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Gabriel Dragos Toader v. J.P. Morgan Chase Bank

August 23, 2011


The opinion of the court was delivered by: Judge Robert W. Gettleman


Plaintiff Gabriel Dragos Toader has filed a pro se*fn1 two-count first amended complaint against defendants J.P. Morgan Chase Bank, N.A. ("Chase") and Bank of America ("BoA"), alleging violations of the Right to Financial Privacy Act (the "RFPA"), 12 U.S.C. § 3401 et seq. Defendants Chase and BoA have filed the instant motions for summary judgment on, respectively, Counts One and Two. Defendant BoA has also filed a motion to strike paragraph 42 of the affidavit of Matthew Siffermann ("SA Siffermann"),*fn2 which plaintiff submitted with his opposition to BoA's summary judgment motion. For the reasons discussed below, defendants' summary judgment motions are granted. The motion to strike is denied as moot.


Unless otherwise stated, the following facts are undisputed by the parties. Additional pertinent undisputed facts relating specifically to either Chase or BoA are included below in the discussions of defendants' respective summary judgment motions.

On December 21, 2007, the United States filed a criminal complaint in the Northern District of Illinois, charging plaintiff with knowingly engaging or attempting to engage in a monetary transaction of criminally derived property of a value greater than $10,000, which was derived from a specified unlawful activity (wire fraud), in violation of 18 U.S.C. § 1957(a). United States v. Toader, 07 CR 862. The criminal complaint alleged that plaintiff and others tricked over 2,000 individuals in the United States and abroad into believing that they were purchasing items from eBay and other websites. Using Western Union, these individuals wired over $5 million to plaintiff and others.*fn3 In 2008, as part of the investigation into this scheme, a grand jury subpoenaed Chase and BoA for plaintiff's account information. Chase and BoA complied with that subpoena.

In the instant case, plaintiff alleges that Chase and BoA had also provided his account information-specifically, the number and names of the accounts, tax identification numbers, balances, deposits, and transfers- to the government before that grand jury subpoena, at some point after November 4, 2004, but before the criminal complaint was filed on December 21, 2007, in violation of 12 U.S.C. § 3403(a) of the RFPA.


I. Legal Standards

Summary judgment is appropriate when the moving party shows that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of asserting the absence of a genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and must support that assertion by citing to materials in the record. Fed. R. Civ. P. 56(c)(1)(A). Once the movant has met that burden, the nonmoving party can defeat summary judgment by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(B).

The court's role "is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact." Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). The court therefore draws all reasonable inferences in the light most favorable to the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir. 1992).

II. Defendant Chase's Motion for Summary Judgment on Count I

From September 2005 through May 2006, plaintiff opened several accounts with Chase. On May 5, 2006, Chase's Wire Fraud Department notified its Fraud Prevention & Investigation Department that there was a potential problem with plaintiff's accounts. Chase reviewed plaintiff's account activity from October 2005 to April 30, 2006, and saw that plaintiff had made numerous large cash deposits to his accounts, and had made numerous wire transfers to Cyprus and Romania, the majority of which were between $9,000 and $9,900.

On June 1, 2006, Chase took a number of steps in response to these discoveries. Chase interviewed plaintiff, who stated that he ran a construction and remodeling company and that the cash deposits represented cash down payments from his customers. Plaintiff also told Chase about a resort/spa in Cyprus called "AFMA," and stated that he was considering buying a hotel or club. Also on June 1, 2006, Chase initiated the account closure process for plaintiff's accounts.

Finally, also on June 1, 2006, Chase notified law enforcement of these transactions, based on its conclusion that they were sufficiently indicative of ongoing potentially criminal activity so as to require notification.*fn4 At an unspecified time after June 1, 2006, but before December 21, 2007 (when SA Siffermann executed his affidavit and the criminal complaint against plaintiff was filed), Chase received a follow-up phone call from law enforcement, which requested that Chase provide ...

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