Mikell, Judge.
Martha J. Jenkins sued Wachovia Bank, National Association (“Wachovia”),
asserting claims based on Wachovia’s payment, over a forged endorsement, of a check made payable to Jenkins but never delivered to Jenkins or in her possession. The trial court granted summary judgment to Wachovia, and Jenkins appeals. Finding no error, we affirm.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.
So viewed, the record reflects the following undisputed facts. On July 26, 2007, Jenkins signed a promissory note, security deed, and other documents relating to a loan from First Horizon Home Loans, a division of First Tennessee Bank (the lender and associated entities hereinafter referred to collectively as “First Tennessee”). Jenkins alleges that she did not intend to obtain a loan from First Tennessee,
but that she was defrauded into signing these documents by her cousins, Courtney Brown (“Brown”) and Gail Brown (Courtney’s mother), and by the closing attorney, Brian D. Pierce.
The total loan was for $88,000. A check for loan proceeds in the amount of $69,000, dated July 31, 2007, was issued payable to “Martha Jeanette Jenkins,” drawn on the “Brian Pierce, R C., Trust Account” at Wachovia. It is undisputed that Jenkins never received this $69,000 check. Instead, Jenkins alleges that Brown forged Jenkins’s signature on the back of the check and then endorsed it in his own name. Brown then set up two new accounts at Wachovia, deposited a total of $60,000 into those accounts, and obtained the remaining $9,000 in cash.
Jenkins filed the underlying action against Wachovia on March 5, 2009. Based on Wachovia’s actions in failing to obtain Jenkins’s signature on the check, cashing the check for Brown, opening two new accounts for Brown, depositing the funds in the new accounts, and giving Brown the balance of the funds from the check in cash, Jenkins asserted claims against Wachovia for conversion, theft by taking, fraud, intentional breach of private and legal duties owed to her, negligence, and intentional infliction of emotional distress. In the last amendment to her complaint, Jenkins asserted the following additional claims against Wachovia: (1) Wachovia was not a holder in due course; (2) Wachovia intentionally and negligently failed to follow its policies and procedures concerning verification of customer identification and endorsements; (3) Wachovia “intentionally, fraudulently, and negligently” cashed a “forged check” for Brown and failed to act in good faith or with reasonable commercial standards of fair dealing; and (4) Wachovia conspired with others to defraud Jenkins. Jenkins subsequently withdrew her claims for conversion and theft by taking. Jenkins moved for default judgment against Wachovia, and Wachovia moved for summary judgment. After a hearing, the trial court denied Jenkins’s motion for default judgment and granted summary judgment in favor of Wachovia. It is from this order that Jenkins appeals.
1. Jenkins contends that the trial court erred in granting
summary judgment as to her “claim” that Wachovia was not a “holder in due course.”
However, whether Wachovia was a holder in due course of the check is irrelevant to the situation at bar. “Holder in due course” status gives the holder of an instrument (such as a check) the right to enforce it and to cut off certain defenses of the obligor under the instrument.
But here, Jenkins is not the “holder” of the check. To be a “holder” of a negotiable instrument requires possession of the instrument,
and it is undisputed that Jenkins never had possession of this check at any time. Further, Wachovia is not attempting to enforce the check against Jenkins. Thus, whether Wachovia is a “holder in due course” is irrelevant to her action. As the trial court correctly noted, “[h] older in due course status ... is not an affirmative claim which [Jenkins] may make against Wacho-via for damages.” Thus, it is irrelevant whether there was evidence of fraud on the face of the check, because such evidence goes only to determine if Wachovia was a holder in due course.
Jenkins’s reliance on
Hartsock v. Rich’s Employees Credit
Union
is misplaced. In that case, the check in question was not delivered to the original payee but was instead intercepted, altered, and deposited by a thief into the thiefs account at the depository bank.
The originally-named payee sued the depositor and the drawee banks.
This Court found that the defendant banks’ motion for summary judgment was properly denied “on the issue of whether [the banks] are holders in due course of the check,”
because there was some evidence of forgery on the face of the check at issue.
