vadde v. bank of america original overlooked & ignored georgia court of appeals brief 52609

8/8/2019 Vadde V. Bank of America Original Overlooked & Ignored Georgia Court of Appeals Brief 52609

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Submitted On: May 26, 2009

In The Court of Appeals of Georgia

Brief of Appellant

Subbamma V. Vadde

Subbamma V. VaddeAppellant

Vs.

Bank of AmericaAppellee

Civil Appeal Docket Number:A09A1714


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IN THE COURT OF APPEALS OF GEORGIA

Subbamma V. Vadde *Appellant *

* Civil Appeal Docket Number: A09A1714Vs. *

*Bank of America *

Appellee *

AMENDED BRIEF of APPELLANT

Comes now, the Appellant, Subbamma Vadde, in the above styled action, and timely files this Amended Civil Appellate Brief, pursuant to Rules 22-25 of

the Court of Appeals of Georgia with the 30 pages limit, appealing to the Court of Appeals of Georgia to reverse the past judgments and order entered by

the State Court of Cobb County in this action on 2/4/09 (R-915-916), postmarked as mailed to appellant on the 9th of February, 2009, which was received

by appellant around 6 PM on the 10th

of February, 2009.

I. (A) STATEMENT OF THE CASE

Appellee filed an invalid suit on contract around the 14th

of April 2006, without basis for any justified cause of action. Appellant filed a Motion to Dismiss

on 4/28/06 (R-13-23) and amended it on 6/1/06 (R-52-76), which was erroneously denied on 7/5/06 (R-97-98). Appellant filed an amended answer with

counterclaim on 7/26/06 (R-119-183) and amended the answer and counterclaim further on 10/13/06 (R-383-472). Appellant filed her Motions for

Discovery (R-101-103), related Supplements (R-231-238), and Notice to Produce (R-473-483), on 7/14/06, 9/5/06, and 10/26/06 respectively, which

Appellee failed to honor in any just or tangibly sufficient manner, which necessitated Appellants filing of additional interrogatories and requests for

admissions. Appellant filed her interrogatories and requests for admissions on Appellee around 8/5/06 (R-204-220) and 9/5/06 (R-239-257; R-258-279)

which largely went unanswered too. Around 9/18/06, Appellant moved the State Court of Cobb county for an order compelling discovery (R-325-341)

(which was unjustly denied around 1/16/07, (R-747-750)), and Appellee filed for a protective order to hinder discovery around 9/8/06 (R-280-324) (which

was unjustly granted around 1/16/07, (R-747-750)). Appellant also filed a Motion for Sanctions against Bank of America around 11/21/06 (R-560-594)

which was erroneously denied on 1/16/07 (R-747-750). Appellant filed a Motion in Limine to Exclude Prejudicial Hearsay Information and Evidence (R-

363-376) and Motion in Limine to Disqualify Witnesses of Appellee (R-346-362) around 10/4/06, which were temporarily denied around 1/16/07 (R-743-

746) on the condition and understanding that they would be reconsidered with their preserved timely objections raised therein for appropriate granting

should there have been a trial, although there was no trial of this case. Appellee filed its Motion for Summary Judgment on 11/17/06 (R-505-559) and

Appellant issued her rebuttal to it around 12/5/06 (R-625-690). Appellant filed a Motion for Judgment on the Pleadings around 12/4/06 (R-608-611) which

was unjustly and erroneously denied on 1/16/07(R-743-746).

Appellant filed her Motion for Summary Judgment (R-754-873) around 2/22/07 and her rebuttal to Appellees comments (R-878-902) around 3/21/07,

which had unnecessarily been held in abeyance by the State Court of Cobb County without a decision on them until 2/4/09, to unjustly procrastinate this

case and harass her. During the course of the litigation from April 2006 to date, Appellant filed numerous Responses and Rebuttals, to each and every

claim, argument, and Motion of Appellee, which are part of the record (R-13-45; R-52-76; R-82-96; R-119-203; R-325-341; R-377-382; R-499-502; R-560-

594; R-595-607; R-625-690; R-693-697; R-710-717; R-718-721; R-722-724; R-726-731; R-732-740; R-754-873; R-878-902; R-903-914; R-920; R-923-

924). Appellant also filed a Motion to Strike Appellees invalid affidavits that were based on hearsay without personal knowledge of affiants (R-618-624;

R-726-731). However, Appellants said Motion for Summary Judgment was unjustly and erroneously denied and Appellees said Motion for Summary

Judgment was unjustly and erroneously granted by State Court of Cobb County around 2/4/09 (R-915-916). Appellant filed a notice of appeal around

2/19/09 (R-1-4) and an amended notice of appeal (R-5-8) around 3/16/09. Appellant showed in her amended answer with counterclaim, pleadings with

court, and in summary, in her motion for summary judgment, that there is no fact or issue to be determined and that the Appellant is entitled to a judgment

in favor of Appellant against the Appellee on her counterclaim against Appellee, as a matter of law, and to dismissal of Appellees suit on contract, in the

best interests of judicial economy and manifestation of justice in this case, immediately.


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I. (B) PRESERVATION OF GROUNDS FOR APPEAL ASSERTED IN ENUMERATION OF ERRORS

1. As to the insufficiency of evidence to grant Appellees Motion for Summary Judgment (R-505-559), the issue was raised in Appellants Motion forSummary Judgment (R-754-873) around 2/22/07, and in Appellants Rebuttal and Response to Appellee on the issues (R-878-902), around March

21, 2007, and Appellants numerous Objections raised in her Motions and Pleadings to the court to date as detailed in Section 1. (A), above.

Further, numerous other errors of law made, as well as the abuse of discretion by the State Court of Cobb County depicted in this case in past, are

enumerated and elaborated upon in the future sections of this brief.

2. It was error for Appellants Motion for Judgment on Pleadings, dated 12/4/06 (R-608-611) to have been denied on 1/16/07(R-743-746), despite

Appellants strong & valid arguments, logic, objections, and citations of law presented therein.

3. Appellants Motion in Limine to Exclude Prejudicial Hearsay Information and Evidence (R-363-376) and Motion in Limine to Disqualify Witnesses of

Appellee (R-346-362) filed around 10/4/06, should also have been granted immediately by 1/16/07 (R-743-746), based upon Appellants arguments,

logic, objections, and citations of law presented therein.

4. It was error for Appellants Motion to Compel Discovery, dated 9/18/06 (R-325-341) to have been denied on 1/16/07 (R-747-750), based upon

Appellants arguments, logic, objections, and citations of law presented therein. It was also error for State Court of Cobb County to have grantedAppellees motion for protective order, around 1/16/07, (R-747-750), hindering discovery in this case (although it turns out now that Appellee had

erred in its actions and had no adverse evidence against Appellant in this case, to begin with). Moreover, it was gross error for Appellants Motion

for Sanctions, dated 11/21/06 (R-560-594) to have been denied on 1/16/07 (R-747-750), despite Appellants strong and valid arguments, logic,

objections, and citations of law presented therein.

5. It was error for Appellants Motion to Record All Proceedings (R-344-345) filed 10/5/06 to be denied around 1/16/07 (R-743-746), especially since

Appellant was asked to appear for a Motions hearing (R-503-504) on 12/18/06, despite Appellants arguments, logic, objections, and citations of law

presented therein, and those presented in her Requests for Waiver of Motions Hearing (R-693-697; R-722-724).

6. Appellants Motion to Dismiss, dated 4/28/06 (R-13-23) and amended and filed on 6/5/06 (R-52-76) should not have been denied on 7/5/06 (R-97-

98), based upon Appellants arguments, logic, objections, and citations of law presented therein.

7. It was error to dismiss Appellants counterclaim (R-383-472) without any just cause or reason over the numerous valid objections raised and grounds

propounded by appellant in her Motion for Summary Judgment (R-754-873).8. It was error for State court to use invalid case law in its judgments (R-915-916) that is inapplicable to Appellants case.

