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ANTONIO PASTOR VS BANK OF AMERICA

Local Case Number: 2022-017995-CA-01 Filing Date: 09/17/2022

State Case Number: 132022CA017995000001 Judicial Section: CA08

Consolidated Case No.: N/A Case Type: Contract & Indebtedness

Case Status: OPEN

Ê Related Cases Total Of Related Cases: 0 h

Case Number Filing Date Case Type

À Parties Total Of Parties: 2 h

Party Description Party Name Attorney Information Other Attorney(S)

Plaintiff Pastor, Antonio B#:  (Bar Number)162566

N:  (Attorney Name)Santiago A Cueto

Defendant Bank of America

ã Hearing Details Total Of Hearings: 0 h

Hearing Date Hearing Time Hearing Code Description Hearing Location

ž Dockets Total Of Dockets: 9 h

Number Date Book/Page Docket Entry

Event

Type Comments

 10 12/07/2022 Notice of Answer

to Interrogatories

Event

 8 11/14/2022 Order Extending

Time for

Event GRANTED.

 9 11/11/2022 Motion for

Extension of Time

Event

 7 10/14/2022 Notice of

Interrogatory

Event DEFENDANT'S

 6 10/14/2022 Motion to

Dismiss

Event

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Number Date Book/Page Docket Entry

Event

Type Comments

 5 10/12/2022 Notice of

Appearance

Event

4 09/21/2022 Receipt: Event RECEIPT#:3070048 AMT PAID:$401.00 NAME:SANTIAGO A CUETO

4000 PONCE DE LEON BLVD STE 470 CORAL GABLES FL 33146-1432

COMMENT: ALLOCATION CODE QUANTITY UNIT AMOUNT 3100-

CIRCUIT FILING FEE 1 $401.00 $401.00 TENDER TYPE:EFILINGS

TENDER AMT:$401.00 RECEIPT DATE:09/21/2022 REGISTER#:307

CASHIER:EFILINGUSER

 2 09/17/2022 Complaint Event

 1 09/17/2022 Civil Cover Sheet

- Claim Amount

Event

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©2022 Clerk of the Courts. All rights reserved. Case 1:22-cv-24121-XXXX Document 1-3 Entered on FLSD Docket 12/20/2022 Page 4 of 27
  

   

               

                 

               

        

  

       

    

 

  





  



   

                

                

       

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Case 1:22-cv-24121-XXXX Document 1-3 Entered on FLSD Docket 12/20/2022 Page 12 of 27
LIEBLER, GONZALEZ & PORTUONDO

Courthouse Tower - 25th Floor, 44 West Flagler Street, Miami, FL 33130 (305) 379-0400

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL 

CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

 

ANTONIO PASTOR,

Plaintiff,

vs.

BANK OF AMERICA, N.A.

Defendant.

/

CASE NO.: 2022-017995-CA-01

NOTICE OF APPEARANCE AS COUNSEL AND

REQUEST FOR SERVICE OF PAPERS

PLEASE TAKE NOTICE that the law firm LIEBLER, GONZALEZ & PORTUONDO, 

hereby enters its appearance as counsel for Defendant, BANK OF AMERICA, N.A., in these 

proceedings. All parties are requested to take notice of the appearance of undersigned counsel and 

to serve all copies of any and all motions, orders, pleadings, papers, reports, and/or documents of 

any kind or nature upon the undersigned counsel. 

Respectfully submitted,

LIEBLER, GONZALEZ & PORTUONDO

Attorneys for Bank of America, N.A., 

Courthouse Tower - 25th Floor

44 West Flagler Street

Miami, FL 33130

(305) 379-0400

service@lgplaw.com

 By: /s/ Jessica F. Carroll

MARC T. PARRINO

Florida Bar No. 0018197

JESSICA F. CARROLL

Florida Bar No. 124634

Filing # 159059796 E-Filed 10/12/2022 10:55:02 AM Case 1:22-cv-24121-XXXX Document 1-3 Entered on FLSD Docket 12/20/2022 Page 13 of 27
CASE NO.: 2022-017995-CA-01

- 2 -

LIEBLER, GONZALEZ & PORTUONDO

Courthouse Tower - 25th Floor, 44 West Flagler Street, Miami, FL 33130 (305) 379-0400

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 12th day of October, 2022, I electronically filed the 

foregoing with the Clerk of Courts by using the Florida Courts E-filing Portal and a true and correct 

copy of the foregoing has been furnished via U.S. Mail to: Davy A. Karkason,Esquire, Counsel 

for Plaintiff, CUETO LAW GROUP P.L., 4000Ponce de Leon Blvd.,Suite 470, Coral Gables,

Florida 33146 (dk@cuetolawgroup.com). 

