) (continued use of credit card after
notice of amendments to terms of agreement binding on card user).
The customer acknowledgment section of the deposit agreement
informed both new and old customers that the terms and conditions
of the revised deposit agreement governed their accounts and
notified all depositors that they were obligated to the changes
specified in the revised deposit agreement if they continued to
maintain or use their accounts. Because appellants continued to
use their accounts after notification of the revised deposit
agreements, they are bound to arbitrate their dispute with Union
Planters.
Appellants do not explain why they contend that there is any
meaningful difference between the words “revised” and “amended.”
It was clear from the cover letter accompanying the enclosed
deposit account agreement that their deposit agreements were
being modified. They do not suggest how they were confused by
the use of the word “revised” as opposed to “amended,” nor do
they suggest that they believed that the revised deposit account
agreements did not apply to their accounts because it was not
specifically described as an “amendment.” The documents in
question gave them adequate notice that their deposit account
agreements were being changed, and they continued to use their
accounts after the effective date of the changes.
TISA does not allow for recovery of punitive damages. A
financial institution liable under TISA can be assessed statutory
No. 00-60158
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damages in any amount between $100 and $1,000, in addition to the
actual damages sustained by an individual. 12 U.S.C.
§ 4310(a)(1), (2)(A). Because TISA does not authorize recovery
of punitive damages, appellants’ contention that they are
authorized to pursue punitive damages outside of arbitration is
without merit.
AFFIRMED; MOTION DENIED.