[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10182

Non-Argument Calendar

____________________

RACHELLE ARBERMAN, 

Plaintiff-Appellant,

versus

PNC BANK, NATIONAL ASSOCIATION, 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 9:22-cv-80983-AMC

____________________

USCA11 Case: 23-10182 Document: 25-1 Date Filed: 06/09/2023 Page: 1 of 15
2 Opinion of the Court 23-10182

Before WILSON, LUCK, and LAGOA, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Rachelle Arberman appeals the district 

court’s order granting Defendant-Appellee PNC Bank’s motion to 

dismiss Arberman’s negligence claim. For the following reasons, 

we affirm.

I. FACTUAL AND PROCEDURAL HISTORY1

Arberman’s Amended Complaint alleged that PNC Bank 

(“PNC”) negligently failed to protect Arberman from the financial 

exploitation of an unknown fraudster. 

Rachelle Arberman was born in 1949 and resides in Palm 

Beach County, Florida. On or about August 28, 2020, Arberman 

“was contacted by a fraudster who falsely claimed to be a federal 

law enforcement officer.” The unknown fraudster (“Doe”) told Arberman “that her bank account had been compromised” and that 

Arberman “must assist federal law enforcement in apprehending 

the criminal.” Doe also told Arberman that if she refused to assist 

him, she would be investigated as an accomplice to the fraud. 

1 Because the procedural posture of this case involves a Rule 12(b)(6) motion, 

we must accept the allegations of plaintiff’s amended complaint as true. See 

Marsh v. Butler County, 268 F.3d 1014, 1023 (11th Cir. 2001) (en banc), abrogated 

in part by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561–63 (2007). The facts set 

forth in this section of the opinion therefore are taken from the amended complaint and construed in the light most favorable to the plaintiff.

USCA11 Case: 23-10182 Document: 25-1 Date Filed: 06/09/2023 Page: 2 of 15
23-10182 Opinion of the Court 3

From August 28, 2020, to November 3, 2020, Arberman withdrew 

sums of money from her PNC Bank account, purchased gift cards 

using her PNC credit and debit cards, and purchased cryptocurrency using her PNC account all for Doe’s fraudulent enrichment. 

Arberman’s Amended Complaint alleged that her withdrawal behavior during the time in which she was sending money 

to Doe was “wildly inconsistent” with her normal monthly transactions. Over three months, Arberman made over twenty withdrawals from her bank account, some days totaling up to $119,000

in withdrawals. In total, Doe fraudulently induced Arberman to 

withdraw over $400,000 from her PNC account and transfer those 

funds in various forms to Doe’s “fraudulent enterprises.” These 

withdrawals “raised the suspicion of a bank employee who approached [Arberman] to inquire what was going on.” The safety 

measures in place at PNC “failed to detect [Arberman’s] large deposits and withdrawals from its branches in the same day.” 

At the time of Doe’s fraud, Arberman was 71 years old. 

Prior the fraud, Arberman began to suffer from cognitive and physical decline consistent with that of an aging individual. As a result 

of Arberman’s cognitive decline, she was “slower in making decisions than she was in the past” and “less confident in her decisionmaking abilities.” Arberman alleged that when she was younger, 

“she was distrusting and it would have been very unlikely that she 

would fall victim to this type of fraud.” Arbeman also alleged that 

“her ability to provide for her own care or protection was impaired 

due to the infirmities of aging, namely cognitive decline, and 

USCA11 Case: 23-10182 Document: 25-1 Date Filed: 06/09/2023 Page: 3 of 15
4 Opinion of the Court 23-10182

accordingly she was a vulnerable adult, under section 415.102(28), 

Florida Statutes. 

On May 25, 2022, Arberman filed a complaint in state court 

alleging the negligence of PNC. The case was removed to federal 

court, and on August 2, 2022, Arberman filed the Amended Complaint, which brought one count of common law negligence, asserting that PNC breached its duty to report Doe’s exploitation of 

Arberman under Florida’s Adult Protective Services Act 

(“FAPSA”), specifically Section 415.1034(1)(a)(8), by failing to: (1) 

question the numerous withdrawal requests; (2) take action after 

the sole employee questioned the withdrawals; (3) flag the continued unordinary behavior in Arberman’s account and credit card; 

(4) take steps to assist Arberman despite having reasonable suspicions of victimization; and (5) to report financial exploitation as required by Florida law. She alleged that “PNC Bank ha[d] a duty to 

[Arberman] if PNC Bank ha[d] reasonable cause to suspect that [she 

was] being abused, neglected, or exploited.” Arberman sought 

damages of $428,490.00 and attorneys’ fees and costs. 

