DocketNumber： No. 05-P-1796
Citation Numbers： 69 Mass. App. Ct. 797
Judges： Celinas
Filed Date： 8/22/2007
Status： Precedential
Modified Date： 6/25/2022
The plaintiff C. Peter R. Gossels filed a complaint in the Boston Municipal Court against the defendant Fleet National Bank
On appeal, the Appellate Division of the Boston Municipal Court affirmed. Both Gossels and Fleet appeal to this court.
The facts as found by the trial judge are uncontested. Gossels received a check from the German government for 85,071.19 euros, drawn on Dresdner Bank of Germany.
At this point, the international teller failed to inform Gossels either that Fleet could pay Gossels only in dollars, or that Fleet paid international checks at a “retail exchange rate” several percentage points lower than the interbank “spot rate” for foreign currency. Had Gossels known this information, he would have taken the check to another bank.
As Gossels started to endorse the check, the international teller also incorrectly instructed Gossels not to endorse the check, stating that no endorsement was required for checks drawn on a foreign bank.
The teller then took the check and gave Gossels a preprinted receipt, which we see, from the copy in the record appendix, was entitled “Foreign/Domestic Non Cash Collection Receipt”; in so doing, the teller did not check either of two mutually exclusive options on the form, the first box indicating that “provisional credit” would be given to Gossels, the other indicating that the check was accepted for “collection only.” The judge found that if Fleet had given Gossels provisional credit for the check, then the funds in dollars would have been credited
From the record appendix, we also note that the receipt handed to Gossels, which Gossels signed and dated, contained the following statement: “I understand that Fleet Bank is acting as an agent for collection on my behalf according to the terms spelled out on the verso.” The reverse side of the receipt provided, among other things, that “Fleet National Bank will act in good faith and exercise reasonable care to collect the check(s) or other financial documents.” The reverse side of the receipt also stated that “[fjoreign bank fees and Fleet service charges are deducted from proceeds.”
Fleet maintains for teller instruction a manual of foreign check collection practices. The manual instructed tellers to inform the customer that receipt of payment by a customer for a foreign check would take four to six weeks, and that an exchange rate would be applied, based on the date of Fleet’s receipt of the funds from the foreign bank. Moreover, the manual instructed tellers to advise the customer of the approximate date on which the exchange rate would be determined. The international teller in this case failed to provide Gossels with any of this information.
Fleet, as collecting bank, sent the check to its global collection department, which sent it with a collection letter dated October 20, 1999, to Fleet’s foreign correspondent bank in Germany, Deutsche Bank. On November 1, 1999, Gossels received a notice from Fleet that the check had been returned unpaid because it lacked an endorsement.
On December 15, 1999, Gossels received notice from Fleet that it had credited his account with check proceeds in the amount of $81,754.77, which was based on the December 15, 1999, retail exchange rate offered by Fleet for 84,971.19 euros. The same number of euros would have been worth $88,616.45 based on the October 15, 1999, retail exchange rate offered by Fleet, or $92,023.80 based on the October 15, 1999, spot rate offered by Dresdner Bank.
After further communication, and a complaint to the Massachusetts Attorney General, on September 22, 2000, Gossels sent Fleet a thirty-day demand letter under G. L. c. 93A, § 9(3). Fleet did not respond.
Gossels then initiated the suit that is the subject of this appeal.
Contract claim. We first address Gossels’s argument that the trial judge erred in failing to find that Fleet was in breach of its contract with him with respect to the check.
In the first count of his complaint, Gossels alleged that “Fleet breached its Agreement with Gossels by failing to ‘act in good faith’ to collect the euro proceeds from the check that it had accepted from Gossels . . . .” We think this count, and the supporting factual material in the complaint incorporated by reference, was a sufficient pleading that Gossels is entitled to relief against Fleet for breach of its duty of reasonable care and good faith to Gossels as his agent for the collection of the instrument. In most cases, breach of a duty of care is a tort, and not a breach of contract. See Anthony’s Pier Four, Inc. v. Crandall Dry Dock Engrs., Inc., 396 Mass. 818, 822-823 (1986); Her
As the code dictates, Gossels was the principal in the transaction. “In those cases where some period of time elapses between the final payment of the item by the payor bank and the time that the settlement of the collecting bank is or becomes final, ... the continuance of the agency status of the collecting bank necessarily carries with it the continuance of the owner’s status as principal.” Official Comment 5 to Uniform Commercial Code § 4-201, 2B U.L.A. 47 (Master ed. 2002).
