In The Court of Appeals of Georgia

Subbamma V. Vadde
Appellant

Vs.

Bank of America
Appellee

Civil Appeal Docket

Number: A09A1714

Motion for Reconsideration

Subbamma V. Vadde

Submitted On: November 30th, 2009

 MOTION FOR RECONSIDERATION

Appellant files this timely Motion for Reconsideration (MFR) pursuant to Rule 37,

requesting reconsideration of interim opinion of the above Court dated 11/20/09, for

reversal of judgments of State Court of Cobb County on 2/4/09 (R-915-916). Appellant

shows the succeeding numerous bases for grant of requests in this Motion for

Reconsideration.

I. RULE 37(e) IS BASIS FOR GRANTING APPELLANTS MOTION

As per Rule 37(e), reconsideration will be granted on motion of the requesting party,

only when it appears that the Court overlooked a material fact in the record, a statute or

a decision which is controlling as authority and which would require a different judgment

from that rendered, or has erroneously construed or misapplied a provision of law or a

controlling authority. Such conditions have been satisfied requiring grant of this MFR,

since the Judges in the past overlooked the record of this case (R-1-924), and did not

base their decision on evidence and objectivity, but on whims and self-serving hearsay

(which is in fact a euphemism for their blind, unjust, prejudicial, and imprudent

presumptuous support for lies from Bank of America (BofA)). It is abundantly clear from

the interim opinion document dated 11/20/09, that the judges of the Court of Appeals

applied inapplicable/invalid case law and have not read the record of this case; for the

issues (or non issues) they raised have already been addressed/resolved by Appellant

in the record, and it is impossible to deny Appellants requests presented in her

Appellate brief and the record, based on logic, human/humane conscience,

reasonableness, and commonsense, already cited authority, and the authority of her

own persuasively presented logical arguments in the record and consequent

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

for Reconsideration must be granted.

II. APPELLANT CONTESTS AND ASSERTS, THAT THE COURT OF APPEALS

OF GEORGIA HAS OVERLOOKED MATERIAL FACTS IN THE RECORD,

AND STATUTES AND DECISIONS WHICH ARE CONTROLLING AS

AUTHORITY WHICH WOULD REQUIRE A DIFFERENT JUDGMENT FROM

THAT RENDERED, AND HAS ERRONEOUSLY CONSTRUED OR

MISAPPLIED PROVISIONS OF LAW OR CONTROLLING AUTHORITY

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

analytical reasoning through undertaking Orwellian presumptions and illogical

bets/gambles by using illegal burden shifting methods, to come to an adverse decision

against the Appellant, by attempting to arbitrarily and subjectively railroad/bully the

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

dated 8/21/09, must be granted immediately.

III. DEFAULT OF BANK OF AMERICA

O.C.G.A. 9-11-55(a) States that, If in any case an answer has not been filed

within the time required by this chapter, the case shall automatically become in

default; therefore, since that condition has already been satisfied in this case for

Appellants brief dated 8/21/09, the defendant/Appellee Bank of America is already in

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default in this case, and Appellants claims and assertions are true by default. See

Cochran v. 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

and its requests must be granted.

IV. APPELLANTS OBJECTIONS AND REBUTTALS TO POINTS AND

INVALID/INAPPLICABLE CASE LAW NOTED IN INTERIM OPINION FROM COURT

OF APPEALS OF GEORGIA (DATED 11/20/09), THAT ERRONEOUSLY AFFIRMED

JUDGMENT OF STATE COURT OF COBB COUNTY (DATED 2/4/09)

1) Appellant had addressed each and every issue raised by the Judges in their

interim opinion dated 11/20/09, in her Motion for Summary Judgment (MSJ) (R-754-

873; R-878-902) and rebuttal to plaintiffs MSJ (R-625-690) in a meritorious manner,

and such issues are hence non-issues. Appellant had also addressed all these issues

earlier in a detailed and meritorious manner in her Appellate brief dated 5/26/09, but

was asked by Court to submit an abbreviated brief, leading to her concise 8/21/09

version of her Appellate brief, with just references to the record. It is therefore unjust for

the Judges to ignore the details presented by Appellant earlier and in the record of this

case, especially her defense of estoppel in Section XII of her Appellate Brief and

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Section VI of her MSJ, and now raise the same issues asking for details from Appellant

again.