On August 16, 2022, PNC moved to dismiss the Amended 

Complaint. PNC made three primary arguments. First, the bank 

argued that Arberman’s allegations were insufficient to satisfy the 

statutory definition of “vulnerable adult” under FAPSA because Arberman “merely regurgitated the statutory definition and asserted 

sparse allegations to support [her] claim of vulnerability.” Additionally on this point, PNC argued that Arberman’s own complaint, which alleged that she was in control of her finances and 

USCA11 Case: 23-10182 Document: 25-1 Date Filed: 06/09/2023 Page: 4 of 15
23-10182 Opinion of the Court 5

“had the cognitive and physical ability to purchase cryptocurrency 

from at least four different vendors,” shows that she could perform 

daily activities and provide for her own care. Second, PNC argued, 

even assuming Arberman was a vulnerable adult, that Arberman’s 

complaint did not sufficiently allege that she was a victim of “exploitation” under FAPSA. PNC stated that Arberman failed to satisfy the definition of “exploitation” under FAPSA because Doe was 

not in a “position of trust and confidence” with Arberman and did 

not know nor should have known that Arberman lacked the “capacity to consent.” Finally, PNC argued that no other duty of care 

applied in this case because the Eleventh Circuit has made clear 

that Florida law does not require banks to investigate transactions 

made by authorized users. 

Arberman responded to PNC’s motion to dismiss. She first 

argued that PNC had a common law duty to protect Arberman 

where at least one employee expressed reasonable suspicion that 

she was being exploited. Next, Arberman argued that she plausibly 

alleged that she was a “vulnerable adult” under FAPSA due to her 

need for assistance providing for her own protection and her advanced age that has made her more easily influenced by those seeking to exploit older adults. Finally, she argues that her exploitation 

falls within FAPSA because the statute does not “necessitate that 

the taking, misappropriation, misuse, or transfer be done directly 

by the individual exploiting the vulnerable adult.” 

PNC replied, first arguing that its alleged actions did not create a duty of care where the transactions were executed by 

USCA11 Case: 23-10182 Document: 25-1 Date Filed: 06/09/2023 Page: 5 of 15
6 Opinion of the Court 23-10182

Arberman herself. PNC repeated its arguments that Arberman’s 

age and conclusory statements alone do not sufficiently allege her 

status as a vulnerable adult. As to “exploitation,” PNC states that 

Arberman misses the point that a critical element of “exploitation” 

is that the person exploiting must be in a “position of trust and confidence” or knew or should have known that the vulnerable adult 

lacked the “capacity to consent.” 

On November 30, 2022, a hearing was held on the motion, 

where Arberman attempted to satisfy the requirements for “exploitation” by arguing that Doe was in a position of trust and confidence with Arberman and that he should have known that she 

lacked the capacity to consent because she fell victim to his scheme. 

On December 19, 2022, the district court issued an order 

granting PNC’s motion to dismiss. The district court first analyzed 

Arberman’s complaint under FAPSA, concluding that Arberman 

did not plausibly allege that she was a “vulnerable adult.” Noting 

that FAPSA does not “require[] complete dependency to reach ‘vulnerable adult’ status,” but does require “impairment of a person’s 

performance of daily activities,” the district court concluded that 

Arberman’s “generalized allegations do not support such an impairment.” The fact that Arberman traveled to multiple branches 

on various days, purchased cryptocurrency via online vendors, and 

sent cash withdrawals at other vendors weighed against her allegations of “vulnerable adult” status, as did the Amended Complaint’s 

lack of allegations that Arberman needed assistance for daily living. 