Appellant contends that the State Court of Cobb County erred in the above case by acting in a prejudicial manner against appellant, and abused its judicial

discretion by violating appellants Constitutional Rights, especially her First Amendment Right to Protest. Appellant asserts and objects that the

aforementioned judgment of 2/4/09 is contrary to evidence and justice, against the weight of the evidence, and involved illegal admission or exclusion of

evidence, despite Subbamma V. Vaddes objections to the Cobb County Court made prior to 2/4/09 too, as documented in all her written Motions,

Replies/Responses and Rebuttal documentation. Appellant also contests that there were numerous errors of law that were made by the State Court of

Cobb County that misled it to come to baseless conclusions and erroneous judgments in this case on 2/4/09. The State Court of Cobb County

erroneously granted the Appellee, Bank of Americas Motion for Summary Judgment and denied Subbamma Vaddes Motion for Summary Judgment,

whimsically, prejudicially, illogically, and without reason. Appellant further contends that the State Court of Cobb County applied inapplicable case law and

erroneous principles not applicable to Appellants case in rendering an erroneous and biased judgment against Subbamma Vadde, by presuming that

Appellee could recover from Appellant Subbamma V. Vadde, $42,200.96 principal, prejudgment interest in the sum of $6,021.42, additional pre-judgment

interest at the statutory rate of 7.0% per annum, and post judgment interest at the legal rate, even though Subbamma V. Vadde owes nothing to Bank of

America. Appellant, Subbamma V. Vadde also contends that the State court of Cobb County erred by dismissing with prejudice appellants Counterclaim

against Bank of America for around US $344,876.54 and additional pre and post judgment interest (at the appropriate legal rate) on the same.

Appellant filed her original notice of appeal around 2/19/09 (R-1-4) within 30 days of receipt of aforementioned erroneous judgment and order received on

2/10/09, pursuant to the Rules of the Court of Appeals of the State of Georgia, and Federal Rules of Civil Procedure (FRCP), Rule 60, and all other

O.C.G.A Statutes and applicable laws allowing for relief to appellant by setting aside/vacating State courts verdict/Judgment and reversing the judgments


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of the State court from 2/4/09 in the above case immediately. Appellant also lawfully filed an amended notice of appeal (R-5-8) around 3/16/09. Since

there was no trial in this action, there are no trial transcripts in this case. There are no transcripts from the motions hearing the court conducted on12/18/06 either, to the best of Appellants knowledge. The State Court of Cobb County therefore was requested to forward all other evidence, including

copies of all written Motions, Replies and Rebuttals issued by Subbamma Vadde against Bank of America, including the Motions pertaining to the Motions

hearing on 12/18/06, and the entire record of proceedings, to the court, to be filed for inclusion in the record on appeal. Appellant essentially appeals the

grant of Bank of Americas Motion for Summary Judgment and denial of Subbamma V. Vaddes Motion for Summary Judgment and appeals against the

dismissal of Subbamma V. Vaddes counterclaim against Bank of America, unless Bank of Americas claims and case is dropped in its entirety and/or it

offers to settle with Subbamma Vadde on her counterclaim against Bank of America immediately. Appellant also requests this court to issue judgment

denying Bank of Americas Motion for Summary Judgment and issue judgment granting Subbamma V. Vaddes Motion for Summary Judgment and her

requests for financial relief for around $344,876.54 based on Subbamma V. Vaddes Counterclaim against Bank of America.

II. (A) STATEMENT OF JURISDICTION

The Court of Appeals, rather than the Supreme Court has jurisdiction of this case on appeal for the reason that jurisdiction is not specifically conferred

upon the Supreme Court by Article VI, Section VI, Paragraphs II or III of the Georgia Constitution of 1983, and jurisdiction is therefore in the Court of

Appeals of Georgia pursuant to Article VI, Section V, paragraph III of the Georgia Constitution of 1983, unless the State Court of Cobb County voluntarily

or otherwise immediately and/or in the meanwhile reconsiders its original order from 2/4/09, reverses its judgments of 2/4/09 of its own accord and

dismisses Bank of Americas case immediately, based on the filing of Appellants Amended Notice of Appeal dated 3/13/09 and her related

correspondence to State Court of Cobb County, dated 4/13/09 and submitted around 4/14/09.

II. (B) DETAILS OF ENUMERATION OF ERRORS PURSUANT TO O.C.G.A 5-6-40

1. Appellants Motion for Summary Judgment (R-754-873) should have been granted and Appellees Motion for Summary Judgment (R-505-

559) should have been denied:Appellant submitted her rebuttal to Appellees motion for summary judgment on or about December 2, 2006 (R-

625-690). Appellants rebuttal to Appellees motion dated 11/20/06, completely defeated Appellees invalid case and action and bogus affidavits, by

providing Appellants supporting memorandum and facts of law thoroughly with every relevant legal, statutory and factual aspect of this case. On

December 18, 2006, the parties appeared before the court and argued their respective pleadings including Appellants response and rebuttal to

Appellees motion for summary judgment. Appellee submitted no written response or rebuttal to Appellants rebuttal dated 12/2/06 within 30 days or

by around 1/2/07, thereby granting Appellees acquiescence to Appellants claims by default, as per Rule 6.2 of Uniform Superior/State Court Rules.

Appellees motion for summary judgment and its action against Appellant is therefore already defeated. Appellant also turned in an extremely

thorough motion for Summary Judgment of her own on her counterclaim against Appellee on or around the 22nd of February 2007, which should

have been granted (R-754-873; R-878-902). As per O.C.G.A 9-11-56(c), if there is no evidence sufficient to create a genuine issue as to any

essential element of plaintiffs (Bank of Americas) claim, that claim tumbles like a house of cards; as in this case. All of the other disputes of fact are

rendered immaterial. Holiday Inns v. Newton, 157 Ga. App. 436 (278 S.E. 2d 85) (1981)1

2. Appellants Motion for Judgment on Pleadings (R-608-611) should have been granted: Appellant showed and stated in her motion and rebuttal

to Appellees response (R-710-717) that Appellees pleadings do not validly deny or dispute any of Appellants allegations, defenses, and claims

against Appellee in her amended answer with counterclaim and in her pleadings, in a sufficient manner. Appellants allegations, defenses, and

claims against Appellee were hence to be regarded as true even then, since there were no issues of fact remaining and a trial was unnecessary for

the case and Appellant was entitled to a judgment in favor of Appellant against Appellee in the interests of judicial economy based on the pleadings

submitted by around 12/04/06. In deciding a motion for judgment on the pleadings, the court must determine whether the undisputed facts

appearing from the pleadings entitle the movant to judgment as a matter of law. Rolling Pin Kitchen Emporium, Inc. v. Kaas, 241 Ga. App. 577, 578,

527 S.E.2d 248, 249 (1999). A review of the pleadings demonstrates that Appellant's claims and defenses had been established as a matter of law

. Further arguments justifying this fact are presented in

Sections IV through XVI of this brief.

1 All citations in this Brief are from Lexis Nexis 2009 and Westlaw 2009, with permission from Thomson Reuters/West.


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in the instant case and no issue existed to support the viability of Appellee's claims, notwithstanding the fact that the record contains no responsive

pleading by Appellee to Appellants answer and Counterclaim (R-383-472) anyway.3. Appellants Motions in Limine (R-363-376; R-346-362) should have been granted: Appellant had protested and moved the court to exclude

prejudicial hearsay information pursuant to the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and

the Georgia Constitution. Plaintiffs case is based on rumors and prejudicial and inflammatory hearsay remarks from unknown and unaccountable

sources with speculative allegations on Appellants check. Rumors from unknown sources are hearsay. Case precedence exists where trial court

properly refused to allow witness to testify as to a rumor he heard from an unknown source on grounds that it was inadmissible hearsay. The

relevant issue is cited in Plemans v. State, 155 Ga. App. 447, 270 S.E. 2d 836 (1980). Other citations that exist and support the fact that hearsay

testimony has no probative value, and that hearsay evidence, as from Appellee in this case, is illegal, unreliable, and inadmissible are; Clauss v.

Plantation Equity Group, Inc. 236 Ga. App. 522, 512 S.E. 2d 10 (1999); and Citations in the Opinions of United States Supreme Court in the

following case law: Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho

Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999). Therefore, Appellants Motions in Limine to Exclude Prejudicial Hearsay and Disqualify Witnesses

should have been granted. McMillen v. 84 Lumber, Inc. 538 Pa. 567, 569, 649 A. 2d 932, 933 (1994). Further arguments supporting Appellantsassertions on these aspects can be found in Appellants rebuttal to Appellees response to these motions (R-595-607).