2) On Page 1 and 2 of its interim opinion dated 11/20/09, the Court of Appeals cites

Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), as having been used for

de novo review of evidence to determine whether there is a genuine issue of material

fact and whether the undisputed facts, viewed in the light most favorable to the

nonmoving party, warrant judgment as a matter of law. However, what they failed to

mention is that they have simply chosen to turn a blind eye to all disputed facts by

Appellant and have not addressed any issue of reasonableness in light of the

entire record, or even a single contention/issue raised by Appellant with respect to the

said citation not being applicable to 3rd 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

unreasonable portions of BofAs deposit services agreement on Page 2, such as

Credit for items deposited is provisional and subject to revocation if the item is not paid

for any reasonyou waive notice of dishonor and protest, they erroneously

ignore the portions of the record in Appellants MSJ (R-754-873) that clearly show that

Appellant did not sign a signature card specifically agreeing to this undisclosed

disclosures document, nor waived notice of dishonor or her right to protest. The judges

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have also not addressed the unreasonableness and unconscionable aspects of BofAs

agreement, as pointed out by Appellant in Section VI of her Appellate brief referring to

the relevant portions of the record where these aspects are clearly enunciated (R-383-

472; R-754-873; R-878-902).

4) Appellant refutes BofAs claim that Appellant waived notice of dishonor.

Appellant did not and does not give waiver of notice of dishonor or its presentment as

Appellant believes that clause/claim of Appellee is unconscionable in any of Appellees

deposit services document. Waiver of notice of dishonor or presentment of same is

not permitted by O.C.G.A 11-4-103 as doing so would be unconscionable and

unreasonable, not to say illegal and 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

MSJ/discovery (R-383-472; R-754-873) was prepared/amended unilaterally by Appellee

and is hence unreasonable as it manifests injustice. One only needs to reflect a little

in retrospect to realize that no sane depositor or consumer would be willing to abide by

a forced nonsensical waiver of right to protest or right to not waive presentment of

notice of dishonor, for otherwise the Appellee/BofA would be dysfunctional, acting in a

dictatorial and lawless manner with no oversight whatsoever from any laws of justice,

whether domestic or international and could tend to perpetuate atrocities and injustices

on depositors in society. If one is to permit such unjust waiver of notice of dishonor,

what is to prevent a crooked bank from first honoring a check and then itself

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determining to harass an enterprising individual or customer by debiting their accounts

for no justified reason and litigating abusively? What is to prevent banks from

perpetuating financial chaos on innocent depositors accounts purely on the basis of

their whims? Surely, a tangible reason for dishonor & proof of metric for dishonor other

than whims/opinions of unauthenticated bankers is and must be mandated. Surely, a

time frame is enforced as per the UCC midnight deadline, and must be enforced

(within 24 hours from deposit) for any decision making on check clearance by the

depositary bank so depositors are protected from any unscrupulous or menacing

actions of banks in an uncertain manner later. Surely, BofA can be better off altering its

procedures to conform to laws & statutes that make sense, are bilateral or multilateral,

and benefit depositors/consumers too, not simply the owners of banks illegally.

5) Appellant also has a First Amendment Constitutional right to protest which she

has exercised and has not waived in this case. Appellant asserts that Appellees

deposit agreement was drafted through misrepresentation in a unilateral manner (and

was not actually given to Appellant when she opened her account on 1/18/01, to the

best of her personal knowledge). Calls in the deposit document to waiver of notice of

dishonor or protest or claims of bank to have absolute right of chargeback on a

depositors account are not only illegal but are also not applicable in all situations.

The exceptions to the banks norm are circumstances like the Appellants case where

Appellants claims against Appellee have proven to be justified already. Therefore,

Appellees deposit agreement is unfair, misrepresentative and deceptive/artful practice

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(O.C.G.A 13-8-14 and O.C.G.A 13-8-15), prepared deceitfully without a depositors

consent, knowledge or prior acquiescence. This makes Appellees deposit agreement

an illegal and void contract generally, as it is in direct conflict and violation of statutes

like O.C.G.A 11-4-301 and O.C.G.A 11-4-302 and numerous other laws as

elaborately mentioned in Appellants amended answer with counterclaim (R-383-472).

At this point, it is important to mention that parties to any agreement/contract may by

mutual consent abandon contract/agreement so as to make it not thereafter binding, as

supported by Mary v. Selph, 77 Ga. App. 808, 50 S.E. 2d 27 (1948); M.W. Buttrill, Inc.

V. Air Conditioning Contractors, 158 Ga. App. 122, 279 S.E. 2d 296 (1981). Also, as

per O.C.G.A 13-5-7 pertaining to rescission or release on a contract or agreement, a

rescission of a contract by consent or release by the other contracting party shall

be a complete defense. Generally speaking, rescission is in toto as it abrogates

contract/agreement not partially but completely. Lyle V. Scottish Am. Mfg. Co., 122

Ga. 458, 50 S.E. 402 (1905).

