Lesti et al v. Wells Fargo Bank NA

Filing 116

OPINION AND ORDER denying 78 Wells Fargo Bank, N.A.'s Dispositive Motion for Summary Judgment. See Opinion and Order for details. Signed by Judge John E. Steele on 11/20/2013. (AAA)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FRANZ LESTI and PETRA RICHTER,
Plaintiffs,
vs.

Case No.

2:11-cv-695-FtM-29DNF

WELLS FARGO BANK, N.A., formerly
known as Wachovia Bank, N.A.,
Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Wells Fargo Bank, N.A.’s
Dispositive Motion for Summary Judgment (Doc. #78) filed on April
4, 2013.
2013.

Plaintiffs filed an Opposition (Doc. #83) on April 22,

For the reasons set forth below, the motion is denied.
I.

The Amended Complaint against defendants Wells Fargo Bank,
N.A. (Wells Fargo) and SunTrust Bank (SunTrust) sought forth ten
state law claims.

(Doc. #24.)

In a nutshell, the Amended

Complaint alleged that each bank knowingly and/or negligently
assisted one of their customers and his minions with a Ponzi scheme
being implemented to loot millions of dollars from innocent foreign
investors.

Two plaintiffs, Franz Lesti (Lesti) and Petra Richter

(Richter), brought four claims against Wells Fargo. Six plaintiffs

brought four claims against SunTrust.

The Bankruptcy Trustee

brought two claims, one against each defendant.
Defendants sought dismissal of all counts of the Amended
Complaint pursuant to Fed. R. Civ. P. 12(b)(6), asserting that all
of the counts were time-barred under the applicable statute of
limitations, or alternatively, that the claims were insufficiently
pled.

(Docs. ## 35, 43.)

In its March 19, 2013 Opinion and Order,

the Court dismissed with prejudice all counts against defendant
SunTrust

(Counts

I,

II,

III,

IV,

and

V)

as

time-barred

and

dismissed without prejudice Counts VIII and X against defendant
Wells Fargo as insufficiently pled.

(Doc. #72.)

Plaintiffs’

deadline to amend their complaint expired on May 17, 2013.
#83.)

(Doc.

Therefore, what remains before the Court are claims by

plaintiffs Lesti and Richter against defendant Wells Fargo for
Aiding and Abetting Conversion (Count VI), Aiding and Abetting
Fraud (Count VII), and Unjust Enrichment (Count IX).
On April 4, 2013, Wells Fargo filed a Dispositive Motion for
Summary Judgment (Doc. #78) reasserting its statute of limitations
argument as to the remaining counts as a motion for summary
judgment.
II.
Summary

judgment

is

appropriate

only

when

the

Court

is

satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of

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law.”

Fed. R. Civ. P. 56(c).

“An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”

Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).

A fact is “material”

if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.

Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).

However, “if

reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198 F.3d
815, 819 (11th Cir. 1999)(quoting Warrior Tombigbee Transp. Co. v.
M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir. 1983)(finding
summary judgment “may be inappropriate where the parties agree on
the basic facts, but disagree about the factual inferences that
should be drawn from these facts”)).

“If a reasonable fact finder

evaluating the evidence could draw more than one inference from the
facts, and if that inference introduces a genuine issue of material
fact, then the court should not grant summary judgment.”
Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).

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Allen v.

III.
In its earlier Opinion and Order, the Court determined that:
(1) Florida law provides the appropriate statute of limitations;
(2) the parties agree that all of plaintiffs’ claims are governed
by

a

four-year

statute

of

limitations;

(3)

the

statute

of

limitations begins to run when the cause of action accrues, which
is generally on the date the last element constituting the cause of
action occurs; and (4) the delayed discovery doctrine does not
impact the accrual of the statute of limitations in this case.
(Doc. #72, pp. 12, 17, 18.)

The Court will apply the statute of

limitations to each remaining count individually.
A.

