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Thuney v. Lawyer's Title of Arizona

United States District Court, D. Arizona

February 5, 2019

Joseph and Carla Thuney, a married couple, Plaintiffs,
v.
Lawyer's Title of Arizona, an Arizona Corporation, et al., Defendants.

          ORDER

          H. Russel Holland, United States District Judge.

         JPMorgan Chase Bank, N.A.'s Motion to Dismiss Lawyers Title's Crossclaims

         Defendant JPMorgan Chase Bank, N.A. moves to dismiss Lawyers Title's crossclaims.[1]This motion is opposed.[2] Oral argument has been heard on the motion.

         Background

         Plaintiffs are Joseph and Carla Thuney. Defendants are Lawyers Title of Arizona, Inc.; Julie-Ann Helms; Helms & Helms, PLLC; KeyBank N.A.; and JPMorgan Chase Bank, N.A.

         In May 2017, plaintiffs were in the process of buying a retirement home in Surprise, Arizona.[3] Plaintiffs allege that around 9 a.m. on May 31, 2017, Mr. Thuney received an email that purported to be from Amanda Zalenski, on behalf of Lawyers, “stating that the Thuneys['] loan had been funded and that they were set to close on the 9th of June.”[4] Plaintiffs allege that “[t]his email included a signature line, logos, images, and other trade dress indicating it was from Lawyers” but that it was actually “a forged electronic document making it appear it was from Lawyers when it was not.”[5] Plaintiffs allege that “[t]he email also included a forged combined settlement statement and a letter apparently on Lawyers Title's letterhead showing the exact amount due at closing of $119, 555.73 and the specific branch of Chase to make the wire transfer to.”[6] That branch was alleged to be “located in Houston, Texas.”[7]

         Plaintiffs allege that around 9:08 a.m. on May 31, 2017, they “received another forged email telling them that the loan had been funded and asking that Joe Thuney call Lawyers to inform them once the transfer of funds was complete so the title could be filed for closing.”[8] Plaintiffs allege that at 11:38 a.m. on May 31, 2017, “using a computer, Joe Thuney sent the forged payment instructions to KeyBank.”[9]

         Plaintiffs allege that on June 2, 2017, they “received another forged email from the person impersonating Amanda Zalenski stating that Lawyers had not yet received the wire transfer.”[10] Later that same morning, plaintiffs allege that “the fraudulent Amanda Zalenski sent a forged email and updated set of wiring instructions for the closing funds. This forged email again had the look, feel, and trade dress of a document from Lawyers.”[11] Plaintiffs allege that shortly after receiving this email, “using his computer, Joe Thuney sent an email to KeyBank containing the updated forged wiring instructions.”[12]

         Plaintiffs allege that on June 5, 2017 at 9:53 a.m., they “received confirmation from the fraudulent Amanda Zalenski that the wire transfer of $119, 555.73 had gone through” and that attached to the email was “a Receipt for Deposit that appeared to be from Lawyers Title.”[13]Plaintiffs allege that “[t]his time, Joe Thuney noticed that the email addresses were slightly different” and thus he “called the number on the fake wire instructions, ” but there was no answer.[14] Plaintiffs allege that they were “becoming suspicious that something might be wrong” and so Joe Thuney called Helms around 3 p.m. on June 5, 2017.[15] Plaintiffs allege that at 3:36 p.m., “Joe Thuney emailed Helms a copy of the fraudulent Receipt for Deposit” and told her “that he thought there might be a fraud.”[16]

         Plaintiffs allege that “at 3:57 PM, only hours after the money transaction, Joe Thuney emailed KeyBank stating that there was a potential problem and that they needed to cancel the wire transfer ASAP.”[17] Plaintiffs further allege that

[o]n or about June 5, 2017, between 3:27 PM and 5:57 PM, Joe Thuney called and emailed Rob Eagar at KeyBank, the real Amanda Zalenski, and Judith Meyer, assistant escrow officer at Lawyers, to try to determine what had occurred and attempt to stop the transaction, informing each of the professionals of the fraudulent activity. Judith Meyer also directed the Thuneys not to use Amanda Zalenski's email because Lawyers thought her [email] may have been compromised.[18]