Fleet, as agent under § 4-201, was not a general agent, the agency status being limited to collecting items. See United States for Use & Benefit of Westinghouse Elec. Corp. v. Sommer Corp., 580 F.2d 179, 183 (5th Cir. 1978) (Westinghouse). See also Official Comment 1 to Uniform Commercial Code § 4-201, 2B U.L.A. 45 (Master ed. 2002) (section 4-201 was placed in code to govern risk of loss of item while being collected; agency status of § 4-201 is limited to that of “agent for collection”). For example, a collecting bank is not the sort of agent whose knowledge of collateral facts is imputed to the owner of the collection item. See Westinghouse, supra, citing 3 R. Anderson, Uniform Commercial Code § 4-201:1-9 (2d ed. 1971). The bank’s duties as agent include presenting the item or sending it for presentment, notifying its transferor of nonpayment or dishonor, and settling with the principal when it receives final payment. Westinghouse, supra.
The code specifies that the collecting bank, as agent, is held to the standard of ordinary care in carrying out the basic tasks
Accordingly, in accepting the check for collection, whether or not provisional credit was given, and within the scope of its agency, Fleet became bound to perform in good faith and to exercise reasonable care in conducting itself as an agent for Gos-sels, its principal, as that standard is construed under the laws of the Commonwealth. Thus, the question posed by Gossels’s contract claim was more whether the bank had committed a breach of its duty of care as Gossels’s agent for collection, than whether the bank had committed a breach of the contract as embodied in the receipt. For that reason, the judge appropriately treated count I of the plaintiff’s complaint as sounding in tort.
We also concur with the trial judge in her finding that the parties had impliedly assented to try the case on the basis of negligent misrepresentation. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be
Negligent misrepresentation. Turning to the merits of Gos-sels’s negligence claim, the evidence fully supported the judge’s conclusion that the bank was liable for Gossels’s losses caused by its negligent misrepresentations regarding the collection and payment of his check. The judge focused on the teller’s misrepresentations concerning the need for endorsement and method of payment. But from the documentary record and the undisputed facts, and as further alleged and incorporated by reference in Gossels’s count for violation of G. L. c. 93A, it is apparent that Fleet’s misrepresentations went considerably further.
In its defense, Fleet presses the representations it made on the reverse side of the receipt it provided to Gossels as establishing the standard for its duty of care, that being good faith and reasonable care, and we agree. But the very same receipt also informed Gossels that “Fleet service charges” would be deducted from the proceeds. By indicating that it would deduct Fleet service charges from amounts it collected on Gossels’s behalf, Fleet undertook the affirmative obligation, in these circumstances, to disclose all material facts bearing on any other amounts it would retain for itself from the check proceeds.
“Although there may be ‘no duty imposed upon one party to a transaction to speak for the information of the other . . . if he does speak with reference to a given point of information, voluntarily or at the other’s request, he is bound to speak honestly and to divulge all the material facts bearing upon the point that lie within his knowledge. Fragmentary information may be as misleading ... as active misrepresentation, and half-truths may be as actionable as whole lies.’ ”
Ibid., quoting from Kannavos v. Annino, 356 Mass. 42, 48 (1969).
We think the bank’s conduct, utilizing an innocuous and vague reference to the deduction of Fleet service charges, while omitting any reference to the differential rates it would employ to derive a hefty profit at Gossels’s expense, was a clear breach of the bank’s duty of good faith and reasonable care as Gossels’s agent for collection. In accordance with the code, the bank’s own preprinted receipt, and Massachusetts negligence law, see generally Kannavos v. Annino, supra, and cases cited, Fleet was obliged to perform its collection duties in good faith and with reasonable care, and to disclose all material facts bearing on amounts it would retain for itself from the proceeds of Gossels’s check. From the judge’s findings and from the undisputed facts, it is evident that Fleet did not meet this standard.
