Mullen v. RBS Citizens, N.A.

2010 Mass. App. Div. 144

This text of 2010 Mass. App. Div. 144 (Mullen v. RBS Citizens, N.A.) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mullen v. RBS Citizens, N.A., 2010 Mass. App. Div. 144 (Mass. Ct. App. 2010).

Opinion

Coven, J.

This is a Dist./Mun. Cts. R. A. D. A., Rule 8C appeal by the plaintiff of the entry of summary judgment in favor of the defendant, on cross motions for summary judgment, on the issue of whether the defendant violated G.L.c. 93A §§2 and 9 in denying the plaintiffs claim for reimbursement for forged checks drawn on her checking account.2

Summary judgment is appropriate where there are no genuine issues of material fact and where the moving party is entitled to judgment as a matter of law. Mass. R. Civ. R, Rule 56(c). The moving party bears the burden of demonstrating the absence of a triable issue and that it is entitled to judgment as a matter of law. Kitras v. Zoning Adm’r of Aquinnah, 453 Mass. 245, 251 (2009). While summary judgment on causes of action grounded on a violation of a statute regulating business practices for consumers’ protection may be appropriate when there is no genuine issue of material fact or the opposing party has not been adversely affected by a violation of the statute, see Chub v. Electric Ins. Co., 17 Mass. App. Ct. 61, 61-62 (1983), summary judgment should not be granted “when the party opposing the motion has alleged facts relating to the transaction on which suit has been brought which raise issues entitling him to a trial.” Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 397 (1994), quoting Community Nat'l Bank v. Dawes, 369 Mass. 550, 556 (1976).

The essential facts in this case are not in dispute. Upon inspecting her bank account statement dated May 4, 2006, original plaintiff Sharon Mullen (“Mullen”) discovered that numerous unauthorized checks were paid from her account held with defendant RBS Citizens, N.A (“Citizens”). The unauthorized checks were made payable to either William Taylor (“Taylor”) or Mary Glover (“Glover”). Mullen contacted Taylor, and he confessed that he had stolen the checks from Mullen while he was repairing a window in her residence. He stated that Glover was not complicit. When Mullen spoke with Glover, she denied knowledge that the checks made payable to her had been unauthorized. Both individuals requested that Mullen not contact the police, but allow them to repay the amount taken.

On or about May 11,2006, Mullen spoke at length with Evans, the manager of the Citizens branch bank in Milton Village, to report the unauthorized transactions on her account. During this meeting, Evans reviewed transactions made after the May statement. Several more unauthorized transactions were discovered. A total of twenty-seven checks were cashed, amounting to $12,770.00.

[146]*146Mullen filled out paperwork, which she and Evans both signed, to close out the checking account. Additionally, Evans helped Mullen to open a new account. Mullen admitted receiving the Personal Deposit Account Agreement at this time,3 among other documents relating to her new checking account. Evans informed Mullen that for her to be reimbursed for the unauthorized payments by Citizens, she would need to file an affidavit and report the forgery to the police. Mullen told Evans that because Taylor had small children and she did not want to upset his family, she wanted to give him a chance to repay the money before filing a complaint with the police. Evans agreed not to process any claim at that point, but spoke with an individual in Citizens’ corporate fraud and security department, informing him that Mullen had reported forgeries to Evans. After informing Citizens of the initial fraud, Mullen continued to contact the bank, speaking with Evans in person or via the telephone a number of times over the next two months, to update Evans on her progress as she sought restitution from Taylor. During one conversation, Mullen asked Evans whether it was reasonable for her to wait some weeks for Taylor’s relatives to obtain money from a 401K account to repay her. Evans responded that it could take some weeks to obtain cash from a 401K account.

On or about July 21, 2006, after failing to obtain full restitution from Taylor,4 Mullen filed a police report and signed an affidavit in connection with her claim against Citizens for the fraud perpetrated on her checking account. Evans forwarded the necessary paperwork to the appropriate bank department. In a letter dated August 1, 2006, Citizens denied Mullen’s claim because she failed to “report in writing an error or discrepancy to Citizens within the 30 day period” and that Evans “first notified Citizens on July 26, 2006” of the fraudulent activity. The letter stated that “unknown person... forged [Mullen’s] name on several checks.” Mullen brought the letter to Evans, who attempted to help Mullen by making several telephone calls to various offices at Citizens informing them that certain statements in the letter were incorrect. Citizens purported to have reopened the case. On October 5, 2006, Citizens again denied Mullen’s claim, this time noting that affidavits were not filed in “a timely manner.”

