Langston & Langston, PLLC v. SunTrust Bank et al

Response in Opposition re AMENDED COMPLAINT First Amended Complaint against All Plaintiffs

S.D. Miss.March 7, 2019

4850-6137-6905v1 2936466-000060 03/07/2019 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION LANGSTON & LANGSTON, PLLC, PLAINTIFFS JEFF CAHN, LAURIE CAHN, & DAVID CAHN VS. CIVIL ACTION NO. 3:18-CV-741-CWR-FKB SUNTRUST BANK & JOHN DOES 1-10 DEFENDANTS ______________________________________________________________________________ ANSWER AND AFFIRMATIVE DEFENSES OF SUNTRUST BANK Defendant SunTrust Bank ("SunTrust"), by and through counsel, files this its Answer and Affirmative Defenses to the First Amended Complaint (the "Complaint") filed by Plaintiffs Langston & Langston, PLLC, Jeff Cahn, Laurie Cahn, and David Cahn ("Plaintiffs") as follows: AFFIRMATIVE DEFENSES Without assuming the burden of proof as to any matter on which Plaintiffs bear the burden, SunTrust alleges the following defenses: FIRST DEFENSE The Complaint should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because it fails to state a claim upon which any relief can be granted. SECOND DEFENSE Plaintiff Langston & Langston, PLLC lacks standing and/or the legal capacity to initiate this action. THIRD DEFENSE Some or all of Plaintiffs' claims should be dismissed because no duty of care exists between Plaintiffs and SunTrust. Case 3:18-cv-00741-CWR-FKB Document 9 Filed 03/07/19 Page 1 of 14 2 4850-6137-6905v1 2936466-000060 03/07/2019 FOURTH DEFENSE Plaintiff Langston & Langston, PLLC's claims are barred as it has not suffered any damages. FIFTH DEFENSE Some or all of Plaintiffs' claims may be barred by the doctrines of waiver, estoppel, consent, ratification, accord and satisfaction, payment, release, set-off, recoupment, unclean hands, and/or laches. SIXTH DEFENSE SunTrust asserts its good faith compliance with all written agreements, and all applicable rules, regulations, statutes, and laws. SEVENTH DEFENSE Some or all of Plaintiffs' claims may be barred by the statute of frauds and/or the parole evidence rule. EIGHTH DEFENSE SunTrust adopts and incorporates all of the terms and conditions of any agreement(s) entered into by SunTrust which in any way concerns the individuals referred to in the Complaint and affirmatively asserts its rights under said agreement(s). NINTH DEFENSE Some or all of Plaintiffs' claims may be barred to the extent that they failed to satisfy conditions precedent in complying with the requirements of any agreement(s) entered into by SunTrust which in any way concerns the individuals referred to in the Complaint. Case 3:18-cv-00741-CWR-FKB Document 9 Filed 03/07/19 Page 2 of 14 3 4850-6137-6905v1 2936466-000060 03/07/2019 TENTH DEFENSE SunTrust reserves the right to assert any counter-claims, cross-claims, and/or third party claims. ELEVENTH DEFENSE SunTrust reserves the right to seek to compel arbitration of this matter at any point during the course of this litigation. TWELFTH DEFENSE SunTrust asserts the right to affirmatively elect any remedy available to it under applicable law and/or terms and conditions of any agreement(s) entered into by it which in any way concerns the individuals referred to in the Complaint. THIRTEENTH DEFENSE SunTrust would show that Plaintiffs' damages, if any, were caused by the comparative negligence or intentional actions of Plaintiffs and/or third parties not under, or subject to, the control of SunTrust and for which SunTrust cannot be liable. FOURTEENTH DEFENSE If Plaintiffs were damaged, their damages were proximately caused by the acts, wrongs, or omissions of Plaintiffs or other persons or entities over which SunTrust had no control and for which SunTrust cannot be liable. As to all such persons or entities, including those not named as parties to this action, SunTrust pleads the apportionment, comparative negligence, and any other applicable provision of Mississippi Code § 85-5-7 and Mississippi Code § 11-7-15. FIFTEENTH DEFENSE Plaintiffs' damages, if any, were caused by intervening and/or superseding causes over which SunTrust had no control and for which SunTrust cannot be liable. Case 3:18-cv-00741-CWR-FKB Document 9 Filed 03/07/19 Page 3 of 14 4 4850-6137-6905v1 