aguiar v jp morgan

7ermont 	Superior 	Court
Filed 	09/16/26
Chittenden 	UUnit
VERMONT 	SUPERIOR 	COURT 	CIVIL 	DIVISION
Chittenden 	Unit 	Case 	No. 	26-CV-02504
175 	Main 	Street
Burlington 	VT 	05401
802-863-3467
www.vermontjudiciary.org
Stephen 	Aguiar 	v. 	JJP 	Morgan 	Chase 	Bank 	N.A.
ENTRY 	REGARDING 	MOTION
Title: 	Motion 	to 	Dismiss; 	Memorandum 	in 	Opposition; 	Reply 	in 	support 	of Motion 	to
dismiss 	(Motion: 	3)
Filer: 	Ryan 	M. 	Long; 	Stephen 	T. 	Aguiar; 	Ryan 	M. 	Long
Filed 	Date: 	July 	22, 	2026; 	August 	10, 	2026; 	August 	19, 	2026
Plaintiff 	Stephen 	Aguiar 	brought 	this 	case 	against 	Defendant 	JJPMorgan 	Chase 	Bank 	N.A.
("Chase"), 	alleging 	that 	Chase 	improperly, 	without 	his 	authorization 	or 	consent, 	withdrew 	funds
from 	his 	Chase 	bank 	account 	and 	closed 	the 	account 	without 	notice. 	He 	sued 	for 	conversion
(Count 	1), 	breach 	of contract 	(Count 	2), 	unjust 	enrichment 	(Count 	3), 	and 	negligence 	(Count 	4).
Chase 	now 	moves 	to 	dismiss 	all 	counts 	under 	Rule 	12(b)(6) 	(Mot. 	3).
Aguiar 	represents 	himself and 	Chase 	has 	counsel. 	For 	the 	reasons 	that 	follow, 	the 	court
grants 	Chase's 	Mot. 	3.
I. 	Legal 	Standard
Under 	V.R.C.P. 	12(b)(6), 	the 	court 	"must 	assume 	that 	the 	facts 	pleaded 	in 	the 	complaint
are 	true 	and 	make 	all 	reasonable 	inferences 	in 	the 	plaintiff's 	favor." 	Montague 	v. 	Hundred Acre
Homestead, 	LLC, 	2019 	VT 	16, 	§ 	10, 	209 	Vt. 	514. 	The 	court 	does 	not 	accept 	as 	true 	"conclusory
allegations 	or 	legal 	conclusions 	masquerading 	as 	factual 	conclusions." 	Vitale 	v. 	Bellows 	Falls
Union 	High 	Sch., 	2023 	VT 	15, 	1 	28, 	217 	Vt. 	611 	(quotation 	omitted). 	The 	court 	considers
whether 	"it 	appears 	beyond 	doubt 	that 	there 	exist 	no 	facts 	or 	circumstances 	that 	would 	entitle 	the
plaintiff to 	relief." 	Davis 	American 	Legion, 	Dept. 	of 	Vermont, 	2014 	VT 	134, 	1 	12, 	198 	Vt. 	204
(quotation 	omitted). 	"The 	purpose 	of a 	motion 	to 	dismiss 	is 	to test 	the 	law 	of the 	claim, 	not 	the
facts 	which 	support 	it." 	Powers 	v. 	Off 	of Child 	Support, 	173 	Vt. 	390, 	395 	(2002). 	Only 	"where
the 	plaintiff does 	not 	allege 	a 	legally 	cognizable 	claim, 	[is] 	dismissal 	... 	appropriate." 	Montague,
2019 	VT 	16, 	§ 	11.
"The 	court's 	attention 	... 	is 	to 	be 	directed 	toward determining 	whether 	the 	bare
allegations 	of the 	complaint 	constitute 	a 	statement 	of a 	claim 	under 	V.R.C.P. 	8(a)." 	Levinsky 	v.
Diamond, 	140 	Vt. 	595, 	600 	(1982). 	"When 	deciding 	a 	motion 	to 	dismiss, 	the 	court 	may 	consider
documents 	attached 	to 	the 	complaint 	or 	incorporated 	in 	the 	complaint 	by 	reference." 	Walsh 	v.
