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Marilyn Jean Feller v. First Interstate Bancsystem

April 9, 2013


APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Big Horn, Cause No. DV 2011-28 Honorable Blair Jones, Presiding Judge

The opinion of the court was delivered by: Patricia Cotter

April 9 2013

Submitted on Briefs: February 13, 2013



Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Marilyn Jean Feller (Feller) appeals from an order of the Twenty-Second Judicial District Court, Big Horn County, granting summary judgment to First Interstate Bancsystem, Inc. and First Interstate Bank (collectively the Bank) on Feller's claims of negligence, actual and constructive fraud, wrongful conversion, intentional and negligent infliction of emotional distress, deceit, breach of contract, breach of the covenant of good faith and fair dealing, and negligent misrepresentation. We affirm the District Court's entry of summary judgment in favor of the Bank on all of Feller's claims.


¶2 Feller raises the following three issues on appeal:

¶3 1. Did the District Court err by granting summary judgment to the Bank based on preemption by the federal Fair Credit Reporting Act?

¶4 2. Did the District Court err in denying Feller's motion for partial summary judgment and granting the Bank's motion for summary judgment on Feller's conversion claim?

¶5 3. Did the District Court err in dismissing Feller's emotional distress claims?


¶6 Feller's allegations stem from the actions of a former Bank employee, Diane Becker (Becker), who is now serving a sentence in federal prison related to an embezzlement scheme. Becker worked as a vice president of the Bank's Hardin branch and assisted Feller with her banking and finances. Feller also had a personal relationship with Becker. Becker is married to Feller's ex-husband and Feller described her as a friend. Becker's criminal scheme involved booking phony loans or lines of credit in the names of relatives or acquaintances and appropriating these funds for her personal use. Becker was suspended from her employment at the Bank in late 2007.

¶7 Feller had been a customer of the Bank for many years and had a home mortgage loan through the Bank. Becker was Feller's primary contact at the Bank. After Becker's suspension, the Bank's audit department sent Feller a letter on December 28, 2007, asking Feller to confirm whether the Bank's records accurately reflected the loan and account balances in her name. The letter contained information on two loans other than her home mortgage loan. Feller checked the box on the form stating that that information was correct, and returned the documents to the Bank on January 3, 2008.

¶8 In April 2008, Federal Bureau of Investigation (FBI) agents visited Feller and questioned her about her knowledge of financial dealings involving Becker. At the time of the interview, Feller was aware that Becker had been suspended by the Bank but claimed that she did not know the reasons for the suspension. Feller testified in a deposition that she was "terrified" by the interview because it was intimated that Feller was somehow involved in Becker's illegal actions. Feller went on to testify in her deposition, however, that the FBI agents were professional and did nothing improper. Feller was told not to talk about the investigation. The Bank was not involved in the questioning of Feller.

¶9 Soon after the FBI questioning, Feller spoke with Bank employee Tom Hopfauf (Hopfauf) about refinancing her home mortgage to avoid an upcoming balloon payment. Hopfauf informed Feller that she had two other loans besides the home mortgage that needed to be taken care of. Feller claims that she disputed whether the two other loans belonged to her, but felt unable to talk with Hopfauf about it due to the FBI's involvement. Feller was unable to refinance through the Bank and was also turned down by another financial institution.

¶10 In May 2008, despite her awareness that Becker was under investigation, Feller asked Becker to assist her in refinancing her home mortgage. With Becker's assistance, Feller obtained a loan from Guild Mortgage, an institution unrelated to the Bank. After helping Feller refinance, Becker allegedly took some of the loan proceeds. Feller explained that she allowed Becker to take some of this money because she thought Becker would repay it. The loan from Guild Mortgage was used to pay off Feller's home mortgage loan at the Bank.

¶11 Feller returned to the Bank in late 2008 and spoke with Bank employee Sandy Struck (Struck) about withdrawing the balance of her escrow account. Struck told Feller that Feller should speak with Bank president Bill Fisher (Fisher). Feller chose not follow up with Fisher, later citing the request of the FBI agents that she not discuss any matters related to the investigation.

¶12 In December 2009, Becker was sent to prison after pleading guilty to federal fraud and money laundering charges. Becker admitted to illegally siphoning funds totaling more than $1.6 million over a five-year period. Even after Becker was sent to prison, Feller admits that she did not try to contact Fisher or anyone else at the Bank to secure the return of her escrow account balance.

¶13 On April 20, 2011, Feller filed a complaint against the Bank containing the following seven counts: (1) negligent supervision; (2) actual and constructive fraud; (3) wrongful conversion; (4) intentional and/or negligent infliction of emotional distress; (5) deceit; (6) breach of contract and the covenant of good faith and fair dealing; and (7) negligent misrepresentation. Feller alleged that she was "severely traumatized" by the actions of Becker and the Bank. Specifically, she claims that her financial standing and credit reputation were damaged, and she suffered extreme physical and emotional distress.

ΒΆ14 On May 13, 2011, the Bank sent a check to Feller for $582.13, which represented the $449.40 escrow account balance plus ten percent interest. The Bank filed a motion for summary judgment on October 14, 2011. The Bank asserted that all claims relating to its obligations to report loans to credit reporting agencies and any claims that Feller's credit was damaged were preempted by the Fair Credit Reporting Act (FCRA). The Bank also claimed that Feller's independent cause of action for intentional and negligent infliction of emotional distress could be disposed of through summary judgment because Feller failed to demonstrate that she suffered the requisite level of "serious" or "severe" distress. The Bank argued that Feller's conversion claim was moot because the money in her escrow account had been returned with interest. Finally, the Bank contended that Feller ...

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