John Hancock Life Insurance Company (USA) v. Andrews

Filing 56

OPINION AND ORDER. Plaintiff's Motion for Summary Judgment 53 is GRANTED. Judgment shall be entered against Defendants, in favor of Plaintiff, in the amount of $207,395.81. The Clerk shall disburse to Plaintiff the $50,005.17 that Defendants previously deposited into the Registry of the Court. This disbursement shall be applied to reduce the amount of the judgment against Defendants. Signed by Judge William S. Duffey, Jr on 1/31/2017. (bgt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JOHN HANCOCK LIFE
INSURANCE COMPANY (USA),
Plaintiff,
v.

1:15-cv-3715-WSD

WILLIAM ANDREWS and
GLADYS ANDREWS,
Defendants.

OPINION AND ORDER
This matter is before the Court on Plaintiff John Hancock Life Insurance
Company (USA)’s (“Plaintiff”) Motion for Summary Judgment [53].
I.

BACKGROUND
A.

Facts

On August 1, 1984, Plaintiff issued an annuity (“Annuity”) to Defendant
William Andrews (“Mr. Andrews”). (Plaintiff’s Statement of Material Facts [53.2]
(“PSMF”) ¶ 3; [11.1] at 1).1 The Annuity required Plaintiff to pay Mr. Andrews
$200,000 a year for thirty years, beginning on August 1, 1996, and ending on
1

Although Manufacturers Life Insurance Company technically issued the
Annuity, that entity is now known as John Hancock Life Insurance Company
(USA). (PSMF ¶ 3).

August 1, 2025. ([11.1] at 1). On October 5, 1999, Mr. Andrews sold to
Settlement Capital Corporation (“Settlement Capital”) his right to receive future
payments under the Annuity for the thirteen-year period of August 2001 through
August 2014 (the “Initial Annuity Payment Agreement”). (PSMF ¶¶ 1, 8).2
On February 12, 2001, Mr. Andrews entered into a second agreement with
Settlement Capital to sell his remaining future payments under the Annuity
(the “Second Annuity Payment Agreement” or “SAPA”). (PSMF ¶¶ 2, 6). Under
the SAPA, Mr. Andrews sold to Settlement Capital his Annuity payments for the
period of August 2015 through August 2025 (the “Annuity Payments”), in return
2

Defendants William Andrews and Gladys Andrews (together, “Defendants”)
fail to cite or submit any evidence in support of their opposition to Plaintiff’s
Motion for Summary Judgment. The Court adopts the facts in Plaintiff’s
Statement of Material Facts [53.2] to which, in violation of Local Rule 56.1,
Defendants did not specifically respond. See Hampton v. Atzert, 590 F. App’x
942, 944 (11th Cir. 2014) (“[A] district court will accept each of the movant’s facts
admitted at summary judgment unless the nonmovant directly refutes these facts
with concise responses.”); Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008)
(stating that compliance with Local Rule 56.1 is the “only permissible way . . . to
establish a genuine issue of material fact” in response to the moving party’s
assertion of undisputed facts). The Court disregards the unsupported factual
assertions made in Defendants’ response brief. See Ellis v. England, 432 F.3d
1321, 1326 (11th Cir. 2005) (“[M]ere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.”);
cf. Reese, 527 F.3d at 1268 (“The proper course in applying Local Rule 56.1 at the
summary judgment stage is for a district court to disregard or ignore evidence
relied on by the respondent—but not cited in its response to the movant’s statement
of undisputed facts—that yields facts contrary to those listed in the movant’s
statement.”).
2

for an immediate lump sum of $250,000. (PSMF ¶¶ 2-4). The SAPA explains the
consequences of the transaction to Mr. Andrews:
[Mr. Andrews] shall not have any further interest in or rights to the
Annuity, the Assigned Receivable Payments or any other payments
due in connection with the Annuity. . . . [Mr. Andrews] does hereby
absolutely sell, assign, transfer, set over and convey to Purchaser, free
and clear of any liens or encumbrances, all of [Mr. Andrews’] right,
title, and interest in, to, and under the Assigned Receivable
Payments. . . . This Agreement and the Transaction Documents may
be amended, modified, superseded or canceled, or any of the terms,
provisions, representations, warranties, covenants or conditions hereof
or thereof may be waived only by written instrument signed by all
parties hereto.
(PSMF ¶ 8). Mr. Andrews received the immediate lump sum payment of $250,000
required to be paid by Settlement Capital. (PSMF ¶ 5).
On February 20, 2001, JRH Capital Corporation (“JRH”) purchased from
Settlement Capital the right to receive the Annuity Payments. (PSMF ¶ 10).3 The
agreement by which JRH purchased the Annuity Payments listed JRH’s address as
“John Hancock Life Insurance Company, 200 Clarendon Street, Boston, MA
02117, Attn: Bond & Corporate Finance.” (PSMF ¶ 12).
Consistent with the Initial Annuity Payment Agreement, Mr. Andrews did
not receive any Annuity payments from 2001 through 2014. (PSMF ¶ 26). In
January 2015, about six months before the first Annuity Payment was required to
3

