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Cooper v. D'Amore

United States Court of Appeals, First Circuit

February 2, 2018

CAROL DIANE COOPER, and JOHN SCOTT COOPER, As Personal Representative of the Estate of Peter M. Cooper, Jr., Deceased, Plaintiffs, Appellees,
ALYSSA JANE D'AMORE, f/k/a/ Alyssa J. Cooper, Defendant, Appellee.


          Robert J. O'Regan, with whom Burns & Levinson LLP was on brief, for appellant.

          Keith P. Carroll, with whom Andrew Nathanson and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. were on brief, for appellees.

          Before Kayatta, Stahl, and Barron, Circuit Judges.


         In 2003, Peter M. Cooper, Jr. ("decedent") established an Individual Retirement Account ("IRA") with Mesirow Financial ("Mesirow IRA"), and designated his then wife, Alyssa Jane D'Amore ("D'Amore"), as beneficiary. In 2006, the couple divorced, but decedent never revoked the beneficiary designation. In 2011, decedent transferred the majority of his Mesirow IRA assets to a TD Ameritrade IRA. In 2012, upon decedent's death, Mesirow distributed the assets remaining in the Mesirow IRA to D'Amore. Carol Diane Cooper, the mother and primary beneficiary of decedent, and John S. Cooper, the executor of decedent's estate, (collectively "the Coopers") sued D'Amore, claiming that the Mesirow assets should have been distributed to decedent's estate. The district court ultimately granted summary judgment for the Coopers.

         After careful consideration, we conclude that the district court improperly granted summary judgment for the Coopers because decedent's transfer did not terminate the Mesirow IRA.

         I. Background

         In 2003, decedent, an investment executive/bond trader at Mesirow Financial Inc., established a Mesirow IRA through his employer. The Mesirow Custodial Agreement governed the IRA.[1] At the time, decedent was married to D'Amore and designated her as the beneficiary. Decedent managed multiple financial investments for himself as well as other family members. In 2006, decedent and D'Amore divorced and entered into a Martial Settlement Agreement which provided, in part, that "[e]ach party shall continue to own as his or her own separate property any Individual Retirement Account (IRA), pension or retirement plan in his or her name, and each does hereby waive any claim to such account of the other." Notwithstanding the Martial Settlement Agreement, decedent did not revoke the beneficiary designation for the Mesirow IRA.

         On August 18, 2011, decedent completed a TD Ameritrade "Account Transfer Form" in order to transfer his assets from the Mesirow IRA to a TD Ameritrade IRA. One provision in the form stated: "This is a total transfer from a brokerage account." Decedent checked the box next to this provision. Another provision in the form, entitled "Transfer Agreement, " provided: "Unless otherwise indicated, I authorize the Transferor to liquidate any nontransferable proprietary money market fund assets and mutual fund assets that are part of my account and to transfer the resulting credit balance to my account with TD Ameritrade." Decedent did not initial this portion of the form.

         On September 7, 2011, decedent received a letter from Mesirow Financial, entitled "Non-Deliverable Assets(s)." The letter provided that certain assets in decedent's account were "not transferable." The letter also provided that if a "request is not received within 60 days your account will be reestablished." On September 24, 2011, decedent sent an email to a financial advisor at Mesirow Financial, asking if he could keep the nontransferable assets in the account.

         Decedent continued to receive financial statements for the Mesirow IRA until he died. Decedent's Mesirow statements post-transfer included the same account number listed on his statements pre-transfer. Unlike the earlier statements which listed D'Amore as the primary beneficiary, the statements post-transfer indicated that the primary beneficiary designation was "not provided."

         On July 21, 2012, decedent died. Thereafter, Mesirow distributed the assets that remained in the Mesirow IRA to D'Amore pursuant to the beneficiary designation.

         In October of 2014, the Coopers sued D'Amore, seeking to recover the assets distributed by Mesirow to D'Amore. The parties filed cross-motions for summary judgment. On November 10, 2015, the district court granted summary judgment for the Coopers, finding that upon divorce, D'Amore's beneficiary designation was revoked pursuant to the Illinois Trusts and Dissolutions of Marriage Act. Cooper v. D'Amore, No. CV 14-14041-RGS, 2015 WL 6962834, at *4 (D. Mass. Nov. 10, 2015). On November 20, 2015, D'Amore filed a motion for reconsideration. Thereafter, the court determined that its summary judgment decision was improper because Delaware law, not Illinois law, governed the IRA. On December 4, 2015, the court ...

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