Jenkins v. WACHOVIA BANK, NATIONAL ASSOCIATION
309 Ga. App. 562
| Ga. Ct. App. | 2011Background
- Jenkins signed loan documents on July 26, 2007 for $88,000 from First Tennessee; Jenkins alleges fraud by Brown, Brown's mother Gail Brown, and closing attorney Pierce.
- A loan proceeds check for $69,000, dated July 31, 2007, was payable to Jenkins and drawn on Wachovia's trust account, but Jenkins never received it.
- Brown allegedly forged Jenkins's signature on the back of the check and indorsed it in Brown's name; Brown then deposited $60,000 across two Wachovia accounts and took $9,000 in cash.
- Jenkins sued Wachovia in 2009 for various torts and related claims, including failure to verify endorsements, private/legal duties, and conspiracy, seeking damages for misdeeds related to the forged check.
- The trial court granted Wachovia summary judgment; Jenkins appealed, challenging several independent bases for liability.
- Jenkins withdrew some claims (conversion/theft by taking), leaving assertions about misidentification, duties, and emotional distress as alleged consequences of Wachovia's actions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wachovia's holder-in-due-course status affects Jenkins's claims | Jenkins argues holder status bears on liability for forged check. | Wachovia contends holder-in-due-course status is irrelevant to Jenkins's claims since she never possessed the check. | Irrelevant to Jenkins; not an actionable basis for liability. |
| Whether Wachovia violated endorsements verification and duties | Jenkins contends Wachovia failed policies and duties to verify endorsements and identities. | Wachovia breached no duty owed to Jenkins given she never possessed the check. | No viable tort because Jenkins had no delivery/possession of the check. |
| Whether Jenkins has standing to enforce the check and pursue tort claims | Jenkins asserts rights as payee; seeks damages for forged endorsement and related conduct. | Wachovia asserts Jenkins had no interest or standing as payee who never received delivery. | Jenkins has no standing; OCGA 11-3-420 and related authorities bar the action. |
| Whether Jenkins's IIED claim withstands summary judgment | Wachovia's actions were extreme and outrageous, justifying IIED. | Conduct lacks the requisite outrageousness for IIED as a matter of law. | No IIED; conduct did not rise to extreme outrageousness. |
| Whether the trial court properly denied default judgment | Wachovia defaulted due to timing issues; Jenkins seeks default judgment. | Parties agreed to an extension; no prejudice; denial was permissible. | Denial affirmed; court acted within discretion. |
Key Cases Cited
- Hartsock v. Rich's Employees Credit Union, 279 Ga.App. 724, 632 S.E.2d 476 (Ga. App. 2006) (forgery on face not decisive; holder-in-due-course issues limited)
- Southtrust Bank of Ga. v. Parker, 226 Ga. App. 292, 293-295(1), 486 S.E.2d 402 (Ga. App. 1997) (bank as holder in due course; issues on enforcement)
- Premier/Ga. Mgmt. Co. v. Realty Mgmt. Corp., 272 Ga.App. 780, 788(3)(c), 613 S.E.2d 112 (Ga. App. 2005) (conspiracy requirements; underlying tort necessary)
- Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230(1), 335 S.E.2d 445 (Ga. App. 1985) (elements of intentional infliction of emotional distress)
- Wilcher v. Confederate Packaging, 287 Ga.App. 451, 453(2), 651 S.E.2d 790 (Ga. App. 2007) (outline of iied substantial outrageousness standard)
- Ashman v. Marshall's of MA, 244 Ga.App. 228, 229(1), 535 S.E.2d 265 (Ga. App. 2000) (outrageousness/intentionality standard guidance)
- Northside Hosp. v. Ruotanen, 246 Ga.App. 433, 435, 541 S.E.2d 66 (Ga. App. 2000) (outrageousness threshold for IIED)