Chittenden 	Corp., 	798 	F. 	Supp. 	1043, 	1048 	n 	3 	(D. 	Vt. 	1992). 	When 	a 	complaint 	relies 	on
outside 	documents, 	those 	documents 	merge 	into 	the 	complaint 	and 	the 	court 	may 	properly
consider 	them 	on 	a 	Rule 	12(b)(6) 	motion 	to 	dismiss. 	Off: 	ofAuditor 	ofAccts. 	v. 	Off. 	ofAtt'y
Gen., 	2025 	VT 	36, 	§ 	8, 221 	Vt. 	266.

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Rule 8 requires a “short and plain statement of the claim” in “simple, concise, and direct”
language with “all pleadings [to] be construed as to do substantial justice.” V.R.C.P. 8(a), (e), (f).
“[T]he threshold a plaintiff must cross in order to meet our notice-pleading standard is
exceedingly low.” Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575 (mem.) (citation omitted).
Consequently, “[m]otions to dismiss for failure to state a claim are disfavored and should be
rarely granted.” Id. (citation omitted). The court should be “particularly wary of dismissing
novel claims because ‘[t]he legal theory of a case should be explored in the light of facts as
developed by the evidence, and, generally, not dismissed before trial because of the mere novelty
of the allegations.’” Montague, 2019 VT 16, ¶ 11 (citation omitted).
II. 	Background
Applying this standard, the court derives the background section from the allegations in
the complaint and documents referenced and relied upon, including the Deposit Account
Agreement (“DAA”) attached to Chase’s 12(b)(6) motion.
Aguiar has, during all relevant times, maintained a bank account, credit card accounts,
and a vehicle loan with Chase. Compl. ¶¶ 2, 5. The DAA governed Aguiar’s relationship with
Chase. See Mot. 3 Ex. A. The court does not accept Aguiar’s conclusory allegation that
“Defendant [’]
s appended Chase account informational guide has [no] application or relevance to
any of his signed contractual agreements for any of his accounts with JP Morgan Chase.” See
Aguiar’s Resp. at 8 n 1. Vitale, 2023 VT 15, ¶ 28. He provides nothing to support that assertion
and the DAA reads otherwise.
The DAA included two specific provisions regarding setting off funds and closing the
bank account, namely: “You [Aguiar] agree that we [Chase] may, without prior notice or
demand, apply or set off the funds in your Account at any time to pay off any debt, whether
direct or indirect, you have with us[,]” Ex. A at 17, and “Either you [Aguiar] or the Bank [Chase]
may close your [Aguiar’s] Account at any time with or without cause,” id. at 18.
In 2009, Aguiar was arrested. Compl. ¶ 9. Sometime after that, Chase withdrew,
according to Aguiar, “approximately thousands of dollars,” from his Chase bank account. Id.
¶ 10. Aguiar did not authorize the withdrawal. Id. ¶ 11. At some other time, Chase closed
Aguiar’s Chase bank account without his knowledge or consent. Id. ¶ 12. Aguiar discovered the
closure within weeks of filing this complaint. Id. ¶ 14. Aguiar alleges Chase’s closure has
caused him to suffer damages, including but not limited to “loss of the withdrawn funds, loss of
use of those funds, [or] costs and burdens associated with attempting to reconstruct his account
history while incarcerated[.]” Id. ¶ 15. He brought four claims against Chase: conversion (Count
1), id. ¶¶ 17–21, breach of contract (Count 2), id. ¶¶ 22–25, unjust enrichment (Count 3), id. ¶¶
26–29, and negligence (Count 4), id. ¶¶ 30–33.1
1 One could read Aguiar’s negligence claim (Count 4) to encompass a claim for negligent nonperformance of
contractual obligations, as Chase observes in its Reply. See Chase’s Reply at 6 n 3. To the extent that Aguiar has
asserted this claim, the court dismisses it. The court has concluded today that the DAA governed the parties’
relationship. Aguiar may not assert a negligent nonperformance claim as an independent tort. See Breslauer v.
Fayston Sch. Dist., 163 Vt. 416, 422 (1995).

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III. 	Discussion
A. Conversion (Count 1)
“Conversion consists in either appropriating property to one’s own use and beneficial
enjoyment, destroying or exercising dominion over it to the exclusion of owner’s rights, or
withholding possession from owner under claim of title inconsistent with his title.” Redd
Distrib. Co. v. Bruckner, 128 Vt. 635, 639 (1970) (citation omitted). The key element of the
claim is “the wrongful exercise of dominion over property of another.” P.F. Jurgs & Co. v.
O’Brien, 160 Vt. 294, 299 (1993).
