You are on page 1of 32

In The Court of Appeals of Georgia

Subbamma V. Vadde
Appellant

Vs.

Bank of America
Appellee

Civil Appeal Docket Number:


A09A1714

Brief of Appellant

Subbamma V. Vadde

Submitted On: May 26, 2009


IN THE COURT OF APPEALS OF GEORGIA

Subbamma V. Vadde *
Appellant *
* Civil Appeal Docket Number: A09A1714
Vs. *
*
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 Appellant’s 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 Appellee’s 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 Appellee’s invalid affidavits that were based on hearsay without personal knowledge of affiants (R-618-624;
R-726-731). However, Appellant’s said Motion for Summary Judgment was unjustly and erroneously denied and Appellee’s 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 Appellee’s suit on contract, in the
best interests of judicial economy and manifestation of justice in this case, immediately.
I. (B) PRESERVATION OF GROUNDS FOR APPEAL ASSERTED IN ENUMERATION OF ERRORS
1. As to the insufficiency of evidence to grant Appellee’s Motion for Summary Judgment (R-505-559), the issue was raised in Appellant’s Motion for
Summary Judgment (R-754-873) around 2/22/07, and in Appellant’s Rebuttal and Response to Appellee on the issues (R-878-902), around March
21, 2007, and Appellant’s 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 Appellant’s Motion for Judgment on Pleadings, dated 12/4/06 (R-608-611) to have been denied on 1/16/07(R-743-746), despite
Appellant’s strong & valid arguments, logic, objections, and citations of law presented therein.
3. Appellant’s 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 Appellant’s arguments,
logic, objections, and citations of law presented therein.
4. It was error for Appellant’s Motion to Compel Discovery, dated 9/18/06 (R-325-341) to have been denied on 1/16/07 (R-747-750), based upon
Appellant’s arguments, logic, objections, and citations of law presented therein. It was also error for State Court of Cobb County to have granted
Appellee’s 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 Appellant’s Motion
for Sanctions, dated 11/21/06 (R-560-594) to have been denied on 1/16/07 (R-747-750), despite Appellant’s strong and valid arguments, logic,
objections, and citations of law presented therein.
5. It was error for Appellant’s 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 Appellant’s 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. Appellant’s 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 Appellant’s arguments, logic, objections, and citations of law presented therein.
7. It was error to dismiss Appellant’s 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 Appellant’s 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 appellant’s 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. Vadde’s 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 America’s Motion for Summary Judgment and denied Subbamma Vadde’s 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 Appellant’s 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 appellant’s 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 court’s verdict/Judgment and reversing the judgments

Page 2 of 30
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 on
12/18/06 either, to the best of Appellant’s 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 America’s Motion for Summary Judgment and denial of Subbamma V. Vadde’s Motion for Summary Judgment and appeals against the
dismissal of Subbamma V. Vadde’s counterclaim against Bank of America, unless Bank of America’s 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 America’s Motion for Summary Judgment and issue judgment granting Subbamma V. Vadde’s Motion for Summary Judgment and her
requests for financial relief for around $344,876.54 based on Subbamma V. Vadde’s 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 America’s case immediately, based on the filing of Appellant’s 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. Appellant’s Motion for Summary Judgment (R-754-873) should have been granted and Appellee’s Motion for Summary Judgment (R-505-
559) should have been denied: Appellant submitted her rebuttal to Appellee’s motion for summary judgment on or about December 2, 2006 (R-
625-690). Appellant’s rebuttal to Appellee’s motion dated 11/20/06, completely defeated Appellee’s invalid case and action and bogus affidavits, by
providing Appellant’s 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 Appellant’s response and rebuttal to
Appellee’s motion for summary judgment. Appellee submitted no written response or rebuttal to Appellant’s rebuttal dated 12/2/06 within 30 days or
by around 1/2/07, thereby granting Appellee’s acquiescence to Appellant’s claims by default, as per Rule 6.2 of Uniform Superior/State Court Rules.
Appellee’s 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 plaintiff’s (Bank of America’s) 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. Further arguments justifying this fact are presented in
Sections IV through XVI of this brief.
2. Appellant’s Motion for Judgment on Pleadings (R-608-611) should have been granted: Appellant showed and stated in her motion and rebuttal
to Appellee’s response (R-710-717) that Appellee’s pleadings do not validly deny or dispute any of Appellant’s allegations, defenses, and claims
against Appellee in her amended answer with counterclaim and in her pleadings, in a sufficient manner. Appellant’s 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

1
All citations in this Brief are from Lexis Nexis © 2009 and Westlaw © 2009, with permission from © Thomson Reuters/West.
Page 3 of 30
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 Appellant’s answer and Counterclaim (R-383-472) anyway.
3. Appellant’s 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. Plaintiff’s case is based on rumors and prejudicial and inflammatory hearsay remarks from unknown and unaccountable
sources with speculative allegations on Appellant’s 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, Appellant’s 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 Appellant’s
assertions on these aspects can be found in Appellant’s rebuttal to Appellee’s response to these motions (R-595-607).
4. Appellant’s Motion to Compel Discovery (R-325-341) and Appellant’s 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 Appellant’s first set of interrogatories, for giving evasive and evidently false and/or self contradictory answers to
Appellant’s first request for admissions, and for complete failure to respond to Appellant’s 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 Appellant’s 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 admissible
evidence, 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, Appellant’s Motion for Sanctions should have been granted. Further compelling arguments and citations in support of granting
of Appellant’s Motion to Compel Discovery and Motion for Sanctions are given in her Motion for Sanctions and rebuttal to Appellee’s response to it
(R-732-740).
5. Appellant’s Motion to Record All Proceedings (R-344-345) should have been granted and/or Appellant’s Request for Waiver of Motions
Hearing (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
Appellant’s 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 Appellee’s 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
Page 4 of 30
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 necessary
based on Appellant’s written objections and arguments, it was error for Cobb County court to deny Appellant’s 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 Appellee’s claims of case in court.
Appellant also reiterated her general and specific objections to Appellee’s claims of this case in Appellant’s 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 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 events
and 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.
6. Appellant’s Motion to Dismiss (R-13-23; R-52-76) should have been granted: Appellee had no valid cause of action, and its action was
baseless 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.
Appellee’s 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 Appellant’s check). Appellee Bank‘s 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, Appellant’s Motion to
Dismiss should have been granted. Further arguments justifying grant of Appellant’s Motion to Dismiss are given in her rebuttal to Appellee’s
response to the motion (R-82-96) and in Sections IV through XVI of this brief.
7. Appellant’s Counterclaim (R-383-472) should have been granted: Since Appellant has sought affirmative relief with sufficient and numerous
valid 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
Appellant’s counterclaim can now end is if Appellee awards a settlement on Appellant’s counterclaim, or other affirmative financial relief on her
counterclaim to Appellant based on judgment by the honorable court in Appellant’s 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 Appellee’s request to dismiss, the counterclaim
cannot be dismissed against the Appellant’s 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 be
excluded 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
Appellant’s 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 Appellant’s case: The case law used to support
decisions against Appellant was Lau’s 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
Appellant’s claims against Appellee Bank to render Court of Appeals judgments reversing State Court’s judgments immediately, without this case
having to be dragged any further to any other court, for Appellant, Subbamma Vadde’s victory on all issues in this case.
Page 5 of 30
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 Supreme
Court 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 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.
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 Appellant’s 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, 4th 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 required…Clearly, criteria and standards in (1) and (2) were violated by
Appellee bank when it accepted Appellant’s 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 Appellant’s 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 arguments
justifying Appellant’s 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 America’s errant branches. It was abuse of discretion to deny Appellant’s Motion to Compel Discovery (R-325-341) and Appellant’s 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). Appellant’s 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
Page 6 of 30
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 its
incompetence, 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 Appellant’s 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 Court’s judgment was against Weight of evidence and/or Preponderance of evidence as evidenced by Appellant’s 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 be
rendered 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 Appellant’s claims in this case, the Court of Appeals of Georgia can and must very well now
reverse the judgments of State Court and grant Appellant’s requests based on her counterclaim from Appellant’s Motion for Summary Judgment and
Appellant’s 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 party’s/Bank’s 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 party’s/Bank’s case. So, granting Appellant’s 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, BofA’s 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 Appellant’s 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 party check written by someone else other than the Appellant or her husband, and is also not written from Appellant’s or her
husband’s 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/paid
the 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 Appellee’s suit on contract is null and void. Thus, the judgments in this case from 2/4/09
must be reversed immediately.
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 3rd party or international check cashing transactions.
6. Question of 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
Page 7 of 30
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 Appellant’s case. There is no
clear 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 Appellant’s check can be dishonored after being honored and if so, on what grounds can this be done. There is no
such evidence against Appellant’s check. It is apparent that State/trial court’s judgments rest on an erroneous legal theory and irrelevant case law
and contract law that are inapplicable to 3rd 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, Appellant’s 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.

Further points in substantiation of all of the arguments in the above six points are presented in Sections IV through XVI of this Appellant’s Brief and in the
respective motions mentioned by reference in each point.

IV. THEORY OF RECOVERY FOR APPELLANT’S MOTION FOR SUMMARY JUDGMENT


Appellant sought recovery of $1,376.54 debited by Appellee bank wrongfully from Appellant’s 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
Appellee’s wrongful dishonor of Appellant’s check deposited on 6/12/04, as is reasonable in the court’s discretion based on Appellant’s counterclaim and
pleadings against bank (R-754-873; R-878-902). Appellee initially accepted/honored Appellant’s check deposited on 6/12/04 by 6/14/04. Appellee
thereafter wrongly dishonored Appellant’s 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 Appellant’s 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 Appellee’s action has no
cause, violates U.S. and/or Georgia and/or international laws, because Appellee not only wrongly dishonored Appellant’s 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. Appellee’s depositary bank accepted the Appellant’s check for € 35,000 on 6/12/04 and honored it to
credit or pay Appellant’s account for it in the sum of $40,705.00, by 6/14/04. This crediting and payment of the Appellant’s 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 America’s conflicting and
unreasonable internal procedures. Bank of America is also not above international law and cannot violate Appellant’s constitutional and undeniable civil
rights under Georgia, U.S., and international laws, without becoming liable to compensate Appellant adequately.