USCA11 Case: 23-10182 Document: 25-1 Date Filed: 06/09/2023 Page: 6 of 15
23-10182 Opinion of the Court 7

As to “exploitation” under FAPSA, the district court also 

agreed with PNC. The court determined that Doe did not fall into 

any of the specified categories sufficient to occupy a “position of 

trust and confidence,” and that Arberman did not allege that Doe 

had reason to know of any alleged “lack of capacity.” The district 

court noted that “while transferring $400,000 to a person believed 

to be a law enforcement officer could establish that [Arberman] 

makes irresponsible financial decisions,” it does not sufficiently allege that Doe knew that Arberman lacked “sufficient understanding to make and communicate responsible decisions” regarding her 

property. 

Having established that Arberman failed to state a claim for 

negligence for FAPSA violations, the district court further concluded that Arberman identified no other duty on the part of PNC 

that could support her negligence claim. Although Arberman alleged a baseline duty of care owed, the district court noted that 

“banking institutions do not have a duty under Florida law to investigate transactions made by authorized users and account holders.” Determining that no duty under FAPSA or otherwise was 

owed to Arberman in this case, the district court dismissed her case 

with prejudice and entered judgment in favor of PNC. 

Arberman timely appealed. 

II. STANDARD OF REVIEW

We review de novo a district court’s order of dismissal, “accepting the allegations in the complaint as true and construing 

them in the light most favorable to the plaintiff.” Mesa Valderrama 

USCA11 Case: 23-10182 Document: 25-1 Date Filed: 06/09/2023 Page: 7 of 15
8 Opinion of the Court 23-10182

v. United States, 417 F.3d 1189, 1194 (11th Cir. 2005). A complaint 

must articulate “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

III. ANALYSIS

On appeal, Arberman argues that the district court erred by: 

(1) determining that the FAPSA was inapplicable to Arberman 

where a PNC employee had a reasonable suspicion of a violation; 

(2) determining that the Amended Complaint failed to plausibly allege that Arberman is a “vulnerable adult”; (3) determining that the 

Amended Complaint failed to plausibly allege that Arberman was 

the victim of “exploitation”; and (4) concluding that the Amended 

Complaint failed to plausibly allege that PNC had a baseline duty 

of care to Arberman. 4–5.) 

To state a claim for negligence under Florida law, Arberman 

was required to prove four elements: (1) a duty requiring PNC to 

conform to a certain standard of conduct; (2) a breach of that duty 

by PNC; (3) a causal connection between the breach and an injury 

to Arberman; and (4) loss or damage to Arberman. See Clay Elec. 

Co–op., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003). At issue

here is the first requirement, PNC’s alleged duty to Arberman. Under Florida law, “[d]uty exists as a matter of law and is not a factual 

question for [a] jury to decide.” Lamm v. State St. Bank & Tr., 749 

F.3d 938, 947 (11th Cir. 2014) (second alteration in original) (quoting McCain v. Fla. Power Corp., 593 So. 2d 500, 503 (Fla. 1992)). Florida law recognizes four sources of duties of care: statutes and regulations, judicial interpretations of legislation, judicial decisions, and 

USCA11 Case: 23-10182 Document: 25-1 Date Filed: 06/09/2023 Page: 8 of 15
23-10182 Opinion of the Court 9

duties arising from the facts of a particular case. See Curd v. Mosaic 

Fertilizer, LLC, 39 So. 3d 1216, 1227–28 (Fla. 2010), receded from on 

different grounds in Lieupo v. Simon’s Trucking, Inc., 286 So. 3d 143 

(Fla. 2019). 

FAPSA mandates that banks report when one “knows, or 

has reasonable cause to suspect, that a vulnerable adult has been or 

is being abused, neglected, or exploited . . . immediately report 

such knowledge or suspicion to the central abuse hotline.” Fla. 

Stat. § 415.1034(1)(a). FAPSA defines “vulnerable adult” as “a person 18 years of age or older whose ability to perform the normal 

activities of daily living or to provide for his or her own care or 

protection is impaired due to a mental, emotional, sensory, longterm physical, or developmental disability or dysfunction, or brain 

damage, or the infirmities of aging.” Fla. Stat. § 415.102(28). 