JRH is an affiliate of Plaintiff. (PSMF ¶ 10).
3

be made to JRH, Plaintiff mistakenly mailed an annual statement of Annuity
payments to “William Andrews, Attn: Bond & Corporate Finance, Clarendon
Street, Boston, MA.” (PSMF ¶ 11). The annual statement was returned as
undeliverable. (PSMF ¶ 13). Plaintiff’s Returned Mail Team ran a LEXIS
Accurint report to identify Mr. Andrews’ current address. (PSMF ¶ 14).4 LEXIS
Accurint returned a Georgia address for Mr. Andrews. (PSMF ¶ 15).
In early June 2015, the Returned Mail Team sent an address confirmation
letter to Mr. Andrews at the Georgia address provided by LEXIS Accurint. (PSMF
¶15). On June 15, 2015, Mr. Andrews called Plaintiff’s customer service
department to discuss the letter. (PSMF ¶ 16). Mr. Andrews told the customer
service representative to send the Annuity Payments to the address they had for
him in Georgia. (PSMF ¶ 18). The representative updated Plaintiff’s system to
reflect Mr. Andrews’ Georgia address. (PSMF ¶¶ 17-18). Plaintiff sent
Mr. Andrews a letter confirming the change in address to which the Annuity
Payments would be sent. (PSMF ¶ 20). There is no evidence that Mr. Andrews
told the representative he previously sold, and thus no longer had a right to receive,
the Annuity Payments. (PSMF ¶ 19).
4

The team mistakenly believed they had the wrong address for Mr. Andrews
on file, rather than the wrong name of the person to whom Annuity Payments were
owed.
4

On August 1, 2015, Plaintiff mailed Mr. Andrews a check for $188,490
(the “Funds”). (PSMF ¶ 21).5 Mr. Andrews immediately endorsed the check to his
wife, Defendant Gladys Andrews (“Mrs. Andrews”). (PSMF ¶¶ 23-24). He did
not receive consideration for this payment to Mrs. Andrews. (PSMF ¶ 24). At the
time of the transfer, Mr. Andrews owned no assets “other than [his] clothing.”
(PSMF ¶ 25).
On August 4, 2015, Mrs. Andrews opened a Platinum Savings Account at
Wells Fargo Bank (the “Platinum Account”) into which she immediately deposited
the Funds. (PSMF ¶ 27). From August 12, 2015, through August 27, 2015,
Mrs. Andrews withdrew $4,100 in cash and transferred $22,240 to her checking
account (the “Checking Account”). (PSMF ¶ 29; [25.5] at 17).
On August 27, 2015, Plaintiff called Mr. Andrews, told him the Funds were
sent to him in error, and asked him to return the Funds immediately. (PSMF ¶¶ 30,
32). Mr. Andrews said he intended to review the terms of the SAPA before
returning the Funds. (PSMF ¶ 32). On August 31, 2015, Mrs. Andrews transferred
another $2,150 from her Platinum Account to her Checking Account. (PSMF ¶ 29;
[25.5] at 17).
5

This appears to represent the $200,000 Annuity payment required to be paid
on August 1, 2015, from which taxes had been withheld. ([42] at 3 n.2).
5

On September 1, 2015, Plaintiff sent Mr. Andrews a letter explaining the
error and requesting “full reimbursement” of the Funds within thirty days. (PSMF
¶ 33; [11.3]). The letter stated that, unless the Funds were returned by the end of
2015, Plaintiff was “required to report the overpayment to the Internal Revenue
Service (IRS) as a distribution in [Mr. Andrews’] name.” ([11.3] at 3). Two days
later, on September 3, 2015, Mrs. Andrews transferred $5,000 from her Platinum
Account to her Checking Account. ([25.5] at 27).
On September 16, 2015, Plaintiff called Mr. Andrews and left him a
voicemail. ([11.3] at 4). Mr. Andrews did not return the call. ([11.3] at 4). On
September 21, 2015, Plaintiff sent Mr. Andrews another letter, attaching a copy of
the SAPA and demanding repayment of the Funds. (PSMF ¶ 33; [11.3]). The
letter stated that Plaintiff would initiate legal proceedings if Mr. Andrews did not
return the Funds by October 1, 2015. ([11.3] at 5). On September 22, 2015,
Plaintiff’s counsel called Mr. Andrews and again demanded payment. (PSMF
¶ 36). Mr. Andrews said he had spoken to counsel about Plaintiff’s request.
(PSMF ¶ 36). He did not agree to return the Funds. Two days later, Mrs. Andrews

6

transferred another $5,000 from her Platinum Account to her Checking Account.
([25.5] at 27).6
In October 2015, Mrs. Andrews made five cash withdrawals, totaling
$44,000, from her Platinum Account. (PSMF ¶ 38). The same month, she
transferred $21,000 from her Platinum Account to her Checking Account. ([25.5]
at 40). From August 12, 2015, through October 22, 2015, she withdrew from her
Platinum Account, or transferred to her Checking Account, a total of $103,490.
(PSMF ¶ 39).7
B.