First, as the judge found, Fleet’s teller informed Gossels that his endorsement would not be required for collection of the check,
Additionally, as the judge found, Fleet committed a breach of its duty as an agent for collection when the teller failed to disclose not only that the collection would be in dollars and not in euros, but also when she failed to inform Gossels whether the bank was accepting the check for provisional credit or for collection only. The breach was compounded by the teller’s failure to disclose other elements of the transaction, all set out in the instruction manual prepared for teller use with transactions of this nature, which the teller either ignored or of which the teller was ignorant.
While all of the above might be ascribed to the simple negligence of the teller in handling the transaction (thus justifying the trial judge in her finding against Gossels on his claim under G. L. c. 93A), it is of greater concern that Fleet was required, in accordance with the partial representations in the receipt it handed to Gossels regarding its service charges, to disclose all material facts bearing on amounts it would deduct for itself from the check proceeds. This included advising Gos-sels that it would pay his international check at a retail exchange rate that was several percentage points lower than the spot rate it received for foreign currency.
Nor do we think it a defense to Fleet’s failure to disclose all material facts bearing on its charges and profits that Gossels did not pursue, with vigilance and attention, either the matter of the currency in which the check would be paid or the rate differential that might apply, especially as the rate sheet was to be kept secret from customers. Having volunteered the partial information that it would deduct Fleet service charges, the duty to disclose all material facts bearing on amounts it would take for itself from the check proceeds was on Fleet.
Further, after payment of the item, when Gossels did question the rate and the transaction, Fleet once again failed to provide such detail of the transaction and the charges and profit to be deducted from the check proceeds that good faith would require of a collecting bank. See, e.g., Golber v. BayBank Valley Trust Co., 46 Mass. App. Ct. at 260 (once customer expressed concern about a given matter affecting her investment, “the bank was not at liberty to provide misleading information”). Instead, Fleet informed Gossels by letter that he was not being “shortchanged” and that the spot rates Gossels had cited were for “Interbank use, not for consumer exchange. [We] can assure you that the rate of exchange used in this matter is fair.” By failing to disclose its
On appeal, Fleet does not question the judge’s decision to treat the case as one involving negligent misrepresentation, despite its not being expressly pleaded. Fleet argues here, as it did before the Appellate Division, only that the evidence was insufficient to warrant a finding of negligent misrepresentation, especially with respect to the judge’s finding that Gossels requested that Fleet pay the check proceeds to him in euros. While it is true that the evidence does not support the judge’s finding that Gos-sels requested the payment of the check in euros, this was not the only basis of the negligent misrepresentations. The judge found, correctly in our view, that Fleet “had an obligation to inform Gossels whether Fleet was accepting the check for ‘provisional credit’ or for ‘collection only.’ Fleet also had an obligation to inform Gossels that Fleet gave only dollars and not euros,” and did not so inform him. And from the bare references provided in the receipt, Gossels had no way of knowing, without further explanation, that Fleet would essentially charge him several thousands of dollars from the proceeds of his check.
Based on the foregoing, we will not disturb the trial judge’s finding and ruling that Fleet was liable on a theory of negligent misrepresentation.
Conversion claim. Gossels also claims on appeal that the trial
“The elements of conversion require that a defendant be proved to have ‘intentionally or wrongfully exercise[d] acts of ownership, control or dominion over personal property to which he has no right of possession at the time . . . .’ ” Grand Pac. Fin. Corp. v. Brauer, 57 Mass. App. Ct. 407, 412 (2003), quoting from Abington Natl. Bank v. Ashwood Homes, Inc., 19 Mass. App. Ct. 503, 507 (1985). Again, the receipt given to Gossels when Fleet took his check contained a statement representing that Fleet service charges would be deducted from the check proceeds. We have concluded that this partial representation obligated Fleet to disclose all material facts bearing on the amounts it would deduct from the check proceeds, in particular, that its arbitrage of the exchange rate would cost Gossels thousands of dollars. The record establishes that failure to disclose this rate differential was not mere negligence or oversight; the rate sheet was published internally with instructions that it was not to be revealed to the public, which included Gossels, its own customer and, for purposes of collection, its principal.
