vadde v. bank of america georgia court of appeals motion for reconsideration 113009
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8/9/2019 Vadde v. Bank of America Georgia Court of Appeals Motion for Reconsideration 113009
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Submitted On: November 30th , 2009
In The Court of Appeals of Georgia
Motion for ReconsiderationSubbamma V. Vadde
Subbamma V. VaddeAppellant
Vs.
Bank of AmericaAppellee
Civil Appeal DocketNumber: A09A1714
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MOTION FOR RECONSIDERATION
Appellant files this timely Motion for Reconsideration (MFR) pursuant to Rule 37,
requesting reconsideration of interim opinion of the above Court dated 11/20/09, for
reversal of judgments of State Court of Cobb County on 2/4/09 (R-915-916). Appellant
shows the succeeding numerous bases for grant of requests in this Motion for
Reconsideration.
I. RULE 37(e) IS BASIS FOR GRANTING APPELLANTS MOTION
As per Rule 37(e), reconsideration will be granted on motion of the requesting party,
only when it appears that the Court overlooked a material fact in the record, a statute or
a decision which is controlling as authority and which would require a different judgment
from that rendered, or has erroneously construed or misapplied a provision of law or a
controlling authority. Such conditions have been satisfied requiring grant of this MFR,
since the Judges in the past overlooked the record of this case (R-1-924), and did not
base their decision on evidence and objectivity, but on whims and self-serving hearsay
(which is in fact a euphemism for their blind, unjust, prejudicial, and imprudent
presumptuous support for lies from Bank of America (BofA)). It is abundantly clear from
the interim opinion document dated 11/20/09, that the judges of the Court of Appeals
applied inapplicable/invalid case law and have not read the record of this case; for the
issues (or non issues) they raised have already been addressed/resolved by Appellant
in the record, and it is impossible to deny Appellants requests presented in her
Appellate brief and the record, based on logic, human/humane conscience,
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Constitution, which prevent adverse hearsay & speculation from BofA (on the
authenticity of the check in this case) from being used as Banks self serving evidence,
and arent required to abide by the same laws that the rest of humanity or society in the
world are required to. With all due respect to the honorable judges in this case in the
past, it must be remembered that the judges themselves are fallible as human beings
prone to making errors in judgment as they had done in this case on 2/4/09, and on
11/20/09 (especially when they relied on half baked self-serving statements and
conjuring chicanery/hand waving gobbledygook from BofA without reading the entire
record of the case). The Appellant, as Pro Se contestant and litigant, had been treated
with bias and inequality in the past; both her Procedural & Substantiative Due Process
Rights had been violated; and the guarantees of both The State of Georgia and The
United States Constitution of excluding hearsay and conclusory allegations from BofA
had not been upheld by the Court(s) in the past. So, Appellants MFR requests for
reversal of Cobb County State Courts judgment from 2/4/09, as well as her request for
financial relief for around $344,876.54 to $500,000+, as stated in her Appellate brief
dated 8/21/09, must be granted immediately.
III. DEFAULT OF BANK OF AMERICA
O.C.G.A. 9-11-55(a) States that, If in any case an answer has not been filed
within the time required by this chapter, the case shall automatically become in
default; therefore, since that condition has already been satisfied in this case for
Appellants brief dated 8/21/09, the defendant/Appellee Bank of America is already in
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default in this case, and Appellants claims and assertions are true by default. See
Cochran v. Carlin254 Ga. App. 580, 585 (3) (331 SE2d 523) (1985), which held The
default concludes the defendants liability, and estops him from offering any defenses
which would defeat the right of recovery (Citations and punctuation omitted). The
analog applies to BofA being in default due to its failure to file a responsive pleading to
Appellants Appellate brief dated 8/21/09. Therefore, this Motion for Reconsideration
and its requests must be granted.
IV. APPELLANTS OBJECTIONS AND REBUTTALS TO POINTS AND
INVALID/INAPPLICABLE CASE LAW NOTED IN INTERIM OPINION FROM COURT
OF APPEALS OF GEORGIA (DATED 11/20/09), THAT ERRONEOUSLY AFFIRMED
JUDGMENT OF STATE COURT OF COBB COUNTY (DATED 2/4/09)
1) Appellant had addressed each and every issue raised by the Judges in their
interim opinion dated 11/20/09, in her Motion for Summary Judgment (MSJ) (R-754-
873; R-878-902) and rebuttal to plaintiffs MSJ (R-625-690) in a meritorious manner,
and such issues are hence non-issues. Appellant had also addressed all these issues
earlier in a detailed and meritorious manner in her Appellate brief dated 5/26/09, but
was asked by Court to submit an abbreviated brief, leading to her concise 8/21/09
version of her Appellate brief, with just references to the record. It is therefore unjust for
the Judges to ignore the details presented by Appellant earlier and in the record of this
case, especially her defense of estoppel in Section XII of her Appellate Brief and
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Section VI of her MSJ, and now raise the same issues asking for details from Appellant
again.
2) On Page 1 and 2 of its interim opinion dated 11/20/09, the Court of Appeals cites
Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), as having been used for
de novo review of 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. However, what they failed to
mention is that they have simply chosen to turn a blind eye to all disputed facts by
Appellant and have not addressed any issue of reasonableness in light of the
entire record, or even a single contention/issue raised by Appellant with respect to the
said citation not being applicable to 3rd
3) The judges from the Court of appeals have also taken a biased and one sided
view in their claim of reviewing evidence in the record. While the judges quote
unreasonable portions of BofAs deposit services agreement on Page 2, such as
Credit for items deposited is provisional and subject to revocation if the item is not paid
for any reasonyou waive notice of dishonor and protest, they erroneously
ignore the portions of the record in Appellants MSJ (R-754-873) that clearly show that
Appellant did not sign a signature card specifically agreeing to this undisclosed
disclosures document, nor waived notice of dishonor or her right to protest. The judges
party checks, or the issue of negligenceof BofA
causing injury, damage and harm to Appellant, as clearly elaborated in Sections II &
III of her Appellate brief and her Motion for Summary Judgment (MSJ) (R-754-873).