Appellee bank debited Appellant’s deposit account between 7/8/04 and 7/23/04 claiming return of Appellant’s check deposited on 6/12/04. Appellee has
not presented any tangible evidence that conclusively proves that Appellant’s check was ever presented to the maker bank (Ulster bank of Ireland) or that

Page 8 of 30
maker bank dishonored Appellant’s check. Appellee has presented no proof that any dishonor of Appellant’s check it contends is based on anything other
than hearsay from unknown/unidentified original root sources that initiated its alleged return of Appellant’s check. Appellee has presented no tangible
proof to rule out the conclusion that Appellant’s 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 Appellant’s check after it was credited/paid by Bank of America on 6/14/04 into Appellant’s account. The branch of Bank of America
that accepted Appellant’s 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
Appellant’s 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 Appellant’s 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 didn’t get any notice of dishonor from Appellee alleged to have been mailed by 7/9/04 and Appellee hasn’t 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 Appellee’s discovery by 2/9/07, the Appellant’s statement from her
personal knowledge suffices to act as proof of the absence of Appellee’s giving any timely notice of dishonor by 7/9/04. None of Appellee’s 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, O’Connell 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 and
the 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 Appellee’s 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 Appellant’s account for $40,705.00 on 6/14/04 as shown in discovery of Appellee
and in Appellant’s Exhibit AA (R-383-472; R-754-873). The Appellee’s acts of receipt of Appellant’s check on 6/14/04 of $40,705.00 for Appellant’s 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
Page 9 of 30
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 Reserves
of 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 Appellee’s action in this case.

Appellant, at the time of deposit and before any subsequent withdrawal spoke to Bank of America’s 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 Appellant’s 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 BofA’s alleged debt is a consequence of baseless and
invalid debiting of Appellant’s 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. Appellee’s arguments in its motion for
summary judgment that it can debit Appellant’s 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 Appellant’s 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. Appellee’s dishonor is unsupported by the facts or the law and commonsense.
Moreover, Appellee’s 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. Appellee’s deposit contract was terminated on 9/10/04 or earlier when Appellant’s account
was closed with Bank of America. Appellee was also given notice by Appellant in the past on multiple occasions, terminating/abrogating Appellee’s
deposit contract agreement in toto and making it invalid currently and it cannot be used to justify Appellee’s action.

Therefore, as further clearly and elaborately explained in Appellant’s 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 Appellant’s 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 Appellee’s
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 APPELLEE’S DEPOSIT AGREEMENT
IS TERMINATED/INVALID FOR THIS ACTION AND APPELLEE CANNOT CLAIM ANY RECOVERY FROM APPELLANT
Appellee’s 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
Appellant’s brief and Motion for Summary Judgment (R-383-472; R-754-873; R-878-902).

(7.1) Appellant refutes Appellee’s 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 Appellee’s 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 Appellee’s
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,

Page 10 of 30
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 unjust
waiver 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 depositor’s 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 Appellee’s 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 depositor’s account are not only illegal but are also not applicable in all situations. The
exceptions to the banks’ norm are circumstances like the Appellant’s case where Appellant’s claims against Appellee have proven to be justified already.
Therefore, Appellee’s 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 depositor’s consent, knowledge or prior acquiescence. This makes Appellee’s 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 Appellant’s 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 Appellee’s deposit disclosures document (Exhibit E of Appellee’s discovery package (R-383-472; R-754-873)) provides that the
deposit agreement would be terminated with closure of Appellant’s account. It is therefore true that since Appellant’s 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 BofA’s 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 Appellee’s unilateral amendments are effective
when made until closure of account or termination by Appellant, it is noted that Bank of America’s 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, Appellant’s position
in this action is that she has the right not to waive dishonor notice and protest, anyway. Further, Section 24 (page 21) of Appellee’s deposit disclosures
(Exhibit E of Appellee’s discovery (R-383-472; R-754-873)) also states that BofA’s 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 Appellee’s request for admissions (R-184-195), clearly stating that she is not governed by Appellee’s deposit agreement. Appellant again
reasserted the termination of Appellee’s 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 Appellee’s 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 Appellee’s deposit agreement or any of its unconscionable clauses. It is
therefore true that Appellant is not bound or governed by any Bank of America’s 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 Appellant’s amended answer with counterclaim, Appellee bank’s 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 bank’s irresponsible behavior, and lack

Page 11 of 30
of any proper accountable individual (who was first responsible for dishonor of Appellant’s 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, Appellee’s 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 Appellee’s motion for summary judgment, and in discovery. The Appellee’s 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 Appellee’s
discovery package. O.C.G.A § 11-4-103(a) is also applicable in favor of Appellant’s 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 Nat’l 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) Appellee’s comments about goods or services in connection with Appellant’s 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 and
immaterial 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 Appellee’s broaching the issue in its summary judgment brief is an ignorant and moot point that does not justify the absurdity perpetuated by
Appellee on Appellant’s 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, Appellee’s attorney and Appellee are reminded that Mr. Vadde’s 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 Appellant’s knowledge, her husband’s check was a legitimate check received as capital for legitimate business purposes,
and is honorable. Appellee’s 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 provide
goods 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 depositor’s/endorser’s 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
Page 12 of 30
harasses its depositor with no tangible reason or evidence to dishonor a deposit, is that the bank’s only goal is to attempt as many bogus unjust ways as
possible to thwart the reaching of capital or funds to the individual, for bank’s own insane agenda of manipulating its balance sheets for its selfish and
deceitful 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 individual’s 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 Appellant’s 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, Appellee’s 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 Appellant’s
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, Appellant’s check deposited is also not counterfeit as alleged by Appellee and Appellee’s 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 Appellee’s attorneys, or anyone else. As per the known laws and
Statutes of Georgia, the United States, and international laws existing currently, Appellant’s 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 BECAUSE 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 Appellant’s Motion
for summary Judgment (R-754-873). The crucial issues relevant to the validity and approval of Appellant’s 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 Appellant’s check, which

Page 13 of 30
is legally and functionally equivalent to lack of proof in any tangible way that any of Appellee’s 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 equivalent
to 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 Appellant’s 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 APPELLANT’S CHECK


(10.A.1) Appellee honored and paid an honorable/legitimate/authentic and valid check into Appellant’s 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 Appellant’s foreign item because it determined it was legitimate and not counterfeit as it is
legitimate 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
Appellant’s 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 Appellant’s 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, Appellee’s
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
Appellant’s account between 6/12/04 and 6/14/04. Appellee bank owes Appellant funds which it must pay right away, as is evident from Appellant’s
pleadings and her Motion for Summary Judgment (R-754-873; R-878-902).

(10.A.3) Appellee’s statements in its motion for summary judgment that it learned that Appellant’s 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 attorney’s conclusory bogus allegation based on
speculation that the funds represented in Appellant’s check and the drawee account did not exist on 7/8/04 or most importantly on 6/14/04 when
Appellant’s 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. No
proof to the contrary exists. The burden of proof is on Appellee to prove that Appellant’s 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 America’s 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

Page 14 of 30
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 Appellant’s check was wrongful in the current case because Appellant’s 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 America’s 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 Appellant’s 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 APPELLANT 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 Appellant’s check that took place (although there wasn’t).

(10.B.1) Appellee’s claim that it sent an Advice of Debit to Appellant on 7/9/04 is untrue (euphemism for a lie), to the best of Appellant’s 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-4—104 (h), or/and § 109A-3—508
(2), were violated by Appellee in this case, which automatically discharges the Appellant of any liability in this case.

(10.B.2) Appellant’s 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 Appellee’s debits on Appellant’s account were wrongful and had to be reversed with
rectification for wrongful dishonor of the check alleged to be returned, Appellant’s 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 America also clearly violated provisions of O.C.G.A § 11-4-109 (b) pertaining to timeliness of any notice of dishonor from
bank, by way of willful negligence or callous actions and not due to any extreme circumstances. Further, according to O.C.G.A § 11-4-202 (a), and/or
O.C.G.A § 11-4-202 (b), Appellee bank has not exercised ordinary care by failing to provide a timely notice of dishonor to Appellant by its midnight
deadline. It must be noted that as per O.C.G.A § 11-4-202 (b), the Appellee bank has the burden of establishing timeliness which burden Appellee has
failed to meet As for applicability of O.C.G.A § 11-4-109 (b) in support of Appellant’s arguments in the present case, case law exists where in similar
circumstances, as the Appellant’s, it was affirmed that Bank delayed giving timely notice of dishonor discharging indorser as per code Ann. § 109A-3—
502(1) (a) and O.C.G.A § 11-4-109 (b). Clements V. Central Bank, 155 Ga. App. 27, 270 S.E.2d 194 (1980). The same citation also proves applicability
of O.C.G.A § 11-4-202 (a) and O.C.G.A § 11-4-202 (b) in favor of Appellant’s arguments. The citations from Article 3/Section 3 pertaining to the
commercial code that Appellant relies upon, to assert her defense of “failure of Appellee to provide a timely notice of dishonor,” are sections of statutes
which establish the responsibilities of a “payor bank,” which is not only a bank upon which a check is drawn on, but is also a “depositary bank,” by virtue of
O.C.G.A § 11-4-105 (2). The position of a payor bank is a relativistic one depending on the phase of the banking transaction (whether it is the payment
phase or the collection phase), and does not exclude a depositary bank. In the strict sense, even a collecting bank would be a payor bank to the

Page 15 of 30
branch/bank it is accountable to pay the funds to for the check it accepted. For each phase of the banking transactions where the negotiation of a
negotiable instrument takes place, there would be interchanging roles for a bank from being a drawee to becoming a drawer [drawee when paying and
acting as a payor bank and drawer when acting as a depositary or collecting bank] except for the terminal phase or the end point in the collection activity
where the maker of the check would only act as a payor in the strict sense. The interpretation just explained is the only possible consistent interpretation
that is consistent with all definitions of O.C.G.A § 11-4-105, especially O.C.G.A § 11-4-105 (2), as depicted in Figure 1.

Figure 1 – Bank Payment Process for Negotiable Instrument/Check in This Case

(10.B.4) Appellant has also already explained earlier that according to O.C.G.A § 11-4-215 (a)(2) & (3), Appellant’s payment received on 6/14/04 for her
check deposited on 6/12/04 is to be construed as final payment while dealing with the banking phase of transaction between the Appellant and depositary
bank/Bank of America (Branch 1 shown in Figure 1 above), because the depositary bank here is also the drawee bank between 6/12/04 and 6/14/04,
when it endorsed Appellant’s check and accepted it to pay it by 6/14/04. Thereafter, Bank of America, as a drawer lost all right to revoke settlement given
to Appellant. This logic is also supported by Georgia R.R. Bank & Trust Co. V. First Nat’ Bank & Trust, Co., 139 Ga. App. 683, 229 S.E. 2d 482 (1976),
aff’d, 239 Ga. 693, 235 S.E. 2d1 (1977) (decided prior to 1996 amendment).