The undisputed evidence showed that Fleet failed to disclose all material facts regarding the amounts it would retain from the proceeds of Gossels’ check based on its retail rate sheet differential and, upon inquiry by Gossels, failed either to account for the funds or to restore them to his account. As such, we conclude that Fleet knowingly and purposefully deprived Gos-sels of the full proceeds of his check, money that, in these circumstances, properly belonged to Gossels, and thereby committed the tort of conversion, as a matter of law. See Third Natl. Bank of Hampden County v. Continental Ins. Co., 388 Mass. 240, 244 (1983) (conversion requires exercise of dominion or control over personal property of another); Restatement (Second) of Torts § 222A (1965).
Chapter 93A claim. On appeal, Gossels further argues that the trial judge erred denying his claim under G. L. c. 93A. Fleet responds that its actions could not amount to a violation of the statute. The trial judge found against Gossels on the c. 93A claim because “the teller’s failure . . . was simply negligent,
Given our conclusion that Fleet was in breach of its duty to disclose all material facts to Gossels bearing on amounts it would deduct for itself from the check proceeds, especially as regards the disclosure of the exchange rate differential, we conclude as well that it was error to find no unfair or deceptive acts or practices occurred under c. 93A. On our review, the judge’s findings, together with the undisputed facts and the documentary record, established that the bank’s conduct toward Gossels was unfair or deceptive, as a matter of law. See Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 476 (1991).
“Although whether a particular set of acts, in their factual setting, is unfair or deceptive is a question of fact, ... the boundaries of what may qualify for consideration as a c. 93A violation is a question of law.” Schwanbeck v. Federal-Mogul Corp., 31 Mass. App. Ct. 390, 414 (1991). General Laws c. 93A, § 2(a), inserted by St. 1967, c. 813, § 1, declares unlawful any “unfair or deceptive acts or practices in the conduct of any trade or commerce.” Liability under G. L. c. 93A, § 9, requires two elements: the conduct must be an unfair or deceptive act or practice, and the act or practice must be a foreseeable cause of injury to the plaintiff. See Lord v. Commercial Union Ins. Co., 60 Mass. App. Ct. 309, 317 (2004). See also Aquino v. Pacesetter Adjustment Co., 416 F. Supp. 2d 181, 192 (D. Mass. 2005).
Here, Fleet made negligent misrepresentations and committed a breach of its duty of good faith and reasonable care to Gos-sels through its teller, in the initial instance, by neglecting the requirement of an endorsement on the check, in failing to disclose that the money would be collected in dollars and not in euros, and in failing to indicate whether the collection was for provisional credit or for collection only. As well, the teller and
“[A] negligent misrepresentation of fact the truth of which is reasonably capable of ascertainment is an unfair and deceptive act or practice within the meaning of c. 93A, § 2(a).” Glickman v. Brown, 21 Mass. App. Ct. 229, 235 (1985). As in the Glick-man case, Fleet was obviously in a better position to know the conditions of the transaction, and “should not be allowed to misrepresent the truth simply because [it has] not made reasonable efforts to ascertain it.” Ibid. See Berenson v. National Fin. Servs., LLC, 403 F. Supp. 2d 133, 148-152 (D. Mass. 2005) (holding financial institution potentially liable under G. L. c. 93A for depriving customers of “lost opportunity to earn interest”); Briggs v. Carol Cars, Inc., 407 Mass. 391, 396-397 (1990) (holding car salesman liable under G. L. c. 93A, § 9, where misrepresentation of fact was reckless, though in nature of opinion); Golber v. BayBank Valley Trust Co., 46 Mass. App. Ct. at 261 (negligent misrepresentation of fact, the truth of which is reasonably capable of ascertainment, is an unfair and deceptive act or practice within the meaning of c. 93A, § 2[a]). This is especially true where Fleet volunteered that it would deduct service charges from the check proceeds, but purposely withheld information from Gossels by not revealing the rate differential, arising from its use of the internal rate sheet, by which the bank would acquire, at Gossels’s expense, thousands of dollars in crediting the check proceeds to Gossels’s account. See Grossman v. Waltham Chem. Co., 14 Mass. App. Ct. 932, 933 (1982) (failure to disclose fact, the disclosure of which may have influenced a person not to enter into a transaction, is a violation of c. 93A).