4. Appellants Motion to Compel Discovery (R-325-341) and Appellants Motion for Sanctions (R-560-594) should have been granted:Appellee, Bank of America, should have been sanctioned for failing to comply with State and Federal Rules of Civil Procedures, for failing to respond

completely to all questions of Appellants first set of interrogatories, for giving evasive and evidently false and/or self contradictory answers to

Appellants first request for admissions, and for complete failure to respond to Appellants second interrogatories and second requests for

admissions, and for bad faith abuse of the judicial process in needlessly and vexatiously increasing the cost/expense of litigation to Appellant. It is

totally unjust to take adverse decisions against Appellant without even having discovery and clear answers from Appellee to Appellants crucial

questions and issues raised in her second interrogatories and second requests for admissions (R-239-257; R-258-279), calling for a reversal of

judgments from State Court of Cobb County in this case. The discovery procedure is to be given a liberal construction in favor of supplying

defendant with facts without reference to whether the facts sought are admissible for the action. Bullard v. Ewing, 158. App. 287, 279, S.E. 2d 737

(1981). Since the information sought by Appellant from Appellee in this case was reasonably calculated to lead to the discovery of admissibleevidence, and did not fall within any guidelines for the entry of a protective order, it would not have been error to compel its discovery and grant

sanction for non compliance, therewith, even if such information/evidence might have been hypothetically inadmissible if discovered. Ambassador

College v. Goetze, Cert. denied, 444 U.S. 1079, 100 S.Ct. 1029, 62 L. Ed. 2d 762 (1980). Pursuant to Georgia laws related to Rules of Discovery

and Disclosure and Sanctions for non compliance, O.C.G.A 9-11-34, and/or O.C.G.A 9-11-26, and/or O.C.G.A 24-10-26, and/or O.C.G.A 9-

11-33, and/or O.C.G.A 9-11-36, and/or O.C.G.A 9-11-37, and Federal Rules of Civil Procedure, Rule 11, courts may impose sanctions on their

own or on motion by a defendant. See North American Trading Corp. v. Zale Corp. 73 F.R.D 293 (S.D. N.Y. 1979). National Hockey League v.

Metropolitan Hockey Club, 427 U.S. 639 [49 L.Ed. 2d 747] (1976). Parelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120 [107 L.Ed. 2d

439] (1989). Hence, Appellants Motion for Sanctions should have been granted. Further compelling arguments and citations in support of granting

of Appellants Motion to Compel Discovery and Motion for Sanctions are given in her Motion for Sanctions and rebuttal to Appellees response to it

(R-732-740).

5. Appellants Motion to Record All Proceedings (R-344-345) should have been granted and/or Appellants Request for Waiver of MotionsHearing (R-693-697; R-722-724) should have been granted: It was error for State Court of Cobb County to ask Appellant to appear for such

hearing despite Appellant having submitted written arguments in her Motions addressing all essential issues, the contents of which are legally

deemed to have been heard without having to physically appear for a hearing. If the adverse party is given the opportunity to respond, then the party

has been heard within the meaning of O.C.G.A 9-11-56. Appellant had already responded with a Motion for Judgment on Pleadings around

12/4/06, and hence had been heard and did not need to attend any hearing. Logical conclusions and legal citations of authority in support of

Appellants logical arguments on these aspects were presented in her Request for Waiver of Hearing, (R-693-697) & Request for Waiver of

Motions Hearing, (R-722-724), and rebuttals to Appellees responses (R-499-502). There was also a case where it was not error for the court to

rule on a summary judgment motion in accordance with known rules without an oral argument hearing, where neither party requested such a


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hearing, as is the case with the parties in this case. McKensie v. Seaboard Coast Line R.R., 184 Ga. App. 233, 361 S.E.2d 235 (1987); Val Preda

Motors v. National Uniform Serv. 195 Ga. App. 443, 393 S.E. 2d 728 (1990). Notwithstanding the fact that a Motions hearing was not necessarybased on Appellants written objections and arguments, it was error for Cobb County court to deny Appellants Motion to Record All Proceedings

while simultaneously requiring an unnecessary hearing.

Nevertheless, Appellant made general and specific oral objections to hearsay and speculation and to Appellees claims of case in court.

Appellant also reiterated her general and specific objections to Appellees claims of this case in Appellants writings, by reference, at the Motions

hearing on 12/18/06. However, at the Motions hearing on 12/18/06, Appellant was informed by Judge Irma Glover of the State court of Cobb County

that she would not read/go through the written Motions and responses or Rebuttals of Appellant. Therefore, adverse decisions made by State Court

of Cobb County in this case against Appellant in the past (without reading/considering/going through Written Arguments, Responses, Rebuttals, and

Motions of Appellant), were erroneous acts and prejudicial against Appellant. Further, at the Motions hearing on 12/18/06, Appellant was also

discriminated against and prejudicially asked as to how long she had been in the United States, an issue that ought not to concern the State Court of

Cobb County for a mere 3rd

6. Appellants Motion to Dismiss (R-13-23; R-52-76) should have been granted: Appellee had no valid cause of action, and its action wasbaseless and frivolous, and in violation of laws of the United States Uniform Commercial code (UCC) and protections for banking customers such as

Appellant provided therein (UCC 4-401, UCC 4-402, and UCC 4-302), discharging a customer like Appellant from liability in this case.

Appellees suit on contract was baseless and in violation of Georgia laws governed by Title 11, Article 3, such as O.C.G.A 11-4-402, O.C.G.A 11-

3-502, O.C.G.A 11-4-301, and O.C.G.A 11-4-302, applicable to negotiable instruments (such as Appellants check). Appellee Banks claim was

founded on an erroneous assumption leading to unjust circular reasoning, caused by arbitrary rumors and whims stemming from conjecture and

hearsay without any valid basis. Further, Appellee in this case exercised insufficient service of process, failed to state any valid claim on which relief

could be granted, errantly attempted to apply inapplicable contract law to a negotiable instrument, failed to join the maker bank of the check and the

international issuers of the check in its action, and failed to give appellant any valid timely notice of dishonor. Therefore, Appellants Motion toDismiss should have been granted. Further arguments justifying grant of Appellants Motion to Dismiss are given in her rebuttal to Appellees

response to the motion (R-82-96) and in Sections IV through XVI of this brief.

party international check cashing transaction; notwithstanding the fact that Appellant is a legal immigrant of the United

States and that her husband/family has honorable high level Political connections in the United States of America. These collective set of eventsand court actions in the past indicate gross errors of law, abuse of the legal/court system to perpetuate whimsical dictates; not based in objectivity,

logic, or reason; but based on bias, prejudice, and abuse of judicial discretion, necessitating reversal of judgments in this case from 2/4/09.

7. Appellants Counterclaim (R-383-472) should have been granted: Since Appellant has sought affirmative relief with sufficient and numerousvalid grounds/basis, in her amended answer, counterclaim, and motion for summary judgment, her counterclaim should have been granted and must

be granted. This reasoning is also supported in Brown v. Viberty County, 247 Ga. App. 562, 544 S.E.2d 738 (2001). The only way this case and

Appellants counterclaim can now end is if Appellee awards a settlement on Appellants counterclaim, or other affirmative financial relief on her

counterclaim to Appellant based on judgment by the honorable court in Appellants favor, or if Appellee is shut down as a bank/ceases to exist. In

general, if a counterclaim has been pleaded by Appellant prior to service upon the Appellant of Appellees request to dismiss, the counterclaim

cannot be dismissed against the Appellants objection unless the counterclaim can remain pending for independent adjudication by the court through

a settlement or judgment by the judge in favor of Appellant. Stanley v. Stanley, 244 Ga. 417, 260 S.E.2d 328 (1979). Further, as per Appliance

Buyer Corp. v. Prospect National Bank of Peoria, 505 F. Supp. 163, 164 (C.D. Ill. 1981), although Appellee bank as a sender bank might beexcluded from obtaining damages directly from a Federal Reserve Bank, for its negligence in collection, there is nothing that prohibits Appellant from

seeking damages from Appellee bank, and nothing prevents the immediate award of financial relief for damages from Appellee to Appellant through

Appellants counterclaim in this action. Further arguments justifying this fact are presented in Sections IV through XVI of this brief.

8. State court used invalid case law in its judgments (R-915-916) that is not applicable to Appellants case: The case law used to supportdecisions against Appellant was Laus Corp. v. Haskins, 261 Ga. 491 (1991). However, ironically, this case law does not pertain to any 3rd party

check and is not only inapplicable to justify any decisions against Appellant in this case, but in fact goes to prove several points supporting

Appellants claims against Appellee Bank to render Court of Appeals judgments reversing State Courts judgments immediately, without this case

having to be dragged any further to any other court, for Appellant, Subbamma Vaddes victory on all issues in this case.


