Radin v. Crestar Bank, 940949
| Decision Date | 21 April 1995 |
| Docket Number | No. 940949,940949 |
| Citation | 457 S.E.2d 65,249 Va. 440 |
| Parties | , 26 UCC Rep.Serv.2d 1196 Melvin J. RADIN v. CRESTAR BANK. Record |
| Court | Virginia Supreme Court |
Melvin J. Radin, Norfolk, pro se.
Samuel R. Brown, II, Virginia Beach, for appellee.
Present: All the Justices.
The sole issue in this appeal is whether an attorney at law is a proper party to sue a bank that refuses to reimburse the attorney's fiduciary account for a certain check, drawn by the attorney against the account, and honored by the bank over a forged indorsement.
Melvin J. Radin, an attorney at law in the City of Norfolk, maintained with United Virginia Bank, now Crestar Bank (the Bank or Crestar), a "fiduciary account" in which he deposited his clients' funds. Radin had represented and obtained a judgment for Gugesa Haile, an Ethiopian seaman who resided in Greece, and had deposited the amount collected thereon in the fiduciary account. On May 13, 1986, Radin issued a check, drawn against the fiduciary account and payable to Haile, in the amount of the balance of the judgment due Haile, $10,420.17.
About May 22, 1986, someone other than Haile indorsed the check and retained the proceeds therefrom. About May 27, 1986, Radin received a letter from Haile, stating that he had not received the check. This was Radin's first notice that the check's indorsement may have been forged. Thereafter, Radin examined his bank statement and canceled checks and determined that, indeed, Haile's indorsement on the check had been forged.
Radin promptly notified the Bank about the forged indorsement. Sometime thereafter, the Bank advised Radin to obtain from Haile an affidavit stating that Haile had not indorsed the check and informed Radin that it would reimburse the fiduciary account upon receipt of the affidavit. Radin obtained the affidavit and forwarded it to the Bank on July 30, 1987. The Bank, however, refused to reimburse the account.
Thereupon, Radin instituted the present action, seeking to require Crestar to reimburse the fiduciary account. In his amended motion for judgment, Radin alleged that the action was brought "on behalf of ... Radin, individually, and on behalf of ... Radin as trustee for funds due ... Haile." Crestar filed a "demurrer and motion to dismiss," asserting that Haile, not Radin, was the proper party to maintain the action. The trial court sustained the demurrer and dismissed the action with prejudice, and Radin appeals.
Radin, relying primarily on Code § 8.4-406, contends that he, as the Bank's customer, is a proper person to bring the action. Crestar asserts that Haile is the person damaged, and, therefore, the action should have been brought in Haile's name.
Code § 8.4-406 sets forth the duty of a bank "customer" to discover and report any unauthorized signature or alteration on any items paid by the bank. With respect to unauthorized indorsements, Code § 8.4-406(4) provided, at the time of the alleged forgery, that "a customer" must discover and report any such indorsement within three years from the time the bank makes available to the customer a statement of account and...
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