Synovus Bank v. Osada
Filing
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MEMORANDUM OF DECISION AND ORDER granting 53 Motion to Dismiss; granting in part and denying in part 55 Motion to Dismiss; parties to conduct an initial attorneys' conference within 14 days. (SEE ORDER FOR DETAILS). Signed by District Judge Martin Reidinger on 8/15/12. (ejb)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv115
SYNOVUS BANK,
Plaintiff,
vs.
JANA M. OSADA,
Defendant/
Third-Party Plaintiff,
vs.
SYNOVUS FINANCIAL CORP. d/b/a
NATIONAL BANK OF SOUTH
CAROLINA, et al.,
Third-Party Defendants.
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MEMORANDUM OF
DECISION AND ORDER
THIS MATTER is before the Court on the Third Party Defendant
Synovus Financial Corp.’s Motion to Dismiss Defendant’s Second Amended
Third Party Claims [Doc. 53] and the Plaintiff Synovus Bank’s Motion to
Dismiss the Defendant’s Second Amended Counterclaims [Doc. 55].
Also before this Court is the case of Synovus Bank v. Coleman, Case
No. 1:11cv66 (W.D.N.C.). The facts, legal issues and causes of action
asserted in the Complaint in the present matter are virtually identical to those
in Coleman and the same attorneys appear in both cases. Even though the
cases have not been consolidated, the decision of this Court in the Order
being entered contemporaneously herewith in Coleman addresses and
disposes of nearly all of the issues raised by the motions currently before the
Court in this matter. The Order in Coleman, therefore, is incorporated herein,
and, with the exception of the Defendant’s counterclaim pursuant to N.C. Gen.
Stat. § 75-1.1, et seq. (“Chapter 75 claim”), the current motions will be
disposed of in accord therewith.
In addition to those counterclaims raised by the Defendant which are
addressed by the Coleman decision, the Defendant asserts additional
counterclaims for negligent misrepresentation, fraud, and fraud in the
inducement.
The facts asserted by the Defendant in support of these
counterclaims are substantially similar to those asserted by the Defendants
in Synovus Bank v. Karp, No. 1:10cv172 (W.D.N.C.). For the reasons stated
in the Karp decision, the Court concludes that the Defendant’s counterclaim
for negligent misrepresentation must be dismissed. Further, for the reasons
stated in Karp, the Bank’s Motion to Dismiss will be denied as to the
Defendant’s counterclaims for fraud and fraud in the inducement.
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As noted above, the Defendant also asserts a counterclaim for violation
of Chapter 75. As the Court recognized in Karp, “[p]roof of fraud necessarily
constitutes a violation of the prohibition against unfair and deceptive acts.”
Karp, No. 1:10cv172, slip op. at 27 (quoting Winston Realty Co. v. G.H.G.,
Inc., 314 N.C. 90, 97, 331 S.E.2d 677, 681 (1985)). Because the Court
concludes that the Defendant has stated plausible claims for fraud and fraud
in the inducement with enough particularity to survive the Plaintiff’s Motion to
Dismiss, the Court will likewise deny the Motion to Dismiss with respect to the
Defendant’s Chapter 75 claim.
ORDER
IT IS, THEREFORE, ORDERED that the Third Party Defendant
Synovus Financial Corp.’s Motion to Dismiss Defendant’s Second Amended
Third Party Claims [Doc. 53] is GRANTED, and the Defendant’s Second
Amended Third Party Claims against Synovus Financial Corp. are hereby
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Plaintiff Synovus Bank’s Motion to
Dismiss the Defendants’ Second Amended Counterclaims [Doc. 55] is
GRANTED IN PART and DENIED IN PART. Specifically, the Bank’s Motion
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to Dismiss is DENIED with respect to the Defendant’s counterclaims under the
ILSA and Chapter 75 and for fraud and fraud in the inducement. In all other
respects, the Bank’s Motion to Dismiss is GRANTED, and all of the
Defendants’ counterclaims, with the exception of the aforementioned claims,
are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the parties shall conduct an initial
attorneys’ conference within fourteen (14) days of the entry of this Order and
shall file a Certificate of Initial Attorneys’ Conference within seven (7) days
thereafter.
IT IS SO ORDERED.
Signed: August 15, 2012
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