Geler v. National Westminster Bank USA

145 F.R.D. 25, 1992 U.S. Dist. LEXIS 13077, 1992 WL 308946
CourtDistrict Court, S.D. New York
DecidedSeptember 1, 1992
DocketNos. 90 Civ. 6840 (RLC), 90 Civ. 1354 (RLC)
StatusPublished

This text of 145 F.R.D. 25 (Geler v. National Westminster Bank USA) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Geler v. National Westminster Bank USA, 145 F.R.D. 25, 1992 U.S. Dist. LEXIS 13077, 1992 WL 308946 (S.D.N.Y. 1992).

Opinion

[26]*26OPINION

ROBERT L. CARTER, District Judge.

Benjamin Ghitelman, an Israeli national, maintained for a number of years a checking account and several certificates of deposit in defendant’s International Private Banking Division. On June 29, 1987, Benjamin and his wife Susana appeared personally at the bank. They met with Esther Obadia, the bank official who handled the Ghitelman accounts, and requested that the accounts be made joint with his wife. A signature card was signed by both Benjamin and Susana to enable each to effect transactions independently. About a year later, on June 21 and June 27, 1988, Benjamin purchased two certificates of deposit for approximately one quarter of a million dollars each, one listing his wife as beneficiary and the other listing the Gelers as beneficiaries. In or about July, 1988, he ordered the bank to combine these two certificates into one with only the Gelers now listed as beneficiaries.

On August 23, 1989, Susana and her daughter appeared at the bank. Susana told Obadia that her husband was ill and that she wished to redeem the July, 1988 certificate of deposit. Obadia permitted her to do this, and the funds, totalling $489,000, were transferred to Susana’s account at Bank Hapoalim in Zurich, Switzerland. In November, 1989, Yacof Geler appeared at the bank with the customer copy of the July, 1988 certificate of deposit seeking the proceeds. The customer copy showed the Gelers listed as beneficiaries of the certificate.

The bank then learned that when Susana visited the bank on August 23, Benjamin was not ill, as Susana had advised, but that he had died on August 9, 1989. Obadia contacted Susana in Israel and persuaded her to return the funds to the bank, which she did on December 6, 1989. Shortly thereafter Susana died.

Defendant placed the returned funds in a certificate of deposit naming Susana as owner. The Gelers were not advised that the funds had been returned, nor were the funds released to the Gelers. In apparent reliance on the joint signature card, the bank, through Constantine Despotakis, its vice president and in-house counsel, took the position that the funds belonged to Susana. The bank did not take the usual action when faced with actual or putative adverse claims: file an interpleader complaint, deposit the funds in court and have the rightful owner of the funds determined by the court.

After the visit of Yacof Geler, Despotakis wrote to Mark Kalish, counsel for the Gelers, explaining that he had reviewed the file with the account officer; that the Ghitelmans had come to the bank together on June 29, 1987, and advised the bank that "all their accounts, including time deposits, with the bank should henceforth be joint ...” (Ltr. dated 11/22/89 from Constantine Despotakis to Mark Kalish, Esq., Ex.E. to Affidavit of William Costigan in support of Motion for Rule 11 sanctions).

Despotakis spoke with Susana Ghitelman’s daughter, a Mrs. Jacobi on January 23, 1990 by telephone. In that New York-to-Israel telephone conversation, Despotakis told Jacobi that it was the bank’s position that the certificate of deposit proceeds were jointly owned by the Ghitelmans, and advised her to discuss the matter with her attorney to determine whether to challenge the Gelers or settle with them. (Memo 1/24/90 Despotakis to Obadia, Ex. H to Costigan Affidavit).

On March 22, 1990, Despotakis wrote to Joshua Eilberg, Esq., in response to an inquiry from Eilberg to Obadia concerning the Gelers' claim. Despotakis enclosed his earlier letter to Kalish and went on to explain that it was the bank’s position, “based on its records that all the Ghitelman accounts became joint as of June 29, 1987, when Mr. and Mrs. Ghitelman personally visited the Bank to so instruct accordingly. It was only through clerical error that the certificate of deposit and the Bank’s internal application control sheet, both of which were typed up after this change, omitted Mrs. Ghitelman’s name. Consequently, the certificate of deposit became the sole property of Mrs. Ghitelman upon Mr. Ghitelman’s death. At Mrs. Ghitelman’s subsequent death, the proceeds ... would then [27]*27belong to the beneficiaries____ At any rate, this is an issue between the estate representative of Mrs. Ghitelman and the named beneficiaries on the certificate of deposit.” (Ex. I to Costigan Affidavit).

Lisa Miller, an attorney for Mrs. Ghitelman’s heirs, stated in a letter to Despotakis dated September 7, 1990, that she had on his advice written a strong letter to Costigan, counsel to the Gelers, and asked Despotakis to review her letter and to suggest any changes. (Ex. J to Costigan Affidavit). Despotakis responded to Miller on September 11, 1990, suggesting modifications in the proposed letter to Costigan. (Ex. L to Costigan Affidavit). Miller adopted these suggestions in a letter to Costigan dated September 12, 1990 in which she sets forth Despotakis’ position that the Ghitelman account was joint and that the Gelers had no right to the proceeds of the certificate of deposit. (Ex. K to Costigan Affidavit).

The court held an evidentiary hearing on the matter and filed an opinion, dated December 4, 1991, ordering the certificate of deposit which was the subject of the controversy turned over to the Gelers as rightfully theirs. The Gelers now seek Rule 11 sanctions against National Westminster Bank USA and Despotakis. Plaintiffs contend that any reasonable inquiry into the bank’s own records and procedures would have made manifest that the certificate of deposit belonged to the Gelers. Plaintiffs assert that the bank and Despotakis misrepresented their own records, delaying for two years receipt by the Gelers of the proceeds of the certificate of deposit and causing them to expend $82,493.52 in attorney’s fees and $9,151.20 in disbursements, when the proceeds of the certificate of deposit should have been turned over to them without delay or the need for litigation.

DETERMINATION

Rule 11, F.R.Civ.P., requires any pleading, motion, or other paper filed with the court to be signed by a lawyer or party, and then provides that

[t]he signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

Under Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 254 (2d Cir.1985), Rule 11 is violated when “after reasonable inquiry, a competent attorney would not form a reasonable belief that the pleading is well grounded in fact____” Since the Rule states an objective standard, the attorney’s subjective “good faith” belief in the viability of his claim provides him no “safe harbor” from sanctions. Id. at 253; accord Greenberg v. Hilton Int’l Co., 870 F.2d 926, 934 (2d Cir.1989). In determining whether the rule has been violated, courts must strive to avoid the wisdom of hindsight, Eastway Constr., supra, 762 F.2d at 254, since Rule 11 is aimed at situations where it is absolutely clear that the claim has no chance of success. Motown Products, Inc. v. Cacomm, Inc,

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Bluebook (online)
145 F.R.D. 25, 1992 U.S. Dist. LEXIS 13077, 1992 WL 308946, Counsel Stack Legal Research, https://law.counselstack.com/opinion/geler-v-national-westminster-bank-usa-nysd-1992.