BATES v. J P MORGAN CHASE BANK N A
ORDER granting 23 Motion for Partial Summary Judgment Regarding Plaintiff's Claim for Conversion. Ordered by Judge Clay D. Land on 11/05/2012. (CGC)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
SHAWNA BATES, a.k.a.
CASE NO. 4:12-CV-43 (CDL)
JPMORGAN CHASE BANK, N.A.,
O R D E R
Consider the likely response from the average
person on the street to the following hypothetical:
money for a debt that you owed me.
You sent me
After depositing the check,
I immediately discovered a problem with the form and amount of
the check and wrote you a check back for the same exact amount.
You claim you never received my check.
Upon learning that my
check to you had not cleared my account, I stopped payment and
sent you another check for the same exact amount, which you did
You sue me for damages claiming I stole your money.
summary judgment granted.
against Defendant JPMorgan Chase Bank, N.A. (“Chase”), including
a claim for conversion.
conversion claim because Chase returned the money to Bates.
Bates contends that she made a mortgage
the reasons set forth below, the Court agrees with Chase, and
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
In determining whether a
material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party=s favor.
U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc., 477
A fact is material if it is relevant or
necessary to the outcome of the suit.
Id. at 248.
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
Viewed in the light most favorable to Bates, the record
reveals the following.
Unless otherwise noted, the facts are
undisputed for purposes of summary judgment.
Bates obtained a loan to buy her home, and that loan was
assigned to Chase.
In June 2011, Bates fell behind on her loan
On September 6, 2011, Bates mailed Chase a check for
$3,495.00 to satisfy her June, July and August 2011 payments.
Chase received the check on September 7, 2011.
“Certified funds are required.”
Pl.’s Resp. in Opp’n to Def.’s
Mot. for Summ. J. Ex. 1, Bates Aff. ¶ 7, ECF No. 27-1; Bates
Aff. Ex. D, Letter from Chase to J. Smith (Sept. 12, 2011), ECF
Chase on September 15, 2011.
Bates Aff. ¶ 9.
Chase concluded that the $3,495.00 was not sufficient to
cure the default on Bates’s loan and that Chase could not accept
the payment because certified funds were required.
Statement of Undisputed Material Facts in Supp. of its Mot. for
Summ. J. Ex. 1, Yarmesch Decl. ¶ 11; Yarmesch Decl. Ex. C, Check
employee Brett Yarmesch as the person who requested the check.
Yarmesch placed the check in an envelope and directed Chase’s
outgoing mail department to mail the check to Bates.
Decl. ¶¶ 12-13, 15.
If the outgoing mail department did not
pick up the check or if the U.S. Postal Service had returned the
check, it would have been returned to Yarmesch in the ordinary
course of business.
Id. ¶ 16.
After Yarmesch placed the check
in the mail collection box, it was never returned to him.
issued on September 15, 2011, and Bates repeatedly asked Chase
to apply the $3,495.00 payment to her account.
Bates Aff. ¶¶
report stating that the September 15, 2011 check had not been
cashed and was about to become stale.
Yarmesch Decl. ¶ 18.
Yarmesch issued a stop payment on the September 15, 2011 check
and asked for a new check payable to Bates and Jeffrey Smith.
Id. ¶¶ 19-20.
Chase issued check no. 9000023430 in the amount
of $3,495.00 dated March 7, 2012 and made payable to Bates and
Jeffrey Smith, and Yarmesch placed it in the mail collection
Id. ¶¶ 21-22, 25.
It is undisputed that Bates received
the check dated March 7, 2012.
Bates Aff. ¶ 20.
wrongfully asserted over one’s property in denial of his right
or inconsistent with it, is a conversion.”
Md. Cas. Inc. Co. v.
Welchel, 257 Ga. 259, 261, 356 S.E.2d 877, 880 (1987).
establish a conversion claim, Bates must show “(1) title to the
property or the right of possession, (2) actual possession in
the other party, (3) demand for return of the property, and (4)
refusal by the other party to return the property.”
& Assocs., P.C. v. Bank of Am., N.A., 306 Ga. App. 451, 457, 702
accord Dierkes v. Crawford Orthodontic Care, P.C., 284 Ga. App.
96, 98, 643 S.E.2d 364, 367 (2007) (“To make out a prima face
case of conversion, a plaintiff must show that she has title to
the property, that the defendant wrongfully possessed it, and
Here, Bates contends that she demanded that Chase credit
her account with the $3,495.00.
She further asserts that when
Chase failed to do so, it misappropriated the funds.
correctly points out that the courts, including this Court, have
recognized a claim for conversion where a bank misapplies funds
it receives from a customer.
E.g., Rourk v. Bank of Am. Nat’l
Ass’n, No. 4:12-CV-42 (CDL), 2012 WL 3745953, at *6 (Aug. 28,
2012); James v. Litton Loan Servicing, L.P., No. 4:09-CV-147
(CDL), 2011 WL 59737, at *12 (Jan. 4, 2011).
In those cases,
the Court concluded that the plaintiffs could state a claim for
conversion against a bank based on the misapplication of funds
the bank accepted and retained.
misapply or retain the funds.
Here, however, Chase did not
Rather, the undisputed evidence
establishes that Chase attempted to return the funds to Bates.
Chase issued Bates a refund check immediately after it received
the funds from Bates.
The refund check was not returned to
Chase employees did not know that Bates had not
negotiated the refund check until it was about to go stale.
Upon learning that Bates had not negotiated the first check, a
reasonable jury could conclude that Chase refused to return the
essential element of her conversion claim, and her conversion
IT IS SO ORDERED, this 5th day of November, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
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