6) Section 24 (page 21) of Appellees deposit disclosures document (Exhibit E of

Appellees discovery package (R-383-472; R-754-873)) provides that the deposit

agreement would be terminated with closure of Appellants account. It is therefore true

that since Appellants account with BofA was shut down on or around 8/4/04 or 9/10/04,

Appellant is anyway not bound by the terms of BofAs deposit agreement due to

rescission of the agreement according to O.C.G.A 13-5-7, for the purpose of this case

initiated on 4/7/06. Further, if one were to take the position that Appellees unilateral

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amendments are effective when made until closure of account or termination by

Appellant, it is noted that BofAs 2006 deposit agreement (2006 being the year when

Appellee initiated its baseless action against Appellant) does not call for a waiver of

notice of dishonor or protest anymore. Therefore, Appellants position in this action is

that she has the right not to waive dishonor notice and protest, anyway. Further,

Section 24 (page 21) of Appellees deposit disclosures (Exhibit E of Appellees

discovery (R-383-472; R-754-873)) also states that BofAs deposit agreement may be

terminated by Appellant at anytime upon notice to the Appellee. Appellant has already

given notice to Appellee asserting termination of the deposit agreement totally and

completely through her denial earlier for Appellees request for admissions (R-184-195),

clearly stating that she is not governed by Appellees deposit agreement. Appellant

again reasserted the termination of Appellees deposit agreement in her

correspondence of second interrogatories to Appellee on or around 9/1/06 (R-239-257;

258-279). Appellant reasserted the termination again around 10/13/06 in her amended

answer with counterclaim (R-383-472). Appellant also reasserted the termination again

around December 5, 2006 in her rebuttal to Appellees motion for summary judgment

(R-625-690; R-754-873; R-878-902). Appellant reasserts in writing once again now

that Appellant is not governed by Appellees deposit agreement or any of its

unconscionable clauses. It is therefore true that Appellant is not bound or governed by

any BofAs internal procedures of its deposit agreement/contract due to the provisions

of O.C.G.A 13-5-7, for the purpose of this case, as per case law mentioned earlier.

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 7) As adequately explained and elaborated in Appellants amended answer with

counterclaim, Appellee banks actions in the current case are replete with bad faith or a

lack of good faith or reasonable care. This makes the deposit agreement invalid due to

banks irresponsible behavior, and lack of any proper accountable individual from BofA,

who was first responsible for dishonor of Appellants check with personal knowledge for

reason & proof for dishonor which is not second hand or farther removed hearsay,

related to the subject matters of this case. Further, under common law/state law/U.S.

law/international law, a contract must, by all parties be knowingly, voluntarily, and

intentionally entered into, without existing only in part without full disclosure, and must

abide by state, and/or Federal laws, and/or international laws or the contract becomes

illegal and misrepresentative, and unenforceable & invalid. Therefore, Appellees

deposit contract which is in non-compliance of this fact is null and void. So, the

Appellant has no contractual obligation to pay Appellee.

8) There is also no contractual obligation for Appellant explicitly stated on the one

page signature card of Appellee presented as Exhibit A (R-383-472; R-754-873) with

Appellees MSJ, and in discovery. The Appellees signature card also deceitfully omits

any mention of unilateral modification of terms and conditions. Moreover, no law or

statute of Georgia or the United States is explicitly and clearly/unambiguously stated on

the one page signature card of Appellee presented as Exhibit A of its discovery

package. It must also be noted that the one page signature card mentioned there did

not constitute full disclosure to Appellant by Appellee on 1/18/01, the date/day the

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account in it was opened, and was also the only disclosure to Appellant when she

opened her account, and not Exhibit E (R-383-472; R-754-873), of the deposit

agreement document submitted with Appellees discovery package. O.C.G.A 11-4-

103(a) is also applicable in favor of Appellants above arguments as is corroborated by

case law where it was held that a bank cannot enforce agreement permitting it to act

in violation of reasonable commercial standards. Perini Corp. V. First Natl Bank,

553 F.2d 398 (5th Cir. 1977). Additional details on this issue are also given in, Measure

of damages for breach of duty by a bank in respect to collection of commercial paper,

67 ALR 1511.

9) Page 2 of the 11/20/09 opinion also quotes another portion of BofAs deposit

agreement document to erroneously affirm State Courts judgment from 2/4/09, the

portion being: [W]e also reserve the right to charge back to your accountwhich was

initially paid by the payor bankand which is later returned to us due to an allegedly

forged, unauthorized or missing endorsement,if payment is not received for any

deposit item, the amount will be charged back to your account and may create and

overdraft Appellant contends that this quoted portion is inapplicable to this case,

because it is unconscionable as it fails to eliminate the circumstance and exception (as

in this case) where a payor bank such as BofA uses self serving statements on the

basis of subjective bias/whims/conjectures/speculation to classify a deposited and paid

item as fraudulent/forged and thereby itself decides to unjustly chargeback without

collecting its funds from the maker bank, Ulster Bank here, and when it itself has

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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

affirmation of State Courts judgment. However, this citation is generally impertinent

here as it neither pertains to 3rd party checks nor the issue of Banks, but pertains to a

claim made against a State Government/County/Community entity and not a private

Bank such as BofA which has no sovereign immunity. However, the only commonality

here is that there is no valid contract between BofA and Appellant, as there was found

to be none between Youngblood and Gwinnett Rockdale Newton Community Service

Board (GRNCSB), which would actually favor Appellants arguments.

