Francisco Calleja-Ahedo v. Compass Bank

Opinion

ACCEPTED 01-15-00210-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 12/14/2015 2:32:10 PM CHRISTOPHER PRINE CLERK

No. 01-15-00210-CV

FILED IN IN THE 1st COURT OF APPEALS HOUSTON, TEXAS 12/14/2015 2:32:10 PM FIRST COURT OF APPEALS CHRISTOPHER A. PRINE Clerk HOUSTON, TEXAS

FRANCISCO CALLEJA-AHEDO Appellant V. COMPASS BANK Appellee

On Appeal from the 55th District Court Harris County, Texas

Trial Cause No. 2014-22168

APPELLANT’S REPLY BRIEF

Michael C. O’Connor State Bar No. 15187000 Lesley C. O’Connor State Bar No. 24086952 O’CONNOR & CRAIG 2825 Wilcrest Drive, Suite 261 Houston, TX 77042 713-266-3311

ORAL ARGUMENT REQUESTED TABLE OF CONTENTS

TABLE OF CONTENTS .........................................................................................i

INDEX OF AUTHORITIES……………………………………..………………...ii

ARGUMENT……………………………………………………………………....1

PRAYER………………………………………………………………………….19

i INDEX OF AUTHORITIES Case Law All Seasons Window & Door Man, Inc. v. Red Dot Corp., 181 S.W.3d 490, 504 (Tex. App. ― Texarkana 2005, no pet.)....................19

American Airlines Employees Federal Credit Union v. Martin, 29 S.W.3d 86, 94 (Tex. 2000).........................................................................3

Bank of America, N.A. v. Haag, 37 S.W.3d 55, 58-59 (Tex. App. — San Antonio 2000, no pet.)................... 5

Bank of Texas v. VR Elec, Inc., 276 S.W.3d 671, 678 (Tex. App. — Houston [1st Dist.] 2008, pet. denied)...............................................................................................15,16

Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex. 1992)...................................................................7

Coleman v. Bldg State Bank, 592 P.2d 103, 111 (Kan. App. 1979).............................................................4

Compass Bank v. Nacim, 459 S.W.3d 95 (Tex. App. - El Paso, 2015, no pet.).........................10, 12, 15

Cumis Insurance Society, Inc. v. Girard Bank, 522 F. Supp. 414, 422 (E.D. Pa. 1981).........................................................17

El Apple 1, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012).................................................................19

FDIC v. Lenk, 361 S.W.3d 602, 607-08 (Tex. 2012)........................................................4, 12

Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990) ..................................................................1

Hohenberg Bros. Co. v. George E. Gibbons & Co., 537, S.W.2d 1, 3 (Tex. 1976)..........................................................................7

ii Jag Orthopedics, P.C. v. AJC Advisory Corp., 2015 NY Slip Op 31360, at 15 (U) (N.Y. Sup. Ct. 2015).............................16

Jefferson State Bank v. Lenk, 323 S.W.3d 146, 149 (Tex. 2010).............................................................4, 12

Martin v. Chase Manhattan Bank, 791 N.Y.S.2d 158, 159-60 (N.Y.S.Ct. 2004)..................................................5

McConnell v. Southside Independent School District, 858 S.W.2d 337, 341 (Tex. 1993).................................................................12

McDowell v. Dallas Teachers Credit Union, 772 S.W.2d 183, 192 (Tex. App. ― Dallas 1989, no writ)..........................15

Myrick v. National Savings & Trust Co., 268 A.2d 526, 528 (D.C. 1970).......................................................................4

Robinson Motor Xpress, Inc. v. HSBC Bank, USA, 826 N.Y.S.2d 350 (N.Y.S.Ct. 2006)..............................................................5

Terry v. Puget Sound Nat’l Bank, 492 P.2d 534, 535 (Wash. 1972).....................................................................4

Union Planters Bank v. Rogers, 912 So.2d 116, 122 (Miss. 2005)....................................................................4

Via Net v. TIG Ins. Co., 211 S.W.3d 310, 314 (Tex. 2006)...................................................................2

