Albuquerque, New Mexico civil litigation lawyer represented Plaintiff, who sued Defendant on a breach of fiduciary duty theory claiming more than $75,000 as a direct result of Defendant's wrongful banking practices.

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This case was filed in the Second Judicial District Court, 21CV03417, and was removed to federal court by Defendant.



This case involved the Bank's oversight of decedent Joan Yvonne Ellard's accounts. On November 19, 2013, the New Mexico Thirteenth Judicial District Court found Ellard to be incapacitated. The state court subsequently appointed George York as Ellard's limited conservator. York, who held at least five accounts at the Bank, allegedly caused Ellard to open at least three of her own accounts with the Bank. Then, in an alleged breach of the conservatorship, York transferred tens of thousands of dollars from Ellard's accounts to his accounts between 2014 and 2019.



Ellard passed away in December of 2018. On April 4, 2019, the New Mexico Second Judicial District Court appointed Stephanie Epstein as the personal representative of Ellard's Estate. Epstein advised the Bank of her appointment on May 6, 2019. Id. ¶ 70. Four days later, on May 10, 2019, the Bank acknowledged the appointment. Id. ¶ 71. And throughout that spring, York continued to transfer money-a final transaction from York's to Ellard's accounts occurred on May 14, 2019.



The Estate initiated a state probate action in the Second Judicial District Court on May 28, 2019. Pet. to Set Aside Beneficiary Designations, Epstein ex rel. Estate of Ellard v. York (In re Estate of Ellard), D-202-PB-2019-00292 (2d Jud. Dist. Ct. June 18, 2019) The Estate's complaint listed York and his wife, Jennifer York, as respondents and the Bank as a nominal respondent. From the Yorks, the Estate sought removal of their designations as beneficiaries, damages for breach of fiduciary duty and breach of trust, and an accounting of Ellard's assets. And from the Bank, the Estate sought a temporary restraining order to freeze Ellard's funds. In the alternative, the Estate requested an order for the Bank to interplead Ellard's funds into a court registry. On July 2, 2019, the state court enjoined the Bank from distributing Ellard's funds. Order to Hold Funds 3, Estate of Ellard, D-202-PB-2019-00292 (2d Jud. Dist. Ct. July 2, 2019)



Over a year later, on September 10, 2020, the parties signed a stipulated order dismissing claims against the Bank with prejudice. Stipulated Order Dismissing Claims Against BOKF 2, Estate of Ellard, D-202-PB-2019-00292 (2d Jud. Dist. Ct. Sept. 10, 2020) The stipulated order stated, "It is hereby ordered, adjudged, and decreed that any claims which have been or could have been asserted in this matter against [the Bank] are hereby dismissed with prejudice ....” The order's caption listed the Bank as a nominal respondent. Id.



On June 1, 2021, the Estate filed a new case against the Bank in the Second Judicial District Court. Compl. The Estate sought actual and punitive damages for aiding and abetting a breach of fiduciary duty, breach of contract, breach of the covenant of good faith and fair dealing, and negligence. The Bank filed a notice of removal to this Court on June 25, 2021. Notice of Removal The Bank then moved for judgment on the pleadings on October 26, 2021.



The Estate both responded to the Bank's motion in this Court and moved to revise the stipulated order in the New Mexico Second Judicial District Court. Estate's Resp. Mot. to Revise, Estate of Ellard, D-202-PB-2019-00292 (2d Jud. Dist. Ct. Oct. 27, 2021) The Estate asked the state court to specify that it "did not adjudicate the merits of any substantive claims by [the Estate] against the Bank.” Mot. to Revise Ex. 1, at 1 The Estate also sought specification that the state court "dismissed with prejudice only those claims that [the Estate] asserted or could have asserted against the Bank as 'nominal respondent,' requiring it to freeze or interplead Joan Ellard's assets at the Bank.” Id.



The state court denied the motion to revise the stipulated order. Order Denying Mot. to Revise ¶ 10, Estate of Ellard, D-202-PB-2019-00292 (2d Jud. Dist. Ct. Dec. 3, 2021) The court noted, however, that the Bank "was originally named as a nominal party in this proceeding” and that "[t]he Bank was originally named in this proceeding merely to obtain jurisdiction, and to assure that the Yorks and the Bank were enjoined from transferring certain assets from the bank that might belong to the Estate.”



Both parties then submitted to this Court their interpretations of the state court's denial of the revision. The Bank asserts that, "[g]iven the Order by [the state court], there is no longer any doubt whatsoever that [the Estate] is barred from pursuing [its] claims against [the Bank] based upon [its] voluntary dismissal with prejudice.” Notice to the Ct. 2 The Estate, by contrast, asserts that the state court "clarified the procedural record in the [first action] in a way that demonstrates the absence of a res judicata defense for the Bank in this case.” Resp. to the Bank's Notice ¶ 5.

Settled for an undisclosed sum and dismissed with prejudice.