11) As pertains to Page 5 of interim Opinion memo dated 11/20/09, Appellants

arguments and Objections and requests to exclude prejudicial hearsay information

referred to in Appellants Motions in Limine (R-346-376) pertain to Objections to BofAs

conclusory allegations/labels about the check in this case being fraudulent or allegedly

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being returned due to fraud, and such arguments/objections from Appellant were not

found necessary to be separately enunciated since her persuasive cogent arguments

and citations of authority are presented in her rebuttal to BofAs response to her Motions

in Limine (R-595-607) and throughout the record (R-passim). It was error for BofA to

use its fictitious doubts from past based on rumor/hearsay on Nigerian businesses to

generally apply blanket speculation adversely on appellants check in a prejudicial

manner, although such speculation was unwarranted and unjustified here. This case

involves reputed Nigerian and International bankers and does not involve any 419

scammers, and Courts allusion to some generic 419 schemes on Page 5 to justify

BofAs speculation and paranoia is unjustified. One must wonder why payments

received by American companies such as Exxon/Mobil, Texaco (or other Oil companies

from Texas) etc., which do business with Nigeria & OPEC (Organization of Petroleum

Exporting Countries) are exempt from being branded with speculation of 419 schemes

when they also received their payments from the same Mr. Sanusi that Appellants

husband had received payment from. It must be noted that the Court/Judges are

welcome to contact Mr. Joseph Sanusi, if needed, to verify the authenticity of the check

in this case and Mr. Sanusi could gladly testify/state about its integrity and could shed

light on how he himself worked in coordination with the blessings of the Secret Services

of many countries, including the United States, when he dispatched checks for payment

on behalf of his Nigerian Government, through corresponding Banks. However,

although Mr. Sanusi, the issuer of the check in this case is a prominent Nigerian and

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African Banker, he claims that the checks he issued in the past have at times been the

target of discrimination from American Banks such as BofA, due to him being Black and

African, a disadvantaged minority considered imperfect, and due to the age old racial

slave-era animosity/differences between Whites and Blacks in general. Nevertheless,

Appellant and her husband Mr. Srinivas Vadde believe that speculation and rumor

mongering by BofA and Courts against Appellant, the check, or Mr. Sanusi in this case

is very unprofessional, ridiculous, and counterproductive to manifestation of justice.

12) On Pages 6 & 7 of its 11/20/09 opinion, Court cites OCGA 24-3-14 (b), (d), and

Hertz Corp. v. McCray, 198 Ga. App. 484, 485 (2) (402 SE2d 298) (1991) to support

admissibility of BofAs bogus affidavit of hearsay from Crystal Frierson. Firstly, this

affidavit is inadmissible as per OCGA 24-3-14, as it was not made in the regular

course of business or contemporaneously when the events occurred but made in 11/04,

unreasonably long after Appellants account was closed in 8/04, at a time when there

was no business being transacted on her account. There was also no foundation laid

for admissibility of the affidavit as per OCGA 24-3-14 (b). Appellants Motions in

Limine therefore should have been granted since BofAs affidavits based on hearsay,

and hearsay itself from unknown and unauthenticated original sources terming

Appellants check as counterfeit based on Conclusory allegations, speculation, opinions,

whims, etc. in this case, breaking the chain of evidence, is inadmissible. Plemans v.

State, 155 Ga. App. 447, 270 S.E. 2d 836 (1980). Other citations, including Opinions of

The United States Supreme Court, suggesting that such hearsay from BofA is

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inadmissible are; Clauss v. Plantation Equity Group, Inc. 236 Ga. App. 522, 512 S.E. 2d

10 (1999); Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993); General

Electric Co. v. Joiner, 522 U.S. 136 (1997). Crystal Frierson also does not have

personal knowledge on the issues of authenticity of Appellants check or the issue of

whether BofA gave a timely notice of dishonor by the midnight deadline, or about the

unauthorized debits on Appellants account since she is merely acting on hearsay and

was not the original decision maker for the actions. Further, the case cited by Court is

inapplicable here since it concerns a bench trial unrelated to 3rd 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

Page 7 of 11/20/09 opinion is also moot/inapplicable in view of Appellants above stated

logic, statutory & cited authority on inadmissibility of BofAs affidavit.