2936466-000060 03/07/2019 SIXTEENTH DEFENSE Plaintiffs' damages, if any, may be barred due to a failure of Plaintiffs to mitigate their damages. SEVENTEENTH DEFENSE SunTrust affirmatively asserts and pleads all applicable provisions or defenses available to it pursuant to the Uniform Commercial Code and 12 C.F.R. § 210.25, et seq., or any other applicable state or federal law. EIGHTEENTH DEFENSE Some or all of Plaintiffs' claims may be preempted by the Uniform Commercial Code and 12 C.F.R. § 210.25, et seq., or other applicable state or federal law. NINETEENTH DEFENSE SunTrust affirmatively asserts and pleads all applicable provisions or defenses set forth in the Electronic Fund Transfer Act, 15 U.S.C. § 1693, et seq. TWENTIETH DEFENSE Some or all of Plaintiffs' claims may be preempted by the Electronic Fund Transfer Act, 15 U.S.C. § 1693, et seq. TWENTY-FIRST DEFENSE Plaintiffs failed to plead their alleged special damages with the requisite particularity. TWENTY-SECOND DEFENSE Plaintiffs' damages, if any, are subject to set-off or reduction by the amount of any payment received from any collateral source. TWENTY-THIRD DEFENSE SunTrust did not breach any duty allegedly owed to Plaintiffs. Case 3:18-cv-00741-CWR-FKB Document 9 Filed 03/07/19 Page 4 of 14 5 4850-6137-6905v1 2936466-000060 03/07/2019 TWENTY-FOURTH DEFENSE SunTrust reserves the right to assert any defenses available to it pursuant to any applicable account document or agreement. SunTrust further reserves the right to assert any defenses that may become available or appear during the course of this litigation. And now, SunTrust, without waiving the foregoing affirmative defenses, answers the Complaint, paragraph by paragraph, as follows: PARTIES 1. Upon information and belief, SunTrust admits the allegations contained in paragraph 1 of the Complaint. 2. SunTrust is without knowledge or information sufficient to admit or deny the allegations contained in paragraph 2 of the Complaint and therefore denies same. 3. SunTrust is without knowledge or information sufficient to admit or deny the allegations contained in paragraph 3 of the Complaint and therefore denies same. 4. SunTrust is without knowledge or information sufficient to admit or deny the allegations contained in paragraph 4 of the Complaint and therefore denies same. 5. SunTrust denies that it is a corporation but admits that it is a Georgia state- chartered bank doing business in Mississippi. SunTrust further admits that its principal place of business is Peachtree Street, NE, Atlanta, Georgia. SunTrust further admits that its registered agent is Corporation Service Company with an address of 5760 I-55 North, Suite 150, Jackson, Mississippi. 6. The allegations in paragraph 6 of the Complaint are either not directed at SunTrust or are not allegations of fact and therefore a response from SunTrust is not required. To the extent the allegations attempt to impute liability to SunTrust, the allegations are denied. Case 3:18-cv-00741-CWR-FKB Document 9 Filed 03/07/19 Page 5 of 14 6 4850-6137-6905v1 2936466-000060 03/07/2019 JURISDICTION & VENUE 7. SunTrust admits only that jurisdiction and venue are proper in the United States District Court for the Southern District of Mississippi's Northern Division. The remaining allegations contained in Paragraph 7 are conclusions of law and therefore a response from SunTrust is not required. Answering out of an abundance caution, SunTrust denies the remaining allegations contained in paragraph 7 of the Complaint. FACTS 8. SunTrust admits only that on May 9, 2018, BankPlus wired certain funds to two accounts held with SunTrust. SunTrust is without knowledge or information sufficient to admit or deny the remaining allegations contained in paragraph 8 of the Complaint and therefore denies same. 9. SunTrust admits only that on May 9, 2018, BankPlus wired certain funds to two accounts held with SunTrust. SunTrust is without knowledge or information sufficient to admit or deny the remaining allegations contained in paragraph 9 of the Complaint and therefore denies same. 10. SunTrust admits only that BankPlus wired certain funds to SunTrust reflecting the beneficiaries as David and Laurie Cahn with an address of 5520 Beard Ave., South