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The Haskins case involved a case where the Haskins as patrons were robbed and injured by two men in the parking lot adjourning a

restaurant they were patrons of. There, the trial court granted summary judgment to the restaurant, the Court of Appeals reversed, and the SupremeCourt of Georgia granted certiorari and reversed the Court of Appeals. The plaintiff Haskins had brought an action against the restaurant alleging

that it failed to provide adequate warning or security for its patrons. However, the Haskins case neither involved a case on contract by a plaintiff

Bank, nor did it involve any 3rd

Coming to the issues of claims of negligence involved in both cases, negligence by the restaurant is claimed by plaintiff in the Haskins case

whereas negligence by the Bank is claimed by Appellant in her counterclaim against the Appellee bank in this case. The Appellee bank is the

negligent party here and has no claim of negligence against Appellant since it is precluded by the Appellants defense of estoppel (as explained in

Section XII of this brief). First Ga. Bank v. Webster, 168 Ga. App. 307, 308, S.E.2d 579 (1983). The injured and aggrieved party here is the

Appellant, and not the Appellee bank which is the cause of its frivolous and abusive litigation in the first place. As per Sutter v. Hutchings, 254 Ga.194, 196-197 (327 S.E.2d 716) (1985) (quoting Prosser, Law of Torts, 4

party international checks or any banking/financial transactions on negotiable instruments, with a midnight deadline to

follow, according to the United States Uniform Commercial Code (UCC), and hence is inapplicable as any standard in this case by far. Besides, the

plaintiff did not prevail in that case and if there is any analogy to adopt from that, it is that the plaintiff, Bank of America should not prevail in this case

either.

th

ed., 30 (1971)), the traditional elements of a negligence case are: (1) A

duty, or obligation, recognized by law, requiring the actor to conform to a certain standard of conduct, for the protection of others against

unreasonable risks, (2) A failure on his part to conform to the standard requiredClearly, criteria and standards in (1) and (2) were violated by

Appellee bank when it accepted Appellants check and/or honored it, and did not give a timely notice of dishonor by the midnight deadline as

mandated by UCC guidelines (explained in detail in Section X of this brief); (3) A reasonable close causal connection between the conduct and the

resulting injury, (4) Actual loss or damage resulting to the interests of the other; Clearly, criteria in (3) and (4) are also satisfied in favor of Appellant

because abusive litigation by Bank of America caused Appellant to file her counterclaim and claims against Appellee (explained in detail in Sections

XV and XVI of this brief). Further, wrongful dishonor caused by Appellee bank is a tort for which punitive damages can be assessed. Fidelity Natnl.

Bank v. Kneller, 194 Ga. App. 55, 390 S.E.2d 55 (1989). The issues of negligence of Appellee, Bank of America, claimed by Appellant are clearly

flagrant and self evident and established objectively in this case as explained in Appellants Motion for Summary Judgment (R-754-873), whereas

those in the Haskins case were open to subjective interpretation on totally different and unrelated non-banking circumstances. Further argumentsjustifying Appellants claims on these issues are presented in Sections IV through XVI, especially Sections XV and XVI of this brief.

III. ARGUMENT AND CITATION OF AUTHORITY AS WELL AS APPLICABLE STANDARD OF REVIEW

1. Discovery rulings: Control over discovery including the imposition of sanctions is reviewed for "clear abuse of discretion." Time Warner

Entertainment Co. v. Six Flags Over Georgia, 245 Ga. App. 334, 350 (3) (b) (537 SE2d 397) (2000). It was clear abuse of discretion for State Court

of Cobb County to hinder discovery favorable to Appellant in this case by blindly exhibiting a county based bias to actions of hooliganism from Bank

of Americas errant branches. It was abuse of discretion to deny Appellants Motion to Compel Discovery (R-325-341) and Appellants Motion for

Sanctions (R-560-594). It was gross abuse of discretion and clear error of law to grant an unjustified protective order to Appellee (R-747-750) to

mask its ignoble acts against Appellant.

2. Evidentiary ruling: Decision to admit or exclude evidence including relevant evidence is reviewed for abuse of discretion. Dept of Transp. v.

Mendel, 237 Ga. App. 900, 902 (2) (517 SE2d 365) (1999). Appellants Motions in Limine to Exclude Prejudicial Hearsay Information and Evidence(R-363-376) and Motion in Limine to Disqualify Witnesses of Appellee (R-346-362) and Motion to Suppress Evidence (R-377-382) filed around

10/4/06, should have been granted immediately upon filing as per the discovery available to date. It was error and tantamount to blackmail to

attempt to preempt or fabricate bogus evidence through abuse of discretion by hibernating or holding the Motions in abeyance in the past, even

though there is no evidence against Appellant and no real qualified witness against Appellant.

3. Construction of a contract: Reviewed de novo on appeal. Question of law for the trial court unless after the application of the rules of construction,

the contract remains ambiguous. Sagon Motorhomes v. Southtrust Bank of Ga., N.A., 225 Ga. App. 348, 349 (484 SE2d 21) (1997). This case

involves a mere 3rd party international check cashing transaction and does not pertain to any contract between Appellant and Bank of America.

Appellant has no contract with Bank of America. This case on contract is hence an abuse of the legal system to harass Appellant and her husband


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who are legal immigrants in the United States, although they could have cashed this check in other countries, including the European Union or India,

where they are from originally, without undue harassment or delay; had Bank of America not messed up this simple check cashing transaction by itsincompetence, speculation, and other bias induced illogical and interpretive scheme based actions. Further points in substantiation of these

arguments are presented in Sections IV through XVI of this Appellants Brief in general, and in Section VII, in particular.

4. Grant of summary judgment: On appeal of a grant of summary judgment, the appellate court must review the evidence de novo to determine

whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of

law. Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998). Evidence was lacking and insufficient to support Judgments of trial court in this

case. Trial court has abused the court system in this case to unjustly burden shift on Appellant through abuse of discretion with whimsical dictates.

Cobb County State Courts judgment was against Weight of evidence and/or Preponderance of evidence as evidenced by Appellants Motion for

Summary Judgment (R-754-873). For an inference to be sufficient to create a genuine issue of fact precluding summary judgment for Appellant, it

must be reasonable and must amount to more than mere speculation, conjecture, or possibility, which is not the situation in this case with Bank of

America (BofA) (R-505-559). Kmart Corp. v. McCollum, 2008, 290 Ga. App. 551, 659 S.E.2d 913, certiorari denied.

Denial of a motion for summary judgment decides nothing except that, under the evidence before the court at that time, no judgment can berendered as a matter of law and the previous denial of summary judgment does not preclude a subsequent granting thereof on the basis of an

expanded record. Graham Bros. Const. Co., Inc. v. Scaboard Coast Line R. Co., 1979, 150 Ga. App. 193, 257 S.E.2d 231. Ellington v. Tolar Const.

Co., 1977, 142 Ga. App. 218, 235 S.E.2d 729. Therefore, even though State Court of Cobb County erred in its judgments on 2/4/09 by improperly

ignoring valid written arguments and points proving Appellants claims in this case, the Court of Appeals of Georgia can and must very well now

reverse the judgments of State Court and grant Appellants requests based on her counterclaim from Appellants Motion for Summary Judgment and

Appellants Rebuttals, upon consideration of the written record (R-1-924) and this brief, since previous denial of summary judgment does not

preclude subsequent granting thereof on the basis of an expanded record.

Appellant has already demonstrated by reference to evidence in the record that there is an absence of evidence to support at least one (or

more) essential element of the non-moving partys/Banks case. Besides, in this case at summary judgment, Appellant who would not bear the

burden of proof at any trial in this case (although there can be no trial in this case since Appellant had already filed Motions in Limine to win her case

with her Motion for Summary Judgment on her counterclaim, without any trial) need not conclusively prove the opposite of each element of the non-moving partys/Banks case. So, granting Appellants summary judgment would have been appropriate in this case. Corbitt v. Harris, 182 Ga. App.

81 (354 S.E.2d 637) (1987). Further, issues in this case do not have to be decided by a trial jury, since these issues may be decided by the court

such as the Court of Appeals since this is a plain and palpable case where reasonable minds cannot differ as to the just conclusion to be reached.