However, the opinion in that case does not disclose what
claim
the payee was asserting, as to which the banks’ “holder in due course” status might be relevant.
In the case at bar, whether Wachovia is or is not a holder in due course does not impact any claim asserted by Jenkins.
2. In Jenkins’s second, third, and fourth enumerations of error, she asserts that the trial court erred in granting summary judgment to Wachovia as to her claims based on (1) Wachovia’s intentional and negligent failure to follow its policies concerning verification of endorsements on checks; (2) Wachovia’s breach of a private duty and legal duty to Jenkins; and (3) Wachovia’s negligent and intentional act of cashing a forged check, failure to act in good faith, and failure to observe reasonable commercial standards. We discern no error.
It is undisputed that the check was never delivered to Jenkins and she never had possession of it. For that reason, Jenkins has no rights under this particular check. OCGA § 11-3-420 provides that “[a]n action for conversion of an instrument may not be brought by . . . a payee or indorsee
who did not receive delivery of the instrument either directly or through delivery to an agent or a co-payee.”
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Mikell, Judge.
Martha J. Jenkins sued Wachovia Bank, National Association (“Wachovia”),
asserting claims based on Wachovia’s payment, over a forged endorsement, of a check made payable to Jenkins but never delivered to Jenkins or in her possession. The trial court granted summary judgment to Wachovia, and Jenkins appeals. Finding no error, we affirm.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.
So viewed, the record reflects the following undisputed facts. On July 26, 2007, Jenkins signed a promissory note, security deed, and other documents relating to a loan from First Horizon Home Loans, a division of First Tennessee Bank (the lender and associated entities hereinafter referred to collectively as “First Tennessee”). Jenkins alleges that she did not intend to obtain a loan from First Tennessee,
but that she was defrauded into signing these documents by her cousins, Courtney Brown (“Brown”) and Gail Brown (Courtney’s mother), and by the closing attorney, Brian D. Pierce.
The total loan was for $88,000. A check for loan proceeds in the amount of $69,000, dated July 31, 2007, was issued payable to “Martha Jeanette Jenkins,” drawn on the “Brian Pierce, R C., Trust Account” at Wachovia. It is undisputed that Jenkins never received this $69,000 check. Instead, Jenkins alleges that Brown forged Jenkins’s signature on the back of the check and then endorsed it in his own name. Brown then set up two new accounts at Wachovia, deposited a total of $60,000 into those accounts, and obtained the remaining $9,000 in cash.
Jenkins filed the underlying action against Wachovia on March 5, 2009. Based on Wachovia’s actions in failing to obtain Jenkins’s signature on the check, cashing the check for Brown, opening two new accounts for Brown, depositing the funds in the new accounts, and giving Brown the balance of the funds from the check in cash, Jenkins asserted claims against Wachovia for conversion, theft by taking, fraud, intentional breach of private and legal duties owed to her, negligence, and intentional infliction of emotional distress. In the last amendment to her complaint, Jenkins asserted the following additional claims against Wachovia: (1) Wachovia was not a holder in due course; (2) Wachovia intentionally and negligently failed to follow its policies and procedures concerning verification of customer identification and endorsements; (3) Wachovia “intentionally, fraudulently, and negligently” cashed a “forged check” for Brown and failed to act in good faith or with reasonable commercial standards of fair dealing; and (4) Wachovia conspired with others to defraud Jenkins. Jenkins subsequently withdrew her claims for conversion and theft by taking. Jenkins moved for default judgment against Wachovia, and Wachovia moved for summary judgment. After a hearing, the trial court denied Jenkins’s motion for default judgment and granted summary judgment in favor of Wachovia. It is from this order that Jenkins appeals.
1. Jenkins contends that the trial court erred in granting
summary judgment as to her “claim” that Wachovia was not a “holder in due course.”
However, whether Wachovia was a holder in due course of the check is irrelevant to the situation at bar. “Holder in due course” status gives the holder of an instrument (such as a check) the right to enforce it and to cut off certain defenses of the obligor under the instrument.
