Lucca v. Wells Fargo Bank, N.A.

117 A.3d 1267, 441 N.J. Super. 301, 2015 N.J. Super. LEXIS 105
CourtNew Jersey Superior Court Appellate Division
DecidedJanuary 28, 2015
StatusPublished

This text of 117 A.3d 1267 (Lucca v. Wells Fargo Bank, N.A.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lucca v. Wells Fargo Bank, N.A., 117 A.3d 1267, 441 N.J. Super. 301, 2015 N.J. Super. LEXIS 105 (N.J. Ct. App. 2015).

Opinion

WINKELSTEIN, J.A.D.

(retired and temporarily assigned on recall).1

Between June 21, 2011, and December 21, 2011, then-eighty-two-year-old plaintiff, Margaret Lucca, made approximately twenty-seven wire transfers, in the sum of roughly $330,000, from her account at the Wells Fargo Bank branch in Somers Point, New Jersey. She sent the funds at the direction of an individual who telephoned her home, identified himself as a lawyer, and provided her with the information for the wire transfers. Plaintiff did not know the caller or the beneficiaries of the wire transfers. Put simply, plaintiff was scammed. She never recovered the funds.

Plaintiff filed a four-count complaint against Wells Fargo, and Samantha Weinstein, a Wells Fargo employee. In count one, plaintiff charged defendants with negligence in failing to “discharge [their] duties” to plaintiff; count two claimed breach of contract; count three alleged a violation of the implied covenant of good faith and fair dealing; and count four asserted that defendants “failed to act in good faith” when they failed to “disclose the wire transfers to the appropriate authorities” pursuant to N.J.S.A. 17-.16T-1 to -4.

The pretrial judge dismissed counts one, two, and three. Those counts are not addressed in this opinion. In declining to dismiss count four, the pretrial judge ruled that the statute, N.J.S.A. 17:16T-1 to -4, created an independent cause of action for plaintiff if she could prove that the bank acted in bad faith when it failed to report the suspected scam to the police or to the office of county adult protective services.

At trial before this court in January 2015, the threshold issue was whether N.J.S.A. 17:16T-1 to -4 imposes a statutory duty on [304]*304financial institutions, such as Wells Fargo, to report a suspected scam to the police or the county department of adult protective services, thus creating an independent cause of action for a customer, such as plaintiff, to assert a bad faith claim for the bank’s failure to notify the authorities.

Following a two-day bench trial, the court concludes that N.J.S.A. 17:16T-1 to -4 does not impose a duty on a financial institution to notify the authorities of a suspected scam. Without such a duty, plaintiff has no independent cause of action to assert a bad faith claim.2

Plaintiff was eighty-five years old at the time of trial. She had been living alone since her husband died in February 2003. She had no children and no siblings. She lived in Somers Point, not far from the Wells Fargo bank branch. Her nephew and niece, John Rizzotte and Kathleen Quarry, lived in Hammonton, New Jersey, about a forty-minute drive from Somers Point. Plaintiff was previously employed as a personnel director for Lenox China, but retired more than twenty years ago. She also worked as a receptionist. She stopped working sometime around 1990.

In June 2011, plaintiff received telephone calls from an individual she did not know, who identified himself as a lawyer. He asked her to participate in an enterprise where she could win some money. He told her to go to her bank, and he provided her with the names of beneficiaries for wire transfers, the amount to be transferred, and the bank accounts to which the money should be transferred. The beneficiary of the first wire transfer was an [305]*305individual in Alabama, and the beneficiary for the remainder of the wire transfers was an individual in Costa Rica. Plaintiff did not know either beneficiary. In fact, she had no relatives or personal contacts in Alabama or Costa Rica.

She did as the man over the telephone instructed her. She went to the bank and signed wire transfer forms, providing the beneficiary and account information he had given to her. At the bank, plaintiff spoke primarily to Samantha Weinstein. Plaintiff also had conversations with Danielle Borcky, a Wells Fargo bank manager.

Plaintiff did not tell anyone at Wells Fargo that she was wiring funds to win money. Between June 21, 2011, and December 21, 2011, plaintiff made approximately twenty-seven wire transfers totaling approximately $330,000 from her Wells Fargo account. Plaintiff testified that no one at the bank told her that she was being scammed. Although she does not recall being told, the court finds that she was in fact told by Weinstein that she was being scammed.

Plaintiff also had an account at the Jersey Shore Federal Credit Union. It was a joint account with Quarry, but it was plaintiffs money. In the summer of 2011, Quarry called Rizzotte after she learned from a credit union employee that plaintiff was trying to wire money from that credit union account. When Quarry questioned plaintiff about the call, plaintiff told her there was “nothing wrong,” and that she knew what she was doing. Both Quarry and Rizzotte believed plaintiff was capable of handling her own affairs; both knew that plaintiff did not like people questioning her about her personal finances. In fact, plaintiff subsequently removed Quarry’s name from the credit union account because plaintiff wanted sole access to that account.

Virginia Williams, the CEO of Jersey Shore Federal Credit Union, confirmed that plaintiff became angry when she was questioned about the use of her account. Nevertheless, when Williams became aware that plaintiff intended to transfer $27,500 to a bank in Costa Rica, she had plaintiff sign a document at the bank [306]*306known as the “Jersey Shore Federal Credit Union Scam/Fraud Awareness” document. She reviewed that document with plaintiff, who signed it on August 10, 2011. Immediately above plaintiffs signature line, the document stated, “This is to certify that I, Margaret J. Lucca, gave instructions to Jersey Shore Federal Credit Union to wire transfer $27,500 to Banco de Costa Rica and that I have read the Fraud Awareness document from Jersey Shore Federal Credit Union.” Plaintiff testified that although the document was explained to her, she did not change her mind about making wire transfers.

According to Weinstein, by the third wire transfer she completed for plaintiff, she asked plaintiff if she knew the person to whom she was sending the money. Plaintiff told her to mind her own business. Weinstein testified that plaintiff was always vague about the reasons she was sending the money.

Beginning on July 1, 2011, Weinstein filed a report with the Wells Fargo internal elder abuse department after every wire transfer with which she was involved. Weinstein never heard back from that department. There was no testimony that an internal bank investigation ever occurred.

At the end of December, Weinstein, while reviewing plaintiffs bank records, saw that she withdrew $54,000 from her account at the Wells Fargo branch in Ocean City, which was not the branch where plaintiff normally did her banking. Weinstein called plaintiff, who told her that the money was to be paid “up front for taxes.” Weinstein told her that she had been scammed. Wein-stein then met with Rizzotte, and eventually a stop-payment was placed on the check. Although the police had been contacted, during the trial there was no testimony from any police officer, law enforcement official, or anyone familiar with what specifically occurred to cause the stop-payment.

Plaintiff testified that she was healthy in 2011, with no serious disabilities, nor did she take medication that would affect her judgment.

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Bluebook (online)
117 A.3d 1267, 441 N.J. Super. 301, 2015 N.J. Super. LEXIS 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lucca-v-wells-fargo-bank-na-njsuperctappdiv-2015.