Count VI:

Aiding And Abetting Conversion

Count VI of the Amended Complaint alleges that Wells Fargo
aided and abetted Angelika Neumeier-Fuchs (Fuchs), Ulrich Felix
Anton Engler (Engler), and PCO Client Management, Inc. (PCOM) in
their unlawful conversion of funds provided by innocent investors.
This aiding and abetting consisted of Wells Fargo continuing to
process numerous receipts and disbursements of funds in the form of
international wire transfers to and from PCOM’s accounts at Wells
Fargo, causing losses exceeding $35 million.
It

is

alleged

that

Wells

Fargo

had

actual

(Doc. #24, ¶ 102.)
knowledge

fraudulent use of the accounts no later than June 8, 2007.
¶¶ 44, 101.)

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of

the

(Id.,

The elements necessary to sustain the aiding and abetting
claim are: “(1) an underlying violation on the part of the primary
wrongdoer; (2) knowledge of the underlying violation by the alleged
aider and abetter; and (3) the rendering of substantial assistance
in committing the wrongdoing by the alleged aider and abettor.”
Lawrence v. Bank of Am., N.A., 455 F. App’x 904, 906 (11th Cir.
2012)(citations omitted).
counts is conversion.

The “underlying violation” in these

“It is well settled that a conversion is an

unauthorized act which deprives another of his property permanently
or for an indefinite time.”

Mayo v. Allen, 973 So. 2d 1257, 1258-

59 (Fla. 1st DCA 2008).
The Amended Complaint alleges in relevant part: (1) on July
10, 2007, Wells Fargo sent a letter to PCOM stating that the
accounts “should be closed voluntarily by August 21, 2007, or would
be closed involuntarily by such date,” (Doc. #24, ¶ 49); (2) the
accounts remained open until in or about January 2008, (id., ¶ 50);
(3) after the letter was sent to PCOM, Fuchs repeatedly requested
that Wells Fargo close the accounts, (id., ¶ 53); and (4) in an email dated December 10, 2007, a Wells Fargo representative stated
that the account was still open and showed a balance of “-8k,”
(id., ¶ 55).
In support of its motion for summary judgment, defendant Wells
Fargo has filed an Affidavit by Edward Proudfoot, Market Support
Consultant for Wells Fargo. (Doc. #78-1.) The Affidavit states in

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relevant part: (1) on May 29, 2007, Wells Fargo account number
xxxx5057 (the 5057 Account) was opened in the name of PCOM, (id.,
¶ 4); (2) on June 27, 2007, Wells Fargo account number xxxx7271
(the 7271 Account) was opened in the name of PCOM, (id., ¶ 5); (3)
on October 23, 2007, the 7271 Account was formally closed, (id., ¶
6); (4) on January 2, 2008, the 5057 Account was formally closed,
(id., ¶ 7); (5) the Debtors1 did not initiate any activity or
conduct any transactions on the 5057 Account subsequent to December
1, 2007, (id.); (6) the only activity that occurred on the 5057
Account after December 1, 2007 were internal transactions by Wells
Fargo necessary to chargeoff an overdraft (negative) balance in the
5057 Account, which was -$8,471.85 as of December 1, 2007, (id., ¶
8); (7) the December 2007 account statement for the 5057 Account
reflects the application of a monthly service charge for November
2007 in the amount of $122.09, (id., ¶ 9); and (8) Wells Fargo did
not collect any fees from the Debtors relative to the accounts
after December 1, 2007, (id., ¶ 10).

The Affidavit refers to and

attaches the October 2007 account statement for the 7271 Account
(Doc. #78-2)

and

the

December

2007

and

January

2008

account

statements for the 5057 Account (Doc. #78-3).
In support of their opposition, plaintiffs have filed a
Declaration by Stuart A. Davidson, Esquire, one of plaintiffs’
attorneys.

1

(Doc. #84.)

Attached to the Declaration are e-mails,

The term “Debtors” is not defined in the affidavit.
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letters, and account statements.