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have also not addressed the unreasonableness and unconscionable aspects of BofAs
agreement, as pointed out by Appellant in Section VI of her Appellate brief referring to
the relevant portions of the record where these aspects are clearly enunciated (R-383-
472; R-754-873; R-878-902).
4) Appellant refutes BofAs claim that Appellant waived notice of dishonor.
Appellant did not and does not give waiver of notice of dishonor or its presentment as
Appellant believes that clause/claim of Appellee is unconscionablein any of Appellees
deposit services document. Waiver of notice of dishonoror presentment of same is
not permitted by O.C.G.A 11-4-103 as doing so would be unconscionable and
unreasonable, not to say illegal and unilateralas it would be without the consent of
the Appellant or depositor in this case. Further, Appellant has also proved in her
pleadings that Appellees deposit contract provided as Exhibit B of Appellee with its
MSJ/discovery (R-383-472; R-754-873) was prepared/amended unilaterally by Appellee
and is hence unreasonableas it manifests injustice. One only needs to reflect a little
in retrospect to realize that no sane depositor or consumer would be willing to abide by
a forced nonsensical waiver of right to protest or right to not waive presentment of
notice of dishonor, for otherwise the Appellee/BofA would be dysfunctional, acting in a
dictatorial and lawless manner with no oversight whatsoever from any laws of justice,
whether domestic or international and could tend to perpetuate atrocities and injustices
on depositors in society. If one is to permit such unjust waiver of notice of dishonor,
what is to prevent a crooked bank from first honoring a check and then itself
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determining to harass an enterprising individual or customer by debiting their accounts
for no justified reason and litigating abusively? What is to prevent banks from
perpetuating financial chaos on innocent depositors accounts purely on the basis of
their whims? Surely, a tangible reason for dishonor & proof of metric for dishonor other
than whims/opinions of unauthenticated bankers is and must be mandated. Surely, a
time frame is enforced as per the UCC midnight deadline, and must be enforced
(within 24 hours from deposit) for any decision making on check clearance by the
depositary bank so depositors are protected from any unscrupulous or menacing
actions of banks in an uncertain manner later. Surely, BofA can be better off altering its
procedures to conform to laws & statutes that make sense, are bilateral or multilateral,
and benefit depositors/consumers too, not simply the owners of banks illegally.
5) Appellant also has a First Amendment Constitutional right to protest which she
has exercised and has not waived in this case. Appellant asserts that Appellees
deposit agreement was drafted through misrepresentation in a unilateral manner (and
was not actually given to Appellant when she opened her account on 1/18/01, to the
best of her personal knowledge). Calls in the deposit document to waiver of notice of
dishonor or protest or claims of bank to have absolute right of chargeback on a
depositors account are not only illegal but are also not applicable in all situations.
The exceptions to the banks norm are circumstances like the Appellants case where
Appellants claims against Appellee have proven to be justified already. Therefore,
Appellees deposit agreement is unfair, misrepresentative and deceptive/artful practice
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(O.C.G.A 13-8-14 and O.C.G.A 13-8-15), prepared deceitfully without a depositors
consent, knowledge or prior acquiescence. This makes Appellees deposit agreement
an illegal and void contract generally, as it is in direct conflict and violation of statutes
like O.C.G.A 11-4-301 and O.C.G.A 11-4-302 and numerous other laws as
elaborately mentioned in Appellants amended answer with counterclaim (R-383-472).
At this point, it is important to mention that parties to any agreement/contract may by
mutual consent abandon contract/agreement so as to make it not thereafter binding, as
supported by Mary v. Selph, 77 Ga. App. 808, 50 S.E. 2d 27 (1948); M.W. Buttrill, Inc.
V. Air Conditioning Contractors, 158 Ga. App. 122, 279 S.E. 2d 296 (1981). Also, as
per O.C.G.A 13-5-7pertaining to rescission or release on a contract or agreement, a
rescission of a contract by consent or release by the other contracting party shall
be a complete defense. Generally speaking, rescission is in toto as it abrogates
contract/agreement not partially but completely. Lyle V. Scottish Am. Mfg. Co., 122
Ga. 458, 50 S.E. 402 (1905).