An act or practice is deceptive under G.L.c. 93A §2 if it “could reasonably be found to have caused a person to act differently from the way he otherwise would have acted,” Lowell Gas Co. v. Attorney Gen., 377 Mass. 37, 51 (1979), or if it contains material misrepresentations or omissions that are likely to mislead the recipients. Commonwealth v. AmCan Enters., Inc., 47 Mass. App. Ct. 330, 335-336 (1999). Further, a plaintiff may recover for “half-truths” if the defendant provides “fragmentary information” intended to mislead or deceive the plaintiff. Kannavos v. Annino, 356 Mass. 42, 48 (1969). “[U]nfair or deceptive conduct is best discerned ‘from the [147]*147circumstances of each case.’” Kattar v. Demoulas, 433 Mass. 1, 14 (2000), quoting Commonwealth v. DeCotis, 366 Mass. 234, 242 (1934). Where the specific circumstances of each case are particularly important in the courfs analysis, the trial courfs duty “is not to conduct a ‘trial by affidavits’ (or other supporting materials), but to ‘determine whether there is a substantial issue of fact.’” Noyes v. Quincy Mut. Fire Ins. Co., 7 Mass. App. Ct. 723, 726 (1979), quoting Norwood Morris Plan Co. v. McCarthy, 295 Mass. 597, 603 (1936).

In its cross motion for summary judgment, Citizens contended that no genuine issue of material fact as to Mullen’s failure to make, within the 30-day period required under the applicable Personal Deposit Account Agreement, a written claim against Citizens for cashing allegedly forged checks drawn on her checking account. However, after trial, the trial court found that notwithstanding any purported required written notice that Citizens alleged Mullen failed to file in a timely manner, Citizens still had an obligation to repay Mullen on her claim against the bank. Citizens did not appeal this ruling.

There are material issues of fact as to whether Citizens plainly disclosed a purported thirty-day deadline in time for Mullen to file properly her claim against the bank; and whether Mullen knew or should have known, or Citizens so informed her, that she needed to file signed affidavits and the police report within thirty days as part of such a claim.5 The record shows that upon discovering the fraud on her account, Mullen promptly contacted the Milton Village branch of Citizens. She personally visited the bank and filled out paperwork giving notice of the fraud perpetrated on her account.

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Related

Commonwealth v. DeCotis
316 N.E.2d 748 (Massachusetts Supreme Judicial Court, 1974)
Kannavos v. Annino
247 N.E.2d 708 (Massachusetts Supreme Judicial Court, 1969)
Chub v. Electric Insurance
455 N.E.2d 646 (Massachusetts Appeals Court, 1983)
Lowell Gas Co. v. Attorney General
385 N.E.2d 240 (Massachusetts Supreme Judicial Court, 1979)
Community National Bank v. Dawes
340 N.E.2d 877 (Massachusetts Supreme Judicial Court, 1976)
Noyes v. Quincy Mutual Fire Insurance
389 N.E.2d 1046 (Massachusetts Appeals Court, 1979)
Squeri v. McCarrick
588 N.E.2d 22 (Massachusetts Appeals Court, 1992)
Wheatley v. American Telephone & Telegraph Co.
636 N.E.2d 265 (Massachusetts Supreme Judicial Court, 1994)
Slaney v. Westwood Auto, Inc.
322 N.E.2d 768 (Massachusetts Supreme Judicial Court, 1975)
Norwood Morris Plan Co. v. McCarthy
4 N.E.2d 450 (Massachusetts Supreme Judicial Court, 1936)
Kattar v. Demoulas
433 Mass. 1 (Massachusetts Supreme Judicial Court, 2000)
Kitras v. Zoning Administrator
453 Mass. 245 (Massachusetts Supreme Judicial Court, 2009)
Nota Construction Corp. v. Keyes Associates, Inc.
694 N.E.2d 401 (Massachusetts Appeals Court, 1998)
Zhang v. Massachusetts Institute of Technology
708 N.E.2d 128 (Massachusetts Appeals Court, 1999)
Commonwealth v. AmCan Enterprises, Inc.
712 N.E.2d 1205 (Massachusetts Appeals Court, 1999)

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2010 Mass. App. Div. 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mullen-v-rbs-citizens-na-massdistctapp-2010.