(10.B.5) Now, please consider the illustration in Figure 2 next, showing the Bank of America payment and collection process in the current case, with
details of the previous phases of banking transactions involved. Phase I is the process of deposit of Appellant’s check on 6/12/04 and payment on
6/14/04. This phase went absolutely smoothly, discharging Appellant of any and all liability in this case. Phase II involving collection from BofA’s parent
division also went smoothly since Appellant received funds/cyberspace electronic credit/deposit units in her account on 6/14/04. Next was Phase III,
where Appellant’s check was passed on to Bank of America’s foreign transit items Division/operations Technology Division, for further collection.

It was in Phase II, that the fictitious problem/situation created by Appellee in this case occurred, when apparently some nonsensical actions of wrongful
dishonor of Appellant’s check on hearsay rumors/whimsical opinions of unknown/unauthenticated sources had taken place. Problems that occurred in
Phase III are to be sorted out by banks in between themselves, meaning that Bank of America’s branches in Phase II and Phase III would have to sue
each other or settle amicably with each other with a peaceful resolution, or Bank of America would have to rectify itself and competently proceed to Phase
IV of collecting funds from bank, Ulster Bank, without again messing around with Phase I that was completed on 6/14/04 itself without any problems.
From the discovery in this case and Appellee’s refusal to answer interrogatories and requests for admissions unevasively and completely, it is abundantly
clear that Phase IV had not transpired in this case, where maker bank, which is actually the final payor bank in a normally uninterrupted banking/collection
transaction in a check clearance process for bank’s payment, was ever actually presented Appellant’s check. Therefore, since no proof exists of any
legally recognized form of maker’s dishonor, for a reviewer of fact, it is more than clear in this case that Appellee, Bank of America, wrongly dishonored
Appellant’s check deposited on 6/12/04 into Bank of America. Hence, Appellee’s motion for summary judgment must be denied and judgment must be
entered in favor of Appellant granting Appellant’s motion for summary judgment. Anyway, Appellee’s FDIC/liability insurance companies can also fund
Appellee for payments to Appellant in this case, since Appellee made mistakes which occurred in Phase II of Figure 2, where insurance coverage is
Page 16 of 30
applicable (for $250,000 or more) to resolve the situation for Appellee. Anyhow, Appellee is a large enough bank that has received sufficient government
TARP funds, to be able to afford granting & paying of financial relief to Appellant immediately, to compensate Appellant for Appellee’s mistakes.

Figure 2 – Process of Payment of Depositor’s Check/Funds from Ulster Bank/Bank of America/Federal Reserve/FDIC/Bank of America’s Liability
Insurance Company
(10.B.6) Appellee’s citations in its motion for summary judgment and other pleadings are inapplicable to support its arguments for this case. Appellant’s
interpretations, of various statutes, definitions, and applicability of O.C.G.A § 11-4-301, and O.C.G.A § 11-4-302 limiting and superseding O.C.G.A § 11-4-
214 in the current case, and about liabilities of a depositary bank/payor bank for failure to provide timely notice of dishonor, are correct and well supported
by, Brady on Bank Checks - The Law of Bank Checks, rev. ed. / Henry J. Bailey III; Richard B. Hagedorn / Arlington, VA: Warren, Gorham & Lamont
Banking, A.S. Pratt & Sons, 1997.

(10.B.7) As applicable to this case, the only phase of transaction between Appellant and Appellee that involves the check is Phase I of Figure 2. The only
relevant time frame for a timely notice of dishonor to be given by definition of the midnight deadline would be up until the midnight of 6/14/04, after
Appellant’s check was deposited on 6/12/04, as per the definition of “midnight deadline” according to O.C.G.A § 11-4-104 (10) for a depositary and payor
bank acting as the depositary bank, and in consistency with O.C.G.A § 11-4-105 (2). Appellee’s claim that “the time for taking action for a depositary or
collecting bank, as established by the definition for “midnight deadline,” does not commence until depositary and collecting bank receives notice of
dishonor, is ambiguous and nonsensically rooted in circular reasoning (especially since Appellee bank’s depositary and collecting banks are its own
branches that allegedly dishonored the deposit/check themselves after their prior actions of honoring the same deposit), and hence is invalid. The
arguments of Appellee involve unjust circular reasoning because there are circumstances where Bank of America for the purpose of this case, such as in
Page 17 of 30
Phase II of Figure 2, acts as a payor bank & a collecting bank too. Applying Appellee’s circular reasoning playing on hand waving ambiguity to this
situation would mean that the time for action for a depositary bank in Phase I of Figure 2, or a collecting bank in Phase II of Figure 2, both of which are
Bank of America or its controlled branches, does not begin until they receive notice from “themselves” as a collecting bank in Phase II or Phase III. This in
turn would mean that Appellee is actually not bound by any deadline theoretically, although that would practically be unenforceable by contract law due to
its vagueness and lack of specificity and bounds in time. The point is that, then, hypothetically, Appellee, by not having bounds in time to abide by, could
maliciously procrastinate giving any notice or paying, which is hardly the meaning or purpose of a deadline. Another illogical side effect of not having to
abide by a firm deadline would be that Appellee could arbitrarily dishonor a check/deposit at any time (although unjustly), if it had mentally deranged or
unscrupulous and whimsical decision makers, without regard to repercussions/consequences in the economic world, due to lack of accountability. That
could hardly be the legislature’s intent when enacting statutes and laws of contract law, negotiable instruments, or the Uniform Commercial Code,
imposing time frames on check clearing actions of banks with a midnight deadline, through O.C.G.A § 11-4-301 and O.C.G.A § 11-4-302, etc.

(10.B.8) To further elaborate, as required by Georgia Commercial Code Ann. § 109A-3—508, 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-3—502(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 Bank of America (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 Bank of America is
liable to pay the holder (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.) 72Bankr. 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 bank’s claim of the Uniform Commercial Code provisions of O.C.G.A § 11-4-212/401, nor the bank’s 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.

(10.B.9) So, essentially, the Appellee/BofA, by delaying the mailing of the bank statement 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 Appellant’s account or bring a suit on contract against Appellant who is discharged of any liability to
Appellee. It is reiterated that Appellant never explicitly 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. Therefore,
Appellant’s Motion for Summary Judgment (R-383-472; R-754-873) must be granted.

XI. APPELLEE HAS NO RIGHT FOR CHARGEBACK OF AN HONORED CHECK BY A SUBSEQUENT WRONGFUL DISHONOR
WITHOUT GIVING A TIMELY NOTICE OF DISHONOR AND IN VIOLATION OF O.C.G.A § 11-4-301 AND/OR O.C.G.A § 11-4-302
Clearly, Appellee’s chargeback is defunct and illegal in this case and its civil liability to Appellant due to wrongful dishonor, lack of timeliness in giving any
notice of dishonor, and abusive litigation is unchanged even on Appellant’s counterclaim against Appellee (R-754-873; R-878-902). Appellant’s not
waiving notice requirements in her depositor contract agreement and the inapplicability of O.C.G.A § 11-4-103 for Appellee and O.C.G.A § 11-4-103
Page 18 of 30
supporting Appellant’s claims, with O.C.G.A § 11-4-301 and/or O.C.G.A § 11-4-302 superseding O.C.G.A § 11-4-103 provisions, has been adequately
explained in Section II & IV, and other sections of Appellant’s Motion for Summary Judgment (R-754-873). Therefore, Appellee is not entitled to any
recovery or any chargeback in this instance where as a depositary bank and collecting bank, it has failed to have a valid superseding contract, and/or as a
depositary bank and/or collecting bank it has failed to send a timely notice of dishonor, and/or as a collecting bank it has failed to present Appellant’s
check to maker bank, and/or has presented no tangible evidence to justify its alleged dishonor.

(11.1) The laws and statutes of O.C.G.A § 11-4-301 and/or O.C.G.A § 11-4-302 precluding Appellee’s right to chargeback without giving a timely notice
of dishonor supersede any Article 4 provisions of O.C.G.A § 11-4-103 pertaining to alterations in Deposit Disclosure Agreements of Appellee. Appellee
has no absolute right to charge back pursuant to their deposit disclosure document, pursuant to O.C.G.A § 11-4-214, because Article 4 supersedes
Appellee’s deposit agreement, which is invalid and terminated, and Appellant does not give her consent to Appellee for any known waiver of the
requirement of issuance of a timely notice of dishonor by Appellee to Appellant. The statutes which Appellant based her defenses on, in her amended
answer with counterclaim deal with responsibilities of BofA as a payor bank as well as a depositary bank.

(11.2) Validity of O.C.G.A § 11-4-301 and O.C.G.A § 11-4-302 (a) (1) in the current case precluding Appellee’s right to chargeback Appellant’s account
and making Appellee liable to pay Appellant by overriding O.C.G.A § 11-4-214, is clearly evident from O.C.G.A § 11-4-103(d). As is evidently applicable
to the current case in favor of Appellant, O.C.G.A § 11-4-103(d) states, “The specification or approval of certain procedures by this Article is not
disapproval of other procedures that may be reasonable under the circumstances.”

(11.3) According to the definitions of types of banks, of 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, unless the item is presented for immediate payment over the counter. Clearly, this definition is applicable in the current case
because Bank of America did take in Appellant’s check deposited on 6/12/04 as a deposit into Appellant’s account# 3275278929 as proved by discovery.
The check was not paid in cash over the counter, but was paid/honored/credited into Appellant’s account as cyberspace electronic credit/deposit units for
$40,705.00. It must be noted that Bank of America had already deducted its commission upfront from the transaction for the spot rate difference (between
buying and selling checks/currency, although there was no physical currency exchange involved in this case on deposit) for foreign exchange conversion
between Euros (€) and U.S.Dollars ($), without supplying any real goods or services other than arguably its “service” of accepting/endorsing Appellant’s
check (a 3rd party international check) upon receipt and presentment on 6/12/04, with a computerized/printed line for endorsement of its teller or computer
on Appellant’s check. Therefore, obviously, according to the functions of a bank and the definition of O.C.G.A § 11-4-105(2), Bank of America is both the
depositary as well as payor bank. To hold otherwise would mean that Bank of America is unfit to be a bank for depositors or consumers as it would then
only siphon off depositors’ money and pay out nothing in return to any depositor, basically a useless and dysfunctional financial system, a sink hole or
black hole, in other words. Appellee, Bank of America, cannot opt out of its functions/duties of paying Appellant as a payor bank, since as defined and
stated by law; Bank of America as a depositary bank is also a payor bank.