14) With respect to Courts issues raised in Pages 7 & 8 of its opinion dated 11/20/09

on denial of discovery and consequent harm to Appellant; Appellant sought answers

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from BofA on numerous crucial questions raised in her interrogatories and requests for

admissions (R-239-257; R-258-279) on the pertinent issues of authenticity of her check,

alleged dishonor, and notice of dishonor, answers & admissions to which if provided,

upon discovery being allowed and compelled by Court would have further corroborated

the facts that BofAs case is based on use of illegal conclusory allegations and

inadmissible hearsay, and that Appellants check was not legally dishonored or returned

to Appellant, is not fraudulent, was not returned by Ulster Bank, and that check was not

presented to Ulster Bank upon deposit in 2004. The harm caused to Appellant by

Courts actions on preventing discovery has been adequately described in her Motion

for Summary Judgment (R-754-873), with further details provided in her affirmative relief

claimed in her counterclaim (R-383-472) & rebuttal to Appellees MSJ (R-625-690; R-

754-873; R-878-902), as per Brown v. Brewer, 237 Ga. App. J 45, 148 (3) (5 13 SE2d

10) (1999). Details of such harm were also provided by reference in Sections XV & XVI

of her Appellate brief dated 8/21/09, and in detail in Sections XV & XVI of her first Court

of Appeals brief dated 5/26/09. Simply put, BofAs frivolous action and Courts

erroneous decisions in past had caused Appellant to be the needless subject of a rumor

mill of hearsay from BofA which caused significant loss of employment opportunities

and financial resources for Appellant, as well as caused her needless anxiety, shock,

worry, emotional trauma, pain and suffering, etc., due to libel/slander and defamation of

reputation by BofA, for which Appellant has sought financial relief & compensation of

around $344,876.54 to $500,000+ for damages.

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 15) Courts citation of Garner v. Roberts, 238 Ga. App. 738, 740 (I) (520 SE2d 255)

(1999), on Page 8 of its opinion dated 11/20/09 is inapplicable here, since that is a

generic case cite about some Dentist Dr. Marc Roberts attempting to collect the amount

of his dental services bill from patient Nathaniel Garner. The case is not a 3rd party

check case or a bank case and does not add anything substantial to this case, as this

case involves totally different banking circumstances (where BofA rendered no similar

billable services) and there is gross & clear abuse of discretion in discovery rulings of

trial court here.

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

Appellate brief containing a comprehensive listing of numerous errors made by trial

court in this regard, without reading Appellants written motions and rebuttals which are

part of the record (R-1-924).

17) As per Quarterman v. Weiss, 212 Ga. App. 563 (1) (442 SE2d 8 13) (1994), cited

on Page 10 of Court opinion dated 11/20/09, even though the law might not have

mandated that every civil case be reported at the Courts expense, Appellant contends

that it is high time such an inhumane and unconscionable law be changed for the

purpose of such Appellants financial cases, in order to avoid abuse of discretion by

trial court into bullying/forcing a defendant to attend a hearing or expend further

unavailable resources even when having already presented written arguments,

especially when the defendant has no resources available to throw away into

unnecessary Court proceedings needing transcription and when the Judge can very

well read the documents submitted and then render judgment, thus avoiding

unnecessary harassment of the defendant; especially since Appellant is litigating the

current case only to seek financial relief and it is the unjustified actions of BofA that had

financially harmed Appellant from having adequately available resources.

18) Contrary to Courts claims, the cited case law Freese v. Regions Bank, NA., 284

Ga. App. 717, 720-721 (644 SE2d 549) (2007) based on OCGA 11-4-103 (a), for its

points on Pages 11 & 12 of its opinion dated 11/20/09, in fact clearly supports

Appellants contentions that BofAs Deposit Agreement was never agreed to by

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Appellant since it was unilaterally prepared in an unreasonable manner. BofA also

did not act in good faith or exercise ordinary care when it arbitrarily labeled the

check fraudulent on speculation and whims, and failed to issue a timely notice of

dishonor to Appellant by the midnight deadline as required by UCC guidelines 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

depositor. No citation of authority or Statute proves otherwise, notwithstanding the fact

that the judges erroneous use of the quotations from an invalid BofA agreement without

reading relevant portions of the record where Appellant has already justified her

arguments and presented ample evidence and logic in her favor, make these citations

Page 19 of 30
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

Page 20 of 30
(BofA) and final payor bank (Ulster Bank); and is not applicable between the bank

(BofA) and depositor (Appellant). Moreover, one cannot clearly brush away the intent of

the legislation of the Statute that states, that a depositary bank such as BofA is also the

Payor bank to depositor, as stated in OCGA 11-4-105(2), which means that there is

no risk or burden on a depositor such as Appellant from any provisional payments

once paid by the midnight deadline of 6/14/04, which is final for all practical purposes

by any measure of commonsense reasoning for the meanings of midnight deadline

and final to have any significance.