6) Section 24 (page 21) of Appellees deposit disclosures document (Exhibit E of
Appellees discovery package (R-383-472; R-754-873)) provides that the deposit
agreement would be terminated with closure of Appellants account. It is therefore true
that since Appellants account with BofA was shut down on or around 8/4/04 or 9/10/04,
Appellant is anyway not bound by the terms of BofAs deposit agreement due to
rescission of the agreement according to O.C.G.A 13-5-7, for the purpose of this case
initiated on 4/7/06. Further, if one were to take the position that Appellees unilateral
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amendments are effective when made until closure of account or termination by
Appellant, it is noted that BofAs 2006 deposit agreement (2006 being the year when
Appellee initiated its baseless action against Appellant) does not call for a waiver of
notice of dishonor or protest anymore. Therefore, Appellants position in this action is
that she has the right not to waive dishonor notice and protest, anyway. Further,
Section 24 (page 21) of Appellees deposit disclosures (Exhibit E of Appellees
discovery (R-383-472; R-754-873)) also states that BofAs deposit agreement may be
terminated by Appellant at anytime upon notice to the Appellee. Appellant has already
given notice to Appellee asserting termination of the deposit agreement totally and
completely through her denial earlier for Appellees request for admissions (R-184-195),
clearly stating that she is not governed by Appellees deposit agreement. Appellant
again reasserted the termination of Appellees deposit agreement in her
correspondence of second interrogatories to Appellee on or around 9/1/06 (R-239-257;
258-279). Appellant reasserted the termination again around 10/13/06 in her amended
answer with counterclaim (R-383-472). Appellant also reasserted the termination again
around December 5, 2006 in her rebuttal to Appellees motion for summary judgment
(R-625-690; R-754-873; R-878-902). Appellant reasserts in writing once again now
that Appellant is not governed by Appellees deposit agreement or any of its
unconscionable clauses. It is therefore true that Appellant is not bound or governed by
any BofAs internal procedures of its deposit agreement/contract due to the provisions
of O.C.G.A 13-5-7, for the purpose of this case, as per case law mentioned earlier.
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7) As adequately explained and elaborated in Appellants amended answer with
counterclaim, Appellee banks actions in the current case are replete with bad faith or a
lack of good faith or reasonable care. This makes the deposit agreement invalid due to
banks irresponsible behavior, and lack of any proper accountable individual from BofA,
who was first responsible for dishonor of Appellants check with personal knowledge for
reason & proof for dishonor which is not second hand or farther removed hearsay,
related to the subject matters of this case. Further, under common law/state law/U.S.
law/international law, a contract must, by all parties be knowingly, voluntarily, and
intentionally entered into, without existing only in part without full disclosure, and must
abide by state, and/or Federal laws, and/or international laws or the contract becomes
illegal and misrepresentative, and unenforceable & invalid. Therefore, Appellees
deposit contract which is in non-compliance of this fact is null and void. So, the
Appellant has no contractual obligation to pay Appellee.
8) There is also no contractual obligation for Appellant explicitly stated on the one
page signature card of Appellee presented as Exhibit A (R-383-472; R-754-873) with
Appellees MSJ, and in discovery. The Appellees signature card also deceitfully omits
any mention of unilateral modification of terms and conditions. Moreover, no law or
statute of Georgia or the United States is explicitly and clearly/unambiguously stated on
the one page signature card of Appellee presented as Exhibit A of its discovery
package. It must also be noted that the one page signature card mentioned there did
not constitute full disclosure to Appellant by Appellee on 1/18/01, the date/day the
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account in it was opened, and was also the only disclosure to Appellant when she
opened her account, and not Exhibit E (R-383-472; R-754-873), of the deposit
agreement document submitted with Appellees discovery package. O.C.G.A 11-4-
103(a) is also applicable in favor of Appellants above arguments as is corroborated by
case law where it was held that a bank cannot enforce agreementpermitting it to act
in violation of reasonable commercial standards. Perini Corp. V. First Natl Bank,
553 F.2d 398 (5th
9) Page 2 of the 11/20/09 opinion also quotes another portion of BofAs deposit
agreement document to erroneously affirm State Courts judgment from 2/4/09, the
portion being: [W]e also reserve the right to charge back to your accountwhich was
initially paid by the payor bankand which is later returned to us due to an allegedly
forged, unauthorized or missing endorsement,if payment is not received for any
deposit item, the amount will be charged back to your account and may create and
overdraft Appellant contends that this quoted portion is inapplicable to this case,
because it is unconscionable as it fails to eliminate the circumstance and exception (as
in this case) where a payor bank such as BofA uses self serving statements on the
basis of subjective bias/whims/conjectures/speculation to classify a deposited and paid
item as fraudulent/forged and thereby itself decides to unjustly chargeback without
collecting its funds from the maker bank, Ulster Bank here, and when it itself has
Cir. 1977). Additional details on this issue are also given in, Measure
of damages for breach of duty by a bank in respect to collection of commercial paper,
67 ALR 1511.
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incompetent and inefficient collection procedures in its international banking division. It
is error for judges of this Court to assume or make an erroneous self serving
statement (as in Page 4 of its opinion) without evidence or proof in the recordof this
case that maker bank, Ulster Bank, had dishonored Appellants check and returned it to
Bank of America on July 8, 2004, since Ulster Bank did not do so. The honorable
judges in this case are requested to affirm Appellants contentions since there is
no proof presented from Ulster Bank to the contrary in the record of this case, as
the judges will realize upon thoroughly reading/rereading the record of this case.
10) On Page 2 of its opinion from 11/20/09, The Court of Appeals cited Youngblood
v. Gwinnett Rockdale & c., 273 Ga. 715, 717-718 (4) (545 SE2d 875) (2001) to justify its
affirmation of State Courts judgment. However, this citation is generally impertinent
here as it neither pertains to 3rd
11) As pertains to Page 5 of interim Opinion memo dated 11/20/09, Appellants
arguments and Objections and requests to exclude prejudicial hearsay information
referred to in Appellants Motions in Limine (R-346-376) pertain to Objections to BofAs
conclusory allegations/labels about the check in this case being fraudulent or allegedly
party checks nor the issue of Banks, but pertains to a
claim made against a State Government/County/Community entity and not a private
Bank such as BofA which has no sovereign immunity. However, the only commonality
here is that there is no valid contract between BofA and Appellant, as there was found
to be none between Youngblood and Gwinnett Rockdale Newton Community Service
Board (GRNCSB), which would actually favor Appellants arguments.