Hearsay, opinions, and conclusions in affidavits (as is the case with Appellee, BofAs affidavits, in this case) are inadmissible as evidence on

Summary Judgment. This is supported by Judgment and case law in Langley v. National Labor Group, Inc., 2003, 262 Ga. App. 749, 586 S.E.2d

418. It is clear that even if Appellee had claimed a dishonor of Appellants check (and even if such claim has now turned out to be no different than a

baseless hypothetical claim in reality), dishonored checks cannot be criminal or tortious when drawer does not know or intend check to be

dishonored at time it is written; as is the situation with Appellant in this case. Duffy v. Landberg, 133 F3d 1120 (8th Cir. 1998). The check pertaining

to this case is a 3rd

5. Trial court's findings of fact: Reviewed under clearly erroneous standard. City of McDonough v. Tusk Partners, 268 Ga. 693, 696 (492 SE2d 206)

(1997). The State Court of Cobb County based its findings of fact on arbitrary hearsay, speculation, whims/conjectures, rumors, and erroneous

standards as well as case law that does not pertain to any 3

party check written by someone else other than the Appellant or her husband, and is also not written from Appellants or her

husbands account. The check was also written by someone else with the assurance that it is honorable even before it was passed to Appellant, and

Appellant believes the check is honorable to the best of her personal knowledge. Besides, Appellee, Bank of America, already honored/cleared/paidthe check in this case on 6/14/04, as per evidence already presented to court and O.C.G.A 24-4-23.1. Therefore, there is no valid ground for any

case on Appellant pertaining to the check in this case and Appellees suit on contract is null and void. Thus, the judgments in this case from 2/4/09

must be reversed immediately.

rd

6. Question o f law:De novo or independent review on appeal. Since no deference is owed to the trial court's ruling on a legal question, the "plain legal

error" standard of review is applied. Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000). The State Court of Cobb County has not

party or international check cashing transactions.


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addressed the question of law as to what exact law or laws provide(s)/constitute(s) proper metric(s) or measure(s) and an appropriate criteria for

honoring or dishonoring an international 3rd

party check, especially after it has already been honored before, as in Appellants case. There is noclear criteria or metric from State Court of Cobb County that clearly, unambiguously, and conclusively states or classifies as to how, when, where,

and why the check in this case would be objectively considered to be determined fraudulent. The standard of review is whether there is any clear

and convincing evidence that Appellants check can be dishonored after being honored and if so, on what grounds can this be done. There is no

such evidence against Appellants check. It is apparent that State/trial courts judgments rest on an erroneous legal theory and irrelevant case law

and contract law that are inapplicable to 3rd

Further points in substantiation of all of the arguments in the above six points are presented in Sections IV through XVI of this Appellants Brief and in the

respective motions mentioned by reference in each point.

party international checks, and on the presumption that checks can be dishonored at the subjective

whims and dictates of people lawlessly, and without reason. With all due respect to the legal system and judges in general; clearly, speculation,

conjectures and whims of bankers or arbitrarily subjective whimsical decisions without any objectivity, logic, or reason, even if they are from some

court officials or judges, cannot be used as criteria for check clearance in an international and global economy that ought to depend on sanity, logic,

and tangible evidence and reason. Therefore, Appellants Motion for Summary Judgment (R-754-873) and requests based on her counterclaim (R-

383-472; R-878-902) should have been granted and must be granted immediately.

IV. THEORY OF RECOVERY FOR APPELLANTS MOTION FOR SUMMARY JUDGMENT

Appellant sought recovery of $1,376.54 debited by Appellee bank wrongfully from Appellants deposit account. Appellant also sought recovery of around

$344,876.54 from Appellee for all proximate damages and costs caused by Appellee bank to Appellant in this abusive litigation of Appellee, due to

Appellees wrongful dishonor of Appellants check deposited on 6/12/04, as is reasonable in the courts discretion based on Appellants counterclaim and

pleadings against bank (R-754-873; R-878-902). Appellee initially accepted/honored Appellants check deposited on 6/12/04 by 6/14/04. Appellee

thereafter wrongly dishonored Appellants legitimate check/deposit on 7/8/04 based on; unjustified and inadmissible hearsay from unaccountable and

unauthorized sources, bogus speculation, and conjecture, without any valid reason or tangible evidence. Appellee bank also did not send Appellant any

timely notice of dishonor, by the midnight deadline mandated by law, before it debited Appellants account. Appellee claims it can dishonor a check after

originally honoring it, based on its whims for no valid or tangible reason and without any proof, by labeling a legitimate check as counterfeit, without regard

for U.S./Georgia laws and statutes of commercial code, and without respect for any international law. Appellant asserts that Appellees action has no

cause, violates U.S. and/or Georgia and/or international laws, because Appellee not only wrongly dishonored Appellants check, but also did so without

giving a timely notice of dishonor to Appellant by the midnight deadline, by 6/14/04. Appellant has no contractual obligation with Appellee that is valid for

Appellee to claim any recovery nor does Appellant have any contract with Appellee to provide it goods or services for a negotiable instrument constituting

capital. Appellant is therefore discharged from any liability in this case and Appellee is indebted to Appellant and liable to pay Appellant in full for the

check deposited and for having abused the justice system through abusive litigation.

V. STATEMENT OF UNDISPUTED FACTS

The Appellee bank is subject to the jurisdiction and venue of this court because it is incorporated in the State of Georgia and its depositary bank relevant

to this case is in Cobb County in Georgia. Appellant deposited an international check she believes to be legitimate and honorable as assured by its

issuers into her account# 3275278929 on 6/12/04. Appellees depositary bank accepted the Appellants check for 35,000 on 6/12/04 and honored it tocredit or pay Appellants account for it in the sum of $40,705.00, by 6/14/04. This crediting and payment of the Appellants check by Appellee creates a

presumption of payment of the check by Appellee according to O.C.G.A 24-4-23.1, which has been proved by discovery in this case that is already

complete. The laws and statutes of the State of Georgia and the United States Uniform Commercial Code supersede Bank of Americas conflicting and

unreasonable internal procedures. Bank of America is also not above international law and cannot violate Appellants constitutional and undeniable civil

rights under Georgia, U.S., and international laws, without becoming liable to compensate Appellant adequately.

Appellee bank debited Appellants deposit account between 7/8/04 and 7/23/04 claiming return of Appellants check deposited on 6/12/04. Appellee has

not presented any tangible evidence that conclusively proves that Appellants check was ever presented to the maker bank (Ulster bank of Ireland) or that


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maker bank dishonored Appellants check. Appellee has presented no proof that any dishonor of Appellants check it contends is based on anything other

than hearsay from unknown/unidentified original root sources that initiated its alleged return of Appellants check. Appellee has presented no tangibleproof to rule out the conclusion that Appellants check was not dishonored based on conjecture or speculation, for cause of dishonor, if dishonored.

Appellee has no witnesses with first hand personal knowledge disclosed in discovery completed by 2/9/07, who can corroborate through their statement or

testimony that they were the original or first decision makers (with tangible evidence from maker bank to irrefutably justify dishonor), who decided to

dishonor or return Appellants check after it was credited/paid by Bank of America on 6/14/04 into Appellants account. The branch of Bank of America

that accepted Appellants check on 6/12/04 and paid it by 6/14/04 is a depositary bank. According to the statutory definitions of types of banks as per

O.C.G.A 11-4-105 (2): Depositary Bank means the first bank to take an item even though it is also the Payor Bank.

Appellee bank has not presented any tangible evidence with a postmark or proof of mailing with a receipt for certified mail or overnight express mail, for

any notice of dishonor it claims to have mailed to Appellant by the midnight of 7/9/04. Appellee did not provide any notice of dishonor to Appellant for

Appellants check deposited on 6/12/04 by the midnight of 6/14/04. Appellee has not presented any tangible evidence with a postmark or proof of mailing

with a receipt for certified mail or overnight express mail, for any notice of dishonor to Appellant by the midnight of 6/14/04 for Appellants check deposited

on 6/12/04. Appellee has not returned the original check deposited on 6/12/04 to Appellant by close of discovery around 2/9/07. Appellant has not

entered into any explicit agreement with the Appellee specifically giving her consent to accept an image of the item (check) as a return of the item.