Procedural History

On October 22, 2015, Plaintiff filed its Verified Complaint on Claim for
Debt [1] (“Complaint”) naming Mr. Andrews as a defendant. The Complaint
sought repayment of the Funds plus interest, and litigation expenses under
6

Mrs. Andrews claims that, before September 19, 2015, she did not know that
“John Hancock was seeking return of the Funds, that John Hancock had contacted
her husband about returning the Funds, and that [] John Hancock claimed the
Check was sent by mistake.” (PSMF ¶ 35).
7
From August 12, 2015, through October 22, 2015, Mrs. Andrews transferred
$55,390 from her Platinum Account to her Checking Account. During this period,
less than $15,000 was deposited into her Checking Account from sources other
than her Platinum Account. Over the same period, Mrs. Andrews withdrew or
spent almost $70,000 from her Checking Account, including $12,000 in ATM
withdrawals, $13,000 in purchases from Wal-Mart and Apple, $15,000 in transfers,
and $5,000 in purchases at Rooms to Go and Haverty’s. (PSMF ¶¶ 40-41). No
money, other than the Funds, was deposited into Mrs. Andrews’ Platinum Account
from the date it was opened through November 30, 2015. (PSMF ¶ 28).
7

O.C.G.A. § 13-6-11. On October 22, 2015, Plaintiff also filed its Motion for
Temporary Restraining Order and Request for a Preliminary Injunction [2],
seeking a temporary restraining order (“TRO”) “restraining and enjoining
[Mr. Andrews] from spending, depleting, or otherwise disposing of the funds he
has received by mistake.” ([2.1] at 1-2).
On November 4, 2015, Mrs. Andrews made a cash withdrawal of $18,000
from her Platinum Account. (PSMF ¶ 43). On November 6, 2015, Plaintiff filed
its Amended Complaint on Claim for Debt and Injunctive Relief [11]
(“Amended Complaint”), adding Mrs. Andrews as a defendant8 and asserting
claims for unjust enrichment (Count 1), conversion (Count 2), money had and
received (Count 3), imposition of a constructive trust (Count 4), relief under
Georgia’s Uniform Voidable Transactions Act (“UVTA”), O.C.G.A. § 18-2-70
et seq. (Count 5), injunctive relief (Count 6), and attorney’s fees under O.C.G.A.
§ 13-6-11 (Count 7). On November 6, 2015, Plaintiff amended its TRO motion to

8

The Amended Complaint also added John Does 1-10 as defendants.
On December 8, 2015, the Court dismissed these fictitious defendants because
“Plaintiff fails to describe [them] in any detail.” ([30] at 2 n.1); see
Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (stating that fictitious
party pleading is not permitted in federal court unless “the plaintiff’s description of
the defendant is so specific as to be at the very worst, surplusage”).
8

reflect the changes in its Amended Complaint, including the addition of
Mrs. Andrews as a named defendant. ([14]).
On November 9, 2015, the Court held a hearing on Plaintiff’s request for a
TRO. ([15]). The Court declined to issue a TRO because Plaintiff did not present
sufficient evidence in support of its requested relief. The Court suggested that
Defendants’ counsel advise Defendants to refrain from spending the Funds. The
Court ordered the parties to engage in expedited discovery so that Plaintiff could
promptly determine if there was evidence warranting a motion for preliminary
injunctive relief. (See November 10, 2015, Order by Docket Entry; [30] at 4).
From November 9, 2015, through November 20, 2015, Mrs. Andrews
transferred $17,000 from her Platinum Account to her Checking Account. (PSMF
¶ 45; [27.1]). In November 2015, she withdrew approximately $13,400 from her
Checking Account and spent approximately $3,600 in a single Wal-Mart
transaction, $1,200 in a Lowe’s transaction, $2,000 on the Atlanta Falcons, and
$1,500 at department stores such as Dillard’s and Von Mauer. (PSMF ¶ 46).9

9

Plaintiff asked Mrs. Andrews, during discovery, how she spent the Funds
and what she purchased with them. Mrs. Andrews responded, “I do not recall,”
and claimed she did not retain any documents responsive to the question. (PSMF
¶¶ 52-53).
9

