[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-10952

Non-Argument Calendar

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D.C. Docket No. 1:13-cv-21127-MGC

ARBITRAJES FINANCIEROS, S.A., 

a Venezuelan corporation, 

 Plaintiff-Appellant,

versus

BANK OF AMERICA, N.A., 

a national banking association, 

ROSEMONT FINANCE CORPORATION,

a dissolved Florida corporation,

 Defendants-Appellees.

 

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No. 14-11167

Non-Argument Calendar

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D.C. Docket No. 1:12-cv-21367-MGC

INVIERTAL FINANCIAL MANAGERS, S.A., 

a Panamanian corporation, 

 Plaintiff-Appellant,

versus

BANK OF AMERICA, N.A.,

a national banking association, 

 Defendant-Appellee,

ROSEMONT FINANCE CORPORATION,

a dissolved Florida corporation,

 Defendant. 

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Appeals from the United States District Court

for the Southern District of Florida

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(March 26, 2015)

Before MARTIN, JULIE CARNES and FAY, Circuit Judges.

PER CURIAM: 

Arbitrajes Financieros, S.A, and Inviertal Financial Managers, S.A., appeal 

the district court’s dismissal of their complaints seeking damages against Bank of 

America, N.A. (BANA). After careful consideration of the parties’ briefs, we 

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affirm the district court’s order dismissing appellants’ negligence and Florida 

Uniform Commercial Code claims because appellants have not established that 

they had a fiduciary relationship with BANA. We also affirm the district court’s 

dismissal of the aiding-and-abetting claims, because appellants do not allege facts 

which plausibly suggest that BANA had actual knowledge of Rosemont’s breach 

of fiduciary duty.

I. Background

Appellants are foreign bond traders that specialize in the sale of Venezuelan 

Bolivar bonds, converting the proceeds into United States currency. Under state

and federal guidelines, certain licenses and registrations are required to hold U.S.

bank accounts. Without U.S. accounts, foreign companies like appellants must 

obtain the assistance of a licensed and registered fund transmitter to conduct their 

business. To that end, appellants entered into agreements with Rosemont Finance 

Corporation, a money transmission company. Rosemont represented to appellants

that it had an ongoing relationship with BANA under which it had created accounts 

for other bond trading companies. Rosemont opened BANA bank accounts on 

behalf of Arbitrajes and Inviertal, in each case signing a “standard deposit 

agreement” that set forth the terms between Rosemont (the only named account 

holder) and BANA.

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In March 2009, the United States Government seized both accounts as part 

of a money-laundering investigation.

1

 Appellants entered into settlements with the 

Department of Justice, by which they agreed to forfeit a portion of funds that were 

held in the BANA accounts. This was because neither appellants nor Rosemont 

had the proper licenses or registration to hold the accounts.

In virtually identical actions, appellants sued BANA and Rosemont to 

recover their forfeited assets.2

 Appellants seek to hold BANA liable for 

Rosemont’s fraudulent actions, asserting claims for negligence, violation of the 

UCC, and aiding and abetting Rosemont’s breach of fiduciary duty. After 

permitting both appellants to amend their complaints, the district court granted

BANA’s motions to dismiss with prejudice because appellants failed as a matter of 

law to state any claim for relief against BANA. Inviertal filed a Motion to Alter 

Judgment or, in the Alternative, for Leave to File Second Amended Complaint, 

which the district court denied as futile. Appellants timely appealed.

II. Negligence Claims

Appellants first challenge the district court’s dismissal of their negligence

claims. To succeed, appellants must plead facts sufficient to establish that (1) 

BANA owed them a duty of care; (2) BANA breached that duty; (3) the breach 

caused their injury; and (4) they suffered damages. See Miles v. Naval Aviation 

 1 Rosemont’s President later pleaded guilty to money laundering. 2 Appellants allege diversity jurisdiction, and Florida law governs.

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Museum Found., 289 F.3d 715, 722 (11th Cir. 2002). Appellants claimed that 

BANA’s duty of care required it to “verify that all licensees and registrations were 

up to date.” Under Florida law, a bank does not have a fiduciary relationship with 

its standard deposit account customers, but instead owes only a duty of ordinary 

care in arms-length transactions. See First Nat’l Bank and Trust Co. of the 

Treasurer Coast v. Pack, 789 So. 2d 411, 414 (Fla. 4th DCA 2001); Maxwell v. 

First United Bank, 782 So. 2d 931, 934 (Fla. 4th DCA 2001). This ordinary duty 

does not require BANA to act for the benefit or protection of appellants, or to 

disclose facts that appellants could have discovered through their own diligence. 

See Maxwell, 782 So. 2d at 934. Thus, under the duty of ordinary care, BANA 

would not be required to verify Rosemont’s licenses and registration.

Appellants insist they had a fiduciary relationship with BANA, which 

required BANA to satisfy a heightened duty of care. Fiduciary relationships can 

be created expressly or impliedly under Florida law. Capital Bank v. MVB, Inc., 

644 So. 2d 515, 518 (Fla. 3d DCA 1994). Implied fiduciary relationships can arise 

“when ‘confidence is reposed by one party and a trust accepted by the other.’” Id.