Wachovia Bank v. Fed. Reserve Bank, 338 F.3d 318, 324-25 (4th Cir. 2003).............................................................18

Westport Bank & Trust v. Lodge, 325 A.2d 222, 226 (Conn. 1973).....................................................................4

iii Statutes

Tex. Bus. & Comm. Code §1.201.....................................................................10, 16

Tex. Bus. & Comm. Code §3.406.....................................................................15, 17

Tex. Bus. & Comm. Code §4.103.......................................................................5, 13

Tex. Bus. & Comm. Code §4.406.....................................1, 2, 3, 4, 5, 10, 12, 13, 14

Tex. Fin. Code §34.301...........................................................................................12

Tex. Fin. Code §34.302.............................................................................................6

iv ARGUMENT

I. APPELLANT’S NEGLIGENCE IS IRRELEVANT TO APPELLEE’S LIABILITY Appellee Bank devotes a substantial part of its Brief to emphasizing that

Appellant Calleja was negligent in failing to inquire about missing bank statements

for almost 18 months. However, Calleja’s negligence in failing to inquire, if any, is

irrelevant to the liability issues in this case.

Negligence requires a duty of care. See, e.g., Greater Houston Transp. Co. v.

Phillips, 801 S.W.2d 523, 525 (Tex. 1990). There can be no common law duty

because the Bank concedes, and even emphasizes, that Tex. Bus. & Comm. Code

§4.406, specifically provides a complete scheme of rights and duties regulating the

relationship of a bank and its customer concerning the handling of bank statements.

See Appellee’s Brief at 22, fn 10. Any duty of Calleja to inquire about missing

bank statements must emanate from §4.406, which expressly provides that a bank

customer has no duty concerning bank statements unless and until the bank first

“sends or makes available” the statements to its customer. See also, Official

Comment 1 to §4.406, which states:

The duty stated in subsection (c) [for customer to review bank statements] becomes operative only if the “bank sends or makes available a statement of account or items pursuant to subsection (a).” A bank is not under a duty to send a statement of account or the paid

1 items to the customer, but if it does not do so, the customer does not have any duties under subsection (c). If a bank complies with its initial duty under §4.406, Calleja concedes that the

customer bears the risk of non-receipt of the statements, such as when a wrongdoer

intercepts the statements. In this case, the Bank failed to comply with this initial

duty, which makes Calleja’s alleged negligence irrelevant.

The crux of this lawsuit is whether the Bank sent or made available the

relevant bank statements to its customer, as such duty was modified by the relevant

Account Agreement. As shown below, the Bank failed to show that it properly sent

or made available the relevant bank statements, which defeats the Bank’s summary

judgment. The Bank further ignores its own negligence and/or lack of good faith,

which allowed an unknown wrongdoer to change the proper address where account

statements were to be sent and then cashed a $37,800 check which contained a

signature of Calleja completely dissimilar to the signature card.

II. CASELAW SUPPORTS APPELLANT’S POSITION

The Bank cites numerous cases in its Brief, all of which are inapplicable to

the Bank’s initial duty to properly send or make available account statements. The

Bank first cites and quotes from the Texas Supreme Court case of Via Net v. TIG

Ins. Co. 211 S.W.3d 310, 314 (Tex. 2006), which discusses a common law duty of

due diligence in non-banking contractual relationships. This duty simply does not

2 apply to §4.406, which specifically requires that a bank first send or make

available account statements to its customer before the customer has any duty with

respect to such statements. The Bank has recognized repeatedly that the UCC

creates a “discrete fault scheme, specifically allocating responsibility among

parties to a banking relationship.” See Appellee’s Brief at 16, fn 5; CR 188-92. The

focus must be on §4.406 and not common law principles.

The Bank does discuss several §4.406 cases, all of which deal with

situations in which a bank mailed account statements to a proper address, but the

statements were then intercepted by a wrongdoer. The most important case is

American Airlines Emp. Fed. Credit Union v. Martin, 29 S.W.3d 86, 94 (Tex.