On December 2, 2015, Defendants filed counterclaims against Plaintiff for
negligent misrepresentation (Count 1), breach of the duty of good faith and fair
dealing (Count 2), and promissory estoppel (Count 3). ([24] at 6-8). Defendants
claim that “Plaintiff negligently supplied [Mr. Andrews] with false information
that he was entitled to receive [the Funds],” and that Mr. Andrews “reasonably
relied on this representation and endorsed the proceeds to his wife.” ([24] at 7).
Defendants ask the Court to enter judgment in their favor, against Plaintiff, in the
amount of $188,490 plus interest. ([24] at 8).
On December 3, 2015, Plaintiff filed its Renewed Motion for a Preliminary
Injunction [25]. On December 7, 2015, the Court conducted a telephone
conference with the parties. ([27]). During the conference, Defendants’ counsel
confirmed that he told Mrs. Andrews the Court would “frown upon” her continued
expenditure of the Funds. ([30] at 5). The next day, the Court issued a TRO
enjoining Defendants “from accessing, spending, transferring, withdrawing, or
otherwise dissipating the Funds.” ([30] at 10). The Court also ordered Defendants
to deposit any remaining Funds into the Registry of the Court. ([30] at 10). On
December 9, 2015, Defendants deposited $50,005.17 into the Court Registry. (See
December 10, 2015, Docket Entry; PSMF ¶ 49).

10

On December 22, 2015, the Court held a hearing on Plaintiff’s Renewed
Motion for a Preliminary Injunction. ([43]). The next day, the Court granted the
motion and enjoined Defendants from “accessing, spending, transferring,
encumbering, withdrawing, or otherwise dissipating the Funds, or any property
purchased with the Funds.” ([42] at 10). The Court found that, under the SAPA,
Mr. Andrews “unequivocal[ly] . . . relinquished any right to the Annuity
Payments.” ([42] at 6). The Court stated “[i]t is incredulous that Mr. Andrews
believed that he was entitled to an additional Annuity Payment based on some
claimed miscalculation that entitled Mr. Andrews to retain an additional payment
under the Agreement.” ([42] at 7).
On April 28, 2016, Plaintiff filed its Motion for Summary Judgment, seeking
summary judgment on its claims for money had and received, conversion, and
violations of the UVTA. Plaintiff also seeks summary judgment on Defendants’
counterclaims for negligent misrepresentation, promissory estoppel, and breach of
the duty of good faith and fair dealing. Plaintiff asks the Court to enter judgment
against Defendants in the amount of $188,490, plus prejudgment interest.

11

II.

LEGAL STANDARD
“Summary judgment is appropriate where the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Ahmed v. Air France-KLM, 165 F. Supp. 3d 1302, 1309 (N.D. Ga.
2016); see Fed. R. Civ. P. 56. “An issue of fact is material if it ‘might affect the
outcome of the suit under the governing law.’” W. Grp. Nurseries, Inc. v. Ergas,
167 F.3d 1354, 1360 (11th Cir. 1999) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). “An issue of fact is genuine ‘if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.’” Id. at 1361
(quoting Anderson, 477 U.S. at 248).
The party seeking summary judgment “bears the initial responsibility of
informing the district court of the basis for its motion, and identifying [materials]
which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The movant[] can meet this
burden by presenting evidence showing there is no dispute of material fact, or by
showing that the nonmoving party has failed to present evidence in support of
some element of its case on which it bears the ultimate burden of proof.”
Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1281-82 (11th Cir. 1999).
12

The moving party need not “support its motion with affidavits or other similar
materials negating the opponent’s claim.” Celotex, 477 U.S. at 323. Once the
moving party has met its initial burden, the nonmoving party must demonstrate that
summary judgment is inappropriate by designating specific facts showing a
genuine issue for trial. Graham, 193 F.3d at 1282. The nonmoving party “need
not present evidence in a form necessary for admission at trial; however, he may
not merely rest on his pleadings.” Id. “[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson, 477 U.S. at 247-48.
“If the evidence presented by the non-moving party is merely colorable, or is
not significantly probative, summary judgment may be granted.” Apcoa,
Inc. v. Fid. Nat. Bank, 906 F.2d 610, 611 (11th Cir. 1990) (internal quotation
marks omitted) (quoting Anderson, 477 U.S. at 250). The party opposing
summary judgment “must do more than simply show that there is some
metaphysical doubt as to the material facts . . . . Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (internal
quotation marks omitted) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith
13

Radio Corp., 475 U.S. 574, 586-87 (1986)); cf. Miller v. Kenworth of Dothan, Inc.,
277 F.3d 1269, 1275 (11th Cir. 2002) (a party is entitled to summary judgment if
“the facts and inferences point overwhelmingly in favor of the moving party, such
that reasonable people could not arrive at a contrary verdict” (quoting
Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir. 1997) (internal
quotation marks omitted))).
“At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those
facts.” Scott, 550 U.S. at 380. “When opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.” Id. “[C]redibility determinations, the
weighing of evidence, and the drawing of inferences from the facts are the function
of the jury.” Graham, 193 F.3d at 1282. “The nonmovant need not be given the
benefit of every inference but only of every reasonable inference.” Id.
Rule 56(c) mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make
a showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of
proof at trial. In such a situation, there can be “no genuine issue as to
any material fact,” since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.
14

Celotex, 477 U.S. at 322-23; see Freeman v. JPMorgan Chase Bank N.A.,
-- Fed. App’x --, 2017 WL 128002, at *4 (11th Cir. Jan. 13, 2017) (same);
Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1247 (11th Cir. 1999) (“If the
non-movant in a summary judgment action fails to adduce evidence which would
be sufficient, when viewed in a light most favorable to the non-movant, to support
a jury finding for the non-movant, summary judgment may be granted.”).
III.

