Graves v. Wachovia Bank, N.A., Civil Action No. 1:08cv75-MHT.

CourtUnited States District Courts. 11th Circuit. Middle District of Alabama
Writing for the CourtMyron H. Thompson
Citation607 F.Supp.2d 1277
PartiesChrysta Gales GRAVES, as Administratrix of the Estate of Michael Steven Gales, deceased, Plaintiff, v. WACHOVIA BANK, NATIONAL ASSOCIATION, Defendant.
Decision Date10 April 2009
Docket NumberCivil Action No. 1:08cv75-MHT.
607 F.Supp.2d 1277
Chrysta Gales GRAVES, as Administratrix of the Estate of Michael Steven Gales, deceased, Plaintiff,
v.
WACHOVIA BANK, NATIONAL ASSOCIATION, Defendant.
Civil Action No. 1:08cv75-MHT.
United States District Court, M.D. Alabama, Southern Division.
April 10, 2009.

Page 1278

Stephen Talmadge Etheredge, Sr., Lexa Eugenia Dowling, Buntin, Etheredge & Dowling, LLC, Dothan, AL, for Plaintiff.

Victor Lee Hayslip, William J. Long, Burr & Forman LLP, Birmingham, AL, for Defendant.

OPINION

MYRON H. THOMPSON, District Judge.


Plaintiff Chrysta Gales Graves, as the administratrix of the estate of Michael Gales, brings this lawsuit against defendant Wachovia Bank asserting two state-law claims: (1) breach of agreement and (2) failure to pay in good faith. Jurisdiction is proper pursuant to 28 U.S.C. §§ 1333 (diversity of citizenship) and 1441 (removal). The case is now before the court on Wachovia's motion for summary judgment. The motion will be granted.

I. SUMMARY-JUDGMENT STANDARD

Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding whether summary judgment should be granted, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

II. PROCEDURAL HISTORY

Plaintiff's initial complaint asserted eight different claims, including tort-law claims for negligence, wantonness, conversion, negligent supervision, and equity. After Wachovia filed its summary-judgment

Page 1279

motion, however, plaintiff filed a motion to dismiss six of her claims. Citing a "mental lapse," she noted that she had alleged various tort claims that do not survive the death of the decedent and therefore could not be raised by the estate. M. Dismiss. at 1; Doc. No. 30. The court granted this motion to dismiss, leaving only the contract claims for breach of agreement and failure to pay in good faith.

III. FACTUAL BACKGROUND

On May 26, 2006, Michael Gales opened a multi-party bank account with Wachovia. He opened this account in his own name and in the names of his parents, with rights of survivorship in each. One month later, however, he changed the account to a single-party account, payable on death, with his parents named as beneficiaries. When he opened the account, and again when he converted it into a single-party account, Gales signed a Customer Access Agreement, which incorporated the terms and conditions of Wachovia's Deposit Agreement.

On February 23, 2007, Gales died. Wachovia immediately paid the balance of the account ($ 394,351.93) to his parents. On March 28, 2007, plaintiff, Gales's daughter, was named administratrix of the estate. About this same time, plaintiff requested information concerning her father's bank account with Wachovia. On April 9, 2007, plaintiff contacted the bank concerning a number of checks that she believed to have been forged on her father's account. The allegedly forged checks were cashed between October 20, 2006, and February 26, 2007.

After being contacted by plaintiff, Wachovia reimbursed the account for five of the allegedly forged checks, totaling more than $ 8,330. The bank refused to reimburse the account on the remaining checks, however, citing a provision in the Deposit Agreement which states that a customer has up to 40 days after receiving a statement to notify the bank of any checks that have forged or missing signatures.1 If a customer fails to report such errors within 40 days, the customer will "lose any and all rights ... to assert the error or discrepancy" against the bank. Deposit Agreement at ¶ 9. There is no evidence that Gales ever reported any forgeries, missing signatures, or discrepancies in his account to Wachovia or anyone else. There is also no evidence that his parents, as beneficiaries on the account, contacted the bank regarding any errors.

One year later, on April 9, 2008, Gales's parents assigned their interest or rights in the account to plaintiff, as administratrix of Gales's estate.

IV. DISCUSSION

Section 7-4-406 of the 1975 Alabama Code governs a "customer's duty to discover and report...