But here, Jenkins is not the “holder” of the check. To be a “holder” of a negotiable instrument requires possession of the instrument,
and it is undisputed that Jenkins never had possession of this check at any time. Further, Wachovia is not attempting to enforce the check against Jenkins. Thus, whether Wachovia is a “holder in due course” is irrelevant to her action. As the trial court correctly noted, “[h] older in due course status ... is not an affirmative claim which [Jenkins] may make against Wacho-via for damages.” Thus, it is irrelevant whether there was evidence of fraud on the face of the check, because such evidence goes only to determine if Wachovia was a holder in due course.
Jenkins’s reliance on
Hartsock v. Rich’s Employees Credit
Union
is misplaced. In that case, the check in question was not delivered to the original payee but was instead intercepted, altered, and deposited by a thief into the thiefs account at the depository bank.
The originally-named payee sued the depositor and the drawee banks.
This Court found that the defendant banks’ motion for summary judgment was properly denied “on the issue of whether [the banks] are holders in due course of the check,”
because there was some evidence of forgery on the face of the check at issue.
However, the opinion in that case does not disclose what
claim
the payee was asserting, as to which the banks’ “holder in due course” status might be relevant.
In the case at bar, whether Wachovia is or is not a holder in due course does not impact any claim asserted by Jenkins.
2. In Jenkins’s second, third, and fourth enumerations of error, she asserts that the trial court erred in granting summary judgment to Wachovia as to her claims based on (1) Wachovia’s intentional and negligent failure to follow its policies concerning verification of endorsements on checks; (2) Wachovia’s breach of a private duty and legal duty to Jenkins; and (3) Wachovia’s negligent and intentional act of cashing a forged check, failure to act in good faith, and failure to observe reasonable commercial standards. We discern no error.
It is undisputed that the check was never delivered to Jenkins and she never had possession of it. For that reason, Jenkins has no rights under this particular check. OCGA § 11-3-420 provides that “[a]n action for conversion of an instrument may not be brought by . . . a payee or indorsee
who did not receive delivery of the instrument either directly or through delivery to an agent or a co-payee.”
No conversion action lies because a payee who never had possession of the check has no interest in the check and cannot enforce it. As noted in the Uniform Commercial Code (UCC) official comments
accompanying OCGA § 11-3-420, “[u]ntil delivery, the payee does not have any interest in the check. The payee never became the holder of the check nor a person entitled to enforce the check.”
The fact that Jenkins withdrew her claim for conversion does not make her other tort claims valid. As the official comments explain, one in Jenkins’s position (that is, payee of a check which was never delivered to her) is not injured by the forged endorsement of the check:
Normally the drawer of a check intends to pay an obligation owed to the payee. But if the check is never delivered to the payee, the obligation owed to the payee is not affected. If the check falls into the hands of a thief who obtains payment after forging the signature of the payee as an indorsement, the obligation owed to the payee continues to exist after the thief receives payment. Since the payee’s right to enforce the underlying obligation is unaffected by the fraud of the thief, there is no reason to give any additional remedy to the payee.
The comment makes it clear that a payee who does not take delivery of an instrument does not have any ownership interest in the check. Further, Jenkins does not have standing to enforce the check under OCGA § 11-3-301,
which is also grounded on present or past possession of the check, with limited exceptions not applicable in the case at bar.
Because Jenkins has no ownership interest in the check and has no standing to enforce it, her claims based on tort fall to the ground. The actions by Wachovia of which Jenkins complains — paying the check over a forged endorsement, failing to obtain Jenkins’s endorsement of the check, opening bank accounts for Brown, depositing the funds in the new accounts, giving Brown the balance of the funds from the check in cash, failure to act in good faith, and failure to observe reasonable commercial standards — were not violations of any legal right of, or duty owed to, Jenkins, and she has suffered no damages from these actions. Thus, they do not give rise to a tort claim under the statutes she cites, OCGA §§ 51-1-1,
51-1-6,
and 51-1-8.
