Bank Claims – Breach of Fiduciary Duty and Breach of Contract Federal and State South Florida Commercial Litigation Attorney
Bank Claims – Breach of Fiduciary Duty:
Does a bank owe you a duty of care, which would support a claim for negligence?
“To maintain an action for negligence, a plaintiff must establish that the defendant owed a duty, that the defendant breached that duty, and that this breach caused the plaintiff damages.” Fla. Dep’t of Corrs. v. Abril, 969 So.2d 201, 204 (Fla.2007). See Harbor Court, LLC v. Colonial Bancgroup, Inc., No. 08-80824-CIV, 2009 WL 455434, at *2 (S.D.Fla. Feb.23, 2009). The first step in a negligence analysis is to identify the standard of care with regard to a duty and then determine to whom that duty is owed. Therefore, if it is found that the bank did not owe the plaintiff a duty of care, a negligence claim cannot be maintained.
The general rule is that a bank has a duty to use ordinary care, presumptively in all its dealings. In re Meridian Asset Mgmt., Inc., 296 B.R. 243, 259 (Bankr.N.D.Fla.2003); See Fla. Stat. § 674.10. Banks owe a duty to customers. Wiand v. Wells Fargo Bank, N.A., 8:12-CV-00557-T-27, 2013 WL 1401414 (M.D.Fla. Apr.5, 2013). However, as a matter of law, a bank does not owe a duty to non-customers regarding the opening and maintenance of its accounts. Sroka v. Bank, 2006-CA-001117, 2006 WL 2535656 (Fla.Cir.Ct. Aug.31, 2006).
In this fact pattern, the bank asserts that it did not owe the plaintiff a duty because the plaintiffs were a “third party non-customer.” Therefore, the basis of banks argument relies on the plaintiffs being a non-customer. The plaintiffs argue that the bank owed it a duty of reasonable care to not allow an unauthorized third person to open a bank account in their name.
Florida law defines “customer” as “a person having an account with a bank or for whom a bank has agreed to collect items.” Fla. Stat. § 674.104(e). The complaint, in this fact pattern, alleges that the bank permitted a third party to open a “sham plaintiffs’ account” without authorization or approval. “That allegation, standing alone, demonstrates that plaintiffs were a customer of bank.” Harbor Court, LLC v. Colonial Bancgroup, Inc., No. 08-80824-CIV, 2009 WL 455434, at *2 (S.D.Fla. Feb.23, 2009). Even though the individual opening the account did not have authority to do so, the account that was opened was in plaintiffs name. Thus, the plaintiffs were the account holders and accordingly, the customer of bank. The complaint also alleges that the bank breached its duty by allowing the third party to open the account without proper authority. Plaintiffs further claim that as a result of bank’s breach of duty, the third party was able to misappropriate funds from the plaintiffs. Therefore, because the complaint alleges facts sufficient to support a claim for negligence, the bank’s motion to dismiss must fail.
Under this factual pattern, the court found that because the plaintiffs were customers, the bank owed them a duty of care and therefore, plaintiffs’ negligence claim survived.
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