20) Ulster bank here discovered no fraud and it is very irresponsible of Court of

Appeals to harp on such a non-event or non-occurrence in their interim opinion

document of 11/20/09 on Page 13.

21) Court erroneously ignores the definition of UCC 4-105(2) that states that a

collecting bank such as BofA which is also the depositary bank here is also a payor

bank for the purpose of first paying a customer who deposits a check, even though it

might be a collecting bank for its transaction between itself and the final payor to it,

which is Ulster Bank here. BofA cannot simply choose to charge back checks itself in a

self serving manner using conclusory allegations and circular reasoning, or be only a

collecting bank but not be a payor bank, since that would be a dysfunctional bank that

takes in checks as deposits from customers but pays out nothing in return to them.

22) Since the check was not proven to be fraudulent and BofA has been proven to

not have any authority for chargeback in this case, the case law cited on Page 13 of

Page 21 of 30
opinion dated 11/20/09, namely First Georgia Bank v. Webster, 168 Ga. App. 307, 309

(2) (308 SE2d 579) (1983) (decided under former OCGA 11-4-212), was inapplicable

against Appellant here, and it in fact favors Appellants arguments and claims for relief

discharging her of any liability to BofA in this case.

23) Court of Appeals had misconstrued on Page 14 of its opinion dated 11/20/09, as

to what Appellant means by stating that OCGA 11-4-301 and 11-4-302 supersede

provisions of OCGA 11-4-214 in this case. Appellant understands that OCGA 11-4-

302 applies to a payor bank but contends that BofA was a payor bank in this case by

virtue of being a depositary bank in this case when it paid Appellant, as established by

OCGA 11-4-105(2). What Court has failed to note is that Appellants claim in this

case is that BofA cannot abrogate its responsibilities of a Payor Bank and Statutory

provisions of OCGA 11-4-302 when it has already incurred liabilities according to

responsibilities of a collecting bank, by virtue of OCGA 11-4-214 provisions for a

collecting bank that have to abide by provisions of OCGA 11-4-302 and the meaning

of midnight deadline as well as reasonableness. There was no dishonor by Ulster

Bank and there is no proof to the contrary in the record of this case, and no self serving

statement from BofA or any blind jumping onto the bandwagon of BofAs

unsubstantiated claims by any judge, could possibly overcome BofAs insurmountable

burden of proof for Court to find and present any tangible evidence from the record to

substantiate any statement of dishonor by Ulster Bank. Further, Appellant has already

established that BofAs deposit services agreement is invalid, abrogated, and that

Page 22 of 30
Appellant never signed for all its unconscionable clauses or its conditions that call for a

waiver of protest or presentment of a timely notice of dishonor by the midnight deadline,

as presented in points 3 through 6 of this MFR.

24) Contrary to Court of Appeals claims on Page 15 of its opinion dated 11/20/09,

BofA did not satisfy requirements of code section OCGA 11-4-202. As required by

Georgia Commercial Code Ann. 109A-3508, a notice of dishonor needs to be sent

in a specified time frame to the indorser, as indicated earlier. The failure to give

requisite notice results in the discharge of the indorser of any liability according to

Georgia Code Ann. 109A-3502(1)(a). Clements v. Central Bank of Georgia, 155

Ga. App. 27; 270 S.E. 2d 194270, S.E.2d 194; (1980), also supports the above

arguments in favor of Appellant. O.C.G.A 11-4-302 (a) (1) also makes Bank of

America liable to pay Appellant for the check deposited on 6/12/04. This law clearly

states that if an item/check is presented to and received by a payor bank like BofA

(which is also a depositary bank as well as a payor bank), the bank is accountable for

the amount of the demand item (such as the check) whether properly payable or not, in

any case in which it is not also the depositary bank, retains the item beyond the

midnight of the banking day of receipt without settling for it, or whether or not it is also

the depositary bank, does not pay or return the item or send notice of dishonor until

after its midnight deadline. Also, according to Bank S. v. Roswell Jeep Eagle, Inc. 204

Ga. App 432, 419 S.E. 2d 522 (1992), when there is no valid defense alleged by

Appellee (as in this case), a payor bank such as BofA is liable to pay the holder

Page 23 of 30
(Appellant here) for amount of check it received. This statutory application of law is

supported by National City Bank v. Motor Contract Co., 119 Ga. App. 208, 166 S.E.2d

742 (1969). There is also legal precedence that prohibits a bank from debiting a deposit

account after initial credit. This has been cited in Clements v. Central Bank, 155 Ga.