2000), in which the Texas Supreme Court stated that the customer’s duty to detect

and report unauthorized transactions “is triggered when the bank meets its burden

to provide the customer with enough information that the customer can detect that

the unauthorized transaction has occurred.” The Bank emphasizes that the Supreme

Court also stated that a bank customer’s burden “includes the risk of non-receipt of

account statements.” However, this latter quote must be taken in context with

footnote 37 immediately following the statement, which clarifies that the risk of

non-receipt falls on the account holder “when account statements are mailed to the

proper address.” The bank in Martin mailed the account statements to a proper

address.

3 The Bank also cites and discusses Union Planters Bank v. Rogers, 912 So.2d

116, 122 (Miss. 2005); Myrick v. Nat’l Sav. Trust Co., 268 A.2d 526, 528 (D.C.

1970); Coleman v. Bldg State Bank, 592 P.2d 103, 111 (Kan. App. 1979); Westport

Bank & Trust Co. v. Lodge, 325 A.2d 222, 226 (Conn. 1973); and Terry v. Puget

Sound Nat’l Bank, 492 P.2d 534, 535 (Wash. 1972), for the proposition that a bank

customer loses if he fails to contact the bank concerning missing bank statements.

Appellee’s Brief at 15. However, these cases must again be considered in context,

since in each case the bank sent statements to the proper address and/or to the

person authorized to receive statements.1 Calleja admits that when a bank complies

with its initial duty under §4.406, and under its account agreement, the bank

customer bears the risk of non-receipt of statements, as provided by the Texas

Supreme Court in the Martin case.

The undisputed facts in this case are different. The evidence shows that the

Bank sent the relevant statements to an unknown wrongdoer who convinced the

Bank to change the authorized address on the Account. CR 49. The Bank

completely ignores the cases holding that a bank is responsible in this situation.

The most important cases are from our own Texas Supreme Court. In both

FDIC v. Lenk, 361 S.W.3d 602, 607-08 (Tex. 2012), and in Jefferson State Bank v.

1 The Lodge case is the only case cited by the Bank which involves the wrongdoer changing the address to which statements were mailed. However, the wrongdoer was an employee of the account holder, the account holder knew and intended that account statements were being sent to the wrongdoer, and the account holder received overdraft notices at her home address.

4 Lenk, 323 S.W.3d 146, 149 (Tex. 2010), the Supreme Court clearly stated that a

bank does not fulfill its §4.406 obligation to provide account statements “to a

customer” by sending them to an imposter. Another significant case is Bank of

America, N.A. v. Haag, 37 S.W.3d 55, 58-59 (Tex. App. ― San Antonio 2000, no

pet.), in which the court held specifically that a bank customer has no duty to

notify the bank concerning missing bank statements that were improperly

addressed. See Appellant’s Original Brief at 18-19, 26 for further discussion of

these cases. See also, Martin v. Chase Manhattan Bank, N.Y.S.2d 158, 159-60

(N.Y.S.Ct. 2004), and Robinson Motor Xpress v. HSBC Bank, USA, 826 N.Y.S.2d

350 (N.Y.S.Ct. 2006), discussed in Appellant’s Original Brief at 20-21. The Bank

does not attempt to discuss or distinguish these cases in its Brief.

III. THE 2008 DEPOSIT AGREEMENT CONTROLS THE PARTIES’ RELATIONSHIP The Bank and Calleja both agree that §4.103(a) permits a bank and its

customer to contractually modify “the effect of the provisions” in §4.406, which

was done in this case. See Appellee’s Brief at 23. However, §4.103(a) further

provides that a bank cannot disclaim its responsibility “for its lack of good faith or

failure to exercise ordinary care.”

Although the parties agree that a contract applies to the deposit relationship,

there is a dispute over which contract applies. The Bank produced not one but three

5 potential account agreements in this case. The first agreement, dated as of August

22, 2008, was attached to Calleja’s Motion for Summary Judgment. CR 51-70. A

more legible copy is attached at Appendix 2 to Appellant’s Original Brief. The

second agreement, dated as of February 2012, was attached to the Bank’s Motion

for Summary Judgment. CR 205-228. The third agreement, dated as of September

2013, was also produced by the Bank and attached to Calleja’s Motion for

Summary Judgment. CR 136-150.