/s/ Jessica F. Carroll

 JESSICA F. CARROLL

Case 1:22-cv-24121-XXXX Document 1-3 Entered on FLSD Docket 12/20/2022 Page 14 of 27
LIEBLER, GONZALEZ & PORTUONDO

Courthouse Tower - 25th Floor, 44 West Flagler Street, Miami, FL 33130 (305) 379-0400

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL 

CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

 

ANTONIO PASTOR,

Plaintiff,

vs.

BANK OF AMERICA, N.A.

Defendant.

/

CASE NO.: 2022-017995-CA-01

DEFENDANT’S MOTION TO DISMISS THE COMPLAINT

Defendant, Bank of America, N.A. (hereafter “BANA”), by and through undersigned 

counsel and pursuant to Florida Rules of Civil Procedure 1.110(b) and 1.140(b), respectfully 

moves to dismiss the Complaint filed by Plaintiff, Antonio Pastor (“Plaintiff”). In support thereof, 

BANA states as follows:

I. SUMMARY OF FACTUAL ALLEGATIONS

The Complaint alleges that in March of 2022, Plaintiff received communication from 

BANA, informing Plaintiff that BANA would be closing Plaintiff’s account. Compl. ¶¶ 5-6. 

Plaintiff alleges BANA did not give Plaintiff a reason for the closure. Id. at ¶ 7. Plaintiff further 

alleges that BANA sent the check to an incorrect address in Venezuela and therefore, Plaintiff did 

not receive the check. Id. at ¶¶ 9-12. Plaintiff contends that he was ultimately advised that the 

check had “already disbursed” and that he did not receive any of the proceeds. Id. at ¶¶ 11-12.

Plaintiff is suing BANA for negligence, asserting that BANA closed the account without 

Plaintiff’s consent and sent the check containing the balance of the account to the incorrect address, 

as grounds for this claim. Id. at ¶ 20. Further, Plaintiff is suing BANA for breach of fiduciary duty, 

Filing # 159272843 E-Filed 10/14/2022 02:42:28 PM Case 1:22-cv-24121-XXXX Document 1-3 Entered on FLSD Docket 12/20/2022 Page 15 of 27
CASE NO.: 2022-017995-CA-01

- 2 -

LIEBLER, GONZALEZ & PORTUONDO

Courthouse Tower - 25th Floor, 44 West Flagler Street, Miami, FL 33130 (305) 379-0400

claiming that because BANA was in possession and control of Plaintiff’s life savings, Defendant 

owes a fiduciary duty of care to Plaintiff. Id. at ¶ 26.

II. STANDARD OF REVIEW

A complaint must set forth “a short and plain statement of the ultimate facts showing that 

the pleader is entitled to relief.” Fla. R. Civ. P. 1.110(b). A motion to dismiss tests the legal 

sufficiency of a complaint. Fla. Bar v. Greene, 926 So. 2d 1195, 1199 (Fla. 2006). While a court 

is required to take a complaint’s allegations as true, vague and conclusory statements are 

insufficient to state a cause of action. Jordan v. Nienhuis, 203 So. 3d 974, 976 (Fla. 5th DCA 

2016).

III. ARGUMENT

A. Plaintiff’s Negligence (“Count I”) Claim and Breach of Fiduciary Duty 

(“Count II”) Against BANA are Barred by the Independent Tort Doctrine.