Minneapolis, Minnesota 55410 and a routing number of 061000104. SunTrust is without knowledge or information sufficient to admit or deny the remaining allegations contained in paragraph 10 of the Complaint and therefore denies same. 11. SunTrust is without knowledge or information sufficient to admit or deny the allegations contained in paragraph 11 of the Complaint and therefore denies same. Case 3:18-cv-00741-CWR-FKB Document 9 Filed 03/07/19 Page 6 of 14 7 4850-6137-6905v1 2936466-000060 03/07/2019 12. SunTrust is without knowledge or information sufficient to admit or deny the allegations contained in paragraph 12 of the Complaint and therefore denies same. 13. SunTrust admits only that the account numbers reflected on the May 9, 2018 wire transfer from BankPlus to SunTrust were valid account numbers and registered in the name of a person or entity other than Laurie and David Cahn. SunTrust is without knowledge or information sufficient to admit or deny the remaining allegations contained in paragraph 13 of the Complaint and therefore denies same. 14. SunTrust admits only that it accepted the May 9, 2018 wire transfer from BankPlus and deposited the funds into the account associated with the account number provided to it by BankPlus and Plaintiff. SunTrust denies the allegations contained in paragraph 14 of the Complaint to the extent they attempt to impute liability on SunTrust. SunTrust further affirmatively states that it had no legal duty to verify that the names and address reflected on the wire transfer instructions matched the names and address associated with the account number provided to it by BankPlus and Plaintiff. 15. SunTrust is without knowledge or information sufficient to admit or deny the allegations contained in paragraph 15 of the Complaint and therefore denies same. 16. SunTrust admits that it was notified of a "wire recall" related to the May, 9, 2018 wire transfer from BankPlus at approximately 2:42 p.m. SunTrust, however, affirmatively states that at approximately 2:08 p.m. (i.e., 34 minutes prior to receiving notice of a "wire recall") a substantial portion of the funds were withdrawn by the account holder via an over-the-counter withdrawal. SunTrust is without knowledge or information sufficient to admit or deny the remaining allegations contained in paragraph 16 of the Complaint and therefore denies same. Case 3:18-cv-00741-CWR-FKB Document 9 Filed 03/07/19 Page 7 of 14 8 4850-6137-6905v1 2936466-000060 03/07/2019 17. SunTrust admits that it was notified of a "wire recall" related to the May, 9, 2018 wire transfer from BankPlus at approximately 2:42 p.m. SunTrust, however, affirmatively states that at approximately 2:08 p.m. (i.e., 34 minutes prior to receiving notice of a "wire recall") a substantial portion of the funds were withdrawn by the account holder via an over-the-counter withdrawal. SunTrust is without knowledge or information sufficient to admit or deny the remaining allegations contained in paragraph 17 of the Complaint and therefore denies same. 18. SunTrust admits that it was notified of a "wire recall" related to the May, 9, 2018 wire transfer from BankPlus at approximately 2:42 p.m. SunTrust, however, affirmatively states that at approximately 2:08 p.m. (i.e., 34 minutes prior to receiving notice of a "wire recall") a substantial portion of the funds were withdrawn by the account holder via an over-the-counter withdrawal. SunTrust is without knowledge or information sufficient to admit or deny the remaining allegations contained in paragraph 18 of the Complaint and therefore denies same. 19. SunTrust is without knowledge or information sufficient to admit or deny the allegations contained in paragraph 19 of the Complaint and therefore denies same. 20. SunTrust denies the allegations contained in paragraph 20 of the Complaint to the extent they attempt to impute liability on SunTrust. SunTrust further affirmatively states that it had no legal duty to verify that the names and address reflected on the wire transfer instructions matched the names and address associated with the account number provided to it by BankPlus and Plaintiff. 