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Taylor Anderson, Llp v. U.S. Bank National Association

United States District Court, D. Colorado

March 31, 2014

TAYLOR ANDERSON, LLP, a Colorado limited liability partnership, Plaintiff,
U.S. BANK NATIONAL ASSOCIATION, a National Bank corporation, and ADRIAN D. STONE, an individual, Defendants.



This matter is before the Court on Defendants' Motion to Dismiss (Doc. #15), which this Court converts into a Motion for Summary Judgment and considers together with Defendants' recently-filed Motion for Summary Judgment (Doc. #49). These motions are addressed together because, as relevant here, both raise similar arguments, and the parties have supplied full briefing for both motions. See Burnham v. Humphrey Hospitality Reit Trust, Inc., 403 F.3d 709, 713-14 (10th Cir. 2005).

For the following reasons, this Court grants summary judgment to Defendants on all claims.


The claims asserted by Plaintiff Taylor Anderson resulted from an international e-mail scam targeting United States law firms and involving fraudulent cashier's checks. Taylor Anderson fell victim to the scam. Ultimately, a third party defrauded Taylor Anderson of $191, 000 from Taylor Anderson's bank account at Defendant U.S. Bank National Association ("U.S. Bank"). In this case, Taylor Anderson seeks to recover this amount from Defendants-U.S. Bank and Ms. Adrian Stone, an employee of U.S. Bank-essentially alleging that Defendants are to blame for its having fallen prey to this fraudulent scheme.

Taylor Anderson's theory as to why Defendants are liable is based on a series of oral and email communications that occurred between Taylor Anderson and Defendants. These communications, however, must be interpreted in conjunction with the deposit agreement ("the Agreement") that governs Taylor Anderson's deposits at U.S. Bank.


For purposes of this case, the Agreement includes four provisions that address the status of a deposit once a check has "cleared" and the funds appear in the depositor's account. First, under the heading of "Liability for Charges and Overdrafts, " the Agreement states that "[a]n overdraft occurs if you take more money out of your account than is available to you for withdrawal, or if it is available to you but is later reversed. This can happen... by making a deposit, withdrawing money based on that deposit, and having that deposit reversed because the deposited item is later returned to us unpaid." (Doc. 49-20, at 4 (first emphasis in original; second emphasis added).) Thus, the Agreement clearly informs U.S. Bank customers that one form of overdraft occurs if an item is deposited but U.S. Bank is later unable to obtain the funds linked to the deposited item and the deposited item is returned unpaid.

Second, under the heading "Deposits, " the Agreement states:

When you make a non-cash deposit to your account, we give you credit for that deposit, but that credit is provisional (temporary). If the deposit needs to be collected from another financial institution, we must be paid before the credit becomes final. After a credit is final it may still be reversed. See the sections titled Returned Deposited and Cashed Items and Funds Availability.

( Id., emphasis added.) By virtue of this provision, U.S. Bank placed Taylor Anderson on notice that merely because a deposit is "credited" to its account, does not mean that the process of definitively obtaining those funds has concluded; rather, if the deposit needs to be collected from another institution [as was that case here], the other institution must pay U.S. Bank before the credit to Taylor Anderson's account becomes final. Moreover, this provision provides notice to Taylor Anderson that, even if the credit becomes final, it could still be reversed.

Third, immediately following the section entitled "Deposits, " there is a section entitled "Returned Deposited and Cashed Items." This section explains how funds that are collected are deposited into an account and how some deposits are reversed if there is a problem in the collection process. In pertinent part, this provision states:

The funds you deposit to your account are subject to normal collection processes even after we make the funds available to you for withdrawal (i.e., the check has "cleared"). If we do not collect the funds, or we need to return the funds, your deposit will be reversed and become your responsibility.

( Id. at 6, emphasis added.) This section places Taylor Anderson on notice that, even after a deposited check has "cleared, " the deposit may still be reversed, in which case the depositor, not the bank, bears responsibility for the bank's inability to collect.

Fourth, near the end of the Agreement, a bold heading written in the largest font size used in the ...

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