An account agreement becomes effective as to the bank customer when it is

mailed to the customer or as otherwise agreed to by the parties. See Tex. Fin. Code

§34.302. Calleja acknowledges that he received the 2008 Account Agreement,

which made it effective as to him. CR 46. The Bank does not dispute that the 2008

Account Agreement was effective between 2008 and 2012, but argues that the

2012 Account Agreement became effective and amended the 2008 Account

Agreement shortly before the relevant account statements showing wrongdoing

would have been generated by the Bank. Appellee’s Brief at 24-27. Section 17 of

the 2008 Account Agreement provides that it may be amended by:

Mailing you notice of the amendment to the last address shown on our records, by making the notice available with the periodic statement of your account (as applicable) or by posting notice of the amendment in our offices. (CR 67 at bottom left, continuing at CR 68 at upper right).

6 Compliance with these provisions is in the nature of a condition precedent to

any effectiveness of the 2012 Account Agreement, and the Bank had the burden of

proving compliance with such conditions precedent. See, e.g., Centex Corp. v.

Dalton, 840 S.W.2d 952, 956 (Tex. 1992): Hohenberg Bros. Co. v. George E.

Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976). There is no evidence that the Bank

did any of these things to make the 2012 Account Agreement effective as to

Calleja. See also, Amer. Airlines Empl. Fed. Credit Union v. Martin, 29 S.W.3d 86,

96 (Tex. 2000), in which the Supreme Court discusses how a Deposit Agreement

becomes “effective,” which involves notice to the customer, which is lacking in

Calleja’s case.

The Bank now argues that Calleja sought to recover attorney’s fees pursuant

to the 2012 Account Agreement, thereby validating it despite any defects in the

Bank’s proof. See Appellee’s Brief at 24-25. The Bank is wrong. Calleja never

relied on the 2012 Account Agreement to recover attorney’s fees. Instead, Calleja’s

attorney assumed that the 2013 Account Agreement was effective when this

lawsuit was filed in 2014, and that it applied to a claim for attorney’s fees made

after 2013. See Calleja’s Motion for Summary Judgment, CR 36, 44. The 2013

Account Agreement does not retroactively apply to occurrences in 2012, well

before it would have become effective. See Section 16 of the 2012 Account

Agreement, CR 219, which provides that amendments apply when they become

7 “effective.” Calleja made his position concerning the 2012 and 2013 Account

Agreements clear in his Motion for Summary Judgment. CR 36 at fn 1. Calleja has

not taken inconsistent positions which would validate the effectiveness of the 2012

Account Agreement despite the Bank’s lack of proof.

The Bank further argues that the account signature card includes Calleja’s

agreement to any amendments of the deposit contract. See Appellee’s Brief at 24.

The signature card is illegible concerning what agreements, if any, are in the

signature card pertaining to amendments. In addition, the signature card is dated 3-

11-88. The subsequent 2008 Account Agreement supersedes the signature card

based upon the specific provision in the 2008 Account Agreement as to how

amendments are to be made effective.

The Bank curiously quotes from the 2008 Account Agreement, which

provides that “By continuing to maintain your account ... after the amendment

becomes effective, you agree to the amendment of this Agreement.” (emphasis

added). The Bank then argues that Calleja agreed to the 2012 Account Agreement

because he maintained his account after February 2012. See Appellee’s Brief at 24-

25. The Bank completely ignores the highlighted language that the customer must

maintain his account “after the amendment becomes effective.” There is simply no

evidence that the 2012 Account Agreement ever became effective as to Calleja.

8 Finally, there is other evidence which shows that the 2012 Account

Agreement was not effective as to Calleja. First, the February 7, 2014 letter from

Jimmy Myers, a vice president of the Bank, quotes verbatim from the 2008

Account Agreement, which differs from the 2012 Account Agreement. CR 75.

