Distefano et al v. Bank Of America, Corp. et al

United 	States 	District 	Court
District 	of Massachusetts
Oriana 	F Distefano, 	et 	al.,
Plaintiff,
v.
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Civil Action No.
25-10272-NMG
Bank Of America, 	N.A., 	et 	al.,
Defendant.
MEMORANDUM 	& ORDER
GORTON, 	J .
Pending 	before 	the 	Cou rt 	are 	the 	motions 	to 	dismiss 	of
defendants 	Bank 	of 	America , 	N . A. 	(" BANA' ' ) 	and 	Early 	Warning
Systems , 	d/b/ a 	ZellePay . com 	( " EWS " ) 	( Docket 	Nos . 	12 	and 	16 ,
respectively) . 	Because 	the 	complaint 	fails 	to 	state 	a 	claim
upon 	which 	relief 	can 	be 	granted , 	both motions 	will 	be 	allowed .
I. 	Background
A . Facts
In 	February , 	2022 , 	plaintiffs 	Raffaella 	and 	Oriana
Distefano 	(collectively , 	"p laintiffs " ) 	became 	aware 	of 	several
unauthorized 	withdrawals 	from 	their 	BANA 	account 	thro ug h 	Zelle ,
a 	money - transfer 	mobile 	application 	operated 	by 	EWS . 	The
withdrawals 	ranged 	from 	be tween 	$2 , 000 	and 	$9 , 000 . 	Zelle
authenticates 	money 	tran s fers 	online , 	rather 	than 	by 	wire , 	and
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connects 	directly 	to 	bank 	accounts. 	The 	total 	withdrawals 	in
this 	case 	amounted 	to 	approximately 	$48,000.
Raffaella 	went 	to 	a 	BANA branch 	the 	next 	day and 	spoke 	to 	a
manager, 	Mike 	Luciari, 	to 	report 	the 	fraudulent 	withdrawals.
Luciari 	directed plaintiff 	to 	Patrizia DeCologero , 	an 	assistant
manager, 	who 	stopped payments 	to 	and 	from 	the 	affected 	accounts.
DeCologero 	also 	told 	Raffaella 	that 	the 	withdrawals 	had 	been
without 	proper 	authentication 	and 	that 	an 	individual 	had visited
a 	BANA branch 	in 	Tulsa, 	Oklahoma, 	to 	have 	Raffaella's 	debit 	card
added 	to 	his 	or 	her 	own Apple 	Paye-wallet.
In May, 	2022, 	plaintiffs 	received 	a 	letter 	from 	BANA
declaring 	that, 	contrary 	to 	what 	they were 	told 	in 	February,
proper 	procedures 	had been 	followed 	during 	the 	Tulsa 	branch
episode 	and 	that 	the 	Zelle 	transfers 	had been properly
authenticated. 	When plaintiffs 	spoke 	to 	BANA 	representatives
about 	the 	May 	letter, 	defendant's 	representatives 	implied 	that
plaintiffs 	had made 	the 	Tulsa withdrawals 	themselves .
Plaintiffs 	respond 	that 	neither 	of 	them 	has 	ever 	been 	in Tulsa,
Oklahoma. 	For 	the 	following 	ten months, 	plaintiffs' 	accounts
remained 	frozen, 	and 	they were 	unable 	to 	pay bills 	from 	those
accounts.
In December , 	2022, 	plaintiffs 	sent 	a 	"Chapter 	93A 	letter"
to 	BANA giving 	defendants 	written 	notice 	of 	their 	intent 	to 	file
a 	civil 	action 	against 	the 	bank. 	Although 	not 	filed 	with 	the
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Court , 	the 	letter 	apparently 	requested 	repa y ment 	of 	the 	lost
funds 	as 	well 	as 	$300 , 000 	in 	damages . 	In 	response , 	BANA
refunded 	all 	the 	i mproper ly 	withdrawn 	money 	bu t 	made 	no 	offer 	of
s ettle ment 	with 	re spect 	to 	the 	$300 , 000 	damages 	claim .
Plaintiffs 	filed 	th e ir 	initial 	complaint 	in 	February , 	2025 ,
and 	an 	amended 	complaint 	in 	May , 	2025 . 	BANA 	and 	EWS 	promptly
filed 	their 	motions 	to 	dismiss 	which 	were 	timely 	opposed 	by
p laintiff s .