Plaintiff’s negligence claim and breach of fiduciary duty claim are barred by the 

independent tort doctrine, since Plaintiff’s account at BANA is governed by a contract, as are all 

bank accounts. Florida law restricts the remedies available to parties who have specifically 

negotiated for those remedies provided for in a contract. It is well-established that the existence of 

a bank account establishes a contractual relationship between the bank and the depositor. McCrory 

Stores, Corp. v. Tunnicliffe, 104 Fla. 683, 687 (Fla. 1932); MJZ Corp. v. Gulfstream First Bank & 

Trust, N.A., 420 So. 2d 396, 397 (Fla. 4th DCA 1982). Thus, any duty owed by BANA with 

respect to the Plaintiff’s account derives from the contract between the parties, and tort claims 

cannot be sustained, as a matter of law, unless Plaintiff can establish an independent basis for the 

claim. Specifically, Florida law requires that:

When the parties are in privity, contract principles are generally more appropriate 

for determining remedies for consequential damages that the parties have, or could 

have, addressed through their contractual agreement. Accordingly, courts have held 

Case 1:22-cv-24121-XXXX Document 1-3 Entered on FLSD Docket 12/20/2022 Page 16 of 27
CASE NO.: 2022-017995-CA-01

- 3 -

LIEBLER, GONZALEZ & PORTUONDO

Courthouse Tower - 25th Floor, 44 West Flagler Street, Miami, FL 33130 (305) 379-0400

that a tort action is barred where a defendant has not committed a breach of 

duty apart from a breach of contract.

[e.s.] Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Companies, Inc., 110 So. 3d 399, 402 (Fla. 

2013) (internal citations omitted). 

In Tiara, the Florida Supreme Court examined Florida jurisprudence involving “the 

economic loss rule,” a different doctrine designed to limit recovery for economic losses in products 

liability cases. Id. While the Court in Tiara receded from prior rulings extending the scope of the 

economic loss rule to cases not involving products liability, the Court’s “conclusion that the 

economic loss rule is limited to the products liability context does not undermine Florida’s contract 

law or provide for an expansion in viable tort claims.” Id. at 408 (Pariente, J. concurring). As 

explained by Justice Pariente in a concurring opinion joined by Justice Labarga (author of the 

majority opinion), “[b]asic common law principles...restrict the remedies available to parties who 

have specifically negotiated for those remedies... For example, in order to bring a valid tort claim, 

a party still must demonstrate that all of the required elements for the cause of action are satisfied, 

including that the tort is independent of any breach of contract claim.” [e.s.] Id. In other 

words, when a claimant styles a count as a tort claim but is clearly seeking damages for breach of 

contractual duties, the tort claim is barred by the independent tort doctrine. A plaintiff bringing 

both a breach of contract and a tort claim, must allege additional conduct amounting to a tort that 

is independent of the breach of contract. Bedoyan v. Samra, 2022 WL 4587419 at *3 (Fla. 3d DCA 

2022); See also Kaye v. Ingenio, Filiale de Loto-Quebec, 2014 WL 2215770 at *4 (S.D. Fla. May 

29, 2014) (“to set forth a claim in tort between parties in contractual privity, a party must allege 

action beyond and independent of breach of contract that amounts to an independent tort.”); 

Accordingly, Counts I and II of the Complaint must be dismissed.

Case 1:22-cv-24121-XXXX Document 1-3 Entered on FLSD Docket 12/20/2022 Page 17 of 27
CASE NO.: 2022-017995-CA-01

- 4 -

LIEBLER, GONZALEZ & PORTUONDO

Courthouse Tower - 25th Floor, 44 West Flagler Street, Miami, FL 33130 (305) 379-0400

B. Count I of the Complaint Fails to State a Cause of Action for Negligence 

Against BANA. 

The Complaint fails to establish an independent basis for a negligence claim. A party 

must allege sufficient facts to support each element of a cause of action. Okeelanta Power Ltd. 

Partnership v. Florida Power & Light Co., 766 So. 2d 264, 267 (Fla. 4th DCA 2000). The 

elements of negligence are: (1) a duty to the plaintiff; (2) the defendant’s breach of that duty; (3) 

injury to the plaintiff arising from the defendant’s breach; and (4) damage caused by the injury to 

the plaintiff as a result of the defendant’s breach of duty. Delgado v. Laundromax, Inc., 65 So. 

3d 1087, 1089 (Fla. 3d DCA 2011). “Certainty is required when pleading defenses, 

and pleading conclusions of law unsupported by allegations of ultimate fact is legally 

insufficient.” Cady v. Chevy Chase Sav. & Loan, Inc., 528 So. 2d 136, 138 (Fla. Dist. Ct. App. 