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7 practice notes
  • Gilbert & Caddy, P.A. v. JP Morgan Chase Bank, N.A., Case No. 15-cv-60653-BLOOM/Valle
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • June 15, 2016
    ...notification period that this Court finds valid in light of persuasive authority. See193 F.Supp.3d 1307Graves v. Wachovia Bank, N.A. , 607 F.Supp.2d 1277, 1281 (M.D.Ala.2009) ("Because plaintiff has not presented any evidence that a customer ... contacted Wachovia within the 40-day period e......
  • Century Constr. Co. v. Bancorpsouth Bank, Banking Corp., No. 2011–CA–01853–COA.
    • United States
    • Mississippi Court of Appeals
    • June 11, 2013
    ...Numerous jurisdictions have also upheld the contractual shortening of the notice provision. See Graves v. Wachovia Bank, Nat'l Ass'n, 607 F.Supp.2d 1277, 1281 (M.D.Ala.2009) (approving the limiting of the notice provision to forty days); Am. Airlines Emp. Fed. Credit Union v. Martin, 29 S.W......
  • Craft v. Triumph Logistics, Inc., Civil Action No. 2:14cv93–MHT.
    • United States
    • U.S. District Court — Middle District of Alabama
    • April 8, 2015
    ...of the kind of knowledge of likely injury required by the consciousness standard applied to wantonness claims in Alabama." Jinright, 607 F.Supp.2d at 1277.Therefore, because the plaintiffs have not provided any facts from which it could be inferred that Williams consciously or recklessly ca......
  • Oguguo v. Wells Fargo Bank, Na, PNC Bancorp, Inc., Civil Action No. 14-2383 (SRC)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • May 27, 2016
    ...L-1607-13, 2015 WL 8546799, at * 3 (N.J. Sup. Ct. App. Div. Dec. 14, 2015) (60-day notice requirement); Graves v. Wachovia Bank, N.A., 607 F. Supp. 2d 1277, 1280 (M.D. Ala. 2009) (40 days); Freese v. Regions Bank, N.A., 644 S.E.2d 549, 552 (Ga. Ct. App. 2007) (30 days); Borowski v. Firstar ......
  • Request a trial to view additional results
7 cases
  • Gilbert & Caddy, P.A. v. JP Morgan Chase Bank, N.A., Case No. 15-cv-60653-BLOOM/Valle
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • June 15, 2016
    ...notification period that this Court finds valid in light of persuasive authority. See193 F.Supp.3d 1307Graves v. Wachovia Bank, N.A. , 607 F.Supp.2d 1277, 1281 (M.D.Ala.2009) ("Because plaintiff has not presented any evidence that a customer ... contacted Wachovia within the 40-day period e......
  • Century Constr. Co. v. Bancorpsouth Bank, Banking Corp., No. 2011–CA–01853–COA.
    • United States
    • Mississippi Court of Appeals
    • June 11, 2013
    ...Numerous jurisdictions have also upheld the contractual shortening of the notice provision. See Graves v. Wachovia Bank, Nat'l Ass'n, 607 F.Supp.2d 1277, 1281 (M.D.Ala.2009) (approving the limiting of the notice provision to forty days); Am. Airlines Emp. Fed. Credit Union v. Martin, 29 S.W......
  • Craft v. Triumph Logistics, Inc., Civil Action No. 2:14cv93–MHT.
    • United States
    • U.S. District Court — Middle District of Alabama
    • April 8, 2015
    ...of the kind of knowledge of likely injury required by the consciousness standard applied to wantonness claims in Alabama." Jinright, 607 F.Supp.2d at 1277.Therefore, because the plaintiffs have not provided any facts from which it could be inferred that Williams consciously or recklessly ca......
  • Oguguo v. Wells Fargo Bank, Na, PNC Bancorp, Inc., Civil Action No. 14-2383 (SRC)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • May 27, 2016
    ...L-1607-13, 2015 WL 8546799, at * 3 (N.J. Sup. Ct. App. Div. Dec. 14, 2015) (60-day notice requirement); Graves v. Wachovia Bank, N.A., 607 F. Supp. 2d 1277, 1280 (M.D. Ala. 2009) (40 days); Freese v. Regions Bank, N.A., 644 S.E.2d 549, 552 (Ga. Ct. App. 2007) (30 days); Borowski v. Firstar ......
  • Request a trial to view additional results

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