II. 	Motion 	to 	Dismiss
A. Legal 	Standard
Both 	de fe nd ant s 	have 	moved 	to 	dismiss 	the 	complaint 	under
Fed . R. Civ . P . 	12(b) (6) . 	To 	survive 	a 	motion 	to 	dismiss 	pursuant
to 	Rule 	12(b) (6) , 	t h e 	plaintiff 	must 	state 	a 	claim 	for 	relief
that 	is 	actionab le 	as 	a 	matter 	of 	law 	and 	p l ausible 	on 	its 	face .
Ashcroft 	v . 	I qbal , 	556 	U. S . 	662 , 	678 	(2009) . 	A claim 	is
facially 	plausib le 	if , 	after 	accepting 	as 	true 	all 	non -
conclusory 	factual 	allegations , 	the 	court 	can 	draw 	the
reasonable 	inference 	that 	the 	d efendan t 	is 	liable . 	Ocasio -
Hernandez 	v . 	Fortuno - Bur s et , 	640 	F . 3d 	1 , 	12 	(1st 	Cir . 	2011)
When 	rend ering 	such 	a 	determinat i on , 	a 	court 	may 	consider
certain 	categor ie s 	of 	documents 	extrinsic 	to 	the 	complaint
without 	converting 	a 	motion 	to 	dismiss 	into 	a 	motion 	for 	summary
judgment . 	F re e man 	v . 	Town 	of 	Hudson , 	714 	F . 3d 	29 , 	36 	(1st 	Cir .
2013) . 	For 	instance , 	a 	court 	may 	consider 	documents 	central 	to
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a 	plaintiff ' s 	claim 	or 	documents 	that 	were 	sufficiently 	referred
to 	in 	_he 	comp 	aint . 	Watterson 	v . 	Page , 	987 	F . 2d 	1 , 	3 	(1st 	Cir .
1993) .
When 	alleging 	fraud , 	parties 	must 	satisfy 	the 	heightened
pleading 	standard 	under 	Fed . R . Civ . P . 	9(b) . 	Alternative 	Sys .
Concepts , 	Inc . 	v . 	Syn ops ys , 	Inc ., 	374 	F . 3d 	23 , 	29 	(1st 	Cir .
2004) . 	Rule 	9(b) 	requires 	a 	plainti ff 	to 	stat e 	the
circumstances 	constituting 	fraud 	with 	particularity 	and 	to
specify 	the 	who , 	what , 	where 	and 	when 	of 	the 	alleged
misrepresentation . 	Id .
B. Application
i. 	Count 	I 	- 	Electronic 	Fund Transfer Act 	(EFTA)
Both 	defendants 	arg u e 	th a t 	Count 	I 	should 	be 	dismissed
under 	the 	statute 	of 	limitations 	because 	EFTA 	claims 	must 	be
brought 	within 	one 	year 	of 	the 	occurrence 	of 	the 	violation . 	15
O. S . C . 	§1693m(g) . 	Plai nti ff s 	respond 	that 	judicial 	e stoppel 	and
~quitable 	tolling 	prevent 	defendants 	fro m raising 	such 	a
defense.
The 	Court 	concludes 	that 	plaintiffs 	are 	not 	entitled 	to
these 	equitable 	remedie s . 	Re ga rdless 	of 	the 	alleged 	fraud , 	any
potential 	EFTA 	violation 	was 	made 	known 	to 	plaintiffs 	no 	later
than 	December , 	2022 , 	when 	BANA 	deposited 	the 	lost 	funds 	back
into 	plaintiffs ' 	account s . 	Plaintiffs 	f il ed 	their 	complaint 	in
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February , 	2024, 	14 	months 	lat er . 	The 	mot ion s 	to 	dismiss 	wil l
therefore 	be 	allowed 	with 	respect 	to 	Count 	I .