21. SunTrust admits that a member of the Federal Bureau of Investigation (Internet Crime Complaint Center) contacted a SunTrust representative on May 10, 2018, and requested that SunTrust freeze the funds in the accounts due to alleged fraudulent activity. SunTrust denies that it informed the Federal Bureau of Investigation (Internet Crime Complaint Center) "that all Case 3:18-cv-00741-CWR-FKB Document 9 Filed 03/07/19 Page 8 of 14 9 4850-6137-6905v1 2936466-000060 03/07/2019 monies in both accounts had been frozen" and "that no funds had been lost in the scam." SunTrust is without knowledge or information sufficient to admit or deny the remaining allegations contained in paragraph 21 of the Complaint and therefore denies same. 22. SunTrust admits only that at approximately 2:08 p.m. (i.e., 34 minutes prior to receiving notice of a "wire recall") a substantial portion of the funds were withdrawn by the account holder via an over-the-counter withdrawal. SunTrust denies the allegations contained in Paragraph 22 to the extent they seek to impose liability on SunTrust. SunTrust further affirmatively states that it has no legal duty, absent court order, to provide Plaintiff information related to a SunTrust customer's account. 23. SunTrust denies the allegations contained in paragraph 23 of the Complaint. 24. SunTrust denies the allegations contained in paragraph 24 of the Complaint. 25. SunTrust denies the allegations contained in paragraph 25 of the Complaint. 26. SunTrust denies the allegations contained in paragraph 26 of the Complaint. 27. SunTrust denies the allegations contained in paragraph 27 of the Complaint. 28. SunTrust denies that it "erroneously informed the Secret Service that all the funds were frozen in the account" and that it "concealed that information and failed to correct its misrepresentation for approximately six (6) weeks." SunTrust is without knowledge or information sufficient to admit or deny the remaining allegations contained in paragraph 28 of the Complaint and therefore denies same. 29. SunTrust denies the allegations contained in paragraph 29 of the Complaint. 30. SunTrust denies the allegations contained in paragraph 30 of the Complaint. Case 3:18-cv-00741-CWR-FKB Document 9 Filed 03/07/19 Page 9 of 14 10 4850-6137-6905v1 2936466-000060 03/07/2019 CAUSES OF ACTION COUNT I NEGLIGENCE & GROSS NEGLIGENCE 31. SunTrust adopts and incorporates by reference its answers and defenses to the allegations contained in the preceding paragraphs of the Complaint. 32. The allegations contained in paragraph 32 of the Complaint are not allegations of fact but conclusions of law and therefore a response from SunTrust is not required. Answering out of an abundance caution, SunTrust denies the allegations contained in paragraph 32 of the Complaint. 33. SunTrust denies that allegations contained in paragraph 33 of the Complaint, including subparts (a) through (m). 34. SunTrust denies the allegations contained in paragraph 34 of the Complaint. COUNT II MISREPRESENTATION & CONCEALMENT 35. SunTrust adopts and incorporates by reference its answers and defenses to the allegations contained in the preceding paragraphs of the Complaint. 36. The allegations contained in paragraph 36 of the Complaint are not allegations of fact but conclusions of law and therefore a response from SunTrust is not required. Answering out of an abundance caution, SunTrust denies the allegations contained in paragraph 36 of the Complaint. 37. SunTrust denies the allegations contained in paragraph 37 of the Complaint. 38. SunTrust denies the allegations contained in paragraph 38 of the Complaint. 39. SunTrust admits only that at approximately 2:08 p.m. (i.e., 34 minutes prior to receiving notice of a "wire recall") a substantial portion of the funds were withdrawn by the Case 3:18-cv-00741-CWR-FKB Document 9 Filed 03/07/19 Page 10 of 14 11 4850-6137-6905v1 2936466-000060 03/07/2019 account holder via an over-the-counter withdrawal. SunTrust denies the remaining allegations contained in paragraph 39 of the Complaint. 40. SunTrust denies the allegations contained in paragraph 40 of the Complaint. 41. SunTrust denies the allegations contained in paragraph 41 of the Complaint. 