United States District Court, S.D. Florida
ORDER DENYING DEFENDANT'S MOTION TO
L. ROSENBERG, UNITED STATES DISTRICT JUDGE
cause is before the Court on Defendant Susan Van Veen's
Motion to Dismiss [DE 20]. The motion has been fully briefed.
For the reasons set forth below, the motion is denied.
this Court must accept all of Plaintiff's allegations as
true, the Court sets forth below the salient facts governing
the Motion before the Court. In March of 2016,
Plaintiff's aunt, Ms. Alice Lattimore, transferred $110,
000 into a bank account that was jointly owned by Plaintiff
and Ms. Lattimore. Complaint ¶ 14. Ms. Lattimore
informed Plaintiff that this money was a gift for Plaintiff
to purchase a home. Id. ¶ 15; DE 18-1.
Plaintiff accepted the gift. Complaint ¶ 16. On March
23, 2016, Ms. Lattimore wrote a letter to an underwriting
team (for a home lender that was considering Plaintiff's
mortgage application) explaining the transfer of the $110,
000. Id. ¶ 18. Ms. Lattimore explained in the
letter, in relevant part, that the money was a gift to
Plaintiff. Id. at attachment 1.
of 2016 Ms. Lattimore's health began to rapidly
deteriorate. Id. ¶ 20. Defendant was the adult
step-daughter of Ms. Lattimore. Id. ¶ 21. Ms.
Lattimore executed a Durable Power of Attorney appointing
Defendant as her attorney-in-fact. Id. ¶ 24. On
July 13, 2016, Defendant spoke with Plaintiff about the $110,
000. Id. ¶ 30. Plaintiff informed Defendant
that the money was a gift from Ms. Lattimore to Plaintiff to
purchase a new home. Id. Defendant was made aware of
the letter Ms. Lattimore had written explaining that the
$110, 000 was a gift. Id. ¶ 33. On July 14,
2016, pursuant to the authority of the Durable Power of
Attorney, Defendant transferred $105, 000 from the account
jointly owned by Plaintiff and Ms. Lattimore to an account
that Defendant jointly owned with Ms. Lattimore.
Id. ¶ 31.
Defendant transferred the $105, 000, Defendant demanded that
Plaintiff (who was visiting Ms. Lattimore) leave Ms.
Lattimore's home. Id. ¶ 34. After Plaintiff
phoned legal counsel, Defendant called law enforcement.
Id. ¶ 35. After law enforcement arrived,
Plaintiff left voluntarily. Id. ¶ 36. Two days
after Plaintiff's removal from Ms. Lattimore's home,
July 25, 2016, Ms. Lattimore died. See Id. ¶
37. Plaintiff filed the instant suit on September 22, 2016,
seeking damages in connection with Defendant's transfer
of the $105, 000.
Defendant has raised several arguments against each of
Plaintiff's claims, Defendant's arguments are each
based upon one of two premises. First, Defendant argues that
because Defendant's actions were authorized by the
Durable Power of Attorney, Defendant cannot be held liable as
a matter of law. Second, Defendant argues that Florida law
establishes that Plaintiff was only entitled to the balance
of the jointly-held bank account at the time of Ms.
Lattimore's death. In connection with this latter
argument, Defendant contends that, essentially, Plaintiff
cannot and has not alleged that there was an inter vivos gift
from Ms. Lattimore to Plaintiff. Each argument is discussed
respect to Defendant's contention that her actions were
fully authorized by the Durable Power of Attorney, this
contention ignores Plaintiff's allegations. For example,
while it is true that the Power of Attorney authorized
Defendant to transfer monies between accounts owned by Ms.
Lattimore, the Power of Attorney did not confer blanket
immunity upon Defendant. The Power of Attorney stated that
“my Agent shall be liable for willful misconduct or the
failure to act in good faith while acting under the authority
of this Power of Attorney” and “You may not
transfer the principal's property to yourself without
full and adequate consideration.” DE 18-2 at 5, 11.