Aguiar fails to make out a prima facie case of conversion against Chase. Principally,
Aguiar cannot establish “the key element”: Chase’s wrongful exercise of dominion over his
property. Account deposits becomes “the property of the bank and the bank and the depositor
assume the relation of debtor and creditor.” Caledonia Nat. Bank of Danville v. McPherson, 116
Vt. 328, 331 (1950). The bank effectively gets “legal title” to the money and, absent a special
agreement to the contrary, the depositor becomes the bank’s creditor up to the value of the
deposit. O’Donnell v. Bank of Vermont, 166 Vt. 221, 225 (1997).
Aguiar’s conversion claim fails as a matter of law because after he deposited funds in an
ordinary bank account with Chase, see Compl. ¶¶ 2–3, 5, 11, the deposit became the property of
Chase which could not thereafter tortiously convert them. See e.g., Fundacion Museo de Arte
Contemporaneo de Caracas v. CBI-TDB Union Bancaire Privee, 160 F.3d 146, 148 (2d Cir.
1998) (“As to the conversion claim, we conclude that the Museum’s claim fails, as a matter of
law, because funds deposited in a bank account are not sufficiently specific and identifiable, in
relation to the bank’s other funds, to support a claim for conversion against the bank.”) (internal
quotation marks and citation omitted). Aguiar does not allege a special agreement covered his
deposit, nor that his deposit is somehow specific and identifiable from the rest of ordinary bank
deposits at Chase. See Aliya Medcare Fin., LLC v. Nickell, 156 F. Supp. 3d 1105, 1132–33 (C.D.
Cal. 2015) (“To be the subject of a conversion claim, however, the money, or the specific amount
of money, [must be] identifiable, such as where it is earmarked, or set aside in a separate
account, or otherwise identifiable.”) (internal quotation marks and citation omitted and alteration
in original).
Because Aguiar cannot establish Chase’s wrongful exercise of dominion over his
property, his conversion claim cannot survive dismissal.
B. Breach of Contract (Count 2)
To make out a viable breach of contract claim, the complaint need allege “(1) the
existence of an agreement, (2) adequate performance of the contract by the plaintiff, (3) breach
of contract by the defendant, and (4) damages.” Abad v. People’s United Bank, 2011 WL
11555546, at *6 (Vt. Super. Ct. May 2, 2011) (Pearson, J.) (quotation omitted). Still, the court
can dismiss a breach of contract claim under Rule 12(b)(6) if the terms of the contract are
unambiguous and the plain language of the contract contradicts or fails to support plaintiff’s
allegations of breach. See Orchard Hill Master Fund Ltd. v. SBA Commc’ns Corp., 830 F.3d

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152, 156–57 (2d Cir. 2016); see also Citibank N.A. v. City of Burlington, 971 F. Supp. 2d 414,
424 (D. Vt. 2013).
Here, Aguiar alleges that: (1) he entered into a bank account agreement with Chase,
Compl. ¶ 23; see also Chase’s Ex. A, (2) that agreement governed the parties’ rights and
obligations, id. ¶¶ 23–24, (3) Chase withdrew funds from Aguiar’s bank account without
authorization and closed the account without “notice and justification” as required by the
agreement, id. ¶ 24, and (4) this caused Aguiar to suffer damages, id. ¶ 25.
Aguiar does not attach the parties’ agreement to his complaint; Chase attaches it to its
motion to dismiss, see Chase’s Ex. A. Because Aguiar’s complaint relies on the DAA, it merges
into the complaint and the court may properly consider it on a motion to dismiss. See supra § I
(citing authorities).
The court concludes the DAA governs the parties’ relationship. First, Aguiar’s own
allegations support a conclusion that a bank account agreement existed between the parties:
Aguiar alleges that he maintained “a consumer bank account, credit card accounts, and a Chase
vehicle loan” with Chase, Compl. ¶ 5, that there exists a “bank account agreement” between the
parties, id. ¶ 24, and that, under this agreement, “Chase agreed to maintain Mr. Aguiar’s account
and process transactions in accordance with the agreement and applicable law[,] id. ¶ 23.
Second, although Aguiar asserts the DAA, Chase’s Ex. A, is merely an “account informational
guide,” Aguiar’s Reply at 8 n 1, the DAA provides that it is “your [Aguiar’s] Deposit Account
Agreement, or contract, with us [Chase,]” Chase’s Ex. A at 3 (entitled “About this guide”). The
DAA further provides that “[t]his agreement governs personal and business deposit accounts …
at JPMorgan Chase Bank, N.A.” and that by “opening or maintaining a checking [or] savings …
account with us, you accept and agree to be bound by the terms and conditions of this
Agreement.” Id. at 7. Lastly, the DAA entered into force as of December 31, 2008, id. at 34, at
around the time relevant to Aguiar’s claims, Compl. ¶¶ 5, 9–10.