Bank of America claims in its brief that it does not consider itself a payor bank, but admits that it is a depositary or collecting bank. However, Bank of
America’s argument is without merit, as Appellee has no choice but to be both a ‘depositary’ and ‘payor’ bank, which are relativistic terms depending on
the phase of banking transactions as explained in Section X of the current Brief of Appellant. Appellee cannot be a depositary bank and collecting bank
but not be a payor bank, for that kind of an argument would mean that Appellee is unfit to function as a bank, as it would simply take up
depositors’/consumers’ money/deposits/time/efforts and give back nothing in return to the depositors. That argument would also be inconsistent with
commonsense, as it would mean that a Bank would give out nothing for something taken from a depositor and would erroneously attempt to illegally and
illogically collect from a depositor/endorser of a check instead of being competent in collecting funds from the maker (who is also a payor bank for the
phase of transactions between the collecting bank and maker bank). Thus, Bank of America has no right for chargeback in this case, as its logic is topsy-
turvy & lacks a basis in sanity and commonsense.

Page 19 of 30
(11.4) Appellant’s substantial interpretation and explanations in the preceding sections about a depositary bank being a payor bank according to the
statutory definition of O.C.G.A § 11-4-105(2) is also supported by the following citation: Construction of UCC § 4-105, which defines “payor bank,”
“depositary bank,” and “collecting bank,” and the like, 84 ALR3d1073.

(11.5) Other arguments supporting the fact that Appellee is precluded from chargeback of Appellant’s account in this case are now presented in this
subsection. An absolute liability to pay an instrument such as an international check is a primary liability. A party with primary liability promises to pay the
instrument without reservations of any kind. Two parties have primary liability: the maker of the check as per UCC § 3-412, or/and the acceptor of the
check (Appellee, Bank of America, in this case) as per UCC § 3-413, to pay the indorser (the Appellant) in this case. A liability to pay only after certain
conditions have been met is secondary liability. An indorser (Appellant) cannot have any kind of liability including secondary liability unless all of the
following conditions are met with respect to the honoring of a check:

(i) The instrument must be properly presented to the primary party or drawee and payment must be demanded; Please note that Bank of
America was presented Appellant’s check on 6/12/04 which it accepted and paid on demand by 6/14/04, but there is no proof in discovery that
condition (i) stated above has been met as there is no evidence that Appellant’s check was presented to Ulster Bank in Ireland.
(ii) The instrument must be rightfully dishonored, that is payment refused for a valid reason with tangible evidence presented to substantiate alleged
reason of dishonor; Please note that this condition has not been met. There is no proof that Ulster Bank ever refused payment nor is
there any proof that is tangible from Ulster Bank for proof of reason for dishonor. In fact even Bank of America honored Appellant’s check first on
6/14/04 after acceptance, and paid it in electronic deposit credit units on 6/14/04; and
(iii) Notice of dishonor must be given to the secondary party within the time and in the manner prescribed by the UCC (the midnight deadline after the
date of deposit of Appellant’s check on 6/12/04, in this case). Please note that no proof of timely mailing of any notice of dishonor to
Appellant by the midnight deadline, prescribed by UCC, has been presented by Appellee in discovery which was already completed by 2/9/07.

Now, if all three of the above stated conditions are not met according to UCC § 3-412, UCC § 3-413, and UCC § 3-415 (and there is no evidence in this
case that these three conditions have been met all together), indorsers (such as the Appellant) are discharged from their obligations. If the drawee cannot
pay because of insolvency and all three conditions stated previously are not met, the drawer is discharged from obligation. Moreover, since the
aforementioned conditions have not been met according to UCC § 3-413, UCC § 3-414, UCC § 3-415, and UCC § 3-501, and/or UCC § 3-508
simultaneously, the dishonor is a wrongful dishonor in this case if Appellee contends dishonor at all. Appellant’s observations are supported by logic and
principles of business law described in, Business Law with UCC Applications: 9th Edition, Gordon W. Brown, Paul A. Sukys, Glencore/McGraw-Hill, Inc.
Ohio, USA, ISBN: 0-02-802865-1, (1997). So, Appellee anyway does not have any right for chargeback in this case.

XII. APPELLANT’S DEFENSE OF ESTOPPEL PRECLUDES APPELLEE’S CHARGEBACK/DEBITS/RECOVERY


(12.1) The definition of collected balance in general is the balance in a deposit account, not including deposited items that have not yet been paid, or
collected. Nowhere did Bank of America specifically indicate to Appellant, prior to her subsequent withdrawal of funds after deposit of the Ulster Bank
check, that the electronic deposit units credited and paid to Appellant’s account on 6/14/04 and permitted to be withdrawn by 6/22/04 was uncollected. If
the funds in Appellant’s account on 6/14/04 or 6/22/04 were yet uncollected, and Appellee had not wanted the Appellant to make a withdrawal until after
collection, or had a possible intention to debit Appellant’s account after withdrawal of funds (because it couldn’t take a risk or responsibility for collection of
funds from foreign banks), it should have either stopped venturing into international banking, or it should have either not accepted the check upon receipt,
or not credited the Appellant’s account, or should have informed the Appellant specifically that the funds were not yet collected for this deposit. Not having
done so depicts irresponsible behavior by Appellee and is a sign of gross negligence of the Appellee. Hence, Appellant’s withdrawal of funds and
spending the money in the American economy carries no liability for Appellant.

(12.2) Further, in legal terms, the above explanation shows that the elements of estoppel (O.C.G.A § 24-4-24) prevent the bank from obtaining a refund
of the amount credited to Appellant’s account on 6/14/04, as per legal precedence in First Ga. Bank v. Webster, 168 Ga. App. 307, 308, S.E.2d 579
Page 20 of 30
(1983). So, protections for Appellant, from O.C.G.A code sections of Articles 3 and 4, mentioned in Appellant’s earlier pleadings (please see O.C.G.A §
11-1-103, Code Ann. § 109A-1—103 also), and the defense of estoppel, are present here, and that prevents Appellee from obtaining a refund of the
amount credited to the Appellant’s account. These facts just mentioned along with their logical conclusions are also supported by First Nat. Bank of
Denver v. Ulibarri, 557 P2d 1221, 1223 (610 App. 1976). Any possible theory of recovery by Bank of America of credit issued based on Appellant’s
endorsement of the deposited check from Ulster Bank of Ireland, is also precluded by the estoppel defense. Burke v. First Peoples Bank of N.J., 412 A2d
1089 (N.J. Super 1980). It is also worth mentioning that Appellant clearly would not have faced this situation or arbitrary harassment if Appellant had
banked with a more efficient bank than Bank of America. It is also true that the banking acts of Appellee bank, of receiving Appellant’s check for deposit
on 6/12/04, performing banking transactions on it, and retaining it, without returning the physical original instrument/check to Appellant in original form,
deprive Appellant the opportunity to use the check with any other bank. Appellant’s summary judgment must hence be granted.

(12.3) Appellant also asserts that Appellee’s actions of wrongful and unauthorized debits of positive balances and electronic deposits in Appellant’s
account(s) from 7/8/04 through 7/23/04 (Exhibits BB & CC (R-383-472; R-754-873)) violate O.C.G.A § 11-4-301 and constitute conversion of property
(O.C.G.A § 11-3-420(a)) of Appellant, since it is the error of the bank that created the wrongful debits and infringement on Appellant’s property (funds), as
shown by legal precedence. Wilcox v. Citizens Banking Co., 31 Ga. App. 202 (2) (120 S.E. 433), (1923), and also First Georgia Bank v. Webster, 168 Ga.
App. 308, S.E.2d 579, (1983).

XIII. APPELLEE HAS PRESENTED NO EVIDENCE TO JUSTIFY DISHONOR OF APPELLANT’S CHECK DEPOSITED ON 6/12/04 NOR
ANY EVIDENCE AS PROOF OF MAILING OF ANY TIMELY NOTICE OF DISHONOR TO APPELLANT
Appellant did not withdraw any funds that were not hers, nor created an overdraft on her account, nor had any loan account or contractual obligation for
any loan with Appellee bank as explained in Sections II and III of Appellant’s motion for Summary Judgment (R-754-873). Appellant is not liable for
anything to Appellee as clearly explained in Section II and other Sections of Appellant’s Motion for Summary Judgment (R-754-873). O.C.G.A § 11-4-214
is limited by .C.G.A § 11-4-301 and O.C.G.A § 11-4-302, precluding Appellee from charging back Appellant’s account, especially when Appellant’s check
has not been presented to maker bank, as in this case. As explained in Section II of Appellant’s Motion for Summary Judgment, Appellant did not open a
checking account with Appellee pursuant to the unconsented terms and conditions of the Appellee (which were not actually disclosed to Appellant and
were deceitfully drafted unilaterally by Appellee without Appellant’s prior consent and knowledge). Appellee’s checking account agreement is therefore
immaterial and irrelevant to this case.

(13.1) Appellee’s speculative statements or remarks/allegations on the authenticity of Appellant’s check deposited with Appellee bank on June 12,
2004 are merely a reflection of whimsical opinions or beliefs of/from unknown sources whose origin is unknown. Appellee’s action is based on nothing but
second hand (or more and farther removed) hearsay based on speculation and conjecture from unknown and hence unreliable and unauthenticated
sources, which in essence has no probative value or force/weight whatsoever, and such hearsay does not constitute evidence in this case as per Fed.
Rules of Civil Procedure, Rules of Evidence, Rule # 802. Clauss v. Plantation Equity Group, Inc. 236 Ga. App. 522, 512 S.E.2d 10 (1999). Rushin v.
State, 63 Ga. App. 646, 11 S.E.2d 844 (1940), Higgins v. Trentham, 186 Ga. 264, 197 S.E. 862 (1938); Crawley v. Shelby, 208 Ga. 503, 67 S.E.2d 602
(1978); Finch v. Caldwell, 155 Ga. App. 813, 273 S.E.2d 216 (1980).

(13.2) Appellee’s statements and documents/affidavits with remarks based on unsubstantiated hearsay, presented in its discovery are no different
than documenting rumors as conclusory allegations (R-363-376). Rumors from unknown sources are hearsay. Case precedence exists where court
properly refused to allow witness to testify as to a rumor he heard from an unknown source on the 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). Since the issues in this case are those of fact and existence of a fact, the
opinions of witnesses shall anyway be inadmissible. Appellee is not permitted to admit opinions or testimony which is the product of unreliable principles
and/or inconsistent methods; or of metrics and methods that are nonexistent or unknown. Since, in this case, the Appellee’s claims are based on second
hand or other unreliable hearsay derived from witnesses offering statements in invalid affidavits or offering to testify based on another party’s statement

Page 21 of 30
(from unknown sources without personal knowledge) in order to claim that the statement is true, the Appellee’s material in discovery completed by 2/9/07
constitutes no evidence in any tangible way to support its claims in this case. Support for the logic in the Appellant’s above arguments is also cited in the
opinions of the 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).