Second, unlike the 2008 Account Agreement, the 2012 Account Agreement states

that it is for “Al Nova Branches Only.” CR 228. Third, Mueller, the Bank’s

representative, states in her second affidavit that she only “believes,” and that it

“appears,” that the 2012 Account Agreement is the one governing the deposit

relation between Calleja and the Bank. CR 396. Mueller may have proved that the

2012 Account Agreement is a business record of the Bank, but this does not prove

that the 2012 Account Agreement ever became effective as to Calleja.

Significantly, the Bank fails to address any of this evidence in its Brief, despite

being discussed by Calleja in his Original Brief at 8-10. The Bank itself conceded

that the 2012 Agreement only “is believed to be the deposit agreement in effect

during the relevant time period.” CR 168, fn 1.

IV. THE 2008 ACCOUNT AGREEMENT SUPPORTS APPELLANT’S POSITION A legible copy of the 2008 Account Agreement is attached at Appendix 2 to

Appellant’s Original Brief. Significantly, the 2008 Account Agreement does not

require that Calleja review account statements that were “made available.” Instead,

9 the Agreement provides that Calleja must review only account statements he

“receives” or alternatively, when the Bank “sends” the account statements. CR

295. The term “send” requires that the statement be “properly addressed.” Tex.

Bus. & Comm. Code §1.201(b)(36).

The identical language in another Compass Bank account agreement was

interpreted by the Court in Compass Bank v. Nacim, 459 S.W.3d 95 (Tex. App. ―

El Paso 2015, no pet.). The Nacim court held that the distinction between

“receives” and “sends” in the Compass Bank account agreement creates a conflict

which must be interpreted against Compass Bank, and therefore the customer is

only required to review account statements he “receives.” Furthermore, the “made

available” language in §4.406 was inapplicable because Compass bank had altered

the §4.406 duties of the bank customer to eliminate that option. The Bank is

collaterally estopped by the Nacim case from relitigating the terms of its own

Agreement.

The Bank completely ignores the Nacim case in its Brief. By eliminating

both the “send” and the “makes available” requirements, the 2008 Account

Agreement completely undercuts the trial court’s focus on whether account

statements were “made available.” CR 735. 2

10 The 2008 Account Agreement specifically provides that only “[a]ny account

owner or authorized signer of a joint account may change the mailing address for

your account.” CR 295. The evidence in this case shows that the Bank allowed an

unknown wrongdoer to change the address on the account multiple times, which

obviously constitutes a breach of contract. CR 49. In its arguments, the Bank

assumes that account statements concerning the Calleja account may not have been

properly addressed. CR 374-75.

Despite the specific wording in the 2008 Account Agreement that only an

account holder may change the mailing address for the account (CR 65), the Bank

argues on appeal for the first time that mailing account statements to a fraudulent

address not provided by an account holder was authorized. The Bank bases its

position on wording in the 2012 Agreement, which provides that statements “may

be mailed to you at the address shown in our records,” coupled with a phrase in a

later section of the Agreement that “records regarding your accounts will be

deemed correct unless you timely establish with us that we made an error.” CR

212; Appellee’s Brief at 29.

2 The Bank suggests in its Brief the many ways that Calleja could have obtained Account Statements, which allegedly shows that the Bank “made available” the Account Statements to Calleja. However, even the 2012 Account Agreement specifies that statements are “made available” by holding or delivering the statements “in accordance with your request or instruction.” CR 212. There is no evidence that the Bank received any request or instruction from an account holder to hold the statements or deliver them other than to the brother’s address in the Woodlands. See Appellant’s Original Brief at 15-16.

11 The Bank never raised its records argument in its Motion for Summary

Judgment (CR 161-200) and cannot do so here for the first time. Tex. R. Civ. P.