Aguiar alleges that Chase breached the DAA by “[b]y withdrawing funds from [his] bank
account without authorization.” Compl. ¶ 24. He contends this constituted a breach because he
“did not approve any debit, setoff, transfer, or other transaction allowing Chase to remove funds
from Plaintiff’s deposit account.” Id. ¶ 11. The plain terms of the DAA contradict this
allegation. The DAA expressly allows what Aguiar alleges Chase cannot do: “You agree that we
may, without prior notice or demand, apply or set off the funds in your Account at any time to
pay off any debt, whether direct or indirect, you have with us[.]” Chase’s Ex. A at 17. Aguiar’s
allegation do not support a breach.
Equally, Aguiar’s allegation that Chase breached the DAA by closing his account
“without proper notice and justification as required by the agreement[,]” Compl. ¶ 24, does not
help his claim. The DAA provides that Chase “may close your Account at any time with or
without cause.” Ex. A at 18.
Chase’s conduct in either case did not violate the DAA that authorizes both withdrawing
funds and closing account without prior notice.

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C. Unjust Enrichment (Count 3)
“[T]he equitable doctrine of unjust enrichment rests upon the principle that a man shall
not be allowed to enrich himself unjustly at the expense of another.” Legault v. Legault, 142 Vt.
525, 531 (1983) (internal quotation marks and citation omitted). But “[a] valid contract displaces
any inquiry into unjust enrichment as to ‘matters within its scope.’” Beldock v. VWSD, LLC,
2023 VT 35, ¶ 77, 218 Vt. 144 (quoting Restatement (Third) of Restitution and Unjust
Enrichment § 2(2)). The doctrine only provides “relief for a plaintiff when an enforceable
contract does not exist but fairness dictates that the plaintiff receive compensation.” Id. ¶ 78
(internal quotation marks and citations omitted).
Aguiar describes the benefit that Chase retained here as: “funds taken through the
withdrawal of funds from [his] bank account.” Compl. ¶ 27. The DAA governs the relationship
between the parties. Id. ¶¶ 23–24; Chase’s Ex. A. That contract covers the alleged unjust
enrichment: Chase’s retention of Aguiar’s deposit. Aguiar’s unjust enrichment claim “falls
squarely within the scope of the contract” and Aguiar is “precluded from recovering under a
theory of unjust enrichment[,]” Fiske v. Halkiotis, 2024 WL 3876123, at *3 (Vt. Aug. 15, 2024)
(unpub. mem.).
Still, Aguiar appears to suggest that he may plead unjust enrichment at this stage as an
alternative and inconsistent claim. Compare Reply at 9 and V.R.C.P. 8(e)(2) (allowing a party to
plead inconsistent claims). This court concludes he may not do so for Rule 12(b)(6) purposes.
Compare Int’l Techs. Mktg., Inc. v. Verint Sys., Ltd., 157 F. Supp. 3d 352, 370–71 (S.D.N.Y.
2016) (dismissing unjust enrichment at the 12(b)(6) stage, reasoning that “plaintiff may
not recover under a quasi-contractual theory for the very same damages” that were addressed by
“valid contract governing their relationship”) with Beldock, 2023 VT 35, ¶ 77 (“We need not
decide here whether Beldock could plead unjust enrichment as an alternative theory of relief to
his breach-of-contract claim.”).
D. Negligence (Count 4)
“[N]egligence law does not generally recognize a duty to exercise reasonable care to
avoid intangible economic loss to another unless one’s conduct has inflicted some accompanying
physical harm, which does not include economic loss.” Gus’ Catering, Inc. v. Menusoft Sys., 171
Vt. 556, 558 (2000) (mem.) (quotation omitted). Economic loss refers to “damages other than
physical harm to persons or property.” Springfield Hydroelectric Co. v. Copp, 172 Vt. 311, 315
(2001) (quotation omitted). The rule accordingly “prohibits recovery in tort for purely economic
losses.” Long Trail House Condo. Ass’n v. Engelberth Constr., Inc., 2012 VT 80, ¶ 10, 192 Vt.
322 (quotation omitted).