ii . 	Count 	II 	- 	Breach 	of 	Contract
To 	prevai l 	on 	a 	breach 	of 	contract 	c laim 	under
Massachusetts 	l aw , 	p lain t iff s 	must 	demonstrate 	that 	1) 	a 	valid
contract 	existed , 	2) 	defendants 	breached 	the 	terms 	of 	that
contract 	and 	3) 	plaintiffs 	sustained 	damages 	as 	a 	result . 	Brooks
v . 	AIG 	SunAmerica 	Life 	Assurance 	Co ., 	480 	F . 3d 	579 , 	586 	(1st
Cir . 	2007 ) . 	Plaintiffs 	a lle ge 	that 	they 	entered 	into 	b i nding
contracts 	with 	both 	BANA 	and 	EWS 	upon 	depos iting 	money 	into 	the
bank 	account 	and 	transfe r rin g 	funds 	fr om 	it 	by 	use 	o f
defendants ' 	services . 	They 	claim t hat 	de fen dants ' 	marketing
materials , 	and 	statements 	made 	therein , 	consti t ute 	warranties
that 	became 	the 	basis 	of 	their 	bargain 	and 	terms 	of 	the
resulting 	ag reement . 	Plaintiffs 	further 	aver 	that 	those 	terms
were 	breached 	when 	de fen dants 	failed 	to 	prov i de 	services 	in
accordance 	with 	such 	warranties . 	I n 	response , 	de fe ndants 	rejoin
that 	no 	such 	contract 	ever 	exi s te d , 	and , 	even 	if 	it 	did ,
plaintiffs 	have 	failed 	to 	i dent if y 	any 	prov i s ion 	thereof 	t hat
was 	breached .
The 	Cour t 	concludes 	that 	while 	the 	parties 	may 	well 	have
entered 	into 	an 	agreement 	with 	respect 	to 	p l aintiffs ' 	use 	of
d efe ndants ' 	s ervi ces , 	the 	complaint 	fails 	to 	allege 	facts
sufficient 	to 	establish 	the 	terms 	of 	such 	agreement . 	A claim
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for 	breach 	o f 	contract 	must 	al le ge 	the 	spec ific 	promise 	which
the 	defendant 	failed 	to 	k ee p . 	Falk 	v . 	Wel l s 	Fargo 	Bank , 	N. A .,
600 	F . 	Supp . 	3d 	115 , 	119 	(D . 	Mass . 	2022) . 	Th a t 	de fe ndants 	held
out 	t h eir 	pr odu c ts 	to 	be 	safe 	does 	not 	establish 	a 	contractual
obligation , 	and , 	even 	if 	it 	did , 	the 	facts 	as 	alleged 	do 	not
constitute 	a 	v i o l ation 	of 	a 	written 	contract . 	The 	motions 	to
dismiss 	will 	theref o re 	be 	allowe d 	with 	resp ect 	to 	Count 	II .
iii. 	Counts 	III 	and 	IV - 	Violations 	of M.G.L. 	c . 	93A
Pl a intiff s 	claim t ha t 	defendants 	a l so 	violated 	the
Massachusetts 	Consumer 	Protection 	Act , 	M. G. L . 	c . 	93A . 	While 	a
Chapter 	93A 	claim do es 	not 	necessar il y 	trigger 	the 	heightened
Rule 	9(b) 	s tandard , 	Liu 	v . 	Amerco , 	677 	F . 3d 	489 , 	497 	(1st 	Cir .
2012) , 	it 	does 	wh e n 	it 	focuses 	on 	a 	claim 	of 	fraud , 	see , 	e . g .,
Valley 	Childr en ' s 	Hosp . 	v . 	Athenahealt h , 	Irie ., 	2 023 	WL 	6065800 ,
a t 	*4 	(D . 	Mass . 	Sept . 	18 , 	202 3) . 	A claim 	that 	relies 	on
allegations 	of 	intentional 	or 	malicious 	false 	sta.ements 	is 	a
claim 	of 	f raud . 	Ti mm ins 	So ft ware 	Co rp . 	v . 	EMC 	Corp ., 	502 	F .
Supp . 	3d 	595 , 	605 	(D . 	Mass . 	2020) . 	By 	accusing 	defendants 	o f
" fraudulen t u 	and 	" dec~ptive u 	conduct 	in 	Count 	III , 	and 	of mak in g
" deceptive u 	and 	" false u 	r ep resentat i ons 	in 	Count 	IV , 	plaintiffs
ha ve 	alleged 	fr aud 	and 	have 	therefore 	triggered 	the 	heightened
pleading 	sta nda rd 	under 	Rule 	9(b) .
