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Boscarino v. People's United Bank, N.A.

United States District Court, D. Connecticut

March 30, 2017

THOMAS C. BOSCARINO, CHAPTER 7, TRUSTEE, Plaintiff,
v.
PEOPLE'S UNITED BANK, N.A., Defendant/Third-Party Plaintiff,
v.
UNITED ADJUSTERS, LLC; TANCRETI, PHIPPS, HOFFMAN & BILLER - UNITED ADJUSTERS LLC; BILLER ADJUSTERS LLC; ALAN B. TANCRETI; JOHN D. BILLER; DAMIAN MENDEL; SANDERS H. HOFFMAN; ZULFIKAR H. JAFRI; WAJIH JAFRI; AND ASKARI JAFRI, Third-Party Defendants.

          ORDER RE PARTIAL MOTION TO DISMISS THIRD-PARTY COMPLAINT

          Alvin W. Thompson, United States District Judge

         For the reasons set forth below, Third-Party Defendants' Motion to Dismiss Certain Counts of the Third-Party Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. No. 32), filed by the United Adjusters Third-Party Defendants, is hereby DENIED.

         Count Nine: Conversion

         “The tort of conversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights.” Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 43-44 (2000). The United Adjusters Third-Party Defendants argue that the Third-Party Plaintiff has failed to allege legal ownership of the funds represented by the Joint Payee Checks. However, in Count Nine, ¶ 103 of the Third-Party Complaint, the Third-Party Plaintiff incorporates by reference the allegations in ¶¶ 1-65; in those paragraphs, the Third-Party Plaintiff alleges that the Third-Party Defendants deposited the Joint Payee Checks into bank accounts with the Third-Party Plaintiff.

         In Bassett v. City Bank & Trust Co., 115 Conn. 1, 14 (1932), the court held that “while depositors in the savings department have special rights in the fund, they are not the owners of it, the title being in the bank as such.” See also Medilink Ins. Co., Ltd. v. Comerica Bank, No. 09-13692, 2011 WL 1103644, at *7 (E.D. Mich. Mar. 23, 2011) (“[T]itle to funds in a general deposit account resides with the bank, and the account owner retains ‘only an entitlement to recoupment of an equivalent sum upon demand, having loaned the bank the amount deposited.'” (quoting Riverview Co-op., Inc. v. First Nat'l Bank & Trust Co. of Mich., 337 N.W.2d 225, 229 (Mich. 1983)); People's Nat'l Bank of Wash. v. United States, 608 F.Supp. 672, 675 (W.D. Wash. 1984) (“[O]nce money is deposited in a general bank account, title to the money passes to the bank.”), aff'd, 777 F.2d 459 (9th Cir. 1985).

         Thus, the Third-Party Plaintiff has alleged facts showing its legal ownership of the funds represented by the Joint Payee Checks. Because Count Nine plausibly states a claim for conversion, the motion to dismiss is being denied as to this count.

         Count Ten: Forgery

         The United Adjusters Third-Party Defendants contend that the Third-Party Plaintiff has not stated a claim for forgery because it fails to explain how the Joint Payee Checks might have been falsely made or altered by any of the United Adjusters Third-Party Defendants. The Third-Party Plaintiff has explained that it is not relying on that portion of Conn. Gen. Stat. § 52-565, but rather on the portion of the statute that makes a person liable if the person “knowingly utters, as true, any document falsely made, altered, forged or counterfeited.” The Third-Party Plaintiff then cites State v. Segar, 96 Conn. 428 (1921) for the meaning of the term “to utter”:

To utter is to offer. Bishop's Statutory Crimes, § 306, says that in forgery “it means to offer by some overt act, as one who offers a forged instrument intending it shall be received as good utters it whether accepted or not.” To the same effect is the definition in Bouvier's Law Dictionary, in the Standard Dictionary, and in others. See, also, Clark's Criminal Law, § 414.

96 Conn. at 430. In Count Ten, ¶ 107, the Third-Party Plaintiff incorporates by reference the allegations in ¶¶ 1-65, and in its opposition memorandum, it identifies paragraphs in that section of the complaint alleging facts that could establish that the United Adjusters Third-Party Defendants knowingly uttered forged instruments.

         Therefore, the motion to dismiss is being denied as to this count.

         Count Eleven: Civil Conspiracy to Commit Fraudulent Misrepresentation, Conversion and Forgery

         The elements of:

a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance ...

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