(13.3) It is clear that Appellee’s sources of information and/or the method or circumstances of preparation of information in this case indicate a lack of
trustworthiness and is unreliable hearsay that does not constitute evidence based on Federal Rule# 802 of Federal Rules of Evidence in Civil Procedures.
Essentially, since the custodian of business records of Appellee and the supplier of information to the custodian, Crystal Frierson, and Appellee’s
investigator Michael Ware, do not act in the regular course of business (acting only after the Appellant’s account # 3275278929 was closed), an essential
link is broken in the information/evidence chain (even if one were to imagine that there was any evidence in a hypothetical manner); the accuracy or
assurance of accuracy does not extend to the information itself, and that it may have been recorded in an affidavit, computer printout, or letter, is of no
avail. It is also true that the original source of the information to have caused any alleged dishonor of Appellant’s check has not been identified or
disclosed in discovery completed by 2/9/07, and hence cannot be interrogated to seek any facts from personal knowledge. Similarly, a computer cannot
be interrogated for any facts from personal knowledge based on a computer print out or screen dump, because a computer simply does what it is directed
or programmed to do, by a human being. Even if a BofA officer were to have incorporated information supplied to Appellee based on information from
another individual, acting as an informant, although the officer was perhaps acting in the regular course, the informant/agent is not. This means that the
informant/agent who is merely transferring information has no personal knowledge on the subject matter of the issues of the case, is also not acting in the
regular course of business, and could be open to bias/prejudice and/or misinterpretation of information obtained. Anyway, no such informant or individual
has even been disclosed as a witness of Appellee in discovery, to have been the root cause of dishonor of Appellant’s check to constitute any tangible
evidence to justify dishonor. Thus, Crystal Frierson is unqualified to testify and is not qualified to offer a report/affidavit such as Exhibit “A” of Appellee
from Appellee’s custodian of business records, filed with the complaint in this case prepared on the basis of unreliable hearsay (R-10-11), which does not
constitute evidence in this case. Gordon v. Robinson, 210 F.2d 192 (3d Cir. 1954); Standard Oil Co. of California v. Moore, 251 F.2d 188, 214 (9th Cir.
1957), Cert. denied 356 U.S. 975, 78 S.Ct. 1139, 2L.Ed.2d 1148; Yates v. Bair Transport, Inc. 249 F. Supp 681 (S.D. N.Y. 1965); Annot., 69 A.L.R.2d
1148 Cf. A witness must have actual knowledge of a fact before it is proper to allow him to testify positively as to existence of such fact. Bennett v. State,
49 Ga. App. 804, 176 S.E.148 (1934), State Hwy, Dep’t v. Wilkes, 106 Ga. App. 634, 127 S.E.2d 715 (1962). Further, Appellee’s witnesses, Crystal
Frierson and Michael Ware, have no personal knowledge on the subject matters of this case, pertaining to dishonor of Appellant’s check that constitutes
first hand evidence for reason of dishonor.

(13.4) Investigators, as agents of the state or bank otherwise, may not testify to the fruits of their investigations without regard for the hearsay rule,
rather such witnesses, even agents of the state, are bound by that rule and must testify from own first-hand knowledge alone (which knowledge,
investigator Michael Ware could not possibly have, to constitute any tangible evidence in this case). Cawthon Motor Co. V. Scheuffer, 153 Ga. App. 282,
265 S.E.2d 96 (1980). Also, testimony concerning information acquired solely through books and records kept by a third person (as in this case) is
inadmissible as hearsay, anyway. Porterfield v. State, 150 Ga. App. 303, 257 S.E.2d 372 (1979). Appellant had asked Appellee to present conclusive
proof that determines with established tangible metrics that Appellant’s check is anything but legitimate or honorable and Appellee presented no such
evidence. Appellee’s conclusory allegations that Appellant’s check is counterfeit because somebody from its bank said so, when we don’t know who that
original decider and somebody was or is, or why they said so for a legitimate check, are no proof admissible in this case as any evidence.

(13.5) The first time Appellant ever saw the computer screen dump (which is not exactly a mailing notice with proof of mailing) presented as “Exhibit
G” of Appellee with its motion for summary judgment (R-505-559), was when she received the Appellee’s motion in November of 2006. Clearly, that is a
little too late for Appellee to give Appellant any such hypothetical notice of dishonor for Appellant’s check deposited on 6/12/04, after termination of
Appellee’s deposit agreement prior to receipt of Appellee’s motion for summary judgment around 11/18/04. Further, the computer printout/screen dump is
nothing but an unsworn document, which cannot be regarded as an affidavit as it fails under subsection (e) of O.C.G.A § 9-11-56 to create a question of
Page 22 of 30
fact. Burrett v. Commercial Union Ins. Co., 188 Ga. App. 353, 373 S.E.2d 59 (1988). There is no proof to preclude the possibility that Appellee made up
the bank record presented as Exhibit G of its motion for summary judgment around 11/18/06, the time of making the motion, and back dated it 7/8/04,
placing Appellant’s address on the meaningless printout, that does not actually contain any post mark or any officially credible date corroborated by any
independent 3rd party (from outside Bank of America) or from postal authorities. There is also no proof that this alleged notice was indeed mailed to
Appellant by 7/9/04 (although even 7/9/04 would be too late in this case for a notice not mailed by 6/14/04). Appellant never received any such notice in a
timely manner and hence the alleged notice does not constitute evidence. The alleged notice does not have any authenticity or accountability. Who is
NBK6J1I, as indicated on the printout (the creator of Appellee’s mess)? That individual has neither been identified by Appellee nor disclosed in completed
discovery. ‘NBK6J1I’ has not sworn on Appellee’s Exhibit G presented as an affidavit either, and has also not signed off physically on it, for it to constitute
evidence of dishonor in any tangible way in this case. Appellee has failed to prove that Appellant’s check is not legitimate as elaborated in Appellant’s
earlier rebuttal to Appellee’s motion for summary judgment (R-625-690).

(13.6) Court cannot consider hearsay, opinions, and conclusions in affidavits submitted. Davis v. Haupt Bros. Gas Co., 131 Ga. App. 628 S.E2d 598
(1974). Therefore, Crystal Frierson’s affidavit presented as Exhibit G is absolutely nonsensical hearsay and does not constitute admissible evidence to
raise any issue of material fact in this case. Exhibit G is no tangible evidence as its contents are all definitely not based on personal knowledge of the
individual/custodian named Crystal Frierson. Appellee’s attorney(s) Mr. Cohen, Mr. Goodman/Mrs. Goodman also could not possibly have any personal
knowledge that any timely notice of dishonor was sent to Appellant by bank, to admit any of their statements into evidence in this case. According to
Federal Rules of Civil Procedure, Rules of Evidence, Rule #602 & Rule # 802, none of them are qualified to present tangible evidence (R-346-362).

(13.7) All hearsay, unsupported conclusions, contemporaneous oral agreements contrary to an unambiguous written contract, and the like, as well as
favorable portions of a party’s (Appellee’s) self-conflicting evidence must be stricken or eliminated from consideration. Chandler v. Gately, 119 Ga. App.
513, 167 S.E.2d 697 (1969). In a similar case where the document upon which the Appellee relied to prove their claim was inadmissible as evidence,
there was no genuine issue of material fact, and the entry of judgment in favor of the Appellant was proper. Davidson v. American Fitness Ctrs., Inc., 171
Ga. App. 691, 320 S.E.2d 824 (1984). Subsection (g) of O.C.G.A § 9-11-56 is violated when affidavits contain statements known to be false and
statements based on other than personal knowledge, as in this case. Malloy v. Cauley, 169 Ga. App. 623, 314 S.E.2d 464 (1984). Hence, Appellee’s
case must be terminated immediately, and Appellant’s motion for summary judgment must be granted right away.

(13.8) Appellee’s Exhibit B with its motion for summary judgment is invalid since it was terminated (R-505-559), and hence does not constitute any
evidence to justify alleged dishonor of Appellant’s check in this case. Appellee’s Exhibits F, 1A, DF-1, & E presented with its motion for summary
judgment (R-505-559) are irrelevant and immaterial to this case, and do not constitute any evidence of probative value in this case. Appellee’s ‘Exhibit E’
presented with its motion for summary judgment (R-505-559) is full of incorrect transactions entered, and does not reflect factually correct/accurate data
(in fact it reflects fudged information, deceitfully and crookedly misrepresented by Bank of America) and is hence no evidence against Appellant in this
case. Appellee’s ‘Exhibit G’ lacks authentication and is not evidence at all in this case because it lacks proper foundation too. Fajardo Shopping Ctr., S.E.
v. Sun Alliance Ins. Co. of P.R. Inc. 167 F.3d 1, 9 (1st Cir. 1999) & St. Paul Mercury Ins. Co. v. Williamson, 986 F.Supp. 409, 423-24 (W.D. La. 1997) have
held that documents which are inadmissible for lack of authentication cannot be used to secure summary judgment. Therefore, Appellee’s motion for
summary judgment must be denied and Appellant’s Motion for Summary Judgment must be granted (R-383-472; R-754-873).

XIV. APPELLEE’S WITNESSES HAVE NO PERSONAL KNOWLEDGE ON MAILING ANY TIMELY NOTICE OF DISHONOR TO
APPELLANT
(14.1) It is a fact that Appellee, in its responses to Appellant’s first interrogatories (R-227-230), for questions#8 and #10 pertaining to details on
individuals with personal knowledge on the decision of clearance of Appellant’s check or on the subject matters of the case, clearly admits as follows:
“…Appellee is not in possession of names and addresses of a particular individual or institution responsible for the decision that the check was
counterfeit,” and “…Persons in possession of specific knowledge related to this case have not been identified…” Therefore, the lack of authentication and

Page 23 of 30
accountability of Appellee’s claims for the root cause of Appellee’s case, the alleged dishonor of Appellant’s check, is conclusively proved wrongful as it
lacks a legal basis in any tangible manner. Appellant asserts that filing those portions of discovery necessary to prove Appellant’s assertions regardless of
whether they are quotations from answers or admissions of Appellee is well justified in this case. Conclusions and opinions from Jacobsen v. Muller, 181
Ga. App. 382, 352 S.E.2d 604 (1986), also supports the above logic of Appellant.

(14.2) None of the Appellee’s witnesses disclosed by discovery deadline of February 9, 2007 provided by court (neither Crystal Frierson nor Michael
Ware), 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 (R-
346-362). Neither Crystal Frierson nor Michael Ware (whom Appellee disclosed as witnesses) work at the original Bank of America branch in
Cumberland, in Cobb County, in Georgia, where Appellant deposited the original check on 6/12/04. Neither Ms. Frierson nor Mr. Ware were actual
witnesses to Appellant depositing the original check in untarnished form on 6/12/04, to have any personal knowledge on the authenticity of Appellant’s
original paper check, unmarked by BofA’s tellers/computers/processing departments, prior to its deposit in BofA.

