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Cole v. Wells Fargo Bank

United States District Court, D. New Jersey

March 26, 2015

FRANCINE COLE, both individual and as Co-Administrator for the Estate of Annie L. Cole, Plaintiff,
v.
WELLS FARGO BANK, N.A., GWENDOLYN COLE-HOOVER, and KEVIN TODD JOHNSON, Defendants.

OPINION & ORDER

KEVIN MCNULTY, District Judge.

Now before the Court is plaintiff Francine Cole's appeal of Magistrate Judge Hammer's Order (Dkt. No. 81) denying her motion for recusal or disqualification. For the reasons set forth below, Cole's appeal of Magistrate Judge Hammer's Order is denied.

I. BACKGROUND

Francine Cole is a plaintiff in two actions that are, or were, before courts in this district. The subject matter of these actions is not closely related. The common denominator, for present purposes, is that Judge Hammer is the magistrate judge assigned to both cases.

The Current Action

The action now before this Court grew out of a dispute between Cole and her sister, defendant Gwendolyn Cole-Hoover, regarding the sisters' inheritance from their mother. The plaintiff and defendant Cole-Hoover are co-administrators of their late mother's estate. (Complaint, Dkt. No. 1, ¶¶ 7-8) The estate includes a home in Morristown, New Jersey (the "Morristown" property). On November 22, 2006, Cole and Cole-Hoover took out a $125, 000 home equity line of credit (the "credit line") on the Morristown home with defendant Wells Fargo Bank, N.A. ("Wells Fargo"). The credit line was jointly held by Cole and Cole-Hoover; both could freely withdraw funds.

In 2009, Cole-Hoover began to take issue with how Cole had been spending the credit line funds. Sometime in October 2010, Cole alleges, Cole-Hoover granted power of attorney to her nephew, defendant Kevin Johnson. (Cole Dep. Tran. 160-64) Pursuant to that authority, Johnson withdrew the remaining balance of the credit line, which was approximately $62, 000. (Id. )

The plaintiff instituted this action against Cole-Hoover, Wells Faro, and Johnson on March 30, 2012 (the "Current Action"). The basis of her Complaint is that Cole-Hoover and Johnson contrived to fraudulently remove the credit line funds from the Wells Fargo account, and that Wells Fargo intentionally failed to stop them. The Complaint asserted diversity jurisdiction and was subsequently dismissed because Cole and Johnson were both New Jersey citizens. (Dkt. No. 8)

On May 10, 2012, Cole filed an Amended Complaint (Dkt. No. 14) asserting claims under the Real Estate Settlement Procedures Act, 12 U.S.C. 2605 and the Truth in Lending Act, 15 U.S.C. 1666(a). The Amended Complaint also asserts common law claims for breach of contract, breach of fiduciary duty, common law fraud, conversion, conversion by undue influence, quiet title, unconscionable contract, consumer fraud, tortious interference with inheritance, and intentional infliction of emotional distress.

The Life Insurance Action

The plaintiff is also party to a life insurance action, Cole v. Guardian Life Insurance Company, Dkt. No. 11-cv-1026 (the "Life Insurance Action"), over which Judge Linares presided.[1]

That earlier action arose following the death of Cole's sister, Bevelyn Cole. (Because these two sisters share a surname, I will refer to her as "Bevelyn.") Cole believed that she was entitled to certain benefits under Bevelyn's life insurance policy with the Guardian Life Insurance Company ("GLIC"). On February 23, 2011, Cole brought suit pursuant to the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et. seq, challenging GLIC's non-payment of an accidental death benefit following Bevelyn's death. GLIC moved for summary judgment on the basis that Cole did not have standing to bring suit under ERISA because she was neither a participant in, nor a beneficiary of, the insurance plan at issue.

Judge Linares found that Cole lacked standing and entered summary judgment in favor of GLIC. (Dkt. No. 72) Cole's subsequent motion for reconsideration was denied. (Dkt. No. 78) Cole appealed both decisions to the United States Court of Appeals for the Third ...


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