The e-mails include: (1) an e-

mail dated July 27, 2007, in which a Wells Fargo employee states
that “they will extend the close date past the date of Aug 21st to
allow the client sufficient time to move their account,” (Doc. #846); (2) an e-mail dated September 18, 2007, in which a Wells Fargo
employee states that “Jennifer is hesitant to close the account
since there are significant amount of service fees that may hit
after the account closes,” (Doc. #84-7); (3) an e-mail dated
September 26, 2007, in which a Wells Fargo employee states that
Fuchs “asked that we leave the account open for 6 more weeks to
clear up any wire issues” and that permission was received to leave
the account open until November 9th, (Doc. #84-9); (4) an e-mail
dated November 7, 2007, in which a Wells Fargo employee states that
“[t]he account will be closing very soon,” (Doc. #84-14); and (5)
an e-mail dated December 18, 2007, in which a Wells Fargo employee
states that “one of the accounts is overdrawn again” and requests
help to “get this rectified once and for all,” (Doc. #84-16).
The issue is whether Wells Fargo’s alleged rendering of
substantial assistance in committing the conversion accrued after
December

15,

2007.

Given

the

lack

of

clarity

as

to

the

significance of Wells Fargo’s activities after December 15, 2007,
the Court, drawing all reasonable inferences in favor of the
plaintiffs, finds that there remains a genuine issue as to whether

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Count VI is time-barred.

Therefore, Wells Fargo’s motion for

summary judgment as to Count VI is denied.
B.

Count VII:

Aiding And Abetting Fraud

Count VII of the Amended Complaint alleges that the same
conduct by Wells Fargo aided and abetted Engler in the fraud he
perpetrated to obtain funds provided by innocent investors pursuant
to his Ponzi scheme.
The elements of an aiding and abetting claim are as set forth
above.

Lawrence, 455 F. App’x at 906.

“An aggrieved party proves

common law fraud by establishing that: (1) the opposing party made
a misrepresentation of a material fact, (2) the opposing party knew
or should have known the falsity of the statement, (3) the opposing
party intended to induce the aggrieved party to rely on the false
statement and act on it, and (4) the aggrieved party relied on that
statement to his or her detriment.” Jackson v. Shakespeare Found.,
Inc., 108 So.3d 587, 595 n.2 (Fla. 2013)(citing Butler v. Yusem, 44
So.3d 102, 105 (Fla. 2010)).
Again the Court finds that there is a genuine issue of dispute
as to the timing of Wells Fargo’s alleged substantial assistance.
Therefore, Wells Fargo’s motion for summary judgment as to Count
VII is denied.
C.

Count IX:

Unjust Enrichment

Count IX of the Amended Complaint alleges that PCOM conferred
a benefit upon Wells Fargo by making wire transfers into and out of

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PCOM’s accounts, thereby accruing significant fees, which were paid
with misappropriated investor funds.

(Doc. #24, ¶ 118.)

It

further alleges that Wells Fargo knowingly and voluntarily accepted
and retained these benefits with respect to transaction/service
fees, and has thus been unjustly enriched at the expense of the
innocent investors.

(Id., ¶¶ 119, 120.)

Because it would be

inequitable and unjust for Wells Fargo to retain these benefits,
Count IX alleges the innocent investors are entitled to the return
of these amounts.

(Id., ¶¶ 121, 122.)

“A claim for unjust enrichment has three elements: (1) the
plaintiff

has

conferred

a

benefit

on

the

defendant;

(2)

the

defendant voluntarily accepted and retained that benefit; and (3)
the circumstances are such that it would be inequitable for the
defendant[ ] to retain it without paying the value thereof.”
Virgilio v. Ryland Grp., Inc., 680 F.3d 1329, 1337 (11th Cir.
2012)(citations omitted).

The benefits alleged to have been

conferred were the fees earned by Wells Fargo for the international
wire transfers through its accounts.

Drawing all reasonable

inferences in favor of plaintiffs, the Court finds that there
remains a genuine issue as to whether plaintiffs conferred a
benefit

to

defendant

Wells

Fargo

after

December

15,

2007.

Therefore, Wells Fargo’s motion for summary judgment is denied as
to Count IX.
Accordingly, it is now

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ORDERED:
Wells

Fargo

Bank,

N.A.’s

Dispositive

Motion

for

Summary

Judgment (Doc. #78) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 20th day of
November, 2013.

Copies: Counsel of record

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