Traver et al v. Wells Fargo Bank, N.A.

Filing 32

ORDER granting in part and denying in part 16 Motion to Dismiss for Failure to State a Claim. Count Three of the Amended Complaint is dismissed with prejudice. Wells Fargo has until July 7, 2015 to answer Counts One and Two of the Amended Complaint. Signed by Judge Timothy J. Corrigan on 6/19/2015. (WG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
THOMAS A. TRAVER and REGINA
LIST TRAVER,
Plaintiffs,
v.

Case No. 3:14-cv-895-J-32MCR

WELLS FARGO BANK, N.A.,
Defendant.
ORDER
Plaintiffs Thomas and Regina Traver allege that Defendant Wells Fargo Bank,
N.A. committed a breach of contract (Count One), fraudulent inducement (Count Two),
and a violation of the Florida Deceptive and Unfair Trade Practice Act (Count Three).
(Doc. 15). After the Court dismissed the Travers’ initial complaint with leave to amend
(Doc. 13), the Travers filed an Amended Complaint (Doc. 15). Wells Fargo moved to
dismiss (Doc. 16) and the Travers responded (Doc. 19). The Travers also filed a
supplemental authority. (Doc. 23).
While Count Three alleges a FDUTPA claim against Wells Fargo, FDUTPA
does not apply to “[b]anks or savings and loan associations regulated by federal
agencies . . . .” Fla. Stat. § 501.212 (2014). Wells Fargo contends that it is a bank
regulated by federal agencies and therefore is exempt from FDUTPA. (Doc. 16 at 22).
In response, the Travers contend only that federal law does not preempt FDUTPA.
(Doc. 19 at 15-18).

The Travers argue that state consumer financial laws are only preempted by
federal law in certain circumstances not present here. (Doc. 19 at 15-18) (citing 12
U.S.C. § 25b (2014)). But even if that is true, it is irrelevant to the issues at hand.
Wells Fargo does not argue that federal law preempts FDUTPA, it argues that
FDUTPA, by its very terms, prevents relief. FDUTPA does not apply to banks, like
Wells Fargo, that are regulated by federal agencies. See § 501.212. As such, even
assuming that FDUTPA is not preempted by federal law, Count Three is due to be
dismissed. 1
Wells Fargo makes other arguments for dismissal of the Travers’ Amended
Complaint, including raising serious questions about whether the Travers’ claims are
barred by the Florida Banking Statute of Frauds. However, given the posture of the
case, the Court will reserve ruling on these matters until it considers dispositive
motions.
Accordingly, it is hereby
ORDERED:
Wells Fargo’s Motion to Dismiss (Doc. 16) is GRANTED in part and DENIED
in part. Count Three of the Amended Complaint is DISMISSED with prejudice.

Some courts have denied motions to dismiss FDUTPA claims where it was not
clear from the face of the complaint that the defendant was acting as a bank, rather
than in some other capacity. See, e.g., Diaz v. U.S. Bank, N.A., No. 14-CIV-20741, 2014
WL 4639431, at *5 (S.D. Fla. Sept. 16, 2014). However, it is undisputed that Wells
Fargo was acting as a national bank regulated by federal agencies, as the Travers’
only argument against dismissal is that their claim is not preempted by federal law.
(Doc. 19 at 15-18).
1

2

However, the motion is denied with respect to Counts One and Two. Wells Fargo has
until July 7, 2015 to answer the Amended Complaint.
DONE AND ORDERED in Jacksonville, Florida the 19th day of June, 2015.

w.
Copies:
Counsel of record

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