Fleet’s conduct was unfair and deceptive in these circum
Damages. Based on her finding of negligent misrepresentation, the trial judge found that Gossels had been damaged in the amount of $6,861.68, the difference between what the bank paid Gossels on December 15, 1999, and the amount he would have received on October 15, 1999, using Fleet’s internal retail rate sheet for that day, if he had been given provisional credit and had the check been properly processed.
Fleet argues that when the check was presented for provisional credit or for collection Fleet would have no way of knowing what the spot rate would be on the date, some days hence, of presentment to Dresdner Bank, and was thus in no position to quote a precise rate to Gossels. We think this argument without merit; the internal rate sheet published for bank use only established the rate at approximately four percent less than current spot rates, and Fleet was in a position to advise Gossels of this and all other material facts, and to attempt to secure his agreement to a reduced amount.
Conclusion. The judge’s finding under count I of the complaint that Fleet is liable to Gossels for negligent misrepresentation has not been shown to be erroneous. On the undisputed facts, Gossels is entitled to judgment as well on counts II (conversion) and III (G. L. c. 93A) of his complaint.
As she denied Gossels’s claim under G. L. c. 93A, the trial judge never reached the issue whether Fleet had responded to Gossels’s c. 93A demand letter. Nothing in the record suggests that it did so. As we have concluded that Gossels was entitled to judgment on his claim pursuant to G. L. c. 93A, the trial court shall also, consistent with this opinion, determine whether Fleet’s violation was such as to make appropriate an award of multiple damages in accordance with c. 93A, § 9(3). See Grand Pac. Fin. Corp. v. Brauer, 57 Mass. App. Ct. at 422. Gossels shall also be entitled to reasonable attorney’s fees and costs in the trial court. See G. L. c. 93A, § 9(4). The trial judge may take further evidence on each of these items on remand.
So ordered.
We employ the name Fleet National Bank although through acquisition and merger the name no longer is used. No substitution of party appears in the record.
The trial judge specifically found that “Fleet negligently misrepresented the terms by which the check would be collected and the denomination of the funds that would be credited to Gossels’[s] account” (footnote omitted). Gossels did not specifically allege a negligent misrepresentation count in his complaint.
This check was a payment in reparation for the seizure by the Third Reich of property belonging to Gossels’s family.
The trial judge “credit[ed] the testimony of Gossels that if he had known that Fleet intended to give him dollars instead of euros, he would have declined to give the check to Fleet and would have taken it to another bank.” The trial judge also “credited the testimony of Gossels that... he asked [the teller] to collect the total amount of the check in euros.” The record contains no testimony regarding this latter point.
We observe from the copy in the record appendix that next to the “provisional credit” option on the receipt handed to Gossels were blank spaces for indicating the rate, fees, and credit amount. Nothing was written in these spaces, however. The back of the receipt stated that “Provisional Credit payments are subject to final collection. Foreign bank fees and Fleet service charges are deducted from proceeds.”
The “collection only” option on the copy of the receipt in the record appendix states in parentheses, “Rate and fees determined at time of settlement.”
Deutsche Bank had attempted to collect the funds by logging the check into its system and mailing the check to Dresdner Bank. After failing to receive a guaranty from Fleet in lieu of Gossels’s endorsement, Dresdner Bank returned the check unpaid.
Although not clear from the record, it appears that this was the amount of interest that would have been earned to that date had Fleet accepted the check on a “provisional credit” basis.
The October 15,1999, Fleet retail exchange rate for checks under $100,000 was $1.0429 per euro. The October 15, 1999, Dresdner Bank spot rate was $1.0830. In line 16 of its answer, Fleet “[a]dmitted that Fleet collected $84,971.19 in Euros [sz'e] and did not credit the Euros to Gossels[’s] account but instead converted the Euros to Dollars at the then exchange rate for non-interbank transfers of more [sic] than $1 million. Further answering, Fleet says that the spot rate is only generally available for interbank transfers of more than $1 million.” (Emphasis added.) The first use of the phrase “more than $1 million” in an apparent typographical error notwithstanding, the rate used by Fleet was for interbank transfers of less than $1 million.