Appellant didnt get any notice of dishonor from Appellee alleged to have been mailed by 7/9/04 and Appellee hasnt proved to the contrary with any

tangible evidence, or proof of mailing. It is clearly unrealistic and unreasonable for any Appellant/depositor to be expected to prove a negative such as the

absence of a timely notice of dishonor from a bank by a certain date, even if/when the absolute truth is that their bank did not give them such a notice of

dishonor, because no Appellant can possibly present anything physically as proof of the material absence of an event. Appellee on the other hand

could/should have presented proof of mailing at least physically, to tangibly prove the presence of occurrence of the event of mailing notice (if such event

had occurred at all), but did not (since no such mailing of notice had occurred at all). So, uncontroverted by any proof of mailing of notice of dishonor,

from personal knowledge of any known individual mailer, disclosed as a witness in Appellees discovery by 2/9/07, the Appellants statement from her

personal knowledge suffices to act as proof of the absence of Appellees giving any timely notice of dishonor by 7/9/04. None of Appellees witnesses

(neither Crystal Frierson nor Michael Ware), disclosed by 2/9/07, could possibly have any personal knowledge on whether Appellee bank gave any timely

notice of dishonor by 7/9/04 or as per O.C.G.A 11-4-301 and/or O.C.G.A 11-4-302, because they were not the individuals who personally issued or

mailed any notice of dishonor to Appellant by 7/9/04. So, Appellant is already discharged of any liability in this case.

VI. FACTS

Appellant received a 3rd party check for 35,000 (Euros) from Ulster Bank, OConnell St., Dublin, Ireland, in good faith (UCC 1-201 and UCC 3-

103(a)(4)) on June 12, 2004. The details of the origin and sources of the check vouching for its genuineness and validity are presented in the statement in

Exhibit AAA (R-383-472; R-754-873). This exhibit was presented 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 the 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. Incidentally, Mr. Joseph Sanusi is a prominent and reputed banker educated in England, with over 20 years of banking

experience by around 2004, who has overseen Millions and Billions of dollars in payments to world famous Oil and/or Gas Companies, as well as to

Contractors of the Federal Government of Nigeria, including but not limited to Exxon Mobil, Chevron Texaco, BP, and Shell, etc. Mr. Joseph Sanusi andthe Federal Government of Nigeria, along with the Central Bank of Nigeria, through its corresponding banks, have extensive experience consummating

financial transactions in the United States and abroad, including with several world governments (please see Official Press Releases from Central Bank of

Nigeria, http://www.cenbank.org/). Appellant therefore deposited the said check received from Mr. Joseph Sanusi into her Bank of America deposit

account# 3275278929 on 7/12/04 as illustrated in Exhibits ZZ (i) & ZZ (ii) (R-383-472; R-754-873), and the check was accepted/honored immediately by

the Appellees depositary bank (UCC 3-409) and accordingly Appellee is liable to pay the endorser/Appellant for the amount of the deposited check

(UCC 3-413 (a) (2)). The said check was also credited and paid into Appellants account for $40,705.00 on 6/14/04 as shown in discovery of Appellee

and in Appellants Exhibit AA (R-383-472; R-754-873). The Appellees acts of receipt of Appellants check on 6/14/04 of $40,705.00 for Appellants check,

creates a presumption according to O.C.G.A 24-4-23.1 of acceptance and payment of check by Appellee, which is proved by the discovery in this case


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completed by February, 9, 2007. Issues in this case are complex enough to be dependent on acceptable practices of foreign banks, issues and

guidelines for international trade and commerce, capital markets, economics, foreign exchange fluctuations and related markets for the Federal Reservesof various Countries, and foreign law/international law including United Nations Conventions and their exceptions governing international check

transactions. A deep understanding of such issues is crucial for analysis of the issues surrounding an international check transaction as in this case.

However, violations of such laws and failure of Appellee to give a timely notice of dishonor to Appellant are itself sufficient grounds for Appellee to incur

liability to pay Appellant and sufficient cause for termination of Appellees action in this case.

Appellant, at the time of deposit and before any subsequent withdrawal spoke to Bank of Americas customer service representative(s) and asked them to

only release the money from the deposited check to her, at that time, only if the check is good and has cleared. Appellant was assured by representatives

of Appellee that everything is alright and was given the impression and assurance that the check had cleared by the 22nd

of June, 2004, anyway

completely, and was allowed to withdraw all the money made available for her withdrawal or use by then. On 7/8/04, Bank of America acted purely on

inadmissible hearsay from unknown, unidentified, and unaccountable/unauthenticated sources without valid or justifiable reason/proof as is clear from

completed discovery, and wrongfully debited Appellants account for $43,397.50, after originally honoring the check (thus constituting a wrongful dishonor

or a dishonor that is not legally recognized and is inconsistent with the laws/statutes of the U.S/Georgia Commercial Code as it is in violation of the U.S.

Constitution and one or more provisions of the statutes of UCC 4-401, or/and UCC 4-402, or/and UCC 4-302, or/and UCC 3-503, or/and O.C.G.A

11-4-301, or/and O.C.G.A 11-4-302, or/and O.C.G.A 11-3-502), without returning the original check nor sending a timely notice of dishonor to

Appellant by the midnight deadline, thus discharging the Appellant of any liability in this case since BofAs alleged debt is a consequence of baseless and

invalid debiting of Appellants account. Moreover, the amount of $43,397.50 debited on 7/8/04 (Exhibit BB (R-383-472; R-754-873)) was greater than the

original amount credited for the same deposit on 6/14/04 which is also a violation of UCC 3-417, since UCC 3-417 does not permit unjustified and

disproportionate debits greater than the original credit, for any check under any circumstances as in this case. Appellees arguments in its motion for

summary judgment that it can debit Appellants account even if it violates O.C.G.A 11-4-301 and O.C.G.A 11-4-302, and even if there is no tangible

proof that the Appellants check is anything but legitimate, and even if the check is not presented to the maker bank, and even if Appellee failed to give

Appellant any timely notice of dishonor, are clearly erroneous and invalid. Appellees dishonor is unsupported by the facts or the law and commonsense.

Moreover, Appellees depositor contract with Appellant was invalid to begin with because it had inconsistent unconscionable clauses that were

unreasonable and meaningless, in violation of statutory law. Appellees deposit contract was terminated on 9/10/04 or earlier when Appellants account

was closed with Bank of America. Appellee was also given notice by Appellant in the past on multiple occasions, terminating/abrogating Appellees

deposit contract agreement in toto and making it invalid currently and it cannot be used to justify Appellees action.

Therefore, as further clearly and elaborately explained in Appellants counterclaim, Appellee is liable to pay Appellant for the amount of check (shown in

Exhibit A of Appellant (R-383-472; R-754-873)) deposited into Appellants account on 6/12/04, and for costs incurred by Appellant in relation to this

transaction and civil action, according to laws such as UCC 4-402, and/or O.C.G.A 11-4-402, or/and O.C.G.A 11-4-302, by virtue of Appellees

acceptance of the said check or deposit according to UCC 3-413, and/or O.C.G.A 11-3-413(a)(ii), and/or O.C.G.A 11-5-111, etc.

VII. APPELLANT HAS NO CONTRACTUAL OBLIGATION TO PAY APPELLEE ANYTHING AND APPELL EES DEPOSIT AGREEMENT

IS TERMINATED/INVALID FOR THIS ACTION AND APPELLEE CANNOT CLAIM ANY RECOVERY FROM APPELLANT

Appellees deposit agreement is null and void in this case as it has been completely abrogated and has no force of law as explained in Section II of

Appellants brief and Motion for Summary Judgment (R-383-472; R-754-873; R-878-902).

(7.1) Appellant refutes Appellees 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 motion for summary judgment/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,


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for otherwise the Appellee/Bank of America 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 unjustwaiver of notice of dishonor, what is to prevent a crooked bank from first honoring a check and then itself 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 and proof of metric for dishonor other than

whims/opinions of unauthenticated bankers is and must be mandated. Surely, a time frame is enforced 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, Appellee bank can be better off altering its procedures to conform to laws and statutes that make sense and

are bilateral or multilateral and benefit depositors/consumers too, not simply the owners of banks illegally.

(7.2) 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 of discovery 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 (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).

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 Bank of America 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. Further, if one were to take the position that Appellees unilateral amendments are effective

when made until closure of account or termination by Appellant, it is noted that Bank of Americas 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 Bank of Americas 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.

(7.3) 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, which makes its deposit agreement invalid due to banks irresponsible behavior, and lack


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of any proper accountable individual (who was first responsible for dishonor of Appellants check with personal knowledge for reason for dishonor which is

not second hand or farther removed hearsay), who works for Bank of America, for the purpose of this case, 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 anything as Appellant is not bound to any contract with Bank of America that creates any

contractual obligation, for Appellant.