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being returned due to fraud, and such arguments/objections from Appellant were not
found necessary to be separately enunciated since her persuasive cogent arguments
and citations of authority are presented in her rebuttal to BofAs response to her Motions
in Limine (R-595-607) and throughout the record (R-passim). It was error for BofA to
use its fictitious doubts from past based on rumor/hearsay on Nigerian businesses to
generally apply blanket speculation adversely on appellants check in a prejudicial
manner, although such speculation was unwarranted and unjustified here. This case
involves reputed Nigerian and International bankers and does not involve any 419
scammers, and Courts allusion to some generic 419 schemes on Page 5 to justify
BofAs speculation and paranoia is unjustified. One must wonder why payments
received by American companies such as Exxon/Mobil, Texaco (or other Oil companies
from Texas) etc., which do business with Nigeria & OPEC (Organization of Petroleum
Exporting Countries) are exempt from being branded with speculation of 419 schemes
when they also received their payments from the same Mr. Sanusi that Appellants
husband had received payment from. It must be noted that the Court/Judges are
welcome to contact Mr. Joseph Sanusi, if needed, to verify the authenticity of the check
in this case and Mr. Sanusi could gladly testify/state about its integrity and could shed
light on how he himself worked in coordination with the blessings of the Secret Services
of many countries, including the United States, when he dispatched checks for payment
on behalf of his Nigerian Government, through corresponding Banks. However,
although Mr. Sanusi, the issuer of the check in this case is a prominent Nigerian and
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African Banker, he claims that the checks he issued in the past have at times been the
target of discrimination from American Banks such as BofA, due to him being Black and
African, a disadvantaged minority considered imperfect, and due to the age old racial
slave-era animosity/differences between Whites and Blacks in general. Nevertheless,
Appellant and her husband Mr. Srinivas Vadde believe that speculation and rumor
mongering by BofA and Courts against Appellant, the check, or Mr. Sanusi in this case
is very unprofessional, ridiculous, and counterproductive to manifestation of justice.
12) On Pages 6 & 7 of its 11/20/09 opinion, Court cites OCGA 24-3-14 (b), (d), and
Hertz Corp. v. McCray, 198 Ga. App. 484, 485 (2) (402 SE2d 298) (1991) to support
admissibility of BofAs bogus affidavit of hearsay from Crystal Frierson. Firstly, this
affidavit is inadmissible as per OCGA 24-3-14, as it was not made in the regular
course of business or contemporaneously when the events occurred but made in 11/04,
unreasonably long after Appellants account was closed in 8/04, at a time when there
was no business being transacted on her account. There was also no foundation laid
for admissibility of the affidavit as per OCGA 24-3-14 (b). Appellants Motions in
Limine therefore should have been granted since BofAs affidavits based on hearsay,
and hearsay itself from unknown and unauthenticated original sources terming
Appellants check as counterfeit based on Conclusory allegations, speculation, opinions,
whims, etc. in this case, breaking the chain of evidence, is inadmissible. Plemans v.
State, 155 Ga. App. 447, 270 S.E. 2d 836 (1980). Other citations, including Opinions of
The United States Supreme Court, suggesting that such hearsay from BofA is
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inadmissible are; Clauss v. Plantation Equity Group, Inc. 236 Ga. App. 522, 512 S.E. 2d
10 (1999); Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993); General
Electric Co. v. Joiner, 522 U.S. 136 (1997). Crystal Frierson also does not have
personal knowledge on the issues of authenticity of Appellants check or the issue of
whether BofA gave a timely notice of dishonor by the midnight deadline, or about the
unauthorized debits on Appellants account since she is merely acting on hearsay and
was not the original decision maker for the actions. Further, the case cited by Court is
inapplicable here since it concerns a bench trial unrelated to 3rd
13) BofAs said affidavit was also inadmissible as it fails the test of requirement of
personal knowledge of affiant for admissibility for Summary Judgment as per OCGA
9-11-56(e),
party checks, and there
was no trial in this case. Appeals Court also erroneously omitted that the trial court in
the cited case required showing that the witness "keeps these records" and "they are
kept under his control and supervision," which conditions are not met with Crystal
Frierson in this case. Said witness was also not present at checks deposit nor is
qualified to testify.
Span v. Phar-Mor, Inc. et al. (251 Ga. App. 320) (554 SE2d 309) (2001).
Court citation of Davisv. Harpagon Co., 283 Ga. 539, 541 (2) (661 SE2d 545) (2008) on
Page 7 of 11/20/09 opinion is also moot/inapplicable in view of Appellants above stated
logic, statutory & cited authority on inadmissibility of BofAs affidavit.