1988) (citing to Bliss v. Carmona, 418 So.2d 1017, 1019 (Fla. 3d DCA 1982); 40 

Fla.Jur.2d Pleadings §§ 28, 33 (1982)). A plaintiff cannot state a claim for relief based on 

negligence without first showing that the defendant owed plaintiff a duty. See Fla. Dep’t of Corr. 

v. Abril, 969 So. 2d 201, 204 (Fla. 2007). The existence of a duty is a question of law for the court 

to decide. See id. 

Plaintiff’s negligence claim fails to allege the source of the duty relied upon by Plaintiff. 

To be clear, BANA does not deny that the contract governing the parties’ relationship sets forth a 

series of rights and duties. However, Plaintiff fails to refer to any provision of the parties’ 

contract, or to attach that contract, and Plaintiff does not allege the source of any other duty in 

support of its negligence claim. 

Case 1:22-cv-24121-XXXX Document 1-3 Entered on FLSD Docket 12/20/2022 Page 18 of 27
CASE NO.: 2022-017995-CA-01

- 5 -

LIEBLER, GONZALEZ & PORTUONDO

Courthouse Tower - 25th Floor, 44 West Flagler Street, Miami, FL 33130 (305) 379-0400

C. Count II of the Complaint Fails to State a Cause of Action for Breach of 

Fiduciary Duty Against BANA. 

To establish a claim for breach of fiduciary duty, a plaintiff must show “'the existence of a 

fiduciary duty, and the breach of that duty such that it is the proximate cause of the plaintiff’s 

damages.'” Jaffe v. Bank of Am., N.A., 667 F. Supp. 2d 1299, 1319 (S.D. Fla. 2009) (quoting 

Gracey v. Eaker, 837 So. 2d 348, 353 (Fla. 2002)). Under Florida law, “the relationship between 

a bank and its borrower is that of debtor to creditor, in which the parties engage in arms-length 

transactions, and the bank owes no fiduciary responsibilities.” Capital Bank v. MVB, Inc., 644 

So. 2d 515, 518 (Fla. 3d DCA 1994). In Jaffe v. Bank of Am. N.A., 667 F. Supp. 2d 1299 (S.D. 

Fla. 2009), the court dismissed the plaintiff’s claim for breach of fiduciary duty against the 

defendant-bank based upon the general principle that, “[u]nder Florida law, it is clear that a lender 

does not ordinarily owe fiduciary duties to its borrower” absent “circumstances exceeding an 

ordinary commercial transaction.” Id. at 1319 (citing Motorcity of Jacksonville, Ltd. v. Se. Bank, 

N.A., 83 F.3d 1317, 1339 (11th Cir. 1996) (other citations omitted)). “One may not unilaterally 

impose a fiduciary relationship on a lender without a conscious assumption of such duties by the 

lender to be held liable as a fiduciary.” Jaffe, 667 F. Supp. 2d at 1319 (citations omitted). An 

exception to this general principle will lie where: 

a bank becomes involved in a transaction with a customer with whom it has 

established a relationship of trust and confidence, and it is a transaction which 

the bank is likely to benefit at the customer’s expense, the bank may be found 

to have assumed a duty to disclose facts material to the transaction, peculiarly 

within its knowledge, and not otherwise available to the customer. 

Carpenter v. Cmty. Bank, 71 So. 2d 65, 67 (Fla. 3d DCA 1998) (quoting Barnett Bank of W. Fla. 

v. Hooper, 498 So. 2d 923, 925 (Fla. 1986) (emphasis added)). 

Here, the relationship between the parties was not one of trust and confidence, but rather 

was an arms-length relationship between debtor and creditor. Plaintiff’s attempt to assert a claim 

Case 1:22-cv-24121-XXXX Document 1-3 Entered on FLSD Docket 12/20/2022 Page 19 of 27
CASE NO.: 2022-017995-CA-01

- 6 -

LIEBLER, GONZALEZ & PORTUONDO

Courthouse Tower - 25th Floor, 44 West Flagler Street, Miami, FL 33130 (305) 379-0400

for breach of fiduciary duty is no more than a unilateral imposition of a fiduciary duty upon BANA 

without any sort of conscious assumption of the same by BANA. See Jaffe, 667 F. Supp. 2d at 

1319 (citations omitted). As Plaintiff has failed to allege facts which, if true, would demonstrate 

the existence of a fiduciary duty or any “circumstances exceeding an ordinary commercial 

transaction,” this claim should be dismissed. See id. 