DISCUSSION
A.

Plaintiff’s Claim for Money Had and Received

“To establish a claim for money had and received a plaintiff must show
(1) that a party has received money justly belonging to the plaintiff; and (2) that the
plaintiff has made a demand for repayment which was refused.” Sec. & Exch.
Comm’n v. Price, No. 1:12-cv-2296, 2015 WL 11198937, at *6 (N.D. Ga. Mar. 31,
2015) (citing City of Atlanta v. Hotels.com, 710 S.E.2d 766, 770 (Ga. 2011)). “An
action for ‘money had and received’ is the functional equivalent of an action for
unjust enrichment.” Id. at *6 n.5; see McCaughey v. Bank of America, N.A., 279
Fed. App’x. 794, 797 (11th Cir. 2008) (“[Money had and received] is merely one
form of action to recover damages based on unjust enrichment.”). An action for
money had and received is “founded on the equitable principle that no one ought to
unjustly enrich himself at the expense of another, and is a substitute for a suit in
15

equity.” Gulf Life Ins. Co. v. Folsom, 349 S.E.2d 368, 370-71 (Ga. 1986). “Thus,
recovery is authorized against one who holds the money of another which he ought
in equity and good conscience to refund.” Piedmont Eng’g & Const.
Corp. v. Balcor Partners-84 II, Inc., 396 S.E.2d 279, 281 (Ga. Ct. App. 1990). “In
an action for money had and received, the plaintiff generally can recover a
payment mistakenly made when that mistake was caused by his lack of diligence
or his negligence in ascertaining the true facts and the other party would not be
prejudiced by refunding the payment—subject to a weighing of the equities
between the parties by the trier of fact.” Wyatt v. Hertz Claim Mgmt. Corp., 511
S.E.2d 630, 632 (Ga. Ct. App. 1999).
In Wyatt, the defendant signed an agreement entitling her to payment of
$1,500 from a car company. The company mistakenly sent her a check for
$15,000, which the defendant cashed. The company later informed defendant of
the error, but she refused to return the overpayment. The Georgia Court of
Appeals affirmed summary judgment for the company on its claim for money had
and received, because the written agreement “conclusively establishe[d]” that
defendant was entitled to only $1,500. Id. at 632. The court found that defendant
had “not demonstrated harm to herself beyond spending the money mistakenly

16

paid, which generally does not constitute ‘prejudice’ in an action for money had
and received.” Id. at 633.
Mr. Andrews, under the SAPA, “unequivocal[ly] . . . relinquished any right
to the Annuity Payments.” ([42] at 6). The evidence shows the Funds were
mistakenly sent to Mr. Andrews. Neither he nor Mrs. Andrews were entitled to
them. Plaintiff has demanded repayment of the Funds but Defendants have refused
to return them. Defendants have not shown they would be prejudiced by returning
the Funds. Although they have now spent most of the Funds, spending money that
was mistakenly sent does not establish prejudice. See Wyatt, 511 S.E.2d at 633.
This is especially true here, where expenditures generally occurred after
Defendants learned that the Funds belonged to Plaintiff and after Plaintiff
demanded that the Funds be returned. Most of the Funds were spent by
Defendants after they were clearly put on notice that Plaintiff had transferred the
money in error. Defendants are “not, in good conscience, entitled to retain” the
Funds, and Plaintiff is entitled to summary judgment on its claim for money had
and received. Dep’t of Pub. Health v. Perry, 182 S.E.2d 493, 496 (Ga. Ct. App.
1971).10
10

Defendants, in their response brief, argue that Plaintiff “misle[d] William
Andrews into believing he had every right to negotiate the check.” ([54.1] at 5).
17

B.

Plaintiff’s Conversion Claim

“An action for conversion redresses wrongful interference with rights in
property.” In re Walker, 551 B.R. 679, 687 (Bankr. M.D. Ga. 2016). “Any
distinct act of dominion wrongfully asserted over one’s property in denial of his
right, or inconsistent with it, is a conversion.” Deere & Co. v. Rebel Auction Co.,
Inc., No. 315-cv-072, 2016 WL 3181148, at *2 (S.D. Ga. June 3, 2016) (quoting
Maryland Cas. Ins. Co. v. Welchel, 356 S.E.2d 877, 880 (Ga. 1987)). “It is