All citations in this opinion to provisions of article 3 and 4 of the code are to those appearing in St. 1998, c. 24, § 8.
The section provides in relevant part, “(a) A collecting bank must exercise ordinary care in: (1) presenting an item or sending it for presentment; (2) sending notice of dishonor or nonpayment or returning an item other than a documentary draft to the bank’s transferor after learning that the item has not been paid or accepted, as the case may be; (3) settling for an item when the bank receives final settlement; and (4) notifying its transferor of any loss or delay in transit within a reasonable time after discovery thereof.” G. L. c. 106, § 4-202.
Section 4-102(h) states that:
“[t]he liability of a bank for action or nonaction with respect to an item handled by it for purposes of presentment, payment, or collection is governed by the law of the place where the bank is located. In the case of action or nonaction by or at a branch or separate office of a bank, its liability is governed by the law of the place where the branch or separate office is located.”
Nothing in the record suggests why the teller would give Gossels such advice, or whether the teller sought information from superiors concerning what is common and elementary procedure in the cashing and collection of checks.
As noted, there is no evidence to support the trial judge’s finding that Gossels requested payment in euros. According to the bank’s manual, the teller was under obligation to advise Gossels in this regard, and failed to so do; there was no need for Gossels to have made his wishes known. As well, the failure to advise Gossels of all material facts bearing on the conversion from euros to dollars was a breach of the bank’s duty of good faith and reasonable care.
We hasten to add that nothing prevents the bank from using a retail exchange rate lower than the spot rate available on the day of collection or the interbank rate used between banks; the issue here is strictly one of the disclosure a collecting bank, as agent, owes its principal, under the duty of reasonable
There can be no legitimate dispute that the differential between the rates here was material, and not a mere transactional charge. See and contrast Press v. Chemical Inv. Servs. Corp., 166 F.3d 529, 532-536 (2d Cir. 1999) (broker need not disclose $158.86 markup on six-month Treasury bill sold for $99,488.42 with maturity value of $102,000).
It does not avail Fleet that the language “[r]ate and fees determined at time of settlement” appeared parenthetically next to the “collection only” option on the front of the receipt, as the judge found that the bank failed to inform Gossels which option applied to his check. In any event, we would not view that parenthetical as satisfying Fleet’s duty to disclose the rate differential that cost Gossels several thousands of dollars from the proceeds of his check.
Our conclusion that the bank’s conduct constituted a conversion of Gossels’s funds, as a matter of law, does not necessarily translate to a wilful and knowing violation of c. 93A, as conversion does not require a showing of the kind of intentional unfairness or deception that warrant c. 93A sanctions, or that the misrepresentations be tantamount to a deliberate fraud. See VMark Software, Inc. v. EMC Corp., 37 Mass. App. Ct. 610, 622-624 (1994). See also Squeri v. McCarrick, 32 Mass. App. Ct. 203, 206-207 & n.10 (1992).
Neither party has challenged the trial judge’s use of the October 15, 1999, provisional credit date rather than October 21, 1999, when final collection would apparently have occurred if Gossels had endorsed the check on October 15.
The trial judge found, and we agree, that insofar as the presentment to Dresdner Bank is concerned, Fleet appropriately followed the provisions of § 3-107. There is no claim that Fleet failed to obtain the appropriate amount of money at this point.
As to count IV, we conclude that there was no violation of G. L. c. 106, § 3-107. The option whether to make payment in the foreign currency or in dollars lies in the payor bank, a choice over which the collecting bank has no control.
As we conclude that count I of Gossels’s complaint sounds in tort and not in contract, there was no error, as claimed by Gossels, in the failure to award prejudgment interest from the date Fleet paid the check. Prejudgment interest shall be awarded from October 4, 2001, the date of commencement of this action, pursuant to G. L. c. 231, § 6B.