Freiria v. Ebay Inc et al
Filing
1
COMPLAINT against All Defendants ( Filing fee $ 350 receipt number 0104-2108643.), filed by Francisco Freiria. Service due by 1/25/2011, (Attachments: # 1 Summons Ebay Inc., # 2 Category Sheet, # 3 Civil Cover Sheet, # 4 Current Address Notice, # 5 Summons Bank of America Corporation)(Arraiza-Gonzalez, Carla)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
FRANCISCO FREIRÍA
CIVIL NO.
Plaintiff
v.
DEBORAH BRAUN; PATRICK ANDERSON;
EBAY INC. a/k/a EBAY MOTORS;
BANK OF AMERICA CORPORATION
DIVERSITY
BREACH OF CONTRACT
DAMAGES
TRIAL BY JURY
Defendants
COMPLAINT
TO THE HONORABLE COURT:
NOW
APPEARS
plaintiff,
Francisco
Freiría,
through
the
undersigned attorney, and very respectfully states, alleges and
prays:
JURISDICTION AND VENUE
1. The diversity jurisdiction of this Honorable Court is
invoked under the provisions of Title 28, United States
Code,
§1332(a)(1),
Constitution
of
the
and
Article
United
III,
States,
§2
inasmuch
of
as
the
the
parties are citizens of different states and the amount
in controversy exceeds the sum of Seventy Five Thousand
Dollars ($75,000.00).
2. Venue is proper because the facts which give rise to the
complaint occurred with in the District of Puerto Rico.
THE PARTIES
3. The plaintiff is married, of legal age and a resident
and citizen of Puerto Rico.
4. Defendant Deborah Braun (hereinafter also referred to as
the Seller) upon information or knowledge is of legal
age and resident and citizen of New York.
5. Defendant Patrick Anderson upon information or knowledge
is of legal age and resident and citizen of New York.
Mr. Anderson was Ebay’s designated transaction officer.
6. Defendant
Ebay
Inc.
a/k/a
Ebay
Motors
(hereinafter
referred to as Ebay), is a corporation organized and
existing
under
the
laws
of
California,
which
is
a
citizen of and has its principal place of business in a
state other than Puerto Rico.
7. Defendant, Bank of America Corporation, is a corporation
organized and existing under the laws of North Carolina,
which is a citizen of and has its principal place of
business in a state other than Puerto Rico.
FACTS
8. On
March
25,
2010,
plaintiff
purchased
from
Deborah
Braun though Ebay a 2006 Boston Whaler 285 Conquest with
fixtures in the aggregate price of $37,500.00.
9. Induced by Mrs. Braun’s representations as seller and
induced by Ebay’s Vehicle Purchase Protection Program
2
which amongst other things guaranteed the transaction
against fraud up to $50,000.00, plaintiff proceeded with
the purchase of the motor boat previously described.
10.On March 25, 2010 Plaintiff requested Banco Popular de
Puerto Rico to make a bank to bank wire transfer of
funds
as
instructed
by
Ebay,
to
co-defendant
Patrick
Anderson, to his account at Bank of America.
11. Mr. Patrick Anderson was Ebay’s designated transaction
officer as it appears from Ebay Motors Payment Invoice
#8852026301297. Mr. Anderson is the person who received
the
funds
wired
by
Plaintiff
to
Bank
of
America
on
behalf of Ebay.
12.Ebay represented to Plaintiff that they would place a
lock for thirty (30) days on the funds transferred and
that Plaintiff would have five (5) days to inspect the
boat upon its arrival to Puerto Rico and to accept the
motor
boat
purchased
and
only
then
they
release
the
payment to the seller.
13.The bank to bank wire transfer was received by Bank of
America and credited to the designated bank account and
for
reasons
Plaintiff’s
unknown,
express
the
funds
consent
and
were
contrary
represented in Ebay’s antifraud policy.
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released
to
without
what
was
14.Concerned
by
$37,500.00
the
to
instruction
fact
that
Bank
of
by
the
and
Plaintiff
America
fact
had
transferred
according
that
to
Plaintiff
Ebay’s
had
not
received the merchandise purchased, Plaintiff inquired
Ebay about the delivery of the boat and when it should
be expected.
15. On April 6, 2010 the seller represented to Plaintiff
that the boat had already been shipped to Puerto Rico,
no other news was ever heard from the seller.
16.On April 13, 2010 Plaintiff inquired with Ebay about the
status of the shipment and alerted them about the fraud
committed
in
the
transaction
and
requested
Ebay
all
information and documentation in order to make a claim.
17. Having received no answer from Ebay on April 21, 2010,
Paintiff
filed
an
IC3
Complaint
before
the
Federal
Bureau of Investigation (FBI).
18. On April 2010 Plaintiff requested Bank of America for
the reimbursement of funds released with out Plaintiff’s
knowledge or consent. To this date, Bank of America has
not responded to Plaintiff’s request.
NEGLIGENCE
19. Plaintiff
realleges
and
incorporates
by
reference
paragraphs 1 through 18 as if fully set forth herein.
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20.Ebay and Bank of America were negligent in turning over
funds
which
were
allegedly
placed
on
hold
without
Plaintiffs authorization.