166a(c). As stated by the Supreme Court in McConnell v. Southside Independent

School District, 858 S.W.2d 337, 341 (Tex. 1993):

Consistent with the precise language of Rule 166a(c), we hold that a motion for summary judgment must itself expressly present the grounds upon which it is made. A motion must stand or fall on the grounds expressly presented in the motion. In determining whether grounds are expressly presented, reliance may not be placed on briefs or summary judgment evidence.

The Bank’s argument concerning its records completely falls apart since the

2008 Account Agreement and the Nacim case provide that Calleja’s duty only

applies to account statements he “receives.” In addition, the Bank has a clear duty

under both §4.406 and the 2008 Account Agreement to deliver account statements

to its customer. The Texas Supreme Court has stated multiple times that a bank

cannot fulfill this duty by sending account statements to an unknown imposter. See

FDIC v. Lenk, supra at 607-08; Jefferson State Bank v. Lenk, supra at 149. The

Supreme Court’s conclusion was based not only on the wording of §4.406, but also

Tex. Fin. Code §34.301(b), which provides that a bank must provide account

statements “to an account holder.” The Bank cannot simply contract away its duty

by providing a “new” interpretation of the Account Agreement which authorizes

the Bank to send account statements to an imposter.

12 Although Tex. Bus. & Comm. Code §4.103 allows the parties to vary “the

effect of” §4.406, the Bank’s “new” record interpretation goes beyond the “effect”

of §4.406 to completely eliminate the Bank’s duty thereunder, which it cannot do.

Furthermore, §4.103 provides that the parties cannot disclaim a bank’s

responsibility for its lack of good faith or failure to exercise ordinary care.

Allowing an unknown imposter to change the address on the account, particularly

in the manner evidenced in this case (CR 49), raises issues both of lack of good

faith and of negligence.

Obviously, the Bank’s “new” interpretation concerning records also clashes

with the provision that only the account holder can change the address on the

account. The Bank cannot have it both ways. If only account holders can change

the address on the account, then the Bank breaches the Account Agreement by

allowing an imposter to change the name on the account. Alternatively, if the Bank

can change the address on the Account at the request of an imposter, then the Bank

breaches the provision that only an account holder can change the address on the

account.

Furthermore, the Bank’s interpretation concerning its records is flawed. The

section in the Account Agreement that records are deemed correct unless the

customer “timely” establishes that an error was made is taken out of context. The

remainder of the section reflects the types of errors referred to, all of which are 13 errors concerning credits or debits described in the account statements. In addition,

the Bank argues that “timely” means 30 days, which is derived from the wording

later in the section, requiring that a customer review statements “received” by the

customer. Appellee’s Brief at 29. Taking the terms “errors” and “timely” in context

demonstrate that these terms refer to credits or debits in any account statements

received by Calleja. 3

V. THE BANK DID NOT PROVE THAT IT SUFFERED A LOSS Tex. Bus. & Comm. Code §4.406(d)(1) provides that if a bank customer

fails to timely report his unauthorized signature on a check after the bank sends or

makes available the statement showing the problem, the customer is precluded

from asserting the unauthorized signature against the bank, but only “if the bank

also proves that it suffered a loss by reason of the [customer’s] failure.” The Bank

offered no evidence that it suffered a loss and fails to even address this issue in its

Brief, other than quoting §4.406(d) in its Brief at 23.

The first statement showing any problem was the June 2012 statement,

which reflected a charge for new checks not ordered by Calleja. CR 246. Even

assuming that the Bank sent or made available to Calleja the June 2012 statement

during the first week in July (when statements for the prior month are customarily

3The Bank contends that the signature card contains a statement to “Hold All Correspondence” and also shows an address in Mexico, which the Bank argues is Calleja’s “address shown in our records” and did not change. Appellee’s Brief at 29, fn 17. To the contrary, the uncontroverted evidence shows that Calleja instructed the Bank to mail statements to his brother’s address in the Woodlands, which the Bank did only prior to July 2012. CR 46.

14 mailed by the Bank), the forged check was paid by the Bank on July 30, 2012,

which is less than 30 days after the June 2012 statement would have been sent.

