On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2017-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Lihotz and Simonelli.
Plaintiff Angela Khorozian appeals from the dismissal of her amended complaint. Khorozian's claims are based on alleged tortious conduct that occurred at the time she opened a commercial bank account at Hudson United Bancorp (the Bank)*fn1 and attempted to deposit into the account two checks totaling more than twenty million dollars. The Bank discovered the checks were counterfeit and contacted the FBI. Plaintiff was arrested when she returned to the Bank anticipating the negotiation of the checks. She was tried and convicted of bank fraud and conspiracy to commit bank fraud. See United States v. Khorozian, 333 F.3d 498 (3d Cir.), cert. denied, 540 U.S. 968, 124 S.Ct. 450, 157 L.Ed. 2d 314 (2003). Almost six years after her attempted deposit, Khorozian filed her civil action, centered on the Bank's alleged breach of duties owed to her as a customer. The Bank moved to dismiss challenging the legal sufficiency of plaintiff's complaint. Judge Wenzel reviewed each of the eleven alleged causes of action. The judge dismissed several claims as time-barred and others for failure to state a cause of action. We affirm.
The facts undergirding plaintiff's action are taken from the Third Circuit opinion affirming her criminal convictions: In 2000, Khorozian was approached with a moneymaking opportunity by her longtime acquaintance Eduardo Queirolo, a businessman from Brazil. Queirolo told Khorozian that a third person, Mr. Camilo, had presented Queirolo with a scheme in which he could obtain . . . $6 million if he negotiated $20,398,872 in checks through a bank in the United States. Camilo said the checks needed to be negotiated in the United States to avoid high taxes that would result were they negotiated in Brazil. Queirolo requested Khorozian's assistance in this project. It was agreed that Khorozian would receive $3 million of the commission, Queirolo and Camilio [sic] would each receive $1 million, and other unnamed individuals would split the remaining $1 million.
To facilitate negotiation of the checks, Khorozian attempted to open a commercial bank account at [the Bank]. To find out how to open such an account, she spoke with John Demetrius, a personal friend who sits on [the Bank's] board of directors. Demetrius, in turn, referred Khorozian to David Yanagisawa, a Senior Vice President at [the Bank].
Yanagisawa established an account for Khorozian at a meeting in which she made three misrepresentations. First, Khorozian told Yanagisawa that she expected to make the initial deposit via wire transfer. Her statement is significant because a wire transfer is an instantaneous transfer of funds and thus would pose no financial risk to [the Bank]. Yanagisawa testified that, had he known the initial deposit would be $20 million in checks, he would not have opened the account because of the increased risk. Second, Khorozian represented that she would be using the deposited funds for investment in a sugar plantation in Africa when in fact she had no such plans. Third, she opened the account in the name of "Sugarbank," a New Jersey corporation whose authorization to do business had lapsed due to its failure to pay taxes.
On May 25, 2000, Queirolo received two checks. One was allegedly drawn on the account of Costco Wholesale Corp. and the other on Liberty Carton Co.'s account. The checks were both payable to an individual named Luiz Carlos Teixiera. At trial, Queirolo testified that he verified that the checks were not the result of drug or arms trafficking, that Costco and Liberty Carton had sufficient funds to pay the checks, and that the check numbers were "correct." He was unable to verify whether the signatures on the checks were genuine. Thus, because his investigative resources in Brazil were limited, he asked Khorozian to perform a more thorough investigation in the United States. She agreed and later told him that she investigated the checks and that they were good. On May 30, 2000, Queirolo arrived in the United States with the checks. Khorozian endorsed both checks as payable to Sugarbank.
The next day, Khorozian and Queirolo went to [the Bank] to deposit the checks. They were assisted by the Custom Branch Manager, Anthony Moscati. At this meeting, Khorozian introduced Queirolo as "Mr. Teixeira [sic]," the individual to whom the checks were payable-a fourth misrepresentation. Moscati showed the checks to Tom Shara, the Executive Vice President in charge of commercial loans, who accepted the checks, but subjected them to a thirty-day hold for verification, given the large sum at stake.
Upon returning home, Khorozian received a fax-sloppily handwritten-instructing her and Queirolo how to distribute the $20 million. Khorozian and Queirolo had expected that they would be asked to forward the funds to a single bank account, but the fax instead instructed them to wire money to "about five" accounts, some held by individuals with Arabic names. The fax's unexpected instructions and unprofessional appearance made Khorozian and Queirolo suspicious, according to Queirolo, but they nonetheless proceeded with their plan. In fact, Queirolo testified that, as a result of the suspicious instructions and because of concerns that [the Bank] might become suspicious when asked to effect the transfers, Khorozian drew up a two-page fake "investment contract" between Sugarbank and Teixiera. The agreement purported to contain the terms of a hotel development project in Africa valued at the exact amount of the two checks. The contract specified that Sugarbank would receive a 15% commission for its work-less than the agreed-upon $6 million commission, according to Queirolo, to make it appear more credible.
Queirolo testified that he and Khorozian planned to furnish the agreement to [the Bank] in the event that anyone at the bank inquired into their intentions with respect to the $20 million deposit.
Meanwhile, [the Bank] attempted to verify the validity of the two checks by calling Costco and Liberty Carton. Each confirmed that it did not issue its respective check. Upon discovering that they were counterfeit, the bank called the FBI, which arrested Khorozian and Queirolo. Queirolo pled guilty to conspiracy to commit bank fraud and appeared as a Government witness at Khorozian's ...