Defendants do not present any evidence or authority in support of this assertion.
Even if they had, the Court previously rejected a similar argument:
Defendants’ argument that they are entitled to the Check because an
unknown employ[ee] or agent of Plaintiff advised Mr. Andrews that
he was entitled to the Check, also is without merit. . . . Assuming,
arguendo, there was a conversation in which some unidentified
employee of Plaintiff said Mr. Andrews was entitled to the Check,
there is no authority to support that when an agent or employee of the
payor mistakenly tells the payee that he is entitled to funds sent in
error, that the payee is entitled to keep the funds, especially after the
mistake is identified by the payor and the payee is advised of it.
([42] at 7-8). Defendants also argue that “the course of conduct followed
and pursued by John Hancock as it relates to the check . . . constitute[s]
gross negligence, threats and intimidation.” ([54.1] at 5-6). Defendants
again offer no evidence or authority in support of this statement. To the
extent the assertion is based on Plaintiff’s so-called “threat[] to report
William Andrews to the Internal Revenue Service,” Defendants’ argument is
baseless. ([54.1] at 5).
18

immaterial that such dominion was exercised in good faith.” Welchel, 356 S.E.2d
at 880.
“In order to establish a claim for conversion, the complaining party 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.” Trey Inman & Assocs., P.C. v. Bank of Am., N.A., 702
S.E.2d 711, 716 (Ga. Ct. App. 2010). “[C]ase law has acknowledged that checks
may be converted.” Decatur Auto Ctr. v. Wachovia Bank, N.A., 583 S.E.2d 6, 8
(Ga. 2003). “Conversion is also available for specific amounts of money placed on
deposit with a bank.” Id. at 9. That a defendant no longer possesses the property
at issue is not a defense to a claim for conversion. Id. at 716 (“[T]he Bank’s
conversion claim is not defeated by the fact that TIA no longer possesses the
disputed funds.”); DirecTV, LLC v. Shirah, No. 413-cv-110, 2014 WL 1002778, at
*2 (S.D. Ga. Mar. 12, 2014) (stating that, where defendant is “no longer in
possession of the [property],” plaintiff must show defendant in the past “was in
actual possession of the property”); Holley v. Mut. Inv. Corp., 87 S.E.2d 236, 239
(Ga. Ct. App. 1955) (“The mere fact that they do not now have it . . . does not
negative conversion or wrongful disposition of the property.”); see also Hanover
Ins. Co. v. Hermosa Const. Grp., LLC, 57 F. Supp. 3d 1389, 1401 (N.D. Ga. 2014)
19

(granting summary judgment where “it is undisputed that Hermosa was in
possession of the subject funds at a time when Hanover had the right of
possession”).
The undisputed evidence shows that Plaintiff has a right to the Funds, that
Defendants received and exercised control over the Funds despite having no
interest in them, that Plaintiff demanded repayment of the Funds, and that
Defendants refused to return the Funds to Plaintiff. Plaintiff is entitled to summary
judgment on its conversion claim.11
C.

Plaintiff’s UVTA Claim

Plaintiff seeks, under the UVTA, to void Mr. Andrews’ transfer of the Funds
to his wife, and to obtain judgment against Mrs. Andrews in the amount of the
Funds. ([53.1] at 16-17). The UVTA provides:
(a) A transfer made or obligation incurred by a debtor is voidable as to
a creditor, whether the creditor’s claim arose before or after the
transfer was made or the obligation was incurred, if the debtor made
the transfer or incurred the obligation:
(1) With actual intent to hinder, delay, or defraud any creditor of
the debtor; or

11

Defendants’ assertion to the contrary is conclusory, unsupported by citations
to evidence or authority, and repeats arguments already rejected by the Court. (See
[54.1] at 6).
20

(2) Without receiving a reasonably equivalent value in exchange for
the transfer or obligation, and the debtor:
(A) Was engaged or was about to engage in a business or a
transaction for which the remaining assets of the debtor were
unreasonably small in relation to the business or transaction; or
(B) Intended to incur, or believed or reasonably should have
believed that he or she would incur, debts beyond his or her
ability to pay as they became due.
O.C.G.A. § 18-2-74(a); see CSX Transp., Inc. v. Leggett, No. 1:07-cv-1152, 2010
WL 3210841, at *4-5 (N.D. Ga. Aug. 12, 2010) (“To establish that a fraudulent
transfer has occurred, Plaintiff must prove (1) there was a claim against Defendant
by Plaintiff; (2) the Defendant did not receive relatively equivalent value in
consideration of the transfer; and (3) Defendant was insolvent or likely to become
insolvent.”).
Plaintiff is entitled to relief under the UVTA. Plaintiff is a “creditor”
because it “has a claim” against—that is, a “right to payment” from—Defendants.
O.C.G.A. § 18-2-71(4); O.C.G.A. § 18-2-71(3) (stating that a “claim” is “a right to
payment, whether or not the right is reduced to judgment”). This right to payment
is based on Plaintiff’s claims for conversion and money had and received. It is
undisputed that Mr. Andrews did not receive any consideration—or any
“reasonably equivalent value”—in exchange for the transfer to Mrs. Andrews.
O.C.G.A. § 18-2-74(a)(2). Mr. Andrews “reasonably should have believed that
21