         Lawyers Title alleges that it “notified Chase of [p]laintiffs' claim, i.e., that [p]laintiffs alleged that they were duped into sending their down payment to the wrong account” on June 5, 2017.[19] Lawyers Title further alleges that it “specifically requested that Chase freeze the funds until KeyBank recalled the wire” and that “[t]o assist Chase in identifying the funds to freeze, Lawyers Title forwarded to Chase information provided to it by [p]laintiffs, including the account number into which [p]laintiffs had wired their funds and the name of the beneficiary on the account.”[20] Lawyers Title alleges that “[o]n June 6, 2017, Chase responded that it had a record of the recall request from KeyBank” and that Chase did not say that the fraudsters “had withdrawn the funds from their Chase account.”[21] Lawyers Title further alleges that it “is informed and believes that [p]laintiffs' funds were still on deposit at Chase at both the time that Chase received notice of the potential fraud and at the time that Chase acknowledged receipt of the recall request.”[22] Lawyers Title alleges “that Chase failed to freeze the funds when notified of the potential fraud, allowing the bad actors to convert [p]laintiffs' money[].”[23]

         Plaintiffs commenced this action on May 18, 2018. In their first amended complaint, they assert breach of fiduciary duty claims against the Helms defendants and Lawyers Title; negligence and gross negligence claims against all defendants except for Chase; an aiding and abetting claim against Chase; Electronic Funds Transfer Act claims against Chase and KeyBank; and Arizona Consumer Fraud Act claims against Chase and KeyBank.

         On July 19, 2018, Lawyers Title answered plaintiffs' first amended complaint and asserted crossclaims against Chase, KeyBank, and the Helms defendants. Lawyers Title asserts two crossclaims against Chase. In its first crossclaim, Lawyers Title seeks a declaration that Chase “is[] compelled by equitable principles to indemnify and hold Lawyers Title harmless from the claims asserted by [p]laintiffs, as well as from any attorney's fees and costs that Lawyers Title might incur in defense of the claims asserted by [p]laintiffs.”[24] Lawyers Title alleges that it is entitled to such a declaration because whatever damages plaintiffs suffered were a result of Chase's and the other cross-defendants' negligence.[25] Lawyers Title's second crossclaim is a claim for indemnity and contribution, which appears to be duplicative of the first crossclaim. In short, Lawyers Title is seeking indemnification from Chase and the other cross-defendants.

         Pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, Chase now moves to dismiss Lawyers Title's crossclaims against it.

         Discussion

         “‘To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim is facially plausible ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Id. (quoting Iqbal, 556 U.S. at 678). “The plausibility standard requires more than the sheer possibility or conceivability that a defendant has acted unlawfully.” Id. “‘Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Iqbal, 556 U.S. at 678). “[T]he complaint must provide ‘more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.'” In re Rigel Pharmaceuticals, Inc. Securities Litig., 697 F.3d 869, 875 (9th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “In evaluating a Rule 12(b)(6) motion, the court accepts the complaint's well-pleaded factual allegations as true and draws all reasonable inferences in the light most favorable to the plaintiff.” Adams v. U.S. Forest Srvc., 671 F.3d 1138, 1142-43 (9th Cir. 2012).

         Chase first argues that Lawyers Title's crossclaim for indemnification is defective as a matter of law because in Arizona, “[g]enerally, there is no indemnity among joint tortfeasors[.]” Cella Barr Associates, Inc. v. Cohen, 868 P.2d 1063, 1068 (Ariz.Ct.App. 1994). “Indemnity allows one who has discharged a common liability to seek reimbursement in full from another” and is “‘an all or nothing proposition damage-wise, and hence should be an all or nothing proposition fault-wise.'” Herstam v. Deloitte & Touche, LLP, 919 P.2d 1381, 1388-89 (Ariz.Ct.App. 1996) (quoting Transcon Lines v. Barnes, 498 P.2d 502, 509 (Ariz. 1972)). “It permits one defendant to shift the entire loss to one who more justly deserves it.” Id. at 1389. “Severally-liable . . . parties who will not have to pay for damages beyond each one's own percentage of fault . . . will not have a basis for claiming indemnity from [other] parties.” Id.

         Chase acknowledges that there are “two narrow exceptions” to the general rule that there is no indemnity among joint tortfeasors. Cella Barr, 868 P.2d at 1067. The first exception “applies . . . when the party seeking protection . . . is acting as an agent or servant of another tortfeasor[.]” Id. at 1068. The second exception applies to causes of action “relating to hazardous wastes or substances or solid waste disposal sites.” Id. (citation omitted). Because Lawyers Title does not contend that either of the two exceptions applies, Chase argues that the only way that Lawyers Title would be entitled to indemnification is if Lawyers Title was not at fault for any of ...


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