14) With respect to Courts issues raised in Pages 7 & 8 of its opinion dated 11/20/09
on denial of discovery and consequent harm to Appellant; Appellant sought answers
http://www.lawskills.com/case/ga/id/201/63/index.htmlhttp://www.lawskills.com/case/ga/id/201/63/index.htmlhttp://www.lawskills.com/case/ga/id/201/63/index.html -
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from BofA on numerous crucial questions raised in her interrogatories and requests for
admissions (R-239-257; R-258-279) on the pertinent issues of authenticity of her check,
alleged dishonor, and notice of dishonor, answers & admissions to which if provided,
upon discovery being allowed and compelled by Court would have further corroborated
the facts that BofAs case is based on use of illegal conclusory allegations and
inadmissible hearsay, and that Appellants check was not legally dishonored or returned
to Appellant, is not fraudulent, was not returned by Ulster Bank, and that check was not
presented to Ulster Bank upon deposit in 2004. The harm caused to Appellant by
Courts actions on preventing discovery has been adequately described in her Motion
for Summary Judgment (R-754-873), with further details provided in her affirmative relief
claimed in her counterclaim (R-383-472) & rebuttal to Appellees MSJ (R-625-690; R-
754-873; R-878-902), as per Brown v. Brewer, 237 Ga. App. J 45, 148 (3) (5 13 SE2d
10) (1999). Details of such harm were also provided by reference in Sections XV & XVI
of her Appellate brief dated 8/21/09, and in detail in Sections XV & XVI of her first Court
of Appeals brief dated 5/26/09. Simply put, BofAs frivolous action and Courts
erroneous decisions in past had caused Appellant to be the needless subject of a rumor
mill of hearsay from BofA which caused significant loss of employment opportunities
and financial resources for Appellant, as well as caused her needless anxiety, shock,
worry, emotional trauma, pain and suffering, etc., due to libel/slander and defamation of
reputation by BofA, for which Appellant has sought financial relief & compensation of
around $344,876.54 to $500,000+ for damages.
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15) Courts citation of Garner v. Roberts, 238 Ga. App. 738, 740 (I) (520 SE2d 255)
(1999), on Page 8 of its opinion dated 11/20/09 is inapplicable here, since that is a
generic case cite about some Dentist Dr. Marc Roberts attempting to collect the amount
of his dental services bill from patient Nathaniel Garner. The case is not a 3rd
16) Courts citations of Southern Empire Homes v. Ognio Grading, 277 Ga. App. 215,
216 (626 SE2d 173) (2006) and Hunt v. Thomas, 296 Ga. App. 505, 506 (1) (675 SE2d
256) (2009), cited on Page 9 of its opinion dated 11/20/09, are generic case cites
suggesting that a written request for oral argument has to be granted, but which do not
add anything to this case as neither Appellant nor BofA ever requested any oral
argument in this case. Val Preda Motors v. National Uniform Svc., 195 Ga. App. 443,
444 (3) (393 SE2d 728) (1990), cited by Court on Page 9 actually also adequately
demonstrates in favor of Appellant that a Motion for Summary Judgment such as that of
Appellant can be granted without oral argument. As for authority that prohibits a trial
court from scheduling a hearing on a motion for summary judgment even though one
has not been requested, the Appellants arguments and objections in the present case
are enough and sufficient precedent setting authority to challenge the erroneous actions
of the trial court in this case; as they Appeal to commonsense and the judges
party
check case or a bank case and does not add anything substantial to this case, as this
case involves totally different banking circumstances (where BofA rendered no similar
billable services) and there is gross & clear abuse of discretion in discovery rulings of
trial court here.
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conscience, as well as sensibilities of reasonableness in the current case, with her
Appellate brief containing a comprehensive listing of numerous errors made by trial
court in this regard, without reading Appellants written motions and rebuttals which are
part of the record (R-1-924).
17) As per Quarterman v. Weiss, 212 Ga. App. 563 (1) (442 SE2d 8 13) (1994), cited
on Page 10 of Court opinion dated 11/20/09, even though the law might not have
mandated that every civil case be reported at the Courts expense, Appellant contends
that it is high time such an inhumane and unconscionable law be changed for the
purpose of such Appellants financial cases, in order to avoid abuse of discretion by
trial court into bullying/forcing a defendant to attend a hearing or expend further
unavailable resources even when having already presented written arguments,
especially when the defendant has no resources available to throw away into
unnecessary Court proceedings needing transcription and when the Judge can very
well read the documents submitted and then render judgment, thus avoiding
unnecessary harassment of the defendant; especially since Appellant is litigating the
current case only to seek financial relief and it is the unjustified actions of BofA that had
financially harmed Appellant from having adequately available resources.
18) Contrary to Courts claims, the cited case law Freese v. Regions Bank, NA., 284
Ga. App. 717, 720-721 (644 SE2d 549) (2007) based on OCGA 11-4-103 (a), for its
points on Pages 11 & 12 of its opinion dated 11/20/09, in fact clearly supports
Appellants contentions that BofAs Deposit Agreement was never agreed to by
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Appellant since it was unilaterally prepared in an unreasonable manner. BofA also
did not act in good faith or exercise ordinary care when it arbitrarily labeled the
check fraudulent on speculation and whims, and failed to issue a timely notice of
dishonor to Appellant by the midnight deadline as required by UCCguidelines of
UCC 4-301 and UCC 4-302, and did not present the check to maker bank, Ulster
Bank. Please note that the provisional clause is invalid due to the fact that
Appellants check was neither returned as fraudulent by Ulster Bank on 7/8/04, nor
did BofA give a timely notice of dishonor and there is no proof in the record to
the contraryas the judges can very well verify by thoroughly reading/rereading every
part of the record (R-1-924). BofAs actions also did not comply with OCGA 11-4-
214(a), ..bank is liable for any loss resulting from its delay, as claimed by
Appellant in Sections XV and XVI of her Appellate brief & MSJ (R-625-690; R-754-873;
R-878-902) seeking compensation from BofA for its mistakes & abusive litigation.