Since the Bank contends that Calleja had 30 days to report a problem, and the

forged check was already paid during this time, the Bank cannot prove that it

suffered a loss by reason of Calleja’s failure to report a problem within the 30 day

period. See, e.g., Compass Bank v. Nacim, 459 S.W.3d 95, 106-07 (Tex. App. ―

El Paso 2015, no pet.). Calleja discussed this lack of proof in his Original Brief at

16, but the Bank fails to even address it in its Brief.

VI. SECTION 3.406 DOES NOT APPLY The Bank argues that Tex. Bus. & Comm. Code §3.406 bars Calleja’s

claims. Appellee’s Brief at 16-22; CR 195.

Section 3.406 provides as follows:

A person whose failure to exercise ordinary care substantially contributes to an alteration of an instrument or to making a forged signature on an instrument is precluded from asserting the alteration or the forgery against a person who, in good faith, pays the instrument or takes it for value or for collection (emphasis added).

In order for §3.406 to apply, the Bank has the burden to prove that it paid

the $38,700.00 check and any other items in “good faith” (emphasis added). See,

e.g., Bank of Texas v. VR Elec, Inc., 276 S.W.3d 671, 678 (Tex. App. ― Houston

[1st Dist.] 2008, pet. denied); McDowell v. Dallas Teachers Credit Union, 772

15 S.W.2d 183, 192 (Tex. App. ― Dallas 1989, no writ). In its brief, the Bank refers

to VR Elec, Inc., but then states that .... “[A]s the party alleging lack of good faith,

Appellant bears the burden of proof.” The Bank is wrong and completely

misconstrues the §3.406 requirement that the Bank has the burden to prove that it

acted in “good faith” under §3.406.

In VR Elec, supra at 678, the court began its analysis of §3.406 by clearly

stating: “[A]s shown above, the Bank must prove that (1) [the customer] failed to

exercise ordinary care that substantially contributed to the alteration of the check

and (2) paid the check in “good faith” (emphasis added).

The Bank’s assertion that its good faith in paying the subject check “is

presumed” is clearly wrong. The term “good faith” means honesty in fact and “the

observance of reasonable commercial standards of fair dealing.” Tex. Bus. &

Comm. Code §1.201(b)(20). The Bank has produced absolutely no evidence of its

“honesty in fact” or of its “observance of reasonable commercial standards of fair

dealing.” The Bank cannot satisfy its proof burden by claiming that its good faith is

presumed. See also, Jag Orthopedics, P.C. v. AJC Advisory Corp., 2015 NY Slip

Op 31360, at 15 (U) (N.Y. Sup. Ct. 2015) (“With respect to UCC 3-406, a

bank cannot establish a defense under that section if it fails to show that it acted in

good faith and in accordance with reasonable commercial standards.”)

16 The Bank provides no evidence of either “honesty in fact” or “the

observance of reasonable commercial standards of fair dealing.” To the contrary,

there are facts indicating the Bank’s bad faith. The purported signature of Calleja

on the $38,700 check bears no resemblance to Calleja’s signature on the signature

card. CR 71. Furthermore, Calleja stated in his affidavit that, “the Bank sent disks

of recorded conversations between Bank employees and a person purporting to be

me. I do not recognize this person’s voice, and I did not authorize anyone to call

the Bank and request that the address for the Account be changed or for the Bank

to issue a debit/ATM card to anyone.” CR at 49. These facts raise issues of the

Bank’s good faith which prevents the Bank from relying on §3.406 as a defense. If

§3.406 is construed as the Bank has proposed, it would “have the effect of

exculpating the bank from any liability regardless of its own negligence in paying

the instruments bearing forged drawer signatures.” Cumis Insurance Society, Inc.

v. Girard Bank, 522 F. Supp. 414, 422 (E.D. Pa. 1981).

The Bank speculates that Calleja’s brother was involved in the forgery of the

$38,700.00 check, and that permitting the brother to access Calleja’s banking

information allowed other parties to learn Calleja’s banking information, which

“likely” allowed the forgery to occur. There is simply no proof of these

speculations.