(7.4) 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 motion for summary judgment, 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 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.

VIII. NO SALE OF GOODS OR SERVICES IS REQUIRED BY A DEPOSITOR/ENDORSER FOR CASHING A CHECK ISSUED AS

BUSINESS CAPITAL FOR EXPENSES

(8.1) Appellees comments about goods or services in connection with Appellants capital expenses check deposited on 6/12/04 are irrelevant to

cashing the check by the Appellant who is merely an endorser or depositor. This case is anyhow not about the enforcement of an arbitrary condition of

supply of goods or services for every check deposited in every bank in the world. The said check relevant to this case was obtained by the issuer as a

loan from his issuing sources (and not as a loan from Bank of America) and issued as a capital for reimbursement of expenses. So, it is irrelevant andimmaterial to this case and outside the scope of this case, as to what the purpose of the Ulster Bank check was for, or whether it was to supply goods or

services, or whether it was for capital or reimbursement of expenses. It should not concern the Appellee in any way as to what the check was for anyhow,

and the Appellees broaching the issue in its summary judgment brief is an ignorant and moot point that does not justify the absurdity perpetuated by

Appellee on Appellants account. Anyway, the Appellant is not aware of the details of the confidential business transactions between her husband, Mr.

Srinivas Vadde, and Mr. Joseph Sanusi or the Government of Nigeria and the United States Government. Notwithstanding the fact that such details are

impertinent to this case and beyond the scope of this case, Appellees attorney and Appellee are reminded that Mr. Vaddes constitutional right to privacy,

legal business agreements requiring confidentiality, work product privilege and other confidentiality agreements protect him (to protect his competitive

advantage) and prevent him from disclosing/divulging the details of the goods/services and his benign influence rendered for the check, for the purpose of

this absurd case. To the best of Appellants knowledge, her husbands check was a legitimate check received as capital for legitimate business purposes,

and is honorable. Appellees issue is so moot that one must wonder as to what goods or services the Appellee supplies for every loan/capital/expense

reimbursement check or funds it receives from its investors or any government, for cashing the check or funds. Does Bank of America supply and providegoods and services for every check or fund it receives? The answer clearly is that, no, it does not. In fact, one should ask themselves the question, do

banks such as Bank of America really do anything concrete or tangible at all or of direct value such as supply goods or services for every check or deposit

they receive? The answer clearly is, No. In fact, banks simply make their money on receiving deposits/funds/checks/capital and payments from them

or on commissions obtained by lending out money (for large interest rates) based on the amount of deposits obtained. It is truly then quite hypocritical of

banks and their ignorant representatives to attempt to hold others/their customers to standards that defy common sense, and those that they do not or

would not hold themselves to.

(8.2) Anyway, it is important to understand that this case is not about a depositors/endorsers obligation or contracts to provide goods or services to

a third party for a deposited check. Please note that, the only logical conclusion that is possible to be drawn by any sane individual when a bank arbitrarily


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harasses its depositor with no tangible reason or evidence to dishonor a deposit, is that the banks only goal is to attempt as many bogus unjust ways as

possible to thwart the reaching of capital or funds to the individual, for banks own insane agenda of manipulating its balance sheets for its selfish anddeceitful motives. Please also note that the maker of the check has not brought any suit on contract on Appellant or her husband for any breach of

contract. It was only Bank of America bringing a bogus suit on contract over irrelevant issues, on which it has no authority or reason to bring a suit on.

This case is about aiding in the enforcement of proper honoring of a deposited check in a timely manner (within 24 to 48 hours of deposit), and

enforcement of the discharge of the Appellant from/of any liability. In any case, the depositary bank, Bank of America is no 3rd

party to whom Appellant is

obliged to provide any goods or services to, for the check deposited. It is also emphasized that in this case, the Appellee, Bank of America had/has no

contract for Appellant to perform services or provide goods for someone else, nor is the Appellee or are its representatives empowered to enforce any

preposterous requirement of the need for a customer/depositor to supply goods or services for every capital or expense reimbursement check they cash at

a bank, especially in a capitalistic country such as the United States which is supposed to be a pioneer of freedom of individuals and free market

enterprise, without artificial or restrictive government control of the economy, and an individuals earning potential and capital or income.

(8.3) The exact details of the purpose of the check have clearly been presented in Exhibit AAA attached with Appellants Motion for Summary

Judgment (R-383-472; R-754-873). As is clear from the principles of trade and commerce and commonsense, capital is received from lenders or

investors before the performance of any legitimate business activity or at the start of a legitimate business to meet capital expenses, upfront, and one

does not have to provide either goods or services for the very check received as capital or reimbursement of expenses (as a matter of legal principle for

the purpose of this case). So, Appellees past points on this issue are actually not only hypocritical but are also irrelevant and non-issues here. In other

words, it is beside the point and extraneous to this case, logically speaking, as to what the check or money from the check/deposit was meant for. It

suffices to state that the money from the check was given for legitimate capital expenses, to be used as convenient, without let or hindrance. It is also

worth mentioning that expenses incurred for reimbursement do not qualify to be termed as a benefit according to the laws of economics. Further,

according to O.C.G.A 11-4-401(b), a customer is not liable for the amount of an overdraft if the customer neither signed the item nor benefitted from the

proceeds of the item. Since, the funds from the said check in this case were all spent or paid for expenses in the American economy long before the date

of this writing and Appellant got no benefit from it, Appellant is not liable for anything in this case. An alternate analogy that illustrates Appellants

explanation pertains to everybody who ever deposited a capital check, especially attorneys. Most attorneys take their check/capital or fees upfront and

cash it without providing any services or perhaps we ought to rephrase the statement to say that they cash their checks before they provide anything,

whether goods or services or influence, and sometimes spend all such funds up on expenses in the economy. Does that make all such checks deposited

counterfeit? Definitely not. So, Appellants check deposited is also not counterfeit as alleged by Appellee and Appellees arbitrary harassment of

Appellant benefits nobody; neither the Appellant, nor the Appellee, nor the American or world economy.

(8.4) Criteria for what constitutes proof that a check is counterfeit are set or to be set by the legislative and executive branches of government, with

clarity, and in no uncertain terms; and not by banks whimsical and haphazard ways, by Appellees attorneys, or anyone else. As per the known laws and

Statutes of Georgia, the United States, and international laws existing currently, Appellants check is an honorable and legitimate/genuine/authentic/valid

check that has already cleared. Further, according to Article 2(d) of the United Nations Convention on Contracts for the International Sale of Goods, the

convention is clearly stated not to apply to sales of stocks, shares, investment securities, negotiable instruments or money. Therefore, Appellant is

exempt, as a depositor/endorser, from any arbitrary requirement of sale of goods or services for a check cashing transaction involving a negotiable

instrument. Therefore, summary judgment must be granted for Appellant on her counterclaim and claims against Appellee.IX. APPELLANT IS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW B ECAUSE THERE IS NO EVIDENCE BEFORE THE

COURT WHICH RAISES A GENUINE ISSUE OF MATERIAL FACT WARRANTING A TRIAL OF THIS ACTION

Appellee has no right to chargeback in the circumstances of this case. O.C.G.A 11-4-214 becomes null and void here and is superseded by other UCC

provisions of O.C.G.A 11-4-301, and/or O.C.G.A 11-4-302, etc. since chargeback of an honored check by Appellee is barred by a subsequent wrongful

dishonor without giving a timely notice of dishonor. These aspects have been elaborately explained by Appellant in Sections IV & V of Appellants Motion

for summary Judgment (R-754-873). The crucial issues relevant to the validity and approval of Appellants counterclaim against Bank of America are as

succeeds: (1) Proof of wrongful dishonor of check (if at all there was any dishonor recognized to be legal) after initial honoring of Appellants check, which


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is legally and functionally equivalent to lack of proof in any tangible way that any of Appellees dishonor was rightful or not wrongful, since our system of

law is not an Orwellian System of law, or/and; (2) Proof of failure by Appellee to give timely notice of dishonor which is legally and functionally equivalentto lack of proof by Appellee that it gave any timely notice of dishonor. The arguments and proof presented by Appellant earlier and all the discovery

disclosed and completed in this case by 2/9/07 sufficiently illustrate that BofA had no right to debit Appellants account since it had failed to give Appellant

a timely notice of dishonor by the deadline pursuant to O.C.G.A 11-4-301. Therefore, Appellee/BofA is obligated and liable to pay Appellant (who has

already been discharged from liability, one way or the other, due to the numerous provisions and protections of the statutes mentioned in the earlier

presented material and pleadings), pursuant to O.C.G.A 11-4-301, and other laws/statutes. Thus, there is no genuine issue of fact that remains to be

resolved by a reviewer of fact in this case, or by a jury, and this case does not need to go to any unnecessary trial for Appellant to win, as it is already

adequately clear that Appellant must be granted relief, as requested in her counterclaim and her Motion for Summary Judgment (R-754-873; R-878-902).