The rule bars Aguiar’s negligence claim because he alleges purely economic losses. See
e.g., Compl. ¶ 1 (characterizing this action as one “for unauthorized actions that include
withdrawing funds from Plaintiff’s bank account, and for modifying and closing Plaintiff’s
various bank, credit card, and loan accounts without Plaintiff’s knowledge or consent), ¶ 10
(“Chase withdrew and/or caused to be withdrawn funds from Mr. Aguiar’s Chase bank account
in the amount of approximately thousands of dollars that Mr. Aguiar had deposited in his account

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prior to his July 30, 2009 arrest.”), ¶ 15 (“Mr. Aguiar has suffered damages including, but not
limited to, the loss of the withdrawn funds, loss of use of those funds, costs and burdens
associated with attempting to reconstruct his account history while incarcerated, and other
damages to be proven at a jury trial.”), ¶ 34 (requesting “compensatory damages in an amount to
be proven at trial, including but not limited to the amount of the unauthorized withdrawals of
funds from Mr. Aguiar’s bank account under §75,000”). Negligence “does not generally
recognize a duty to exercise reasonable care to avoid intangible economic loss to another[.]
O’Connell v. Killington, Ltd., 164 Vt. 73, 77 (1995).
The economic loss rule has two exceptions. First, the economic-loss rule does not apply
if there has been some accompanying physical harm beyond purely economic loss. See Walsh v.
Cluba, 2015 VT 2, ¶ 28, 198 Vt. 453. Second, it does not apply when there exists “a special
relationship between the plaintiff and the defendant, and the defendant has assumed the
responsibility not to violate a professional duty owed to the plaintiff.” Veljovic, 2025 VT 38, ¶
12.
No exception applies to this case. Aguiar does not allege some accompanying physical
harm beyond the purely economic loss of withdrawn deposit. Walsh, 2015 VT 2, ¶ 28. He
likewise does not allege a special relationship between himself and Chase; he does not allege
specific facts “that establish a relationship of trust, confidence, or reliance.” Veljovic, 2025 VT
38, ¶ 15. A relationship between a bank and its customers does not qualify in any event. See id.
¶ 19 (“The fact that plaintiff was an account holder alone, without a showing that she placed her
trust, confidence, and reliance in the bank … does not suffice to show a special relationship.”);
Evergreen Fam. Health Partners, LLP v. Bank of Burlington, Inc., 829 F. Supp. 3d 1, 12 (D. Vt.
2026) (rejecting that relationship of account holder and bank alone as sufficient to constitute a
special relationship under Vermont law).
E. Motion to Amend Complaint
Aguiar also seeks to amend the complaint. See Aguiar’s Response at 3, 9. He filed no
motion. V.R.C.P. 7(b)(1) (“An application to the court for an order shall be by motion ….”).
Leave to amend a pleading “shall be freely given when justice so requires.” V.R.C.P.
15(a). Courts liberally permit amendments to a party’s pleadings to allow maximum opportunity
for claims to be decided on the merits. Lillicrap v. Martin, 156 Vt. 165, 170 (1989). Indeed,
“[w]hen there is no prejudice to the objecting party, and when the proposed amendment is not
obviously frivolous nor made as a dilatory maneuver in bad faith, it is an abuse of discretion to
deny the motion [to amend].” Bevins v. King, 143 Vt. 252, 254–55 (1983).
A court may, however, deny a motion to amend when, among other reasons, amendment
would be futile. Vasseur v. State, 2021 VT 53, ¶ 7, 215 Vt. 224. Amendment would be futile if
the amended complaint cannot withstand a motion to dismiss. Prive v. Vt. Asbestos Grp., 2010
VT 2, ¶ 13, 187 Vt. 280; see also Thea v. Kleinhandler, 807 F.3d 492, 496–97 (2d Cir.
2015) (“Proposed amendments are futile if they would fail to cure deficiencies or state a claim
under Rule 12(b)(6).”).

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Given today’s ruling, no amendment of the alleged facts would cure the deficiencies of
the initial complaint as a matter of law. See, e.g., Veljovic, 2025 VT 38, ¶ 20 (“Therefore,
because plaintiff’s proposed amended complaint, like her original complaint, cannot show that an
exception to the economic-loss rule applies, it cannot withstand a motion to dismiss, and
amendment would therefore be futile.”).
IV. 	Order
The court grants Chase’s Mot. 3 and dismisses all claims. The court denies Aguiar’s
motion to amend complaint.
Electronically signed pursuant to V.R.E.F. 9(d) on September 14, 2026.
Colin Owyang
Superior Court Judge