As to the definition of “exploitation,” FAPSA states the following:

(8) (a) “Exploitation” means a person who:

1. Stands in a position of trust and confidence with a 

vulnerable adult and knowingly, by deception or intimidation, obtains or uses, or endeavors to obtain or 

use, a vulnerable adult’s funds, assets, or property 

with the intent to temporarily or permanently deprive a vulnerable adult of the use, benefit, or possession of the funds, assets, or property for the benefit of 

someone other than the vulnerable adult; or

USCA11 Case: 23-10182 Document: 25-1 Date Filed: 06/09/2023 Page: 9 of 15
10 Opinion of the Court 23-10182

2. Knows or should know that the vulnerable adult 

lacks the capacity to consent, and obtains or uses, or 

endeavors to obtain or use, the vulnerable adult’s 

funds, assets, or property with the intent to temporarily or permanently deprive the vulnerable adult of the 

use, benefit, or possession of the funds, assets, or 

property for the benefit of someone other than the 

vulnerable adult.

(b) “Exploitation” may include, but is not limited to:

1. Breaches of fiduciary relationships, such as the misuse of a power of attorney or the abuse of guardianship duties, resulting in the unauthorized appropriation, sale, or transfer of property;

2. Unauthorized taking of personal assets;

3. Misappropriation, misuse, or transfer of moneys 

belonging to a vulnerable adult from a personal or 

joint account; or

4. Intentional or negligent failure to effectively use a 

vulnerable adult’s income and assets for the necessities required for that person’s support and maintenance.

Fla. Stat. § 415.102(8). FAPSA also defines “position of trust and 

confidence” with respect to a vulnerable adult as the position of a 

person who:

USCA11 Case: 23-10182 Document: 25-1 Date Filed: 06/09/2023 Page: 10 of 15
23-10182 Opinion of the Court 11

(a) Is a parent, spouse, adult child, or other relative by 

blood or marriage;

(b) Is a joint tenant or tenant in common;

(c) Has a legal or fiduciary relationship, including, but 

not limited to, a court-appointed or voluntary guardian, trustee, attorney, or conservator; or

(d) Is a caregiver or any other person who has been 

entrusted with or has assumed responsibility for the 

use or management of the vulnerable adult’s funds, 

assets, or property.

Id. § 415.102(19). “Capacity to consent” is defined as when “a vulnerable adult has sufficient understanding to make and communicate responsible decisions regarding the vulnerable adult’s person 

or property, including whether or not to accept protective services 

offered by the department.” Id. § 415.102(4). 

In the legislative findings, the Florida Legislature recognized 

“that there are many persons in this state who, because of age or 

disability, are in need of protective services” and that “[s]uch services should allow such an individual the same rights as other citizens and, at the same time, protect the individual from abuse, neglect, and exploitation.” Id. at § 415.101.

Turning to Arberman’s arguments, she first contends that 

FAPSA created a duty owed by PNC once its employee “expressed 

her reasonable suspicion to suspect that Ms. Arberman was being 

exploited.” The Amended Complaint, however, does not 

USCA11 Case: 23-10182 Document: 25-1 Date Filed: 06/09/2023 Page: 11 of 15
12 Opinion of the Court 23-10182

sufficiently allege that an employee had a reasonable suspicion to 

suspect that Arberman was being exploited. The allegations stated 

that Arberman’s “transactions were so inconsistent with Plaintiff’s 

normal banking activity that it raised the suspicion of a bank employee who approached Plaintiff to inquire about what was going 

on.” The Amended Complaint also explained that the employee 

who approached Arberman “specifically raised concerns with 

Plaintiff about the out of the ordinary transactions.” The employee 

was “[u]pon information and belief . . . the branch manager at the 

PNC Branch located at 16120 S. Jog Road, Delray Beach, FL 33446.” 

Notably absent from the Amended Complaint is any fact or statement that would reasonably imply that PNC was aware or should 

have been aware of Arberman’s alleged exploitation resulting from 

her age. The Amended Complaint does not connect the unordinary transactions with potential exploitation, nor does it state that 

the unnamed PNC employee was even aware of Arberman’s age. 

Without more, Arberman’s complaint fails to allege that FAPSA 

created a duty of care by PNC based on one employee’s inquiry. 

We therefore conclude that the district court did not err in declining to recognize this duty.