42. SunTrust denies the allegations contained in paragraph 42 of the Complaint. COUNT III VIOLATIONS OF THE ELECTRONIC FUND TRANSFER ACT 43. SunTrust adopts and incorporates by reference its answers and defenses to the allegations contained in the preceding paragraphs of the Complaint. 44. The allegations contained in paragraph 44 of the Complaint are not allegations of fact but conclusions of law and therefore a response from SunTrust is not required. Answering out of an abundance caution, SunTrust denies the allegations contained in paragraph 44 of the Complaint. 45. The allegations contained in paragraph 45 of the Complaint are not allegations of fact but conclusions of law and therefore a response from SunTrust is not required. Answering out of an abundance caution, SunTrust denies the allegations contained in paragraph 45 of the Complaint. 46. The allegations contained in paragraph 46 of the Complaint are not allegations of fact but conclusions of law and therefore a response from SunTrust is not required. Answering out of an abundance caution, SunTrust denies the allegations contained in paragraph 46 of the Complaint. 47. SunTrust denies the allegations contained in paragraph 47 of the Complaint. 48. SunTrust denies the allegations contained in paragraph 48 of the Complaint. 49. SunTrust denies the allegations contained in paragraph 49 of the Complaint. Case 3:18-cv-00741-CWR-FKB Document 9 Filed 03/07/19 Page 11 of 14 12 4850-6137-6905v1 2936466-000060 03/07/2019 50. SunTrust denies the allegations contained in paragraph 50 of the Complaint. DAMAGES 51. SunTrust adopts and incorporates by reference its answers and defenses to the allegations contained in the preceding paragraphs of the Complaint. 52. SunTrust denies the allegations contained in paragraph 52 of the Complaint. 53. SunTrust denies the allegations contained in paragraph 53 of the Complaint. 54. The allegations contained in paragraph 54 of the Complaint are not allegations of fact and therefore a response from SunTrust is not required. Answering out of an abundance caution, SunTrust denies the allegations contained in paragraph 54 of the Complaint. SunTrust further expressly denies that Plaintiff is entitled to any damages whatsoever. 55. SunTrust denies the allegations contained in paragraph 55 of the Complaint. 56. The allegations contained in paragraph 56 of the Complaint are not allegations of fact and therefore a response from SunTrust is not required. Answering out of an abundance caution, SunTrust denies the allegations contained in paragraph 56 of the Complaint. SunTrust further expressly denies that Plaintiffs are entitled to any damages whatsoever. The allegations contained in the unnumbered paragraph beginning "WHEREFORE, PREMISES CONSIDERED" are not allegations of fact and therefore a response from SunTrust is not required. Answering out of an abundance caution, SunTrust denies the allegations contained in the unnumbered paragraph beginning "WHEREFORE, PREMISES CONSIDERED." SunTrust further expressly denies that Plaintiffs are entitled to any damages whatsoever. Any and all allegations not specifically admitted, denied, or otherwise explained are denied. Case 3:18-cv-00741-CWR-FKB Document 9 Filed 03/07/19 Page 12 of 14 13 4850-6137-6905v1 2936466-000060 03/07/2019 WHEREFORE, PREMISES CONSIDERED, SunTrust prays that the Complaint be dismissed with prejudice and that all costs associated with these proceedings, including attorney fees, be assessed to Plaintiffs. Dated: March 7, 2019. Respectfully submitted, SUNTRUST BANK By Its Attorneys, BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC s/ Lott Warren LOTT WARREN OF COUNSEL: Frederick N. Salvo, III (MS Bar No.100419) Lott Warren (MS Bar No. 104796) BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC One Eastover Center 100 Vision Drive, Suite 400 Jackson, Mississippi 39211 Telephone: (601) 351-2400 Facsimile: (601) 351-2424 fsalvo@bakerdonelson.com lwarren@bakerdonelson.com Case 3:18-cv-00741-CWR-FKB Document 9 Filed 03/07/19 Page 13 of 14 14 4850-6137-6905v1 2936466-000060 03/07/2019 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court using the ECF system which sent notification of such filing to all counsel registered with the ECF system. Dated: March 7, 2019. s/ Lott Warren LOTT WARREN Case 3:18-cv-00741-CWR-FKB Document 9 Filed 03/07/19 Page 14 of 14