WHEREFORE, Defendant Bank of America, N.A. respectfully requests that the Court 

enter an Order dismissing the Complaint, and granting any further relief deemed necessary and 

just. 

Respectfully submitted,

LIEBLER, GONZALEZ & PORTUONDO

Attorneys for Bank of America, N.A., 

Courthouse Tower - 25th Floor

44 West Flagler Street

Miami, FL 33130

(305) 379-0400

service@lgplaw.com

 By: /s/ Marc T. Parrino

MARC T. PARRINO

Florida Bar No. 0018197

JESSICA F. CARROLL

Florida Bar No. 124634

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 14th day of October, 2022, I electronically filed the 

foregoing with the Clerk of Courts by using the Florida Courts E-filing Portal which will send a 

notice of electronic filing to the following: Douglas Santiago Cueto, Esq. and Davy A. 

Karkason, Esq., Counsel for Plaintiff, CUETO LAW GROUP P.L., 4000 Ponce de Leon Blvd.,

Suite 470, Coral Gables, Florida 33146 (sc@cuetolawgroup.com; cuetolawgroup@gmail.com; 

smedina@cuetolawgroup.com)

/s/ Marc T. Parrino

 MARC T. PARRINO

Case 1:22-cv-24121-XXXX Document 1-3 Entered on FLSD Docket 12/20/2022 Page 20 of 27
LIEBLER, GONZALEZ & PORTUONDO

Courthouse Tower - 25th Floor, 44 West Flagler Street, Miami, FL 33130 (305) 379-0400

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL 

CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

 

ANTONIO PASTOR,

Plaintiff,

vs.

BANK OF AMERICA, N.A.

Defendant.

/

CASE NO.: 2022-017995-CA-01

DEFENDANT BANK OF AMERICA, N.A.’S NOTICE OF SERVICE

OF FIRST SET OF INTERROGATORIES TO PLAINTIFF

COMES NOW, Defendant, BANK OF AMERICA, N.A. (“BANA”), pursuant to the 

Florida Rules of Civil Procedure, hereby propounds its Notice of Service of First Set of 

Interrogatories on this 14th day of October, 2022, to Plaintiff, ANTONIO PASTOR, to be answered 

under oath.

Respectfully submitted,

LIEBLER, GONZALEZ & PORTUONDO

Attorneys for Bank of America, N.A., 

Courthouse Tower - 25th Floor

44 West Flagler Street

Miami, FL 33130

(305) 379-0400

service@lgplaw.com

 By: /s/Marc T. Parrino

MARC T. PARRINO

Florida Bar No. 0018197

JESSICA F. CARROLL

Florida Bar No. 124634

Filing # 159274833 E-Filed 10/14/2022 02:55:35 PM Case 1:22-cv-24121-XXXX Document 1-3 Entered on FLSD Docket 12/20/2022 Page 21 of 27
CASE NO.: 2022-017995-CA-01

- 2 -

LIEBLER, GONZALEZ & PORTUONDO

Courthouse Tower - 25th Floor, 44 West Flagler Street, Miami, FL 33130 (305) 379-0400

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been 

furnished via email on 14th of October, 2022, to: Douglas Santiago Cueto, Esq. and Davy A. 

Karkason, Esq., Counsel for Plaintiff, CUETO LAW GROUP P.L., 4000 Ponce de Leon Blvd., 

Suite 470, Coral Gables, Florida 33146 (sc@cuetolawgroup.com; cuetolawgroup@gmail.com; 

smedina@cuetolawgroup.com; dk@cuetolawgroup.com).

/s/ Marc T. Parrino

MARC T. PARRINO

Case 1:22-cv-24121-XXXX Document 1-3 Entered on FLSD Docket 12/20/2022 Page 22 of 27
          

 



   







PLAINTIFF’S      

 DEFENDANT’   



  

         

            



      

  

     counsel’s         

the necessary documentation to properly respond to Defendant’ 

         

                 

            

                

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    to Defendant’s 

  

              

         Florida’s 



   

  



 

  

  



 

  

  

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PLAINTIFF’S      

 DEFENDANT’   



  

         

            



      

  

     counsel’s         

the necessary documentation to properly respond to Defendant’ 

         

                 

            

                

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    to Defendant’s 

  

              

         Florida’s 



   

  



 

  

  



 

  

  

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’S UNVERIFIED

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