Wachovia Bank of Georgia, N.A. v. Unisys Finance Corp.

471 S.E.2d 554, 221 Ga. App. 471, 96 Fulton County D. Rep. 2193, 1996 Ga. App. LEXIS 534
CourtCourt of Appeals of Georgia
DecidedMay 21, 1996
DocketA96A0027, A96A0028
StatusPublished
Cited by5 cases

This text of 471 S.E.2d 554 (Wachovia Bank of Georgia, N.A. v. Unisys Finance Corp.) 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
Wachovia Bank of Georgia, N.A. v. Unisys Finance Corp., 471 S.E.2d 554, 221 Ga. App. 471, 96 Fulton County D. Rep. 2193, 1996 Ga. App. LEXIS 534 (Ga. Ct. App. 1996).

Opinions

Ruffin, Judge.

Unisys Finance Corporation (“Unisys”) obtained a judgment against Hanover Credit Corporation (“Hanover”). To satisfy its judgment, Unisys filed a garnishment, naming Wachovia Bank of Georgia, N.A., (‘Wachovia”) as garnishee. Although Hanover maintained 17 accounts with Wachovia, Wachovia determined that 15 of the accounts were “trust accounts” and not subject to the garnishment. Accordingly, Wachovia answered the garnishment stating that money found in one of the two remaining accounts was subject to the garnishment. Unisys traversed the answer stating it was untrue. The trial court, sitting as the trier of fact, found that money in the 15 other accounts was subject to the garnishment and entered judgment in favor of Unisys. We granted Wachovia’s application for discretionary review. In Case No. A96A0027, Wachovia appeals the trial court’s finding that the 15 accounts were subject to garnishment. In Case No. A96A0028, Unisys asserts that the court erred by failing to award it pre-judgment interest. For reasons which follow, we affirm the trial court’s judgment in both cases.

Case No. A96A0027

In eight separate enumerations of error, Wachovia contends that the trial court erred because the accounts were fiduciary accounts containing clients’ funds which were exempt from garnishment, and that its investigation of the accounts was sufficient to satisfy its burden under Georgia’s garnishment laws. This latter contention is also asserted in an amicus curiae brief filed by the Georgia Bankers Association. We will address each of these contentions separately.

1. Were these trust accounts subject to garnishment?

The record shows that Hanover is a collection agency which, when the garnishment was filed, maintained 17 separate bank accounts with Wachovia. Wachovia contends that the 15 accounts at issue were maintained by Hanover for depositing money Hanover [472]*472collected for various clients. Wachovia maintains that it did not subject the accounts to the garnishment because the funds were held in trust for Hanover’s clients. The trial court found that because Wachovia presented insufficient evidence that the accounts were trust accounts, the accounts were subject to the garnishment.

The issue before the trial court on Unisys’ traverse of Wachovia’s answer was whether Wachovia had Hanover’s assets in any of its accounts. W. T. Harvey Lumber Co. v. J. M. Wells Lumber Co., 104 Ga. App. 498 (3) (122 SE2d 143) (1961). “[T]he burden was on [Unisys] to sustain the traverse by a preponderance of the evidence.” Oxford v. Metter Lumber Co., 104 Ga. App. 758, 760 (123 SE2d 156) (1961).

In support of its contention that the accounts were Hanover’s property, Unisys presented copies of several documents used by Hanover to establish the accounts. One of those documents was Hanover’s “Directors’ Resolution Authorizing Corporate Depository.” The resolution listed the accounts and provided that Wachovia “is designated a depository for the funds of [Hanover], . . .” (Emphasis supplied.) The resolution granted Hanover’s executive vice president broad powers to transact business concerning the accounts, which included the ability to draw checks. The resolution requested and authorized Wachovia “to pay or transfer funds or otherwise act in accordance with [the] resolution . . . [and to] honor all checks, drafts, or other orders for the payment of money drawn in [Hanover’s] name on its account(s). . . .” (Emphasis supplied.) The resolution does not indicate that any of the accounts were trust accounts.