he . . . would incur . . . debts beyond his . . . ability to pay as they became due”
because the transfer caused him to relinquish the $188,490 he owed to Plaintiff
when he owned no other assets beyond his clothing. O.C.G.A. § 18-2-74(a)(2)(B);
see O.C.G.A. § 18-2-71(5) (“‘Debt’ means liability on a claim.”); cf. O.C.G.A. §
18-2-72(a) (“A debtor is insolvent if, at a fair valuation, the sum of the debtor’s
debts is greater than the sum of the debtor’s assets.”). Plaintiff is thus entitled,
under the UVTA, to void Mr. Andrews’ transfer “to the extent necessary to satisfy
[Plaintiff’s] claim.” O.C.G.A. § 18-2-77(a).12
Plaintiff “may recover judgment for the value of the asset transferred . . . or
the amount necessary to satisfy [Plaintiff’s] claim, whichever is less. The
judgment may be entered against . . . [t]he first transferee of the asset,” who, in this
case, is Mrs. Andrews. O.C.G.A. § 18-2-78(b)(1)(A). Plaintiff is entitled, under
the UVTA, to judgment against Mrs. Andrews in the amount of $188,490, the
12

The Court also finds that Plaintiff is entitled to void the transfer because
Mr. Andrews “made the transfer . . . [w]ith actual intent to hinder, delay, or
defraud” Plaintiff. O.C.G.A. § 18-2-74(a)(1). The following facts support this
conclusion: (1) the transfer was made to Mr. Andrews’ wife, “an insider”;
(2) Mr. Andrews “retained possession or control of the property transferred after
the transfer”; (3) “[t]he transfer was of substantially all the debtor’s assets”;
(4) “[t]he value of the consideration received by the debtor was [not] reasonably
equivalent to the value of the asset transferred”; (5) “[t]he debtor was insolvent or
became insolvent shortly after the transfer was made”; and (6) “[t]he transfer
occurred shortly before or shortly after a substantial debt was incurred.” O.C.G.A.
§ 18-2-74(b) (listing relevant factors “[i]n determining actual intent”).
22

amount of the voidable transfer. Cf. Leggett, 2010 WL 3210841, at *4-5 (granting
summary judgment to a creditor against the wife of a debtor because the debtor,
while insolvent, transferred money to her without consideration).13

13

Defendants claim Mr. Andrews “was not insolvent before or after the
transfer” because he “was receiving a vested pension from the NFL.” ([54.1]).
Defendants have not produced any evidence of this pension, including the amount
or frequency of the pension payments. Defendants also claim that the SAPA is
“voidable” because, in view of the “bargaining positions of the parties” and the
“inequitable distribution” under the agreement, the SAPA “was executed by
William Andrews while under economic duress.” ([54.1]). “Though recognized as
a valid defense, Georgia courts are reluctant to void contracts, and there is no
Georgia decision voiding a contract on the theory of economic duress.”
Abdulla v. Klosinski, 898 F. Supp. 2d 1348, 1368 (S.D. Ga. 2012). Duress is not
established by mere “reluctance” to enter the contract, “very disadvantageous”
contract terms, unequal bargaining positions, “some unfairness in the
negotiations,” “economic necessity,” “financial embarrassment” or “the pressure of
business circumstances.” Chouinard v. Chouinard, 568 F.2d 430, 434 (5th Cir.
1978); Frame v. Booth, Wade & Campbell, 519 S.E.2d 237, 240 (Ga. Ct. App.
1999). The defendant must show “acts or conducts of the opposite party which are
wrongful or unlawful.” Frame, 519 S.E.2d at 239. Defendants have not submitted
any evidence to support their economic duress defense, Mr. Andrews apparently
entered into the SAPA as a result of advice he received, (see [54.1] at 3 (“William
was advised to liquidate [the] annuity.”)), his duress claim comes fifteen years
after the SAPA was executed, and there is no evidence of any wrongful acts by
Settlement Capital. Defendants’ economic duress defense fails. See In re
Chatham Parkway Self Storage, LLC, 507 B.R. 13, 22 (Bankr. S.D. Ga. 2014);
Frame, 519 S.E.2d at 239-40.
23

D.

Defendants’ Counterclaims
1.

Negligent Misrepresentation and Promissory Estoppel

Plaintiff seeks summary judgment on Defendants’ counterclaims for
negligent misrepresentation and promissory estoppel. “The essential elements of a
claim of negligent misrepresentation are: (1) the defendant’s negligent supply of
false information to foreseeable persons, known or unknown; (2) such persons’
reasonable reliance upon that false information; and (3) economic injury
proximately resulting from such reliance.” Home Depot U.S.A., Inc. v. Wabash
Nat. Corp., 724 S.E.2d 53, 60 (Ga. Ct. App. 2012). “The essential elements of
promissory estoppel are: (1) the defendant made a promise or promises; (2) the
defendant should have reasonably expected the plaintiffs to rely on such promise;
(3) the plaintiffs relied on such promise to their detriment; and (4) an injustice can
only be avoided by the enforcement of the promise, because as a result of the
reliance, plaintiffs changed their position to their detriment by surrendering,
forgoing, or rendering a valuable right.” Rental Equip. Grp., LLC v. MACI, LLC,
587 S.E.2d 364, 367 (Ga. Ct. App. 2003).
Defendants claim that “Plaintiff negligently supplied [Mr. Andrews] with
false information that he was entitled to receive [the Funds],” and that
Mr. Andrews “reasonably relied on this representation and endorsed the proceeds
24