(14.3) Both Crystal Frierson and Michael Ware, do not have first hand information constituting personal knowledge on the very issue of alleged
dishonor of Appellant’s check in the past, that is alleged to have occurred prior to the initiation of this case, because they were not the original decision
makers to have first initiated dishonor or return of Appellant’s check with any tangible proof from maker bank, to justify Appellee’s allegations of 7/8/04.
Therefore, Crystal Frierson and Michael Ware’s information on said matter cannot possibly be anything other than speculative, second hand or farther
removed hearsay on this issue, with ‘zero’ (0) personal knowledge, which again does not constitute admissible evidence in anyway, in this case (R-346-
362). Neither Crystal Frierson nor Michael Ware have any first hand information constituting personal knowledge on the very issue of failure of Bank of
America to give a timely notice of dishonor for Appellant’s check because neither of them handled Appellant’s open account, or contacted Appellant by
7/9/04 which date is before the date Appellant’s account was closed on or around 8/4/04 or 9/10/04.

Therefore, Appellant’s Motion for Summary Judgment should have been granted right away as there was no issue of fact not already resolved in
Appellant’s favor (R-383-472; R-754-873).

XV. APPELLANT DESERVES TO BE COMPENSATED BY APPELLEE FOR APPELLEE’S WRONGFUL ALLEGED DISHONOR AND
ABUSIVE LITIGATION IN THIS CASE
Appellant is afforded a basis for affirmative relief through her amended answer with counterclaim (R-383-472) & rebuttal to Appellee’s Motion for Summary
Judgment (R-625-690; R-754-873; R-878-902) (that already have “offset” any liability to bank from Appellant), and other pleadings of Appellant which do
not “offset” the bank’s liability to pay Appellant on her claims and counterclaim against Appellee in this case. Appellee bank has every liability towards
Appellant on her counterclaim against Appellee, as her actual loss and proximate damages sought are directly caused by Appellee’s wrongful alleged
dishonor of Appellant’s check, Appellee’s failure to give a timely notice of dishonor, and due to its abusive litigation arising from the delay or missing out by
the bank in sending the notice. Appellee’s malicious action can be nipped in the bud and Appellant can seek recovery from Appellee in this very action
from her counterclaim, which is the very purpose of a counterclaim, to claim quick financial relief from Appellee and save time/cut short litigation.
Appellee’s statement that the burden is on the depositor-payee of the check to specifically show “that it would have been able to collect something from
the drawer if timely notice of dishonor had been received,” is inapplicable here as it applies only to compensatory damages and not other forms of
damages that Appellee is anyway responsible and liable for, notwithstanding the fact that Appellant had already met this burden in her earlier pleadings.
This is clearly inferred in favor of Appellant’s claims already, on the basis of Brady on Bank Checks, Chapter 24, Citing Appliance Buyers Credit Corp., v.
Prospect National Bank, 708, F2d 290, 36 UCC Rep. 231 (5th Cir. Ill. 1983).

Appellant’s check is legitimate based on Appellant’s knowledge and attached evidence presented with her Motion for Summary Judgment (R-383-472; R-
754-873). Appellee’s rumors, slander, conclusory allegations or remarks based on hearsay from unknown/unauthenticated sources of origin without
personal knowledge are no proof to the contrary. The funds represented in the check and the drawee account existed at the time of deposit (around

Page 24 of 30
6/12/04) and clearance (around (6/14/04) to the best of Appellant’s knowledge & based on evidence attached with Appellant’s motion for summary
judgment and her supporting affidavits. The check is legitimate and not part of any internet scheme to the best of Appellant’s knowledge and as per
evidence presented with Appellant’s motion for summary judgment, and Appellee has presented no evidence to the contrary. There are no genuine
issues of material fact in dispute. Appellant has established every valid basis for affirmative relief in her counterclaim and Motion for Summary Judgment
against Appellee (R-754-873; R-878-902). Therefore, Appellee’s motion for summary judgment must be denied by the court and Appellee’s action must
be terminated with prejudice, granting Appellant’s counterclaim, motion for summary judgment, and Appellant’s subsequent claims against Appellee
immediately.

(15.1) To date of this writing, the known laws of U.S and Georgia Commercial Code are equally applicable to U.S checks as well as international
checks deposited in the United States, in Georgia. This case involved extremely complex litigation and analysis because there exist no established
specific consistent metrics or separate laws that establish guidelines and govern dishonor of international checks (specifically on the issue of what
constitutes a rightful or wrongful reason for dishonor and what tangible proof is needed to justify any dishonor), other than the rules of evidence, and
reasoning presented by Appellant in the current brief and her Motion for Summary Judgment (R-754-873; R-878-902). Appellee’s actions clearly indicate
that Appellee had been attempting to get away with an unjustified hearsay opinion from unknown and unreliable/unauthenticated sources, in a dictatorial
manner through misrepresentation (O.C.G.A § 23-2-52), with a conclusory allegation to be taken as a reason for dishonor, which is definitely not proof of
Appellee’s allegations on Appellant’s check. Anyhow, Appellant has already sufficiently proved with logical reasoning through her pleadings that any
alleged dishonor of Appellee after honoring/accepting/crediting of Appellant’s check deposited was illegal (or not recognized legally), which constitutes
wrongful dishonor. Therefore, Appellee is liable to pay Appellant for wrongful dishonor of Appellant’s check and abusive litigation of Appellee.

(15.2) It has been evidently demonstrated throughout history of human era, from Plato to Aristotle, to Socrates, to Galileo, in the fields of
understanding of law, nature, or science, or economics, and business, that people’s emotions and beliefs were sometimes so fiercely entangled in a
wrongful manner (whether they are people or individuals from organizations and entities such as the Appellee bank), that it was possible for them to have
stooped to falsifying results to attempt to preempt a fudged/fixed result to make a point (even if not a lasting one) through self serving circular reasoning
(although erroneously and only temporarily). Clearly, similarly, attempts to use self-serving statements or remarks by Appellee as allegations, without
proof, must be taken with a large grain of skepticism and objectivity, to avoid prejudice. Appellee must therefore be sanctioned for its unjust acts on
Appellant, and/or made to compensate Appellant for having taken the burden of proving, with theories, logical reasoning, practical examples, and broadly
encompassing scenarios, in Appellant’s brief and pleadings to prove Appellant’s defenses, counterclaim, and claims against Appellee. It is noted that
these facts as proved by Appellant ought to have been self evident, and should have and/or would have been so long ago in 2006 itself, if Appellee had
been straightforward & cooperating right from the beginning, on answers and discovery. Therefore, Appellee’s acts to burden shift by hindering discovery
are illegal and Appellee must compensate Appellant for wrongful dishonor of Appellant’s check and for its abusive litigation (R-754-873; R-878-902).

(15.3) Conclusory allegations by way of remarks or statements of Appellee or its attorney(s) that Appellant’s check is counterfeit because they
state/say somebody said it was so, when none of us know who originally said it was so, cannot be taken as proof of allegations. One cannot take as proof
that the assumption of Appellee was correct all along when there is no tangible proof or measure or even a metric/benchmark legislated and defined to
draw that inference in an established conclusive manner. A situation enforced by adopting a false doctrine which was in itself an ad-hoc self satisfying
dogma in bank’s vanity, cannot be used to support the false doctrine/dogma, as that would be the worst form of injustice through unjust circular reasoning.
Hence, Appellee needs to be adequately penalized and made to compensate Appellant adequately for all the unnecessary harassment from Appellee that
Appellant endured. Appellee must therefore be made to remove or clear negative remarks about Appellant’s account in her Chex Systems or other
consumer reports in the past pertaining to the check incident in this case. The amount of proximate damages Appellant suffered due to such unjust
actions of Appellee between 2004 and 2006, to date, cannot perhaps be tangibly assessed in any other way other than by accounting for lost opportunity
and incidentally lost income in an approximate manner for Appellant, due to unfair mudslinging or slander of Appellant’s reputation by Appellee between
2004 and 2006, to date. Additionally, due to the past lost/missed out remunerative opportunities for Appellant, her approximate living expenses, without
Page 25 of 30
income, while fielding and litigating Appellee’s abusive litigation, prior to March 2007, to date, can also be considered to be reasonably attributed to
proximate damages caused by Appellee’s abusive action.

(15.4) Wrongful dishonor is considered a “tort,” for which punitive damages may be imposed. Fidelity Natnl. Bank v. Kneller, 194 Ga. App. 55, 390
S.E.2d 55 (1989). Appellee, Bank of America, can therefore also be sued by Appellant separately in another action, if needed (although Appellant would
rather desire that Appellee awards her a reasonable settlement on her counterclaim in this action itself based on her brief and motion for summary
judgment, settling this case and its aspects once and for all, without Appellant having to pursue any other action), for bad faith in transaction, fraud and
misrepresentation of Appellee, and libel/slander, for all possible recuperation of damages, including but not limited to; compensatory damages,
consequential damages, punitive damages, and incidental damages, as per O.C.G.A § 11-5-111, and/or O.C.G.A § 11-4-402, et al. for $250,000.00 or
more, for Multi Millions of U.S. Dollars. Beckman Cotton Co. v. First Nat’l Bank, 666 F.2d 181 (5th Cir 1982). Also cited in Pro-Fab, Inc. v. Vipa Inc., 772
F.2d 847 (11th Cir. 1985). There was no error in award of punitive damages and other damages where the Appellee’s actions (such as BofA’s) showed
willful misconduct, fraud, wantonness and an entire want of care, which raised the presumption of conscious indifference to the consequences of the
conduct. Scriver v. Lister, 235 Ga. App. 487, 510 S.E.2d 59 (1998). Therefore, it is reasonable for Appellee to compensate Appellant for proximate
damages caused to Appellant by Appellee’s wrongful alleged dishonor and abusive litigation.

(15.5) This case has been the result of an artificial problem created/simulated by Bank of America. Therefore, its resolution mandates that Appellee,
Bank of America, approximately compensate Appellant economically for its erroneous dishonor and abusive litigation and proximate damages caused to
Appellant prior to the writing of her motion for summary judgment and subsequent pleadings until this brief, as explained earlier. Bowen & Bowen Constr.
Co. v. Fowler, 265 Ga. App. 274, 593 S.E.2d 668 (2004). Fowler v. Smith, 237 Ga. App. 841, 516 S.E.2d 845 (1999). Further, Appellee’s conversion of
Appellant’s property in her bank account also calls for punitive damages to be obtained from Appellee for Appellant. Lawrence v. Direct Mrtg. Lenders
Corp., 254 Ga. App. 672, 563 S.E.2d 533 (2002). Appellee’s wry/wayward or weird actions had caused Appellant anxiety, shock, and needless worry
which caused Appellant emotional trauma, pain and suffering, prior to January 2007, and to date. So, adequate compensation must be awarded to
Appellant by Appellee, as financial relief. MacDonald v. United States, 900 F. Supp. 483 (M.D. Ga. 1995). Appellant has already adequately
demonstrated in her past pleadings that she had passed up on some lucrative opportunities, expended unnecessary time and resources, and suffered
emotional distress or unnecessary mental anguish due to Appellee’s unscrupulous actions prior to January 2007, and to date, having had to focus on
carefully cleaning up Appellee’s mess and terminating Appellee’s nonsensical case and action, instead of having been able to use her time more
productively and gainfully for other lucrative remunerative purposes, prior to this writing (R-754-873; R-878-902). Appellee’s actions since 2004 on
Appellant’s account and its action in the past resulting in protracted litigation to date, had caused Appellant unnecessary cost/expense during litigation
which must justly be recovered from Appellee.