17 Calleja admits that monthly account statements were received at his

brother’s address in the Woodlands, but the uncontroverted evidence is that the

Account Statements were never opened by the brother, were not available to

anyone else before being delivered unopened to Calleja, and that all Account

Statements and checks were accounted for prior to July 2012. CR 47- 48. The

Bank has produced no evidence that Calleja or his brother failed to exercise

ordinary care in handling checks and/or Account Statements and further has

produced no evidence that actions or failure to act by Calleja or his brother

contributed to “the making of a forged signature” in the $38,700.00 check. Any

alleged failure to detect or report a forgery is completely different from any alleged

action or failure to act which “contributed to the making” of the forgery. See, e.g.,

Wachovia Bank v. Fed. Reserve Bank, 338 F.3d 318, 324-25 (4th Cir. 2003).

VII. THE BANK’S PROOF OF ATTORNEY FEES IS FAULTY The Bank relied on three affidavits from Mr. Huttenbach to justify its claim

for attorney’s fees. CR 571-72; 604-06; 716-17. Calleja stated in his Original Brief

at 33 that the fee statements proved by Mr. Huttenbach in his first affidavit only

totaled $22,722.69. The Bank correctly points out that this is an error and that the

fee statements attached to the first affidavit total $25,201.69. However, the Bank is

wrong that the total of the fee statements proved by Mr. Huttenbach total

$51,728.05. The Bank attempts to rely on fee statements included behind Mr.

18 Huttenbach’s second affidavit, but Mr. Huttenbach does not mention or attempt to

prove these fee statements. CR 604-06. The fee statements proved by Mr.

Huttenbach in his first and third affidavits only total $34,793.04.

In addition, Mr. Huttenbach testifies in his third affidavit that “I currently

charge the rate of $345.00 per hour, but Compass Bank gets a discount off my

standard rate.” CR at 716. However, the fee statement attached to Mr.

Huttenbach’s third affidavit reflects an hourly rate of $345.00, without the discount

testified to by Mr. Huttenbach.

Finally Mr. Huttenbach testifies in his affidavits concerning his own

credentials but fails to address credentials of the other attorneys and paralegals

whose charges are reflected in the billing statements. This failure is fatal to the

Bank’s claim for attorney’s fees. See, e.g., El Apple 1, Ltd. v. Olivas, 370 S.W.3d

757, 763 (Tex. 2012); All Seasons Window & Door Man, Inc. v. Red Dot Corp.,

181 S.W.3d 490, 504 (Tex. App. ― Texarkana 2005, no pet.).

PRAYER WHEREFORE, Appellant Francisco Calleja-Ahedo prays that this Court

reverse the summary judgment granted by the trial court, render judgment in favor

of Appellant on his Motion for Summary Judgment, or alternatively, remand this

case to the trial court for further proceedings.

19 Respectfully submitted,

O'CONNOR & CRAIG

By: /s/ Michael C. O’Connor Michael C. O'Connor State Bar No. 15187000 2825 Wilcrest Drive, Suite 261 Houston, Texas 77042 (713) 266-3311 (713) 953-7513 (Fax) Email: moconnor@oconnorcraig.com

Lesley C. O'Connor State Bar No. 24086952 2825 Wilcrest Drive, Suite 261 Houston, Texas 77042 (713) 266-3311 (713) 953-7513 (Fax) Email: loconnor@oconnorcraig.com

ATTORNEYS FOR APPELLANT FRANCISCO CALLEJA-AHEDO

20 CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this brief contains 4,660 words (excluding the caption, table of contents, table of authorities, signature, proof of service, certificate and certificate of compliance). This is a computer generated document created using Microsoft Word, using 14- point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been served on the following counsel of record by telephonic transfer or electronic service, on this the 14th day of December, 2015. Michael D. Conner Hirsch & Westheimer 1415 Louisiana, 36th Floor Houston, Texas 77002 Facsimile: 713-223-9319 E-Mail: Mconner@hirschwest.com /s/ Michael C. O’Connor Michael C. O’Connor