South v. Bank of America

579 S.E.2d 80, 260 Ga. App. 91, 2003 Fulton County D. Rep. 818, 2003 Ga. App. LEXIS 314
CourtCourt of Appeals of Georgia
DecidedMarch 6, 2003
DocketA02A2229
StatusPublished
Cited by1 cases

This text of 579 S.E.2d 80 (South v. Bank of America) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
South v. Bank of America, 579 S.E.2d 80, 260 Ga. App. 91, 2003 Fulton County D. Rep. 818, 2003 Ga. App. LEXIS 314 (Ga. Ct. App. 2003).

Opinion

Adams, Judge.

In the second appearance of this case in this Court,1 Harry South appeals a superior court order granting summary judgment to Bank of America on his claims arising out of a certificate of deposit, issued in both his and his mother’s names. South claims there are issues of fact about whether his mother ever negotiated the certificate and placed the proceeds in her name only, and whether the bank is protected from liability even though the transaction was not documented according to bank policies. Because South has failed to rebut the bank’s direct evidence showing that the certificate was negotiated on a proper request from his mother, we affirm summary judgment.

The basic facts are set out in our earlier opinion.

On April 21, 1993, South’s mother, Louise South, purchased an 18-month certificate of deposit (“CD”) from NationsBank for $40,000. She placed the CD in her and South’s names. However, she did not inform South of the purchase. On October 29,1994, pursuant to a telephone request by Louise South, the bank redeemed the CD for its matured value, [92]*92added those funds to other funds belonging to her, and opened a second CD in her name only. After Louise South’s death in 199 [8], South learned of these transactions and filed suit against Bank of America, the successor to Nations-Bank. South asserted that by negotiating the original CD without his knowledge or consent, the bank violated his ownership rights, converted the proceeds of the CD, and breached its contract. South also sought equitable reformation of the CD, attorney fees and expenses of litigation, and punitive damages.

South v. Bank of America, 250 Ga. App. 747-748 (551 SE2d 55) (2001).2

The earlier appeal involved Bank of America’s motion for judgment on the pleadings, in which it contended that it was protected from liability by OCGA § 7-1-816, which, together with OCGA § 7-1-820, protects banks from liability when they issue payments on a multiple-party account based on a request from less than all of the parties to the account. South, 250 Ga. App. at 748.3 This Court reversed the trial court’s grant of the bank’s motion on these grounds because it found that there was an issue of fact as to whether the funds were paid to one of the parties of the multi-party account “on a proper request,” as defined by OCGA § 7-1-810 (12). (Emphasis in original.) South, 250 Ga. App. at 749 (1). This Court concluded,

The record contains no information regarding the conditions of the account or the regulations of the bank. In the absence of such information, it cannot be determined whether the funds were disbursed pursuant to a proper request and thus whether OCGA § 7-1-816 is applicable.

Id. at 750 (1).

Following the earlier appeal, the parties submitted additional evidence, and the bank moved for summary judgment on the grounds that the undisputed evidence showed that South’s mother made a proper request to negotiate the certificate. The trial court agreed and granted summary judgment.

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). We review the evidence de novo and view [93]*93the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

1. South first contends that the trial court erred by finding that there were no issues of material fact regarding whether his mother actually made the telephone request. Although South concedes that Sally Connelly, a bank official, testified that she took the telephone call from South’s mother and executed the transaction in accordance with her wishes, he contends that “none of the necessary documentation that would ordinarily support [the bank’s] claims seems to exist.” South concludes that the lack of this documentation raises an issue of fact as to whether his mother actually made the request to negotiate the CD.

The bank relies on the following evidence. Connelly testified that Ms. South called her on October 26, 1994, and directed her to redeem two CDs, including the one at issue here, to place part of the proceeds in a new $100,000 CD, and to place the remainder in her checking account. After the call, Connelly filled out and signed two CD/IRA Withdrawal/Redemption slips, one for each CD. She also filled out and signed a CD/IRA New Account Deposit slip memorializing the request to open a new CD in Ms. South’s name only. She filled out and signed a fourth slip verifying Ms. South’s request to transfer the remainder into her checking account. Connelly gave the slips to the bank’s teller to complete the transactions. A copy of the fourth slip was mailed to Ms. South. Copies of each of these four slips are in evidence.

Connelly then sent Ms. South two CD Withdrawal Confirmation forms and one CD Deposit Receipt for the new CD. Copies of these forms are also in evidence. Counsel for the bank asserts that each of the four items mailed to Ms. South in 1994 was produced by Harry South in discovery. Finally, between October 26, 1994, and the time of Ms. South’s death in 1998, Connelly performed additional transactions for Ms. South over the telephone.

Connelly also testified that, at the time of the transaction, the bank’s consumer banking representatives had the authority, at their discretion, to complete customer banking transactions, including the creation and redemption of certificates of deposit, pursuant to telephone requests if the representative knew the customer and both parties were comfortable with the bank handling transactions over the phone. Even South’s witness on bank policy, Robert Sisson, a former vice president of the bank, testified that bank policy allowed telephone transactions:

If the bank customer was well known to the individual who handled the transaction, and the in-person appearance with [94]*94the customer would cause some hardship to the customer, the bank employee was allowed at their discretion to create a new CD account over the telephone pursuant to a customer’s telephone request.

Connelly testified that Ms. South was just such a customer.

South complains that the bank failed to produce (1) any written policies and procedures relevant to the transaction; (2) a depositor’s agreement for the new CD account; or (3) any document signed by Ms. South authorizing the redemption of the $40,000 certificate. In fact, Connelly admitted that she did not know what the bank’s written policies and procedures stated at the time. Second, Sisson testified that a new depositor agreement was required for the new CD, whereas none was provided by the bank for this transaction.

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Bluebook (online)
579 S.E.2d 80, 260 Ga. App. 91, 2003 Fulton County D. Rep. 818, 2003 Ga. App. LEXIS 314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/south-v-bank-of-america-gactapp-2003.