To 	succe e d 	on 	a 	Chapter 	93A 	claim premised 	on 	deception ,
plaintiffs 	mus t 	allege 	1) 	a 	decept ive 	act 	or 	practice 	on 	the
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part 	of 	defendants , 	2) 	injury 	or 	loss 	and 	3) 	a 	causal 	connection
between 	the 	two . 	Tomasella 	v . 	Nestle 	USA , 	Inc ., 	962 	F . 3d 	60 , 	71
(1st 	Cir . 	2020) . 	The 	injury may 	be 	economic 	or 	non - economic ,
but 	it 	must 	be 	distinct 	to 	plaintiffs 	and 	arise 	directly 	from
the 	deceptive 	act 	itself . 	Nightingale 	v . 	National 	Grid , 	107
F . 4th 	1 	(1st 	Cir . 	2024)
1. Count 	III 	- 	Claims 	against BANA and EWS
Plaintiffs 	allege 	that 	BANA 	and 	EWS 	violated 	Chapter 	93A 	by
falsely 	claiming 	that 	sending 	money 	via 	Zelle 	was 	safe . 	They
cite 	to 	marketing 	materials 	on 	www . zellepay . com 	in 	which 	EWS
offers 	Zelle 	as 	a 	way 	to
[s]afely 	send money 	to 	friends 	and 	family , 	no
matter 	where 	they 	bank 	[and] 	Zelle 	is 	a 	great
way 	to 	send money 	to 	friends 	and 	family , 	even
if 	they 	bank 	somewhere 	different 	than 	you 	do .
While 	plaintiffs 	do 	not 	allege 	that 	BANA 	itself 	made 	any
misrepresentations , 	they 	contend 	that 	BANA 	failed 	to 	inform
consumers 	that 	Zelle 	was 	unsafe 	or 	that 	fraudulent 	losses 	would
not 	be 	recovered .
Such 	statements 	and 	omissions , 	combined 	with 	the 	facts 	of
the 	case , 	are 	insufficient 	to 	support 	a 	violation 	of 	Chapter
93A . 	First , 	plaintiffs 	have 	failed 	to 	meet 	the 	heightened
pleading 	standard 	of 	Rule 	9(b) . 	They 	do 	not 	plead 	that 	any
individual 	representatives 	of 	the 	defendants 	knew 	Zelle 	to 	be
unsafe 	despite 	the 	marketing . 	Moreover , 	such 	marketing
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statements 	offer 	a 	subjective 	view 	of 	the 	service 	rather 	than 	a
description 	of 	a 	spec if ic 	property . 	It 	is 	a 	classic 	example 	of
puffery 	that 	i s 	non - actionable 	under 	Chapter 	93A . 	See 	Mulder 	v .
Kohl ' s 	Dep ' t 	Stores , 	Inc . , 	865 	F . 3d 	17 , 	22 	n . 5 	(1st 	Cir . 	2017) .
The 	motions 	to 	dismiss 	will 	therefore 	be 	allowed 	with 	respect 	to
Count 	III .
2. Count 	IV - 	Claim against BANA
Plaintiff s 	allege 	that 	BANA 	further 	violated 	Chapter 	93A
with 	respect 	to 	its 	communications 	to 	pla intiffs 	between
February 	and 	December , 	2022 . 	During 	that 	time 	plaintiffs
contend 	that 	defendant 	BANA 	told 	them 	they 	were 	not 	entitled 	to
a 	refund 	because 	the 	money 	was 	properly 	withdrawn , 	despite
knowing 	that 	to 	be 	false .
This 	claim 	is 	unavailing 	as 	well . 	As 	explained 	above ,
plaintiffs 	have 	failed 	to 	allege 	that 	BANA 	knew 	or 	believed
plaintiffs 	were 	entitled 	to 	a 	refund 	despite 	asserting
otherwise . 	That 	omission 	precludes 	a 	claim 	under 	the 	heightened
pleading 	standard 	of 	Rule 	9(b) . 	Furthermore , 	it 	is 	clear 	from
the 	record 	that , 	upon 	receiving 	a 	Chapter 	93A 	notice 	letter ,
BANA 	agreed 	to 	refund 	the 	disputed 	charges . 	To 	the 	extent 	that
plaintiffs 	incurred 	further 	damages 	as 	a 	result 	of 	ten 	months
without 	access 	to 	their 	money , 	they 	cannot 	claim 	relief 	under 	a
theory 	of 	misrepresentation .