to his wife.” ([24] at 7). Defendants do not present any evidence in support of this
assertion. Even if they had, the counterclaims fail because Mr. Andrews’ alleged
reliance on Plaintiff’s representation was not reasonable. Under the SAPA,
Mr. Andrews “unequivocal[ly] . . . relinquished any right to the Annuity
Payments.” ([42] at 6; see [54.1] at 8 (“The Sale Agreement . . . appears on its face
to be unambiguous.”)). The SAPA states it may be altered only by “written
instrument signed by all parties to the Agreement.” (PSMF ¶ 8). Mr. Andrews did
not receive any Annuity payments in the fourteen years before his receipt of the
Funds. “It is incredulous that Mr. Andrews believed that he was entitled to an
additional Annuity Payment based on some claimed miscalculation that entitled
Mr. Andrews to retain an additional payment under the Agreement.” ([42] at 7).
“Assuming, arguendo, there was a conversation in which some unidentified
employee of Plaintiff said Mr. Andrews was entitled to the Check, there is no
authority to support that when an agent or employee of the payor mistakenly tells
the payee that he is entitled to funds sent in error, that the payee is entitled to keep
the funds, especially after the mistake is identified by the payor and the payee is
advised of it.” ([42] at 7-8). Plaintiff is entitled to summary judgment on
Defendants’ counterclaims for negligent misrepresentation and promissory
estoppel.
25

2.

Breach of the Duty of Good Faith and Fair Dealing

Plaintiff also seeks summary judgment on Defendants’ counterclaim for
breach of the duty of good faith and fair dealing. “[T]o state a claim for breach of
the implied duty of good faith and fair dealing, a plaintiff must set forth facts
showing a breach of an actual term of an agreement. General allegations of breach
of the implied duty of good faith and fair dealing not tied to a specific contract
provision are not actionable.” Am. Casual Dining, L.P. v. Moe’s Sw. Grill, L.L.C.,
426 F. Supp. 2d 1356, 1370 (N.D. Ga. 2006). There is no evidence that
Defendants had a contract with Plaintiff, and Defendants do not assert a claim for
breach of contract. “In the absence of a breach of contract claim, [Defendants’]
claim for breach of an implied covenant of good faith and fair dealing cannot
survive summary judgment.” U.S. Faucets, Inc. v. Home Depot U.S.A. Inc., No.
1:03-cv-1572, 2006 WL 1518887, at *5 (N.D. Ga. May 31, 2006).
E.

Prejudgment Interest

Plaintiff seeks prejudgment interest on the $188,490 payment made to
Mr. Andrews, with interest accruing from August 27, 2015, when Plaintiff first
demanded return of the Funds. “[A]s long as there is a demand for prejudgment
interest prior to the entry of final judgment, a trial court should award it.”
Crisler v. Haugabook, 725 S.E.2d 318, 319 (Ga. 2012). “Under Georgia law, if a
26

sum is liquidated, pre-judgment interest accrues from the date of demand at a rate
of 7 percent per annum.” Great Am. Ins. Co. v. Int'l Ins. Co., 753 F. Supp. 357,
364 (M.D. Ga. 1990). “A liquidated sum is an amount certain and fixed, either by
the act and agreement of the parties or by operation of law; a sum which cannot be
changed by the proof; it is so much or nothing.” Id. “Where the amount of
damages can only be established by the trier of fact, the damage award is
unliquidated.” Id.
The Funds, to which Plaintiff is entitled, constitute a liquidated sum because
they are certain and fixed. Plaintiff is entitled to prejudgment interest at a rate of
7%, with interest accruing from August 27, 2015, the date Plaintiff first demanded
return of the Funds. Plaintiff is thus entitled to prejudgment interest in the amount
of $18,905.81, for a total recovery of $207,395.81. This amount is required to be
reduced by the $50,005.17 currently on deposit in the Registry of the Court. These
Registry funds will be disbursed to Plaintiff and credited against the total judgment
amount of $207,395.81 to which Plaintiff is entitled.

27

IV.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary

Judgment [53] is GRANTED.
IT IS FURTHER ORDERED that judgment shall be entered against
Defendants, in favor of Plaintiff, in the amount of $207,395.81.
IT IS FURTHER ORDERED that the Clerk shall disburse to Plaintiff the
$50,005.17 that Defendants previously deposited into the Registry of the Court.
This disbursement shall be applied to reduce the amount of the judgment against
Defendants.

SO ORDERED this 31st day of January, 2017.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

28