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Vadde v. Bank of America Georgia Court of Appeals Motion For Reconsideration 113009
Vadde v. Bank of America Georgia Court of Appeals Motion For Reconsideration 113009
Subbamma V. Vadde
Appellant
Vs.
Bank of America
Appellee
Subbamma V. Vadde
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
shows the succeeding numerous bases for grant of requests in this Motion for
Reconsideration.
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
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
precedence being set by her own case. Appellant not only urges the judges to read the
entire record before rendering any further decision in this case, but affirmatively and
confidently states that based on her matter presented here and in the past, this Motion
The decisions made by both State Court of Cobb County and this Honorable Appeals
Court in the past might have one come to the erroneous inference that errant members
of the banks in this case, the State, and its past judges who made slips/errors in their
Appellant, though she owes nothing to BofA by any means of sane and logical or
analytical reasoning; are all above logic and objectivity of the law, have immunity for
illegal acts and violations of Appellants Rights transgressing the U.S. and Georgia
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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
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
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default in this case, and Appellants claims and assertions are true by default. See
Cochran v. Carlin 254 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
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-
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
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 party checks, or the issue of negligence of 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).
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
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
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have also not addressed the unreasonableness and unconscionable aspects of BofAs
the relevant portions of the record where these aspects are clearly enunciated (R-383-
Appellant did not and does not give waiver of notice of dishonor or its presentment as
unreasonable, not to say illegal and unilateral as 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
and is hence unreasonable as it manifests injustice. One only needs to reflect a little
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
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
their whims? Surely, a tangible reason for dishonor & proof of metric for dishonor other
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
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
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
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
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(O.C.G.A 13-8-14 and O.C.G.A 13-8-15), prepared deceitfully without a depositors
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
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
contract/agreement not partially but completely. Lyle V. Scottish Am. Mfg. Co., 122
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
that she has the right not to waive dishonor notice and protest, anyway. Further,
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
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
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.
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
deposit contract which is in non-compliance of this fact is null and void. So, the
8) There is also no contractual obligation for Appellant explicitly stated on the one
Appellees MSJ, and in discovery. The Appellees signature card also deceitfully omits
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
case law where it was held that a bank cannot enforce agreement permitting it to act
553 F.2d 398 (5th Cir. 1977). Additional details on this issue are also given in, Measure
67 ALR 1511.
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
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,
in this case) where a payor bank such as BofA uses self serving statements on the
collecting its funds from the maker bank, Ulster Bank here, and when it itself has
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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 record of 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
here as it neither pertains to 3rd party checks nor the issue of Banks, but pertains to a
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
conclusory allegations/labels about the check in this case being fraudulent or allegedly
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being returned due to fraud, and such arguments/objections from Appellant were not
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
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
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
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
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
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
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 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.
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), Span v. Phar-Mor, Inc. et al. (251 Ga. App. 320) (554 SE2d 309) (2001).
Court citation of Davis v. Harpagon Co., 283 Ga. 539, 541 (2) (661 SE2d 545) (2008) on
14) With respect to Courts issues raised in Pages 7 & 8 of its opinion dated 11/20/09
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from BofA on numerous crucial questions raised in her interrogatories and requests for
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
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
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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 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
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
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conscience, as well as sensibilities of reasonableness in the current case, with her
court in this regard, without reading Appellants written motions and rebuttals which are
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
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
current case only to seek financial relief and it is the unjustified actions of BofA that had
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
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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
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 contrary as 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
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 Court as 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
once paid by the midnight deadline of 6/14/04, which is final for all practical purposes
20) Ulster bank here discovered no fraud and it is very irresponsible of Court of
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
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
collecting bank that have to abide by provisions of OCGA 11-4-302 and the meaning
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
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
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
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
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
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
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gave her consent to Appellee bank that she would accept a copy of an original check as
proof of notice of dishonor. Appellant has also not received the original check back
negative such as the absence of a timely notice of dishonor from BofA by the midnight
deadline since she did not receive any such notice of dishonor. It is ridiculously unjust
for Court of Appeals to term Appellants factual statements as self serving but ignore all
of BofAs self serving statements in this case used as conclusory allegations without
proof, whether they be with regards to BofAs accusation of the Appellants check being
termed fraudulent or whether it be its claim of having issued a notice of dishonor without
having mailed any such notice, or presented any proof of such notice of dishonor,
27) Unlike in the case, Jones v. Bank of America Mtg., 254 Ga. App. 217, 219 (1)
(561 SE2d 867) (2002), as cited on Page 15 of the opinion dated 11/20/09, there are no
records from BofA in this case that conclusively demonstrated default of Appellant, and
there are no records from BofA that were not self-serving, or that are not based on
presented by Judges to the contrary that even calls for use of the quoted case law for
comparison here, for any applicability. Besides, the facts and circumstances in this
case prove and support that there is a genuine issue of material fact raised by Appellant
against BofAs claims as to their claim of dishonor of check by maker bank as well as
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issue of a notice of dishonor, which the Court of Appeals cannot ignore or unjustly
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.
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
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
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 agreement in 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 permissible and
was admitted into Court under the best evidence rule as it is not hearsay, since
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
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
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
Page 27 of 30
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
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
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
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
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
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
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
Page 29 of 30
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
to harass Appellants politically well connected immigrant family) led to its errant
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
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
Respectfully Submitted,
Subbamma V. Vadde
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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#
Respectfully Submitted,
Subbamma V. Vadde