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Plaintiffs ' 	:reliance 	on 	Eggiman 	v . 	Bank 	of Am ., 	N. A ., 	No .
l : 22 -CV- 10298-ADB , 	2023 	WL 2647071 	(D . 	Mass . 	Mar . 	27 , 	2023) , 	is
mi splaced . 	Eggiman 	dealt 	with 	whether 	the 	defendant 	bank 	could
be 	held 	liable 	under 	Chapter 	93A 	for 	failing 	to 	:reimburse
fraudulently 	withdraw n 	funds 	despite 	having 	offered 	the
plaintiff 	a 	zero - liability 	guarantee . 	The 	court 	found 	that 	it
could , 	because 	the 	failure 	to 	refund 	the 	money 	was 	a 	violation
of 	a 	contractual 	covenant 	between 	the 	part ies 	and 	therefore 	an
unfair 	practic e 	under 	Chapter 	93A . 	Conversely , 	plaintiffs 	in
this 	case 	have 	pled 	no 	such 	agreement 	and 	have 	alleged 	only 	that
the 	stated misrepresentation 	led 	to 	their 	injury . 	Such 	claims
of 	frau d 	are 	distinct 	fr om 	t he 	con 	:ract 	cla ims 	in 	Eggiman 	and
subject 	plainti ff s 	to 	a 	higher 	pleading 	standard 	which 	they 	have
not 	met . 	The 	motions 	to 	dismiss 	will 	therefore 	be 	allowed 	with
respect 	to 	Count 	IV .
iv. 	Counts V and VI 	- 	Negligent 	Infliction 	of 	Emotional
Distress 	and Negligence
Plaintiff s 	allege 	that 	defendants ' 	conduc t 	amounted 	to 	the
negligent 	infliction 	of 	emotional 	distress 	and 	negligence . 	To
succ eed 	on 	a 	claim 	of 	negligence 	in 	Massachusetts , 	plaintiffs
must 	show 	that 	defendants 	owed 	them 	a 	duty 	of 	care , 	breached
that 	duty 	and 	that 	th e 	breach 	resulted 	in 	damages . 	Leavitt 	v .
Brockton 	Hosp ., 	Inc ., 	454 	Mass . 	37 , 	39 	(2009) . 	The 	economic
lo ss 	doctrin e 	holds 	th at , 	in 	the 	absence 	o f 	personal 	injury 	or
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property 	damage , 	economic 	damages 	are 	not 	recoverable 	in 	claims
based 	upon 	negl i gence . 	Afr i d i 	v . 	Res i dentia l 	Credit 	Sols ., 	Inc .,
189 	F . 	Supp . 	3d 	193 , 	199 	(D . 	Mass . 	2016) . 	To 	succeed 	on 	a 	claim
o f 	neg l igent 	in fl iction 	o f 	emotional 	distress , 	a 	plaintiff 	must
prove 	1) 	negligence , 	2) 	emotional 	distress , 	3) 	causation , 	4)
physical 	harm manifested 	by 	objective 	symptoms 	and 	(5) 	that 	a
reasonable 	person 	would 	have 	suffered 	emotional 	distress 	under
s i mil ar 	c i rcumstances. 	Payton 	v . 	Abbott 	Labs , 	386 	Mass . 	540 , 	557
( 19()2) .
Here , 	plaint i ffs 	allege 	only 	that 	they 	endured 	ten 	months
wit hout 	access 	o 	the i r 	money 	before 	BANA 	returned 	the 	funds 	to
t heir 	accounts . 	Any 	damage~ 	associated 	with 	such 	delay 	are
economic , 	and 	allegations 	of 	stress 	and 	anxiety 	arising
therefrom 	are 	not 	recoverable 	unless 	they 	are 	related 	to
persona l 	injury . 1 	I d . 	Without 	physical 	injury , 	both 	theories 	of
neg li gence 	fail 	and 	the 	motions 	to 	dismiss 	will 	therefore 	be
a l lowed 	with 	respect 	to 	Counts 	V and 	VI .
1 Des p ite p laintiffs ' 	e xp li cit pr of f e r 	t ha t 	parag ra ph 12 3 o f 	the comp l aint
plea d s h yp erte ns io n a nd i n s omn ia , 	the comp l a i nt 	con t ains no s u ch re f erenc e .
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ORDER
For 	the 	for go ing 	reasons , 	t he 	Motions 	to 	Dismiss 	of
defendants 	(Docket 	Nos . 	12 	and 	16) 	are 	ALLOWED 	and 	the 	case 	is
DISMISSED.
So 	ordered.
Nathaniel 	M. 	Gorton
Senior 	United 	States 	District 	Judge
Dated : 	February )? , 	2026
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