Synovus Bank v. Garvey
Filing
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MEMORANDUM OF DECISION AND ORDER granting 13 Motion to Dismiss; granting in part and denying in part 15 Motion to Dismiss. IT IS FURTHER ORDERED that the Defendant may file an amended Answer and Counterclaim within fourteen (14) days of the entry of this Order in order to assert an additional counterclaim under Chapter 75 against the Plaintiff Synovus Bank. Signed by District Judge Martin Reidinger on 8/15/12. (nll)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv186
SYNOVUS BANK,
Plaintiff,
vs.
RANDY J. GARVEY,
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 Amended Third
Party Claims [Doc. 13] and the Plaintiff Synovus Bank’s Motion to Dismiss the
Defendant’s Amended Counterclaims [Doc. 15].
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 under the South
Carolina Unfair and Deceptive Trade Practices Act, 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 the South Carolina Unfair and Deceptive Trade Practices Act, S.C. Ann.
Code § 39-5-10, et seq. (“SCUTPA”). For the reasons stated in the Coleman
decision, supra, the Court concludes that North Carolina law governs any
claim that the Defendant may have for the Bank’s unfair and deceptive trade
practices. Accordingly, the Defendant’s counterclaim under the SCUTPA
must be dismissed.
As the Court recognized in Karp, however, “[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 provide the Defendant with an opportunity to assert a
claim under N.C. Gen. Stat. § 75-1.1, et seq. (“Chapter 75”) for the Bank’s
alleged unfair and deceptive trade practices.
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ORDER
IT IS, THEREFORE, ORDERED that the Third Party Defendant
Synovus Financial Corp.’s Motion to Dismiss Defendant’s Amended Third
Party Claims [Doc. 13] is GRANTED, and the Defendant’s 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’ Amended Counterclaims [Doc. 15] is GRANTED IN
PART and DENIED IN PART. Specifically, the Bank’s Motion to Dismiss is
DENIED with respect to the Defendant’s counterclaims under the ILSA 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 under the ILSA and for fraud and
fraud in the inducement, are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Defendant may file an amended
Answer and Counterclaim within fourteen (14) days of the entry of this Order
in order to assert an additional counterclaim under Chapter 75 against the
Plaintiff Synovus Bank.
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IT IS SO ORDERED.
Signed: August 15, 2012
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