Arberman next argues that the district court erred in determining that she failed to plausibly plead that she is a “vulnerable 

adult.” We agree with Arberman. She alleged that (1) she was 71 

years old at the time of the fraud; (2) she suffered the cognitive and 

physical decline consistent with that of an aging individual; (3) she 

is less confident in her decision-making abilities; (4) she would not 

have fallen victim to this fraud at a younger age; and (5) her ability 

USCA11 Case: 23-10182 Document: 25-1 Date Filed: 06/09/2023 Page: 12 of 15
23-10182 Opinion of the Court 13

to provide for her own care or protection was impaired due to the 

infirmities of aging, namely cognitive decline. As such, she plausibly alleged that her ability to perform the tasks of daily life had been 

impaired by the infirmities of aging. Far from rephrasing the statutory language, Arberman pointed to concrete symptoms and issues related to her advanced age. The Amended Complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to 

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009) (quoting Twombly, 550 U.S. at 570). Accordingly, Arberman plausibly pled that she was a “vulnerable adult” under FAPSA, 

and we conclude that the district court erred in concluding otherwise. 

Arberman also argues that the district court erred in finding 

that Arberman failed to sufficiently allege that she was “exploited” 

under FAPSA. Reviewing her Amended Complaint, we conclude 

that Arberman did not sufficiently allege “exploitation” under 

FAPSA. First, Doe did not stand in a “position of trust and confidence” with Arberman. The statute’s definition of “position of 

trust and confidence” is plain and unambiguous. Fla. Stat. 

§ 415.102(19). FAPSA outlines specific instances of such positions, 

and a law enforcement officer does not have the kind of legal and 

fiduciary relationship with Arberman similar to that of a caregiver, 

court-appointed guardian, or attorney. See id. § 415.102(19). Second, Arberman does not allege that Doe knew or should have 

known that Arberman lacked “capacity to consent.” Nowhere in 

the Amended Complaint does Arberman allege that Doe had any 

knowledge of her age, her ability to make decisions, or her 

USCA11 Case: 23-10182 Document: 25-1 Date Filed: 06/09/2023 Page: 13 of 15
14 Opinion of the Court 23-10182

understanding of decisions about her property. Although patently 

fraudulent, Doe’s alleged behavior is not covered by FAPSA’s definition of exploitation. We therefore conclude that the district 

court did not err in concluding that Arberman failed to allege “exploitation” under FAPSA. 

Finally, Arberman argues that the district court erred in finding that Arberman failed to plausibly plead that PNC owed her a 

baseline duty of care regardless of FAPSA. Florida law does not 

require banking institutions to investigate transactions. Home Fed. 

Sav. & Loan Ass’n of Hollywood v. Emile, 216 So. 2d 443, 446 (Fla. 

1968). According to Arberman, however, PNC had a responsibility 

to her once the PNC employee detected unusual transactions and 

became suspicious. In support of this contention, Arberman cites 

O’Halloran v. First Union National Bank of Florida, 350 F.3d 1197 (11th 

Cir. 2003). In O’Halloran, we stated that a “bank’s responsibility to 

a depositor may be somewhat heightened when the bank has 

knowledge that a particular individual ostensibly representing the 

depositor instead intends to cause financial injury to the depositor.” 

350 F.3d at 1205. But in this case, all of the transactions, even the 

unordinary ones, were initiated by Arberman herself, not an unauthorized user. The suspicions of one employee without any 

knowledge of a fraudulent scheme cannot save Arberman’s 

Amended Complaint from its defect. She did not sufficiently allege 

that PNC owed her a duty of care to monitor her own transactions. 

We thus conclude that the district court did not err in concluding 

as much.

USCA11 Case: 23-10182 Document: 25-1 Date Filed: 06/09/2023 Page: 14 of 15
23-10182 Opinion of the Court 15

Despite the district court’s error in concluding that Arberman did not sufficiently plead that she was a “vulnerable adult,” we 

affirm the dismissal of her case as Arberman failed to plausibly allege that she was the victim of “exploitation” under FAPSA and 

that PNC owed a baseline duty of care. 

IV. CONCLUSION

For all these reasons, we affirm the district court’s granting 

PNC’s motion to dismiss.

AFFIRMED.

USCA11 Case: 23-10182 Document: 25-1 Date Filed: 06/09/2023 Page: 15 of 15