(15.6) Since Appellee had wrongly dishonored Appellant’s check, Appellant is entitled to recover from Appellee the face amount of the check/deposit
together with incidental damages or other damages caused proximately by Appellee’s misconduct. Incidental damages include all commercially
reasonable expenditures. The test of commercial reasonableness is a practical one, requiring primarily honesty and good faith in attempting to minimize
damages. What is commercially reasonable is to be determined from all the facts and circumstances of each case, and must be judged in light of viewing
situation at time the problem was presented. Beckman Cotton Co. v. First Nat’l Bank, 666 F.2d 181 (5th Cir. 1982). Cited in Pro-Fab, Inc. v. Vipa Inc., 772
F2d 847 (11th Cir. 1985). Under the remedies available from O.C.G.A § 11-5-111, it is generally understood that in a situation such as the Appellant’s,
code section O.C.G.A § 11-5-115 also does not require that face amount of check be sole measure of damages. Am. Jur. 2d: [15A Am. Jur2d,
Commercial Code, § 67]. Also, generally, under a bank’s liability to a customer, Appellant would be entitled to recover proximate damages caused by
Appellee’s wrongful dishonor of Appellant’s check. See Code Ann. § 109A-4—402 (Ga. L. 1962, pp.156,303). An exact dollar amount as to an upper limit
for damages or compensation that Appellee must award is not one that can be easily assessed due to the intangible nature of human suffering caused by
Appellee’s erroneous actions on Appellant’s bank account prior to January 2007, and to date. Nevertheless, for the purpose of this case, and for
Appellant’s counterclaim against Appellee, it is just and reasonable for the Appellee to pay Appellant in the proximate range of around $344,876.54, at the
Page 26 of 30
least, immediately, as explained in her earlier pleadings (R-754-873; R-878-902). The details presented there are summarized in the succeeding
paragraphs:

(1) Appellant has explained in detail the valid grounds for her to seek proximate damages from Appellee in Section X of her motion for summary
judgment and subsequent pleadings. To reemphasize, Appellant deserves to be compensated by Appellee for Appellee’s wrongful dishonor of
Appellant’s check, failure to give a timely notice of dishonor to Appellant, and for Appellee’s abusive litigation in this case. There is no rule or statute
in law that says that a claim on behalf of a customer must stand entirely on its own when the opportunity of making the claim has already been
availed of by customer/Appellant through her counterclaim against Appellee and her motion for summary judgment in the current action itself.
Appellant is requesting recovery from Appellee pursuant to O.C.G.A § 11-4-301, and/or O.C.G.A § 11-4-302, and/or O.C.G.A § 11-4-402, and/or
O.C.G.A § 11-5-111, and other applicable laws, such as O.C.G.A § 51-12-5.1, and/or O.C.G.A § 51-12-5, and/or O.C.G.A § 51-12-6, and/or O.C.G.A
§ 51-1-1, and/or O.C.G.A § 51-7-83, and/or O.C.G.A § 51-7-84, etc. Appellant seeks proximate damages to be recovered from Appellee, including
but not limited to, compensatory damages, incidental damages, consequential damages, and punitive damages.
(2) Sufficient reasoning has been presented by the Appellant in her motion for summary judgment that Appellee’s delay in giving her a notice of dishonor
had caused Appellant damages. To reassert, if Appellee had either not accepted the Appellant’s check/deposit on June 12, 2004, or had Appellee
given a timely notice of dishonor by the midnight deadline, by June 14, 2004, Appellant would not have withdrawn any funds from the deposit,
notwithstanding the fact that Appellee would still be liable to Appellant for a wrongful dishonor of Appellant’s check. However, then, Appellee’s
abusive litigation or Appellant’s damages wouldn’t have existed.
(3) Since Appellee’s erroneous action/claim and abusive litigation is actually caused by its own actions of invalid debits on Appellant’s account, after
Appellant’s withdrawal of funds which were honorably permitted by Appellee of its own volition, it is clear that Appellee’s own actions and abusive
litigation is the cause for damages suffered or incurred by Appellant from July 8, 2004 through March 12, 2007, to date around the date of this
writing. This issue does not have to be taken up in a separate action by Appellant against Appellee since it has already been raised to Appellant’s
advantage in her counterclaim against Appellee in this case, and since it can be settled right now in Appellant’s favor. To emphasize, that which is
remediable today in favor of Appellant on her counterclaim against Appellee does not have to be procrastinated until tomorrow.
(4) If Appellee had not placed/caused to be placed any improper and slanderous remarks (O.C.G.A § 51-5-1 through O.C.G.A § 51-5-112), as it did in
Appellant’s chex systems reports or other customer credit reports in 2004, Appellant could have maintained a better reputation in the past and could
have gained gainful employment in banks easily between 2004 and 2006, to date, drawing an average salary between $50,000 to $100,000 per
year. So, due to Appellee’s actions, Appellant was precluded from work opportunities in the financial and banking Sector, from 2004 to 2006, to
date, which translates to lost opportunity and incidentally lost income in an approximate manner for Appellant between 2004 and 2006, to date.
Therefore, Appellee’s failure to give a timely notice of dishonor caused proximate damages of at least $100,000 in missed opportunity/opportunity
costs and income for Appellant between 2004 and 2006, which are to be treated as incidental damages, as per O.C.G.A § 51-12-1 through O.C.G.A
§ 51-12-77, and/or other applicable laws affording relief to Appellant.
(5) Appellee’s abusive litigation (O.C.G.A § 51-7-83 and/or O.C.G.A § 51-7-84) which also stems from Appellee’s failure to give Appellant a timely notice
of dishonor had precluded Appellant from procuring other lucrative out of state work opportunities during the course of Appellee’s abusive litigation,
especially in the past in 2006/2007, because Appellant had to unnecessarily be present in town to terminate and litigate Appellee’s litigation, which is
now expected to end immediately in Appellant’s favor and victory. To the best of Appellant’s knowledge, some of the work opportunities from outside
the State of Georgia that Appellant could not avail of in 2006 and 2007, due to Appellee’s abusive litigation, were offering around $75/hour or more,
in the information technology and software sector, for the kind of analytical skills that Appellant has and can provide to the corporate world. So, it is
reasonable to conclude that Appellant could have gained an additional $150,000 or so to date (at the rate of $75/hour for 2000 hours in one year
from April 2006 until around March 2007, when Appellant filed for Summary Judgment), in remuneration, had it not been for Appellee’s failure to give

Page 27 of 30
a timely notice of dishonor and its abusive litigation. Therefore, $150,000 can be considered to be the consequential damages to be awarded to
Appellant from Appellee, as per O.C.G.A § 51-12-1 through O.C.G.A § 51-12-77, and/or other applicable laws affording relief to Appellant.
(6) Considering the fact that a typical household in the Cobb County/Vinings area in Smyrna, Georgia incurs a monthly expenditure of approximately
$1,500 to $2,000, living expenses for the Appellant between April of 2006 and March 2007 varied around $18,000 to $24,000, during the months of
Appellee’s abusive litigation up until March 12th of 2007. However, if we consider the living expenses incurred by Appellant from July 2004 (period of
wrongful dishonor of Appellant’s check and failure of Appellee to give a timely notice of dishonor to Appellant) to March 12, 2007, Appellant incurred
living expenses varying between $48,000 and $64,000 approximately (from July 2004 to March 2007 being a period of 32 months). Since Appellee’s
failure to give Appellant a timely notice of dishonor not only resulted in Appellant loosing income from July 2004 to March 12, 2007, but also made
Appellant incur living expenses without income, such expenses without income are additional damages caused by Appellee’s actions and abusive
litigation. Therefore, on an average, $56,000 (being the average of $48,000 and $64,000, mathematically speaking), is to be considered reasonably
attributed to proximate additional damages caused by Appellee’s action due to aggravating circumstances, as per O.C.G.A § 51-12-5, which are to
be recovered from Appellee, as expenses and costs, pursuant to O.C.G.A § 51-12-7, and O.C.G.A § 9-15-1.
(7) Of course, the amount of $1376.54 as principal, that Appellee owes Appellant due to its wrongful debit, is proximate compensatory damages caused
by Appellee by its failure to give a timely notice of dishonor and wrongful dishonor, which has already been elaborately described as part of
Appellant’s counterclaim and motion for summary judgment.
(8) Wrongful dishonor is a “tort,” for which punitive damages may be imposed. Fidelity Natnl. Bank v. Kneller, 194 Ga. App. 55, 390 S.E.2d 55 (1989).
Therefore, Appellant requests the honorable court to impose a minimum punitive amount of $25,000 or $50,000 on the Appellee as punitive
damages (although the measure of punitive damages is permitted to be as high as $250,000.00), and sanctions or fines on Appellee that it has to
pay Appellant as punitive relief, so that the Appellee bank is deterred from such wrongful dishonor of depositors’ checks in the future, in general.
(9) Further, it is also noted that general damages (O.C.G.A § 51-12-1) are also those which the law presumes to flow from a tortious act, such as the
wrongful dishonor of Appellant’s check, and may be appropriately awarded as financial relief to Appellant, without proof of any specific amount, to
compensate the Appellant for the abuse she suffered due to Appellee’s malicious acts and abusive litigation. This reasoning is supported by case
law citation, Alexander v. Holmes, 85 Ga. App. 124, 68 S.E.2d 242 (1951); Avery v. K.1., Ltd; 158 Ga. App. 640, 281 S.E.2d 366(1981). There was
also no error in an award of punitive damages and other damages where the Appellee’s actions (as in this case) showed willful misconduct, fraud,
wantonness and an entire want of care, which raised the presumption of conscious indifference to the consequences of the conduct. Scriver v.
Lister, 235 Ga. App. 487, 510 S.E. 2d59 (1998). Therefore, it is reasonable for Appellee to compensate or pay Appellant for proximate damages
caused to Appellant by Appellee’s wrongful dishonor, failure to give timely notice of dishonor to Appellant, and for Appellee’s abusive litigation.
(10) Appellant has adequately proved through her reasoning and statements from personal knowledge that she is to be awarded financial relief and
payment from Appellee for proximate damages caused by Appellee, in her pleadings, motion for summary judgment, and also the current writing. To
sum it up, the approximate financial relief/award and payment Appellant requests from Appellee, and that she requests the honorable court to grant,
is summarized as described in the succeeding paragraphs (with calculations for average proximate damages detailed earlier):
(a) Compensatory damages to be awarded as financial relief to Appellant by Appellee (based on details in point#7) = $1,376.54.
(b) Proximate incidental damages to be awarded to Appellant as payment from Appellee (based on details in point#4) = $100,000.00.
(c) Proximate consequential damages to be awarded to Appellant as payment from Appellee (based on details in point#5) = $150,000.00.
(d) Proximate additional damages, costs, and expenses, for aggravating circumstances to be awarded to Appellant as payment from
Appellee (based on details in point#6) = $56,000.00.
(e) Proximate average punitive damages to be awarded to Appellant as payment from Appellee (based on details in point#8) = $37,500.00
(can also be up to $250,000.00).
Therefore, the total minimum proximate damages that would be appropriate to award to Appellant as payment from Appellee in this case is sum of all the
above = Total Sum of amounts in (a) through (e), as indicated above.
Page 28 of 30
= $1,376.54 + $100,000.00 + $150,000.00 + $56,000.00 + $37,500.00 = $344,876.54