21. A
prudent
and
responsible
person,
rather
than
immediately turning over the funds, would have required
Plaintiffs express consent before releasing the funds.
22.Despite
all
of
Plaintiff’s
written
demands
to
the
Seller, Ebay and Bank of America for the return of the
funds or the delivery of the merchandise, to this date,
they have all failed to comply with either request.
23.Under article 1802 of the Civil Code of Puerto Rico, the
defendants are liable to the Plaintiff for all damages
proximately caused by their negligence.
BREACH OF CONTRACT
24. Plaintiff
realleges
and
incorporates
by
reference
paragraphs 1 through 23 as if fully set forth herein.
25.The Seller breached the Contract entered with Plaintiff
for she failed to make available the object purchased by
Plaintiff, as agreed.
26.Ebay represented to Plaintiff that the transaction was
covered
by
purchase
protection
against
fraud
and
description errors. Ebay also falsely represented that
on March 25, 2010 it had locked the account for 30 days
time period, making the seller unable to withdraw any
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money from the account, within the 30 day period without
Plaintiff’s approval.
27.Ebay
and
Bank
of
America
breached
their
contractual
duties of care owed to Plaintiff by releasing the funds
to Mr. Anderson, for they were obligated to hold the
funds for 30 days.
28.Ebay breached the contract entered into with Plaintiff
whereby it was obligated to place funds on hold for 30
days and cover Plaintiff’s transaction against fraud up
to $50,000.00.
29.The defendants’ breach of contract has been the direct
and proximate cause of Plaintiff’s damage and losses.
30.The
damages
alleged
herein
were
the
forseable
consequence of defendants’ breach of their contractual
obligations.
31.Under article 1054 of the Civil Code of Puerto Rico, the
defendants
are
liable
for
all
forseable
damages
proximately resulting from their breach of contract.
BREACH OF FIDUCIARY OBLIGATIONS
32.Plaintiff
realleges
and
incorporates
by
reference
paragraphs 1 through 31 as if fully set forth herein.
33. As a result of Ebay’s and Bank of America’s acceptance
of the monies transferred to them by the Plaintiff, a
fiduciary
obligation
and
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relationship
of
trust
and
confidence
arose
between
the
Plaintiff
and
these
defendants; and as a result Ebay and Bank of America
undertook the obligation of preserving and protecting
Plaintiff’s
with
the
funds
seller
until
was
such
time
completed
as
by
the
transaction
delivery
of
the
purchased merchandise.
34. Ebay
and
Bank
of
America
were
the
Plaintiff’s
fiduciaries with respect to these funds.
35.Ebay and Bank of America had an obligation and duty to
protect the Plaintiff’s funds from fraud and breach of
contract by holding such funds until the delivery and
inspection of the purchased merchandise was complete.
36.
Ebay
and
Bank
of
America
breached
their
fiduciary
obligations to Plaintiff by releasing the funds prior to
delivery and inspection of the purchased merchandise.
37.Ebay’s
and
obligations
Bank
were
of
the
America’s
direct
breach
and
of
proximate
fiduciary
cause
of
Plaintiff’s damages and losses.
DAMAGES AND LOSSES
38. Plaintiff
realleges
and
incorporates
by
reference
paragraphs 1 through 37 as if fully set forth herein.
39.As a direct and forseable consequence of the actions and
omissions
complained
of
herein,
suffered and continues to suffer:
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the
Plaintiff
has
A. Loss of the purchased funds in the amount of thirty
seven thousand five hundred dollars ($37,500.00)
B. Loss of the use of the purchase funds, in an amount
to be determined at trial;
C. Emotional
distress,
embarrassment,
humiliation
and
mental anguish at having been defrauded and ignored
by the defendants, despite his numerous demands and
requests, and witnessing the embarrassment of his son
for whom he had sought to purchase the merchandise;
and at having to engage counsel and initiate legal
proceedings to obtain the return of funds.
40.To
the
extent
the
damages
claimed
temerity
and
defendants
herein,
are
they
therefore
deny
act
liability
with
liable
for
the
obstinacy
and
for
prejudgment
interest, costs and attorney fees.
41.Pursuant to the Seventh Amendment and Fed.R.Civ.P. 38,
plaintiff demands trial by jury of all triable issues in
this case.
WHEREFORE,
Plaintiff
very
respectfully
requests
the
Honorable Court grant the foregoing complaint and award damages
to the Plaintiff as follows:
A.
Return of the purchase funds in the amount of
$37,500.00 dollars, plus interest from March
25, 2010;
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B.
Damages for loss of use of such funds in an
amount no less than $50,000.00 dollars;
C.
Damages
for
distress
mental
in
an
anguish
amount
and
no
emotional
less
than
$100,000.00.
D.
Costs and attorney fees and any further relief
this Court deems equitable, just and proper.
RESPECTFULLY SUBMITTED.
In San Juan, Puerto Rico this 24th day of September 2010.
s/ CARLA ARRAIZA GONZÁLEZ, ESQ.
USDC-PR NO. 221309
PO BOX 9023525
San Juan, PR 00902-3525
Tel/Fax (787)721-4648
carla.arraiza@gmail.com
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