And Jenkins’s reliance on OCGA § 11-3-501 is also misplaced. This statute merely defines “presentment” of an instrument for purposes of determining when or if an instrument is dishonored;
it does not support a cause of action by one never in possession of the instrument against the depositor or drawee bank.
Jenkins’s claim to recover $69,000 from Wachovia is contradicted by her adamant insistence that she did not intend to take out
a loan. In seeking to recover the check proceeds from Wachovia, she is in essence making a claim for the loan proceeds. If she wants to ratify the loan, however, as discussed above, she can make a claim against the closing attorney for the loan proceeds.
3. Jenkins asserts that the trial court erred in granting summary judgment to Wachovia on Jenkins’s claim for conspiracy to defraud. This enumeration of error fails. As set forth in Division 2 above, Jenkins has no tort claim against Wachovia based on Wachovia’s action in paying the $69,000 check over a forged endorsement. Because the tort claim fails, so also the conspiracy claim fails:
A conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means. To recover damages for a civil conspiracy claim, a plaintiff must show that two or more persons, acting in concert, engaged in conduct that constitutes a tort. Absent the underlying tort, there can be no liability for civil conspiracy.
4. Jenkins argues that the trial court erred in granting Wachovia summary judgment on her claim for intentional infliction of emotional distress. We find no error.
In order to prevail on such a claim, Jenkins must show, inter alia,
that the behavior of Wachovia’s employees was “extreme and outrageous.”
Further, “[wjhether the alleged conduct is sufficiently extreme or outrageous is a question of law for the trial court.”
Jenkins bases her claim on the following actions taken by Wachovia’s employees: intentionally cashing a check over a forged endorsement, in violation of Wachovia’s internal policies; depositing some of the funds into two new accounts established by Brown, and giving Brown the balance in cash; communicating with Brown and Pierce with regard to the check; and intentionally or recklessly causing Jenkins severe emotional distress. Even accepting Jenkins’s characterization of Wachovia’s actions, none of these actions rise to the level of “intentional infliction of emotional distress.” As this Court has explained, in determining “[w]hether a claim rises to the
requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress,”
it has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.
As the evidence in this case clearly fails to meet this standard, the trial court did not err in granting summary judgment to Wachovia on this issue.
5. Jenkins contends that the trial court erred in denying her motion for default judgment against Wachovia. We disagree.
Jenkins’s complaint was filed on March 5, 2009, and Wachovia was served with process on March 11, 2009. On April 7, 2009, before Wachovia’s answer was due, Jenkins’s counsel agreed to an extension of time for Wachovia to file its answer, and on or about April 14, 2009, the parties signed a stipulation extending the time for Wacho-via’s response pleadings to May 10, 2009. As May 10, 2009, was a Sunday, Wachovia filed its answer and the stipulation extending time on May 11, 2009.
Despite the signed stipulation between the parties, Jenkins filed a motion for default judgment against Wachovia on May 7, 2009, contending that Wachovia was in default despite the agreement to extend time, because Wachovia failed to file the stipulation extending time until after the original period for filing its answer had expired.
The trial court denied Jenkins’s motion for default judgment.
A trial court’s denial of a motion for an entry of default judgment is reviewed on appeal for abuse of discretion.
In the case at bar, Jenkins agreed to the extension of time, and she has not shown that Wachovia’s failure to file the stipulation extending time within the original period for filing its answer resulted in any prejudice to her.
Even though “[a] private agreement between counsel extending time to file pleadings is not binding except when in compliance with [OCGA § 9-11-6 (b)] and it is filed with the court,”
the trial court acted within its discretion to deny default judgment in this case.
Decided May 13, 2011.
Simmons & Simmons, Annie R. Simmons,
for appellant.
Nelson, Mullins, Riley & Scarborough, Richard B. Herzog, Jr., Kinan Obeidin,
for appellee.
Judgment affirmed.
Smith, P. J., and Dillard, J., concur.