However, the Appellant is willing to accept an immediate settlement award from Appellee of approximately around $250,000.00 or so, on her counterclaim
in this case, to settle this check case once and for all, and in return, Appellant agrees not to pursue any other legal action/lawsuit for Multi Millions of U.S.
Dollars against Appellee on the check related issues pertaining to this case. In the alternate, Appellant requests that the honorable court/judge(s) mediate
and/or mandate a settlement or payment from Appellee on Appellant’s counterclaim against Appellee, and order the Appellee to immediately award the
Appellant a proximate sum of around $344,876.54, or a sum in the ballpark of that amount as is appropriate in the Judges’ discretion without the necessity
for any trial in this case.

XVI. CONCLUSION
Since discovery had been completed for all practical purposes in this case by the court ordered deadline of February 9, 2007 and there is no evidence to
justify any dishonor of Appellant’s check by Appellee bank for it to not be wrongful, or/and there is proof that there was no timely notice of dishonor sent to
the Appellant, or/and, there is no proof of mailing from Appellee of any timely notice of dishonor to Appellant; conditions (i) or/and (ii) stated in Appellant’s
counterclaim become true, as self evident based on all facts presented; in Appellant’s amended answer with counterclaim (R-383-472), its enumerated
defenses, and in Appellant’s Motion for Summary Judgment (R-754-873; R-878-902). Therefore, there are no more issues clearly remaining to be
determined to terminate Appellee’s action and grant Appellant relief on her counterclaim and Motion for Summary Judgment, immediately.

(16.1) It is safe to conclusively say that Appellee has wrongly allegedly dishonored Appellant’s check deposited on 6/12/04. Appellee also failed to
give Appellant a timely notice of dishonor by the requisite midnight deadline mandated by the Uniform Commercial Code of the United States and Georgia.
To substantiate these facts, Appellant presented ample evidence with her motion for summary judgment. Appellant also presented a copy of the envelope
carrying the bank statement for 6/11/04 through 7/12/04 (for Appellant’s check deposited on 6/12/04 that was honored/paid on 6/14/04), which is not a
formal notice of dishonor, with proof of mailing on 7/15/04 as a postmark, in Exhibit BBB attached with her motion for summary judgment (R-754-873).
Appellant received nothing else from Appellee that was hypothetically claimed to be mailed on 7/8/04 and there was no formal notice of dishonor at all.
So, even the midnight deadlines of 6/14/04 or 7/9/04 were not abided by Appellee, even though only 6/14/04 is the relevant actual deadline for the
purpose of this case.

(16.2) In the event of wrongful dishonor of the Appellant’s check deposited on June 12, 2004, the Appellant’s check has not been dishonored without
Appellee incurring liability, in compliance with the provision of at least one or more or/and all of the provisions of the following laws of the United States
Uniform Commercial Code and the Georgia Commercial Code, that govern Bank of America deposit accounts and banks’ activities of any dishonor of
checks, imposing liabilities on banks for any wrongful dishonor of checks: UCC § 4-401, or/and UCC § 4-402, or/and UCC § 4-301, or/and UCC § 4-302,
or/and O.C.G.A. § 11-4-301, or/and O.C.G.A. § 11-4-302, or/and O.C.G.A. § 11-4-402.

(16.3) Appellee’s failure to give a timely notice of dishonor by the midnight deadline after deposit on 6/12/04, constitutes a violation of at least one or
more and/or all the provisions and requirements of at least one or more and/or all of the following laws of United States Uniform Commercial Code and the
State of Georgia, which makes the banks here accountable for amount of Appellant’s check, discharging Appellant as depositor/endorser of any liability
and resulting in liabilities for Appellee bank towards Appellant, and also prevents the Appellee bank from recovering anything from Appellant according to
law: UCC § 3-503, or/and : UCC § 4-302, or/and O.C.G.A. § 11-3-503, or/and O.C.G.A. § 11-3-502(b), or/and O.C.G.A. § 11-3-502(d), or/and O.C.G.A. §
11-4-301, or/and O.C.G.A. § 11-4-302, or/and Georgia Code Ann.; § 109A-3--502(1)(a), or/and § 109A-4--302, or/and § 109A-4—104(h), or/and § 109A-
3—506, or/and Georgia Commercial Code Ann. § 109A-3—508(2) in this case. It is also emphasized that the statutory definition of O.C.G.A. § 11-4-
105(2) or/and UCC § 4-105(2) clearly states that a “depositary bank” is also the “payor bank” for the purpose of this case, where deposit was credited into
Appellant’s account and not paid as cash over the counter, which means that the Appellee bank has incurred liability as “depositary bank” due to its initial
acceptance of Appellant’s check/deposit as per UCC § 3-413, and/or O.C.G.A. § 11-3-413(a)(ii), and/or O.C.G.A. § 11-5-111, etc.

Page 29 of 30
(16.4) In conclusion, Appellee has not shown that there is any cause for its action, or that there is any fact or issue that is not already resolved in favor
of Appellant. Appellee is therefore not entitled to any judgment in its favor on its motion for summary judgment as a matter of law, and Appellant is in fact
entitled to judgment as a matter of law, and to the granting of Appellant’s counterclaim against Appellee, and the granting of Appellant’s Motion for
Summary Judgment. Even if Appellant cannot demonstrate the exact/perfect measure of damages suffered and can only quote to seek proximate
damages of around $344,876.54, as a fact finder, court can make a just and reasonable affirmation of this amount as the estimate of damage caused by
Bank of America to award Appellant financial relief. Raishevich v. Foster, 247 F3d 337 (2nd Cir. 2001).

WHEREFORE, Appellant respectfully requests: (1) That the honorable Court of Appeals of Georgia reverse the judgments of the State Court of
Cobb County and issue an order granting Appellant’s counterclaim and Appellant’s Motion for Summary Judgment that dismisses/terminates Appellee’s
action in entirety immediately, with prejudice; (2) That the honorable court grant award of judgment and financial relief from Appellant bank to Appellee in
the principal amount of $1376.54 plus accrued pre-judgment interest in the sum of $250.00 from July 8th 2004 (the day of wrongful debit of Appellant’s
account and wrongful dishonor of Appellant’s check deposited on 6/12/04 after original honoring by 6/14/04) through February 8th 2007, additional pre-
judgment interest at the statutory rate of 7.0% per annum until date of judgment and post-judgment interest until paid, pursuant to O.C.G.A § 7-4-12; (3)
That the honorable court issue an order granting the settlement/recovery sought by Appellant of proximate damages and costs (whether directly
or indirectly caused by Appellee due to its actions of wrongful dishonor, failure to give notice of dishonor, and abusive litigation) of around $344,876.54
(or more as is reasonable according to the honorable Judge(s) right away based on Appellant’s pleadings and motions in the record of this case (R-1-
924), without the need for a trial of this case), plus additional pre and post judgment interest, as legally appropriate, from the date of making of Appellant’s
Motion for Summary Judgment in February/March of 2007. [Appellant seeks such an award of financial relief as quoted above from Appellee, to
compensate Appellant for time expended on this litigation to date, including the period prior to the writing of her Summary Judgment related documents
and Rebuttals in March 2007, missed work opportunities/income in the past, emotional anguish/psychological distress suffered by Appellant to date and
prior to the date of the Summary Judgment and its Related Rebuttals and Responses in 2007, and/or for tarnishing of reputation caused by Appellee (that
needs to be undone by it by clearing negative remarks and paying a financial settlement or financial relief to Appellant), and for other expenses incurred
by Appellant, for costs of legal research pertaining to this case, and for costs during the course of Appellant’s defense and litigation through Appellant’s
counterclaim against Appellee related to Appellee’s frivolous, abusive and outrageous suit on contract, as appropriate, according to the laws and Statutes
of the State of Georgia, United States, and International Law]; and (4) That the honorable court order Appellee to clear all negative comments and
remarks pertaining to Appellant’s check or account in this case, that Appellee placed or caused to be placed in the past in Appellant’s credit reports,
and/or chex systems reports, and/or any/all other Banking, Financial, or other legal information sharing agencies, and/or credit bureaus, immediately, in
principles of equity to Appellant. Appellant further requests any or all special relief she is entitled to from Appellee bank, Bank of America, whether they be
levied through fines or sanctions or other means of punitive action on Appellee, and any other form of financial relief available to Appellant from Appellee,
in this case.

This 26th day of May, 2009.


Respectfully Submitted,

Signed: _________________________
Subbamma V. Vadde, Pro Se
5197Edgemoor Dr,
Norcross, GA 30071
U.S.A

Page 30 of 30
CERTIFICATE OF SERVICE

This is to certify that I have this 26th day of May, 2009 served a copy of the foregoing correspondence on: “Amended Brief of Appellant,” for
CIVIL APPEAL DOCKET# A09A1714, in The Court of Appeals of Georgia, to Mr. William Martin, the Clerk of Court of Appeals of Georgia, and
Attorney for Appellee, Mr. Michael Cohen, by placing a copy of the correspondence in certified U.S. mail with sufficient postage affixed, with
delivery confirmation, addressed to the succeeding 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
5197 Edgemoor Dr.,
Norcross, GA 30071
U.S.A
Phone: (404) 453-3531