19) Courts citations of OCGA 11-4-105 (3), (5); 11-4-201 (a), and First Nat'l Bank
of St. Paul v. Trust Co. of Cobb County, 5 10 F.Supp. 651, 654 (N. D. Ga. 1981) on
Page 13 of its opinion dated 11/20/09 were erroneously interpreted and are inapplicable
to justify BofAs position, since the risk for non-collection remains with Bank and not
depositor. No citation of authority or Statute proves otherwise, notwithstanding the fact
that the judges erroneous use of the quotations from an invalid BofA agreement without
reading relevant portions of the record where Appellant has already justified her
arguments and presented ample evidence and logic in her favor, make these citations
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inapplicable to this case. Court erroneously misinterpreted the meaning of final in the
statute OCGA 11-4-201(a) and ignored the fact that final settlement was already made
to Appellant by the midnight deadline after deposit, on June 14, 2004, and Appellant
had no risk remaining in this case for any non collection aspects after the midnight
deadline. The case law and statute OCGA 11-4-201 (a) cited by Court of Appeals
does not in any way state or suggest that depositors have to wait until their deposited
checks are charged back without reason at any time (for such arbitrary time without
specificity, to be construed as the midnight deadline), or that having to wait until check
deposit cases are decided by Courts amounts to a reasonable time for a depositor to
assume risk for clearance of each and every check deposited; since that would be the
most absurd logic and interpretation of the Statutes as was done by Court of
Appeals in the past. Hence, the arguments of the Courtas presented in regard to
risk of non-collection being with depositor instead of being upon the bank are not only
preposterous and absurd and unsubstantiated by any Statute quoted by it, but
they fail the test of reasonableness under any humane circumstances of consumer
banking across continents with international checks, in this modern day and age of
electronic high speed banking. Further, OCGA 11-4-201 (a) depends on the intent of
the legislature in its enactment as to what the meaning of the word final means when
the check is already finally paid to depositor once (as was done by BofA on 6/14/04),
and is also as stated clearly applicable to banks and its branches as agents, and their
events transpiring between collection and payment activities between collecting bank
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(BofA) and final payor bank (Ulster Bank); and is not applicable between the bank
(BofA) and depositor (Appellant). Moreover, one cannot clearly brush away the intent of
the legislation of the Statute that states, that a depositary bank such as BofA is also the
Payor bank to depositor, as stated in OCGA 11-4-105(2), which means that there is
no risk or burden on a depositor such as Appellant from any provisional payments
once paid by the midnight deadline of 6/14/04, which is final for all practical purposes
by any measure of commonsense reasoning for the meanings of midnight deadline
and final to have any significance.
20) Ulster bank here discovered no fraud and it is very irresponsible of Court of
Appeals to harp on such a non-event or non-occurrence in their interim opinion
document of 11/20/09 on Page 13.
21) Court erroneously ignores the definition of UCC 4-105(2) that states that a
collecting bank such as BofA which is also the depositary bank here is also a payor
bank for the purpose of first paying a customer who deposits a check, even though it
might be a collecting bank for its transaction between itself and the final payor to it,
which is Ulster Bank here. BofA cannot simply choose to charge back checks itself in a
self serving manner using conclusory allegations and circular reasoning, or be only a
collecting bank but not be a payor bank, since that would be a dysfunctional bank that
takes in checks as deposits from customers but pays out nothing in return to them.
22) Since the check was not proven to be fraudulent and BofA has been proven to
not have any authority for chargeback in this case, the case law cited on Page 13 of
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opinion dated 11/20/09, namely First Georgia Bank v. Webster, 168 Ga. App. 307, 309
(2) (308 SE2d 579) (1983) (decided under former OCGA 11-4-212), was inapplicable
against Appellant here, and it in fact favors Appellants arguments and claims for relief
discharging her of any liability to BofA in this case.
23) Court of Appeals had misconstrued on Page 14 of its opinion dated 11/20/09, as
to what Appellant means by stating that OCGA 11-4-301 and 11-4-302 supersede
provisions of OCGA 11-4-214 in this case. Appellant understands that OCGA 11-4-
302 applies to a payor bank but contends that BofA was a payor bank in this case by
virtue of being a depositary bank in this case when it paid Appellant, as established by
OCGA 11-4-105(2). What Court has failed to note is that Appellants claim in this
case is that BofA cannot abrogate its responsibilities of a Payor Bank and Statutory
provisions of OCGA 11-4-302 when it has already incurred liabilities according to
responsibilities of a collecting bank, by virtue of OCGA 11-4-214 provisions for a
collecting bank that have to abide by provisions of OCGA 11-4-302 and the meaning
of midnight deadline as well as reasonableness. There was no dishonor by Ulster
Bank and there is no proof to the contrary in the record of this case, and no self serving
statement from BofA or any blind jumping onto the bandwagon of BofAs
unsubstantiated claims by any judge, could possibly overcome BofAs insurmountable
burden of proof for Court to find and present any tangible evidence from the record to
substantiate any statement of dishonor by Ulster Bank. Further, Appellant has already
established that BofAs deposit services agreement is invalid, abrogated, and that
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Appellant never signed for all its unconscionable clauses or its conditions that call for a
waiver of protest or presentment of a timely notice of dishonor by the midnight deadline,
as presented in points 3 through 6 of this MFR.