App. 27, 270 S.E. 2d 194 (1980); Sabin Meyer Regional Sales Cop. v. Citizens Bank,

502 F. Supp. 557 (N.D. Ga. 1980); Bleichner, Bonta, Martinez & Brown, Inc. v. National

Bank (In ref. Micro Mart, Inc.) 72 Bankr. 63 (Bankr N.D. Ga. 1987); Landers v. Heritage

Bank, 188 Ga. App. 785, 374, S.E. 2d 353 (1988). Moreover, in Landers v. Heritage

Bank, 188 Ga. App. 785, 374, S.E. 2d 353 (1988), neither the banks claim of the

Uniform Commercial Code provisions of O.C.G.A 11-4-212/401, nor the banks claim

of its signature card (and in turn their deposit agreement) constituting a contractual

obligation for Appellant/depositor to pay Appellee/bank anything were effective to

relieve the bank in a situation similar to this case.

25) So, essentially, the Appellee/BofA, by delaying the mailing of the bank statement

for more than 30 days, until 7/15/04 (with an unproven and unsubstantiated allegation

that the check was returned, without the original check nor its copy having been

returned by 7/15/04), with a fictitious and hypothetical return date stated as 7/8/04, and

failing to give any formal legal notice of dishonor by its midnight deadline, and failing to

return the check by its midnight deadline, as required by law, precludes itself from the

right to debit Appellants account or bring a suit on contract against Appellant who is

discharged of any liability to Appellee. It is reiterated that Appellant never explicitly

Page 24 of 30
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

from Appellee as returned, by close of discovery, by 2/9/07.

26) It is unrealistic and unreasonable for Appellant to be expected to prove a

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,

anywhere in the record.

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

whims or on hearsay (contrary to Court of appeals claims), and there is no proof

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

Page 25 of 30
issue of a notice of dishonor, which the Court of Appeals cannot ignore or unjustly

brush off as Appellants selfserving statement, since there can be no possible

evidence that any human being on earth can present as proof for non occurrence of an

event such as a dishonor from Ulster Bank of Appellants check that did not take place,

or for a notice of dishonor from BofA that was never sent to Appellant.

28) It is very spurious, baseless, and irresponsible of Court of Appeals to state on

Page 15 of its opinion dated 11/20/09 thatWe also reject Vaddes claims that Bank of

America is not entitled to summary judgment because she did not know that the check

was counterfeit at the time she deposited it and to the best of her knowledge the check

is genuine and authentic. Appellant knows of no justifiable dishonor of Appellants

check deposited contrary to Judges vague and illusory statements/claims on this issue,

and has never said she would accept conclusory allegations by BofA or judges as proof

that the deposited check was counterfeit. Appellant does not know nor believe the

check to be counterfeit, and there needs to be no authority presented by Appellant to

overcome any nonexistent burden of proof or present any defense to BofAs invalid

claim for recoupment from her, of a check that has not been proven to be counterfeit at

all, notwithstanding the fact that BofA never gave any timely notice of dishonor and had

no right to charge back her account under the circumstances of this case.

29) In rebuttal to Court of Appeals points in Page 16 & 17, of its opinion dated

11/20/09, Appellant contends in rebuttal that she never agreed to her credit being

provisional and subject to revocation, and BofAs deposit agreement in this regard

Page 26 of 30
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

Srinivas Vadde presented an affidavit as a perceiving witness to Court and he is a

defense witness of Appellant, and would testify if needed as to the veracity of the

matters sworn in his affidavit which is part of the record and Appellants MSJ (Exhibit

AAA (R-383-472; R-754-873)). This Exhibit was presented by maintaining the evidence

chain, from a perceiving witness who himself received the check in the mail and directly

was informed of its authenticity from its main source, Mr. Joseph Sanusi (the issuer of

the check and the then Governor of Central Bank of Nigeria), and was admitted into

evidence on behalf of the Appellant under the best evidence rule of the Civil Practice

Act, pursuant to O.C.G.A 24-5-1, O.C.G.A 24-5-2, and/or O.C.G.A 24-5-3.

30) It is unreasonable to expect Appellant to incur any further costs in this case to

fund witnesses to fly in from overseas to satisfy BofAs or the Courts curiosity in this

matter (even though there is no adverse evidence in any tangible manner against

Appellants check that was deposited), or to expect defense witnesses to fly in from

overseas to testify for matters of a simple check clearance transaction. Notwithstanding

those facts, Joseph Sanusis name was also given as a possible defense witness to trial

court and the scope of his testimony on the authenticity of the check was also stated

clearly (R-196-201). Mr. Sanusi, if needed, could gladly elaborate on his connections

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

used to issue or payments that he made to contractors of his government, including to

Appellants husband, Mr. Srinivas Vadde, and can expound on the authenticity of the

check he issued, should the law provide with funding for Appellant and the honorable

Court and the Judges be willing to grant and provide funds for Mr. Sanusi to come and

testify in this regard in favor of Appellant if necessary.