X.A APPELLEE WRONGLY DISHONORED APPELLA NTS CHECK

(10.A.1) Appellee honored and paid an honorable/legitimate/authentic and valid check into Appellants deposit account for 35,000.00 on 6/14/04.

Obviously, Appellee, by virtue of being a depositary bank which is also a payor bank, when it accepts and pays a check or credits a check according to

the statutory definition of O.C.G.A 11-4-105 (2), accepted Appellants foreign item because it determined it was legitimate and not counterfeit as it islegitimate and honorable, after deposit on 6/12/04, to pay Appellant for it on 6/14/04. Thereafter, Appellee never had any more right to chargeback

Appellants account as it is precluded by statutory laws of O.C.G.A 11-4-301 and/or O.C.G.A 11-4-302.

(10.A.2) Appellant did not deposit any counterfeit check to her account on 6/14/04. Since Appellants check deposited on 6/12/04 was already paid by

the depositary/payor bank, Bank of America, by 6/14/04, without giving a notice of dishonor by the midnight deadline (midnight of 6/14/04), the credit

provided by Appellee on 6/14/04 was not any provisional credit but was final payment according to Statutory law (accorded by provisions of O.C.G.A

114-215 (a) and O.C.G.A 11-4-301, and/or O.C.G.A 11-4-302). Appellee claims that Appellant withdrew or transferred funds exceeding the amount of

the deposit, creating an overdraft in excess of $42,000.00 which she has not repaid. Appellant asserts that she never withdrew or transferred funds

exceeding the amount of the deposit, did not cause any overdraft that Appellee artificially created with a wrongful dishonor, and does not have to repay

Appellee bank anything. According to O.C.G.A 11-4-215 (a) (2/3): An item is finally paid by a payor bank (such as Bank of America) when the bank has

first done any of the following: (2) settled for the item without having a right to revoke the settlement under statute (as applicable by O.C.G.A 11-4-301 &

O.C.G.A 11-4-302), clearinghouse rule, or agreement, or (3) made a provisional settlement for the item and failed to revoke the settlement in the time

and manner permitted by statute (O.C.G.A 11-4-301 & O.C.G.A 11-4-302 applicable here), clearing house rule, or agreement. Therefore, Appellees

settlement/credit to Appellant for her check of 6/12/04 was final anyway by 6/14/04 and no longer provisional after 6/14/04 as no debits occurred to

Appellants account between 6/12/04 and 6/14/04. Appellee bank owes Appellant funds which it must pay right away, as is evident from Appellants

pleadings and her Motion for Summary Judgment (R-754-873; R-878-902).

(10.A.3) Appellees statements in its motion for summary judgment that it learned that Appellants check was counterfeit on 7/8/04 are nothing but

inadmissible hearsay, as there is no tangible proof presented by Appellee as to why and how the check was determined to be counterfeit if at all it was

determined to be counterfeit, even hypothetically. Appellee has presented no proof to validate its attorneys conclusory bogus allegation based on

speculation that the funds represented in Appellants check and the drawee account did not exist on 7/8/04 or most importantly on 6/14/04 when

Appellants check was actually honored and paid by Appellee first. Appellant asserts that to the best of her knowledge, the check deposited was

legitimate and there were funds guaranteed in the drawee account when Appellant deposited her check on 6/12/04 and obtained payment on 6/14/04. Noproof to the contrary exists. The burden of proof is on Appellee to prove that Appellants check is not legitimate (as it falsely alleged) and not for Appellant

to prove that the check is legitimate. No depositor can be reasonably expected to incur additional expenditure to prove a check is legitimate or fly in

issuers as witnesses from overseas for the simple purpose of cashing a business capital check. Bank of Americas method of insinuations, to unjustly

burden shift, without any tangible proof is total nonsense and is unacceptable as a check clearance metric. It is unjust for any depositor to be asked to

prove the negative in such a scenario as it defies commonsense and cannot be adopted as a sensible standard by any country for check clearance. No

business would ever flourish and no economy would ever function smoothly if courts have to intervene for no reason for a depositor to get paid for any and


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every deposit. Therefore, in the well being of judicial economy, commonsense, and principles of equity to Appellant, Appellant must be granted approval

of her requests in her Motion for Summary Judgment (R-754-873; R-878-902).

(10.A.4) The alleged dishonor of Appellants check was wrongful in the current case because Appellants check has not proven to be counterfeit,

despite completion of discovery by February 9, 2007. So, O.C.G.A 11-4-214 is inapplicable to the current case. Instead of rectifying problems at its end

within Bank of Americas various branches, Appellee had attempted to bully the Appellant because it was afraid to confront European Banks or the Central

Bank of Nigeria (banks that are equal or greater in Stature than Bank of America/its branches) because Appellee already knows that it has made too many

mistakes in wrongly dishonoring Appellants check and was perhaps incompetent in the past in enforcing rightful honoring in all of its branches (after

originally honoring) due to infighting/difference of opinions in its own branches/divisions.

X.B APPELLEE FAILED TO GIVE APPELLA NT A TIMELY NOTICE OF DISHONOR

As provided by UCC 4-302 and O.C.G.A 11-4-302, payor banks like Bank of America (which is also the depositary bank in this case) are required to

settle or return checks quickly. If they do not do so, they are responsible for paying for the checks deposited. The bank whether or not it is the depositary

bank, must settle for any demand item/check by midnight of the banking day of receipt of the check, which in this case happens to be the midnight of June

12th

, 2004. Well, with those facts stated, it must be noted that no notice of dishonor was ever sent to Appellant by Appellee in the requisite time frame

(whether written or oral), if at all there was any alleged legal dishonor of Appellants check that took place (although there wasnt).

(10.B.1) Appellees claim that it sent an Advice of Debit to Appellant on 7/9/04 is untrue (euphemism for a lie), to the best of Appellants personal

knowledge. Appellant never received such an advice of debit. Even the informal bank statement (which is not a formal/legal notice of dishonor) presented

to the court as Exhibit BB (R-383-472; R-754-873) for the period of 6/11/04 through 7/12/04 indicating a debit on 7/8/04 due to return of a deposited item

for bogus and invalid reasons as revealed in discovery, only by second hand or further removed unreliable hearsay from unknown and

unidentified/irresponsible sources, without any valid proof) did not reach the Appellant until after 7/15/04. The said bank statement (for the period of

6/11/04 through 7/12/04) itself was mailed on the 15th of July 2004, as displayed in Exhibit (BBB R-383-472; R-754-873) and was therefore definitely not

mailed by the midnight deadline for a depositary bank as mandated by law/statutes, nor by the 10th

day after deposit, of 6/22/04, but more than a month

(or 30+ days) after the deposit of the said check on 6/14/04. So, clearly, UCC 3-503, or/and O.C.G.A 11-3-502, or/and O.C.G.A 11-4-301, or/and

O.C.G.A 11-4-302, or/and O.C.G.A annotations of Georgia Commercial Code 109A-3--502 (1) (a), or/and 109A-4104 (h), or/and 109A-3508

(2), were violated by Appellee in this case, which automatically discharges the Appellant of any liability in this case.

(10.B.2) Appellants last transactions with Bank of America were in July of 2004 as shown in Exhibits BB & CC (R-383-472; R-754-873). Upon the

Appellant informing the bank around August of 2004 that the Appellees debits on Appellants account were wrongful and had to be reversed with

rectification for wrongful dishonor of the check alleged to be returned, Appellants bank account with Appellee was zeroed out and unjustly forced shut

(Exhibit CC & DD (R-383-472; R-754-873)) without notice, in violation of one or more U.S. and Georgia laws as mentioned in the preceding sections.

(10.B.3) Appellee, Bank of Ame

vadde v. bank of america original overlooked & ignored georgia court of appeals brief 52609

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