24) Contrary to Court of Appeals claims on Page 15 of its opinion dated 11/20/09,
BofA did not satisfy requirements of code section OCGA 11-4-202. As required by
Georgia Commercial Code Ann. 109A-3508, a notice of dishonor needs to be sent
in a specified time frame to the indorser, as indicated earlier. The failure to give
requisite notice results in the discharge of the indorser of any liability according to
Georgia Code Ann. 109A-3502(1)(a). Clements v. Central Bank of Georgia, 155
Ga. App. 27; 270 S.E. 2d 194270, S.E.2d 194; (1980), also supports the above
arguments in favor of Appellant. O.C.G.A 11-4-302 (a) (1) also makes Bank of
America liable to pay Appellant for the check deposited on 6/12/04. This law clearly
states that if an item/check is presented to and received by a payor bank like BofA
(which is also a depositary bank as well as a payor bank), the bank is accountable for
the amount of the demand item (such as the check) whether properly payable or not, in
any case in which it is not also the depositary bank, retains the item beyond the
midnight of the banking day of receipt without settling for it, or whether or not it is also
the depositary bank, does not pay or return the item or send notice of dishonor until
after its midnight deadline. Also, according to Bank S. v. Roswell Jeep Eagle, Inc. 204
Ga. App 432, 419 S.E. 2d 522 (1992), when there is no valid defense alleged by
Appellee (as in this case), a payor bank such as BofA is liable to pay the holder
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(Appellant here) for amount of check it received. This statutory application of law is
supported by National City Bank v. Motor Contract Co., 119 Ga. App. 208, 166 S.E.2d
742 (1969). There is also legal precedence that prohibits a bank from debiting a deposit
account after initial credit. This has been cited in Clements v. Central Bank, 155 Ga.
App. 27, 270 S.E. 2d 194 (1980); Sabin Meyer Regional Sales Cop. v. Citizens Bank,
502 F. Supp. 557 (N.D. Ga. 1980); Bleichner, Bonta, Martinez & Brown, Inc. v. National
Bank (In ref. Micro Mart, Inc.) 72 Bankr. 63 (Bankr N.D. Ga. 1987); Landers v. Heritage
Bank, 188 Ga. App. 785, 374, S.E. 2d 353 (1988). Moreover, in Landers v. Heritage
Bank, 188 Ga. App. 785, 374, S.E. 2d 353 (1988), neither the banks claim of the
Uniform Commercial Code provisions of O.C.G.A 11-4-212/401, nor the banks claim
of its signature card (and in turn their deposit agreement) constituting a contractual
obligation for Appellant/depositor to pay Appellee/bank anything were effective to
relieve the bank in a situation similar to this case.
25) So, essentially, the Appellee/BofA, by delaying the mailing of the bank statement
for more than 30 days, until 7/15/04 (with an unproven and unsubstantiated allegation
that the check was returned, without the original check nor its copy having been
returned by 7/15/04), with a fictitious and hypothetical return date stated as 7/8/04, and
failing to give any formal legal notice of dishonor by its midnight deadline, and failing to
return the check by its midnight deadline, as required by law, precludes itself from the
right to debit Appellants account or bring a suit on contract against Appellant who is
discharged of any liability to Appellee. It is reiterated that Appellant never explicitly
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issue of a notice of dishonor, which the Court of Appeals cannot ignore or unjustly
brush off as Appellants selfserving statement, since there can be no possible
evidence that any human being on earth can present as proof for non occurrence of an
event such as a dishonor from Ulster Bank of Appellants check that did not take place,
or for a notice of dishonor from BofA that was never sent to Appellant.
28) It is very spurious, baseless, and irresponsible of Court of Appeals to state on
Page 15 of its opinion dated 11/20/09 thatWe also reject Vaddes claims that Bank of
America is not entitled to summary judgment because she did not know that the check
was counterfeit at the time she deposited it and to the best of her knowledge the check
is genuine and authentic. Appellant knows of no justifiable dishonor of Appellants
check deposited contrary to Judges vague and illusory statements/claims on this issue,
and has never said she would accept conclusory allegations by BofA or judges as proof
that the deposited check was counterfeit. Appellant does not know nor believe the
check to be counterfeit, and there needs to be no authority presented by Appellant to
overcome any nonexistent burden of proof or present any defense to BofAs invalid
claim for recoupment from her, of a check that has not been proven to be counterfeit at
all, notwithstanding the fact that BofA never gave any timely notice of dishonor and had
no right to charge back her account under the circumstances of this case.
29) In rebuttal to Court of Appeals points in Page 16 & 17, of its opinion dated
11/20/09, Appellant contends in rebuttal that she never agreed to her credit being
provisional and subject to revocation, and BofAs deposit agreementin this regard
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was never acquiesced to by her, and the agreement has been abrogated and is
null and void for the purpose of this case. Sanusis statements to Srinivas Vadde
assuring him that the check was genuine, authentic, and valid, is permissibleand
was admitted into Court under the best evidence rule as it is not hearsay, since
Srinivas Vadde presented an affidavit as a perceiving witness to Courtand he is a
defense witness of Appellant, and would testify if needed as to the veracity of the
matters sworn in his affidavit which is part of the record and Appellants MSJ (Exhibit
AAA (R-383-472; R-754-873)). This Exhibit was presented by maintaining the evidence
chain, from a perceiving witness who himself received the check in the mail and directly
was informed of its authenticity from its main source, Mr. Joseph Sanusi (the issuer of
the check and the then Governor of Central Bank of Nigeria), and was admitted into
evidence on behalf of the Appellant under the best evidence rule of the Civil Practice
Act, pursuant to O.C.G.A 24-5-1, O.C.G.A 24-5-2, and/or O.C.G.A 24-5-3.