Here, viewing all of the facts alleged in the complaint in
the light most favorable to Plaintiff: (i) Defendant was
aware of the gift to Plaintiff, but, notwithstanding this
knowledge, (ii) Defendant undertook to take the gift away
from Plaintiff's control, (iii) Defendant moved the money
to an account in which Defendant-not Plaintiff- would
eventually receive the money, (iv) Defendant's actions
were intentional so as to ensure that the $105, 000 would be
hers, and (v) Defendant utilized her Power of Attorney to
separate Plaintiff from Ms. Lattimore during Ms.
Lattimore's final days of life. Thus, Plaintiff's
allegations are, at a minimum, sufficient to survive
Defendant's Motion to Dismiss because Plaintiff has not
alleged that Defendant's actions under the Power of
Attorney were authorized or proper.
respect to Defendant's contention that Plaintiff was only
entitled to the balance of the jointly-held account at the
time of Ms. Lattimore's death, this contention also
ignores the allegations in Plaintiff's
complaint. Plaintiff has not brought suit because she
contends the balance in her account with Ms. Lattimore was
improperly administered at the time of Ms. Lattimore's
death; Plaintiff has brought suit on the premise that a gift
was made to her long before Ms. Lattimore's
death. “Funds contributed to a joint bank account by
one of the owners of the account are presumed to be a gift to
the other owners of the account absent clear and convincing
evidence to the contrary.” De Soto v. Guardianship
of Antonio De Soto, 664 So.2d 66, (Fla. Dist. Ct. App.
1995). “[T]he interests of all joint owners in the
[bank account] funds survive their transfer from the account
by one of the owners.” Id. Here, Plaintiff has
alleged that Ms. Lattimore told her the funds were a gift to
her. Plaintiff has attached a letter to her complaint wherein
Ms. Lattimore informed a third party of this gift. A letter
is evidence sufficient to establish a gift, even if
the letter predates the actual transfer of ownership of
property. See Tanner v. Robinson, 411 So.2d 240
(Fla. Dist. Ct. App. 1982) (stating that a
“missing” letter to broker requesting transfer of
stock sufficient for an inter vivos gift); see also
Naylor v. U.S. Trust. Co. of Fla., 711 So.2d 1350 (Fla.
Dist. Ct. App. 1998) (delivery of a letter to a trustee
constituted constructive delivery of funds); Varela v.
Bernachea, 917 So.2d 295, 298 (Fla. Dist. Ct. App. 2005)
(“When a joint bank account is established with the
funds of one person, a gift of the funds is
presumed.”); Panzirer v. Deco Purchasing &
Distributing Co., 448 So.2d 1197 (Fla. Dist. Ct. App.
1984). The elements of an inter vivos gift are present
donative intent, delivery, and acceptance. Welch v.
DeCecco, 101 So.3d 421, 422 (Fla. Dist. Ct. App. 2012).
Ms. Lattimore's letter, attached to Plaintiff's
complaint, is alone sufficient for Plaintiff's
allegations to satisfy these three elements. Indeed,
Plaintiff's allegations are such that it may easily be
inferred that it is her position that even Ms.
Lattimore was not authorized to withdraw the funds from
her jointly-held account because (i) she had gifted those
funds to Plaintiff, (ii) the gift was for the purchase of a
house, and (iii) Plaintiff's search for a house and
mortgage application process was ongoing.
of the foregoing reasons, it is hereby ORDERED AND
ADJUDGED that Defendant's Motion to Dismiss [DE
20] is DENIED and Defendant's Motion for
a More Definite Statement [DE 20] is DENIED.
 Defendant's argument is based upon
Florida law that establishes a presumption that a
jointly-held account with a right to survivorship creates a
presumption of a gift, but only as to the funds in the
account at the time of a decedent's death. See
Fla. Stat. § 655.79; In re Estate of Combee,
601 So.2d 1165 (Fla. 1992). But Plaintiff is not relying upon
a statutory presumption for her claims; Plaintiff is ...