(quoting Dale v. Jennings, 90 So. 175, 179 (Fla. 1925)). In considering whether a 

fiduciary relationship exists, courts may also consider whether the bank “1) takes 

on extra services for a customer, 2) receives any greater economic benefit than 

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from a typical transaction, or 3) exercises extensive control.” Capital Bank, 644 

So. 2d at 519. 

Appellants do not claim to have an express fiduciary relationship with 

BANA. Indeed, the account agreements explicitly disclaim such a relationship: 

“[O]ur deposit relationship with you is that of debtor and creditor. This Agreement 

and the deposit relationship do not create a fiduciary, quasi-fiduciary or special 

relationship between us.”

Neither did appellants adequately plead facts that show an implied 

relationship. To support their claim that extra services were provided, appellants 

point to specialized technology that BANA provided to allow appellants to make 

wire transfers more quickly than other customers. Yet the case appellants rely

upon to support the idea that BANA took on “extra services” seems to require 

services that transform the relationship to “exceed [the role] of a lender,” for 

example by offering advice or directly orchestrating non-banking transactions. 

Capital Bank, 644 So. 2d at 520. BANA’s specialized technology does not reach 

this threshold.

To support their claim that BANA received a “greater economic benefit”

that created a fiduciary relationship, appellants argue that BANA collected extra 

fees by retaining the interest on the account deposits instead of distributing it to 

appellants. However, during the time these account were on deposit, federal law 

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prohibited BANA from paying interest on appellants’ accounts. See 12 C.F.R. § 

217.3 (“Regulation Q”) (repealed July 21, 2011). Thus, the “extra” fees appellants

allege BANA received were in fact mandated by law. 

Though appellants allege that they placed their trust in BANA, they point to 

no facts that show BANA, in turn, accepted appellants’ confidence and trust. 

Appellants highlight certain conversations between BANA and Rosemont about 

the accounts, but they point to no conversations sufficient to create a fiduciary 

relationship between appellants and BANA. Based on this lack of a fiduciary 

relationship with BANA, the district court rightly rejected appellants’ negligence 

claims.

III. UCC Claims

Count II of appellants’ complaints alleges that BANA violated Article 4 of 

Florida’s Uniform Commercial Code by not acting in good faith and exercising 

ordinary care with respect to the item it handles. Fla. Stat. § 674.103(1). Their 

UCC claims rely on the idea that BANA’s duty of “ordinary care” encompasses an 

obligation to make sure that Rosemont had the proper licenses and registrations 

needed to serve as a registered fund transmitter for appellants. However, Florida 

does not impose such a duty on banks for their non-fiduciary, ordinary customer 

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transactions.3 See Maxwell, 782 So. 2d at 934. Appellants’ UCC claims were 

therefore properly dismissed as well. 

IV. Aider and Abettor Liability

Under Florida law, appellants must establish four elements to succeed on 

their claim that BANA aided and abetted Rosemont’s breach of fiduciary duty: (1) 

Rosemont owed a fiduciary duty to appellants; (2) which Rosemont breached; (3) 

BANA knew about Rosemont’s breach; and (4) it substantially assisted with 

Rosemont’s breach. See In re Caribbean K Line, Ltd., 288 B.R. 908, 919 (S.D. 

Fla. 2002); Ft. Myers Dev. Corp. v. J.W. McWilliams Co., 122 So. 264, 268 (Fla. 

1929). The district court dismissed appellants’ claims because they could not 

establish that BANA knew of any alleged breach, much less assisted with it. 

Because each of these elements is required, and the failure of any one of 

them is decisive, we address only the third element requiring BANA’s knowledge 

of Rosemont’s breach. Appellants allege only that BANA “had knowledge” of 

Rosemont’s breaches of fiduciary duty—including Rosemont’s representation to 

appellants that it had the proper licenses and registrations; Rosemont’s telling 

appellants they did not need to register or get licenses; and Rosemont’s failing to 

inform appellants that such licenses and registrations were required. In support of 

this allegation, appellants allege that Rosemont “advised [BANA] that it 

 3 We need not reach the question of whether appellants were customers of BANA, or whether 

BANA would have owed appellants this duty of care in the context of a fiduciary relationship. 

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committed the aforementioned acts prior to . . . open[ing] the [appellants’]

[a]ccount[s].” At the same time, however, appellants’ complaints allege that 

Rosemont’s former president “advised [BANA] that Rosemont was going to obtain 

the appropriate money transmission license and registration . . . .” Of course 

BANA could not have known about the breach if Rosemont hid its fraud by saying 

it would get the registrations and licenses. Similar to the facts addressed by this 

court in Lawrence v. Bank of America, N.A., 455 Fed. App’x 904, 907 (11th Cir. 

2012) (per curiam), appellants point to no other facts showing that BANA had 

actual knowledge of Rosemont’s actions. Because appellants failed to sufficiently 

allege BANA had actual knowledge of Rosemont’s breach, the district court 

properly dismissed their aiding and abetting claims as well. 

AFFIRMED.

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