30) It is unreasonable to expect Appellant to incur any further costs in this case to
fund witnesses to fly in from overseas to satisfy BofAs or the Courts curiosity in this
matter (even though there is no adverse evidence in any tangible manner against
Appellants check that was deposited), or to expect defense witnesses to fly in from
overseas to testify for matters of a simple check clearance transaction. Notwithstanding
those facts, Joseph Sanusis name was also given as a possible defense witness to trial
court and the scope of his testimony on the authenticity of the check was also stated
clearly (R-196-201). Mr. Sanusi, if needed, could gladly elaborate on his connections
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with the Secret Services of various countries, including that of the United States, in the
discharge of his duties as Former Governor of Central Bank of Nigeria and checks he
used to issue or payments that he made to contractors of his government, including to
Appellants husband, Mr. Srinivas Vadde, and can expound on the authenticity of the
check he issued, should the law provide with funding for Appellant and the honorable
Court and the Judges be willing to grant and provide funds for Mr. Sanusi to come and
testify in this regard in favor of Appellant if necessary.
31) The Court of Appeals has not presented any proof or pointed to any evidence in
the record that proves in any tangible manner that BofA did not itself simulate
hypothetical dishonor, acting in a self-serving manner, based on a whim. Hence, the
arguments of Court of Appeals Judges, that the Appellants statements in this regard
averring to the legitimacy of the check given to her husband by a prominent Nigerian
Banker, Mr. Sanusi, are only self-serving, are moot and meritless. The Court of
Appeals cannot justifiably have one standard for Bank of Americas evidence and
another for Appellants, and hence Appellants arguments in this regard are facts that
are within the scope of this case.
32) The case law, White Missionary Baptist Church v. Trustees of First Baptist
Church, 268 Ga. 668, 669 (1) (492 SE2d 661) (1997), as cited by Court on Page 16 of
its opinion dated 11/20/09, is inapplicable to this case because, unlike in that case
where collective statements from First Baptist Church were considered inadmissible
hearsay, there is only a statement from one individual, Mr. Joseph Sanusi, presented
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here from a perceiving witness, Srinivas Vadde, who has been in direct contact with the
individual; that has been presented in an affidavit of support to Appellant, in the record
of this case, along with her Motion for Summary Judgment. Therefore, Sanusis
statements that the check was genuine, authentic, & valid, entered into evidence under
the best evidence rule, through Mr. Srinivas Vadde in an affidavit, is not impermissible
hearsay for the purpose of granting Summary Judgment in favor of Appellant.
V. CONCLUSION
1) The bottom line as per Appellants defense of estoppel is that if the money in
Appellants account was not meant to be spent, BofA should not have credited the
account for the check deposited even once, as it did on 6/14/04. BofAs actions of
clearing the check first and arbitrarily and negligently charging back her account without
returning her check caused this situation, and prevented her from being able to
use/cash the check with other alternate banks in the world in 2004, whether they are in
the U.S., India, or in Europe. Hence, Appellants defense of estoppel precludes
recovery for BofA. First Ga. Bank v. Webster, 168 Ga. App. 307, 308, S.E.2d 579
(1983). Burke v. First Peoples Bank of N.J., 412 A2d 1089 (N.J. Super 1980). Further,
BofA never issued any cash in Appellants account but only credit units for the deposit,
and Appellant never withdrew any electronic credit units in excess of her deposit. So,
BofA never had any right to claim any funds and money it did not give Appellant, nor did
it have any right to deny Vaddes funds. The check that Mr. Sanusi gave to Mr. Vadde
was valid, not fraudulent, and not counterfeit, as Mr. Sanusi had stated and had been
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willing to testify to its authenticity, and neither BofA nor Courts have presented any
tangible evidence to the contrary. Simply stating or saying/alleging that the check is
counterfeit does not make it so. Bank of America erred and improperly simulated a
hypothetical dishonor due to its paranoia when dealing with checks from Nigeria
(although a one size fits all approach does not work and this case involving a legitimate
and reputed Nigerian Banker is an exception to the norm). BofAs inefficiency and
incompetence in dealing with collection activities in international checks coupled with its
paranoia (and perhaps other ulterior politically/racially prejudiced conspiratorial motives
to harass Appellants politically well connected immigrant family) led to its errant
chargeback of Appellants account, when it had no right to do so under the
circumstances of this case. BofA not only wrongly dishonored Appellants check but did
not provide any timely notice of dishonor to Appellant. As a matter of law, the trial court
erred in granting summary judgment to Bank of America, in denying summary judgment
to Appellant, and in dismissing Vaddes counterclaim with prejudice.
2) Therefore, Appellant requests Grant of this Motion for Reconsideration, dismissal
of BofAs claim and case, and grant to Appellant of an award of around $344,876.54 to
$500,000+ in proximate damages from Bank of America, as stated in Sections XV & XVI
of her Appellate Brief.
Respectfully Submitted,
Signed, this 30th
Subbamma V. Vadde
day of November, 2009: ___________________
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CERTIFICATE OF SERVICE
This is to certify that I have this 30th
day of November, 2009 served a copy of the
foregoing correspondence on: Motion for Reconsideration, for Civil Appeal Docket#
A09A1714, in The Court of Appeals of Georgia, by hand delivery/certified U.S. Mail, to
the following people at the given addresses:
(1) Mr. William Martin, Clerk, Court of Appeals of Georgia,
Suite 501, 47 Trinity Avenue, S.W.,
Atlanta, Georgia 30334. Phone: (404) 656-3450
(2) Mr. Michael Cohen
Trauner, Cohen, & Thomas
5901 Peachtree Dunwoody Road
Suite C-500, Atlanta, GA 30328 Phone: (404) 873-8000
Respectfully Submitted,
Subbamma V. Vadde
2630 Garland Way, Duluth, GA 30096, U.S.A
Phone: (404) 453-3531
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