31) The Court of Appeals has not presented any proof or pointed to any evidence in

the record that proves in any tangible manner that BofA did not itself simulate

hypothetical dishonor, acting in a self-serving manner, based on a whim. Hence, the

arguments of Court of Appeals Judges, that the Appellants statements in this regard

averring to the legitimacy of the check given to her husband by a prominent Nigerian

Banker, Mr. Sanusi, are only self-serving, are moot and meritless. The Court of

Appeals cannot justifiably have one standard for Bank of Americas evidence and

another for Appellants, and hence Appellants arguments in this regard are facts that

are within the scope of this case.

32) The case law, White Missionary Baptist Church v. Trustees of First Baptist

Church, 268 Ga. 668, 669 (1) (492 SE2d 661) (1997), as cited by Court on Page 16 of

its opinion dated 11/20/09, is inapplicable to this case because, unlike in that case

where collective statements from First Baptist Church were considered inadmissible

hearsay, there is only a statement from one individual, Mr. Joseph Sanusi, presented

Page 28 of 30
here from a perceiving witness, Srinivas Vadde, who has been in direct contact with the

individual; that has been presented in an affidavit of support to Appellant, in the record

of this case, along with her Motion for Summary Judgment. Therefore, Sanusis

statements that the check was genuine, authentic, & valid, entered into evidence under

the best evidence rule, through Mr. Srinivas Vadde in an affidavit, is not impermissible

hearsay for the purpose of granting Summary Judgment in favor of Appellant.

V. CONCLUSION

1) The bottom line as per Appellants defense of estoppel is that if the money in

Appellants account was not meant to be spent, BofA should not have credited the

account for the check deposited even once, as it did on 6/14/04. BofAs actions of

clearing the check first and arbitrarily and negligently charging back her account without

returning her check caused this situation, and prevented her from being able to

use/cash the check with other alternate banks in the world in 2004, whether they are in

the U.S., India, or in Europe. Hence, Appellants defense of estoppel precludes

recovery for BofA. First Ga. Bank v. Webster, 168 Ga. App. 307, 308, S.E.2d 579

(1983). Burke v. First Peoples Bank of N.J., 412 A2d 1089 (N.J. Super 1980). Further,

BofA never issued any cash in Appellants account but only credit units for the deposit,

and Appellant never withdrew any electronic credit units in excess of her deposit. So,

BofA never had any right to claim any funds and money it did not give Appellant, nor did

it have any right to deny Vaddes funds. The check that Mr. Sanusi gave to Mr. Vadde

was valid, not fraudulent, and not counterfeit, as Mr. Sanusi had stated and had been

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

paranoia (and perhaps other ulterior politically/racially prejudiced conspiratorial motives

to harass Appellants politically well connected immigrant family) led to its errant

chargeback of Appellants account, when it had no right to do so under the

circumstances of this case. BofA not only wrongly dishonored Appellants check but did

not provide any timely notice of dishonor to Appellant. As a matter of law, the trial court

erred in granting summary judgment to Bank of America, in denying summary judgment

to Appellant, and in dismissing Vaddes counterclaim with prejudice.

2) Therefore, Appellant requests Grant of this Motion for Reconsideration, dismissal

of BofAs claim and case, and grant to Appellant of an award of around $344,876.54 to

$500,000+ in proximate damages from Bank of America, as stated in Sections XV & XVI

of her Appellate Brief.

Respectfully Submitted,

Signed, this 30th day of November, 2009: ___________________

Subbamma V. Vadde

Page 30 of 30
 CERTIFICATE OF SERVICE

This is to certify that I have this 30th day of November, 2009 served a copy of the

foregoing correspondence on: Motion for Reconsideration, for Civil Appeal Docket#

A09A1714, in The Court of Appeals of Georgia, by hand delivery/certified U.S. Mail, to

the following people at the given addresses:

(1) Mr. William Martin, Clerk, Court of Appeals of Georgia,

Suite 501, 47 Trinity Avenue, S.W.,

Atlanta, Georgia 30334. Phone: (404) 656-3450

(2) Mr. Michael Cohen

Trauner, Cohen, & Thomas

5901 Peachtree Dunwoody Road

Suite C-500, Atlanta, GA 30328 Phone: (404) 873-8000

Respectfully Submitted,

Subbamma V. Vadde

2630 Garland Way, Duluth, GA 30096, U.S.A

Phone: (404) 453-3531