In addition to the resolution, Unisys presented evidence showing that during the time the garnishment lien was pending, Hanover drew 42 checks on the 15 accounts, naming Hanover as payee.

In opposition, Wachovia presented copies of signature cards for the accounts which contained the word “trust” in the account titles. Wachovia stipulated, however, that the account titles were selected by Hanover at Hanover’s discretion. The Wachovia branch manager in charge of the Hanover accounts testified that Wachovia names “the account the way the customer asks us to ... to accommodate them.” The Wachovia manager further acknowledged that when Hanover opened the accounts, Wachovia performed “no investigation whatsoever” to determine whether they were trust accounts.

The evidence further showed that while the garnishment was pending, Unisys contacted Wachovia asserting that the 15 accounts were not trust accounts and that Hanover’s own funds were in the accounts. When Wachovia contacted Hanover regarding the accounts, Hanover verbally assured Wachovia that the accounts were trust accounts. Wachovia did not perform any further investigation into the nature of the accounts, and admits that Hanover’s verbal assurance and the signature card account titles were the only information [473]*473relied on in concluding that the accounts were trust accounts exempt from garnishment.

Although Wachovia argues that trust accounts are generally not subject to garnishment for the trustee’s personal debts, such argument assumes the existence of a trust. See Jackson v. Fulton Nat. Bank, 46 Ga. App. 253 (1) (167 SE 344) (1933). “[T]he question of the establishment of a trust and the ownership of the [15] other accounts was one of fact.” Spivey v. Methodist Home &c., 226 Ga. 100, 102 (2) (172 SE2d 673) (1970). Thus, the issue in this case of whether money in the Wachovia accounts was Hanover’s property, or held in trust by Hanover for its clients, was for the factfinder to decide. See id.; McCann v. McCraine, 228 Ga. 814, 817 (7) (188 SE2d 484) (1972). In this case the trial judge sat as the factfinder. “ ‘On appeal of the judgment of a trial judge sitting without a jury, a judgment will not be disturbed if there is any evidence to sustain it. (Cit.)’ [Cits.]” Travelers Ins. Co. v. Trans State, 172 Ga. App. 763, 765 (3) (324 SE2d 585) (1984). As appellate judges we cannot take cases by their smooth handle. We accept cases on their facts as shown by the record as developed in the crucible of battle below. We cannot change, alter or amend facts; we can only examine them for evidentiary bases. Although conflicting evidence was presented, the corporate resolution concerning the accounts and evidence that Hanover drew checks on the accounts payable to itself were some evidence from which the trial judge could find that the account funds were Hanover’s assets. Accordingly, we find no error.

2. Was Wachovia’s reliance on the signature cards and Hanover’s statement regarding the accounts sufficient to relieve Wachovia of liability in answering the garnishment?

OCGA § 18-4-82 prescribes the requirements for answering a garnishment. That section requires the garnishee to answer the garnishment “describing what money or other property is subject to garnishment. ... If the garnishee shall be unable to answer as provided for in this Code section, his inability shall appear in his answer, together with all the facts plainly, fully, and distinctly set forth, so as to enable the court to give judgment thereon.” This latter provision “is a statutory alternative given the garnishee who is in doubt as to liability to have the court resolve such doubt by presenting every element involved in the matter so that the court can make the determination and the garnishee avoid liability.” C & S Nat. Bank v. Avco Financial Svcs., 129 Ga. App.

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Wachovia Bank of Georgia, N.A. v. Unisys Finance Corp.
471 S.E.2d 554 (Court of Appeals of Georgia, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
471 S.E.2d 554, 221 Ga. App. 471, 96 Fulton County D. Rep. 2193, 1996 Ga. App. LEXIS 534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wachovia-bank-of-georgia-na-v-unisys-finance-corp-gactapp-1996.