Vadde v. Bank of America

• Decision Date: 20 November 2009
• Docket Number: No. A09A1714.,A09A1714.
• Parties: VADDE v. BANK OF AMERICA.
• Court: Georgia Court of Appeals

687 S.E.2d 880

301 Ga. App. 475

VADDE v. BANK OF AMERICA.

No. A09A1714.

Court of Appeals of Georgia.

November 20, 2009.

Reconsideration Denied December 9, 2009.

Subbamma Vadde, pro se.

Trauner, Cohen & Thomas, Michael J. Cohen, Atlanta, Craig R. Goodman, for appellee.

MIKELL, Judge.

Subbamma Vadde appeals pro se from the grant of summary judgment to Bank of America concerning her indebtedness under a bank account agreement. For the reasons set forth below, we affirm.

"To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law."¹ "On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law."² So viewed, the evidence shows that on January 18, 2001, Vadde opened a regular checking account with Bank of America. When she opened the account, she signed a Personal Signature Card that bound her to the terms and conditions of the Deposit Agreement and Disclosures statement. The relevant portion of the Agreement provides as follows:

Credit for items deposited is provisional and subject to revocation if the item is not paid for any reason.... If a deposited item is returned to us by the bank on which it was drawn, we may accept that return and charge the item back against your account without regard to whether the bank returned the item before its midnight deadline. At our option, and without notice to you that the item has been returned, we may resubmit any returned item for payment. You waive notice of dishonor and protest, and agree that we will have no obligation to notify you of any deposited item that is returned to us.... [W]e also reserve the right to charge back to your account the amount of any item deposited to your account or cashed for you which was initially paid by the payor bank and which is later returned to us due to an allegedly forged, unauthorized or missing endorsement, claim of alteration, encoding error or other problem which on our judgment justifies reversal of credit.... We are not obligated to pay an item presented if your account does not contain sufficient collected funds, but we may pay it at our option and charge you a fee. In addition, if payment is not received for any deposited item, the amount of the item will be charged back to your account and may create an overdraft, for which we will charge you a fee.

On June 14, 2004, Vadde deposited a check for 35,000 Euros (40,705, U.S. Dollars), drawn on the Ulster, Ireland bank account of "An Post Employees Credit Union LTD." The check was made payable to Vadde's husband, Srinivas Vadde, and also included his endorsement. Vadde's husband averred that he received the check from "Chief Joseph Sanusi, the then Governor of the Central Bank of Nigeria, for reimbursement of expenses and his capital while doing business with him and his government." According to Srinivas, the Nigerian government routinely uses foreign banks to pay their foreign contractors because Nigeria does not have an advanced banking system of its own. Sanusi assured Srinivas that the check was genuine, valid, and authentic.

Between June 16, 2004, and July 8, 2004, Vadde wrote checks, made cash withdrawals, and transferred all funds in excess of the deposit, including a $35,000 online transfer to her savings account, $23,000 of which she then wired to various money market accounts, naming Srinivas Vadde as the beneficiary. Vadde also wrote checks to herself totaling $13,000. On July 8, 2004, the check was dishonored by the Ulster bank and returned to Bank of America. On that same date, Bank of America charged back the item to Vadde's account and sent her an advice of debit notice, indicating that the amount of $43,397.50 had been returned due to fraud. As a result of the chargeback, Vadde's account was overdrawn in the amount of $42,200.96. On April 7, 2006, Bank of America sued Vadde for this amount plus interest. Vadde filed an answer and counterclaim, alleging that Bank of America was indebted to her for the amount of the check plus costs, for a total damage claim of approximately $344,876.54. Vadde also sought dismissal of the complaint and an award of summary judgment on her counterclaim. The trial court granted Bank of America's motion for summary judgment, denied Vadde's motion for summary judgment, and dismissed her counterclaim with prejudice.³

1. In related enumerations of error, Vadde challenges several evidentiary and discovery rulings by the trial court. We find no error.

(a) Vadde contends that the trial court should have granted her motions in limine to "exclude prejudicial hearsay information." Vadde does not specify the hearsay information in her enumeration of error and after listing a string of citations, argues that further justification for this enumeration of error is given in her rebuttal to Bank of America's response to her motions in limine. Vadde's failure to provide any cogent argument or citation of authority in support of this alleged error constitutes a waiver.⁴ Even if the argument had not been waived, it is meritless. "A trial court's ruling on a motion in limine is reviewed for abuse of discretion."⁵ To the extent Vadde is challenging the admission of Crystal Frierson's affidavit, filed in support of Bank of America's motion for summary judgment, her challenge fails. The affidavit was admissible under OCGA § 24-3-14, which provides:

Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.⁶

This Code section is to be liberally interpreted and applied.⁷ In this case, Frierson averred that she is the custodian of records for Bank of America and that the records filed in conjunction with her affidavit are "maintained in the regular and ordinary course of business and that the transactions that appear in the record are recorded contemporaneously with the events as they occur." Accordingly, the affidavit was admissible and the trial court did not abuse its discretion in failing to grant Vadde's motions in limine.⁸

(b) Vadde contends that the trial court should have granted her motion to compel discovery and motion for sanctions. Vadde argues that Bank of America failed to respond completely to her first interrogatories; gave evasive, false, and self-contradictory answers to her first request for admissions; and failed to respond to her second interrogatories and requests for admission. Vadde does not specify what information she sought from Bank of America or what may have been established by its responses; rather, Vadde again argues that compelling arguments are given in her motion for sanctions and related rebuttals.

"Trial courts have broad discretion to control discovery, including the imposition of sanctions, and will not be reversed in the absence of a clear abuse of discretion."⁹ "Also, to prevail on appeal, [Vadde] must show that the alleged error was harmful."¹⁰ Because Vadde has failed to allege or demonstrate any harm caused by the trial court's decision, we find this enumeration of error to be without merit.

(c) Vadde next contends that the trial court erred in denying her motion to record all proceedings and her request for waiver of motions hearing. According to Vadde, neither party requested a hearing on Bank of America's motion for summary judgment and the trial court erred in ordering both parties to appear when it could have ruled on the briefs.

Uniform Superior Court Rule 6.3 provides:

... [O]ral argument on a motion for summary judgment shall be permitted upon written request made in a separate pleading bearing the caption of the case and entitled "Request for Oral Hearing,"... provided that such pleading is filed with the motion for summary judgment or filed not later than five (5) days after the time for response.

"Under this rule, whether oral argument is heard is within the power of the parties, and is not left to the discretion of the trial court. All a party need do is make a written request for oral argument and it shall be held."¹¹ "[A] court's error in failing to grant a hearing can never be held harmless."¹² While Vadde is correct that a trial court may decide a motion for summary judgment without oral argument,¹³ Vadde cites no authority that prohibits a trial court from scheduling a hearing on a motion for summary judgment even though one has not been requested. Accordingly, the trial court did not err in denying Vadde's request for waiver of motions hearing.

Additionally,

[w]hile OCGA § 5-6-41(j) provides that any party in a civil case may, as a matter of right, have a case reported at his expense, it is not incumbent upon the trial judge to arrange for the official reporter to take down the evidence at such a hearing. Moreover, the law does not mandate that every civil case be reported.¹⁴

Vadde had notice of the hearing and could have arranged for a court reporter to be present at this hearing. The trial court advised Vadde that a court reporter was available, but Vadde presumably chose not to avail herself of the transcription service. The trial court did not err in denying Vadde's motion to record all proceedings.

2. In other related enumerations of error, Vadde contends that the trial court erred in denying her motion...