UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF … - case no 21 cv 12193

---

Case 0:21-cv-62270-RAR Document 120 Entered on FLSD Docket 09/16/2022 Page 1 of 19
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 21-CV-62270-RAR
AZURE COLLEGE, INC.,
Plaintiff,
v.
BANK OF AMERICA, N.A.,
Defendant.
_______________________________/
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE comes before the Court upon Defendant Bank of America, N.A.'s Motion
for Summary Judgment Against Plaintiff [ECF No. 83] ("Defendant's Motion") and Plaintiff
Azure College, Inc.'s Motion for Summary Judgment [ECF No. 84] ("Plaintiff's Motion").1
Having considered Defendant's Motion, Plaintiff's Motion, and the record, and being otherwise
fully advised, it is hereby
ORDERED AND ADJUDGED that Defendant's Motion [ECF No. 83] is GRANTED
and Plaintiff's Motion [ECF No. 84] is DENIED for the reasons stated herein.
BACKGROUND
This case centers around a series of unauthorized Automated Clearing House ("ACH")
transactions. The following facts are undisputed. Plaintiff Azure College, Inc. ("Azure") is an
institute of higher learning centered in Fort Lauderdale, Florida that opened an account with
1 The Motions have been fully briefed and considered. Plaintiff filed a Response in Opposition to Bank of
America, N.A's Motion for Summary Judgment [ECF No. 89] ("Plaintiff's Response") and a Reply to Bank
of America, N.A.'s Response to Plaintiff's Motion for Summary Judgment [ECF No. 95] ("Plaintiff's
Reply"). Similarly, Defendant filed a Response in Opposition to Plaintiff's Motion for Summary Judgment
[ECF No. 91] ("Defendant's Response") and a Reply in Further Support of its Motion for Summary
Judgment [ECF No. 99] ("Defendant's Reply").
Page 1 of 19
Case 0:21-cv-62270-RAR Document 120 Entered on FLSD Docket 09/16/2022 Page 2 of 19
Defendant Bank of America, N.A. ("Bank of America") in January 2015. Def.'s Statement of
Undisputed Material Facts [ECF No. 83], Pl.'s Resp. to Bank of America, N.A.'s Statement of
Facts in Support of Motion for Summ. J. [ECF No. 88] (collectively, "Def.'s SOUF") ?? 1, 3.
Mr. Jhonson Napolean, the President of Azure, is the only authorized signer on the account. Id. ?
4.
From November 9, 2020 to November 18, 2020, six ACH debits were initiated by
Third-Party Defendant Pistus HHC, LLC ("Pistus"), a company offering "payroll, staffing, and
human resources services." Id. ?? 12-13. Pistus was contacted by someone impersonating
Mr. Napolean who claimed they were interested in engaging Pistus to conduct payroll on behalf
of Azure. See id. ?? 14-15. The imposter then provided Pistus, or Pistus's agent, with Plaintiff's
bank account and routing number. See id. ? 15. Pistus or its agent transmitted these to Valley
National Bank ("Valley National"), and Valley National then effectuated the six ACH debits
against Plaintiff's account with Defendant. Id. These six transactions totaled $259,800, and Bank
of America paid the amount of the transactions out of Azure's account. Id. ? 16.
The parties do not dispute that these debits were not authorized by Plaintiff. Pl.'s Statement
of Material Facts in Support of Summ. J. [ECF No. 84-1], Def., Bank of America, N.A.'s Resp.
to Pl.'s Statement of Material Facts in Opposition to Pl.'s Mot. for Summ. J. [ECF No. 92]
(collectively, "Pl.'s SOFM") ? 4. Plaintiff discovered the unauthorized transactions on November
20, 2022 and reported them to Defendant the same day. Id. ? 28. Defendant subsequently issued
a recredit back to Plaintiff's account for one of these transactions for $29,900. Def.'s SOUF ? 17.
This was possible because, as shown by unrebutted evidence, one transaction, which was
reimbursed, was coded as a "PPD" (consumer) transaction and the remaining five were coded as
"CCD" (corporate) transactions. Decl. of Mary Lee Treveno in Support of Bank of America,
N.A.'s Mot. for Summ. J. [ECF No. 83-2] ?? 11-12.
Page 2 of 19
Case 0:21-cv-62270-RAR Document 120 Entered on FLSD Docket 09/16/2022 Page 3 of 19
Plaintiff's account with Defendant is a business account. See id. ? 4. Defendant has not
credited Plaintiff for the other five transactions. Id. Plaintiff's account, and the parties' respective
rights and obligations, is governed by a Deposit Agreement and Disclosures ("Deposit
Agreement"), the terms of which are not disputed. See id. ? 5.
Plaintiff filed the operative Complaint on December 16, 2021. First Am. Compl. [ECF No.
39]. After granting Defendant's Motion to Dismiss, [ECF No. 43], a single cause of action now
remains for breach of contract due to Defendant's refusal to recredit Plaintiff for the remaining
five transfers. See Order Granting Def.'s Mot. to Dismiss [ECF No. 56]. On June 14, 2022,
Plaintiff and Defendant filed cross motions for summary judgment. Def.'s Mot. [ECF No. 83],
Pl.'s Mot. [ECF No. 84].2 Plaintiff advances two principal arguments in its Motion: (1) Defendant
is liable under section 670.204 of the Florida Statutes and (2) Defendant is liable for breach of
contract by not accepting liability for the five transactions Defendant did not recredit to Plaintiff
per Plaintiff's interpretation of the Deposit Agreement. See [ECF No. 84] at 5-10. Defendant
principally argues in its Motion that, under Defendant's interpretation of the Deposit Agreement,
Plaintiff did not report the unauthorized transactions in a timely manner, and if the Court were to
hold that Defendant breached the contract, Plaintiff has failed to mitigate damages. See [ECF No.
83] at 7-14.
LEGAL STANDARD
Summary judgment is rendered if the pleadings, the discovery and disclosure materials on
file, and any affidavits show there is no genuine issue as to any material fact and the movant is
2 On the same day, Third-Party Defendant filed a motion for summary judgment against Defendant. Pistus
HHC, LLC's Mot. for Summ. J. and Incorporated Mem. of Law [ECF No. 86] ("Third-Party Defendant's
Motion"). Defendant later moved to strike this motion. Bank of America's Mot. to Strike Third-Party
Def.'s Mot. for Summ. J., Proposed Findings of Fact and Conclusions of Law, and for Related Relief [ECF
No. 106] ("Defendant's Motion to Strike"). As discussed below, because the Court grants summary
judgment in favor of Defendant, the Court need not reach the merits of either motion.
Page 3 of 19


• UNITED STATES DISTRICT COURT EASTERN …
• Robert Samuel Shumake, Jr., et al
• UNITED STATES DISTRICT COURT EASTERN …
• United States of America v. City of Brockton, et al …
• Case 1:21-cv-00423-ADA-EPG Document 61 Filed 11/19/21 …