Swift v. Norwest Bank-Omaha West

Nebraska Advance Sheets
SWIFT v. NORWEST BANK-OMAHA WEST 619
Cite as 285 Neb. 619
Mary C. Swift, appellant, v. Norwest
Bank-Omaha West, now known as
Wells Fargo, Inc., a banking
corporation, appellee.
___ N.W.2d ___
Filed April 5, 2013. No. S-11-914.
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, and gives that party the benefit of all reasonable
inferences deducible from the evidence.
2. ____: ____. An appellate court will affirm a lower court’s grant of summary
judgment if the pleadings and admitted evidence show that there is no genuine
issue as to any material facts or as to the ultimate inferences that may be drawn
from the facts and that the moving party is entitled to judgment as a matter
of law.
3. Constitutional Law: Appeal and Error. A constitutional issue not presented to
or passed upon by the trial court is not appropriate for consideration on appeal.
Appeal from the District Court for Douglas County: P eter
C. Bataillon, Judge. Affirmed.
Michael J. O’Bradovich for appellant.
Scott D. Jochim and Robert M. Gonderinger, of Croker,
Huck, Kasher, DeWitt, Anderson & Gonderinger, L.L.C.,
for appellee.
Robert J. Hallstrom, of Brandt, Horan, Hallstrom & Stilmock,
for amicus curiae Nebraska Bankers Association, Inc.
Heavican, C.J., Wright, Connolly, McCormack, and Miller-
Lerman, JJ., and Inbody, Chief Judge, and Pirtle, Judge.
Wright, J.
NATURE OF CASE
On November 30, 2009, Mary C. Swift filed suit against
Norwest Bank-Omaha West (Norwest), seeking judgment for
principal and interest allegedly due and owing on a $15,000
certificate of deposit (CD) opened by her mother on July
19, 1984. Wells Fargo, Inc., is Norwest’s successor in inter-
est. The district court sustained Wells Fargo’s motion for
Nebraska Advance Sheets
620 285 NEBRASKA REPORTS
summary judgment, finding that Swift’s claims were barred
by the applicable statute of limitations. See Neb. Rev. Stat.
§ 25-227 (Reissue 2008). Swift appeals from the district
court’s order overruling her motion to alter or amend the sum-
mary judgment.
SCOPE OF REVIEW
[1] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted, and gives that party
the benefit of all reasonable inferences deducible from the evi-
dence. Professional Mgmt. Midwest v. Lund Co., 284 Neb. 777,
826 N.W.2d 225 (2012).
FACTS
Swift’s complaint alleged that her mother, Lucille C. Decker,
opened a $15,000 CD on July 19, 1984, with Norwest. Swift
had no knowledge of the CD at the time it was opened. The CD
listed “Lucil[l]e C. Decker or Mary C. Swift” as the deposi-
tors. The CD specified that it would mature 9 months after the
date it was issued and provided that Norwest would automati-
cally renew the CD at maturity unless Decker or Swift notified
Norwest otherwise. The annual rate of interest was 10.5 per-
cent, and interest would be paid at withdrawal “by adding to
principal.” In the event that the CD was automatically renewed,
the renewal interest rate would be the rate then in effect for a
CD of the same term and amount. Decker and Swift were joint
depositors with rights of survivorship.
Decker died intestate on December 18, 1991. Swift had no
knowledge of any actions taken by Decker during her lifetime
regarding the CD. In this action, filed in 2009, Swift claimed
that the CD was “in existence on or after July 1, 2008,” because
she was in possession of the original CD. Swift claimed that
she has been in exclusive possession of the CD since the early
part of 1985.
Swift admitted that (1) for more than 7 years prior to the fil-
ing of this lawsuit, she did not receive any written communica-
tion from any depository institution regarding the CD; (2) she
did not receive any written notice of renewal of the CD from
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SWIFT v. NORWEST BANK-OMAHA WEST 621
Cite as 285 Neb. 619
any depository institution; (3) she did not receive any written
communication from any depository institution recognizing its
obligation with respect to the CD; and (4) she did not report
interest income from the CD on a federal or state income
tax return.
After a Wells Fargo account has been closed for more than
7 years, Wells Fargo destroys the records related to the closed
account in accordance with Neb. Rev. Stat. §§ 8-170 through
8-174 (Reissue 2012). Wells Fargo cannot close an account
until the depositor has been paid in full, the funds are trans-
ferred to another account at the direction of the depositor, or
the funds are paid to Nebraska’s State Treasurer’s unclaimed
property division under state escheatment laws.
For more than 7 years prior to the commencing of this
action, Wells Fargo did not send any written communication,
renewal notice, Internal Revenue Service Form 1099 regarding
interest income earned on the CD, or any other communication
to Decker or Swift regarding the CD at issue. Wells Fargo had
no record of remittance of any unpaid balance on the CD to
Nebraska’s State Treasurer.
The treasurer’s unclaimed property division confirmed that
on or about December 4, 1995, Wells Fargo reportedly paid
$117.37 to the treasurer, identified as a “‘CD interest check’”
payable to Swift and Decker. The treasurer published notice of
the CD interest check in the Omaha World-Herald on March
1, 1996. Pursuant to a claim submitted by Swift 13 years later
in August 2009, the treasurer paid the amount of $117.37 to
Swift on or about August 24, 2009. This was the only infor-
mation that the treasurer’s office had with respect to Decker
or Swift.
Wells Fargo allows account holders to access their money
without having to present the original CD. It requires the
account holder to sign a form confirming that he or she is the
owner of the account and that he or she will indemnify the
bank against any loss, damage, claim, or expense resulting
from payment of the funds. Wells Fargo has no record of any
such form signed by Decker or Swift, because any record had
been destroyed pursuant to its record retention policy.
Nebraska Advance Sheets
622 285 NEBRASKA REPORTS
In 2009, Swift contacted Wells Fargo and requested a with-
drawal of the CD funds. Because Wells Fargo had no record
of the CD, it denied Swift’s request. Swift then brought this
action on November 30, 2009. She alleged that the CD opened
in 1984 was to be renewed on a regular basis and that she is
now due the money owing pursuant to such CD from the date
it was opened.
In its defense, Wells Fargo asserted that the action was
barred by the applicable statute of limitations. The district court
determined the relevant statute of limitations was § 25-227,
which provides that the holder of a CD has 7 years from the
maturity date or 1 year from July 1, 2008, whichever is later,
to commence an action for payment of the CD.
The district court found that Swift’s action was barred
by § 25-227 and sustained Wells Fargo’s motion for sum-
mary judgment.
ASSIGNMENTS OF ERROR
Swift claims, summarized and restated, that the district
court erred in sustaining Wells Fargo’s motion for summary
judgment and in overruling Swift’s motion to alter or amend
the judgment.
ANALYSIS
[2] The issue presented is whether Swift’s cause of action
is time barred by § 25-227. An appellate court will affirm a
lower court’s grant of summary judgment if the pleadings and
admitted evidence show that there is no genuine issue as to
any material facts or as to the ultimate inferences that may be
drawn from the facts and that the moving party is entitled to
judgment as a matter of law. Professional Mgmt. Midwest v.
Lund Co., 284 Neb. 777, 826 N.W.2d 225 (2012).
The following facts are undisputed: Swift did not commence
an action against Wells Fargo on the CD within 7 years after
April 19, 1985, which was the maturity date of the CD. For
more than 7 years prior to commencing this action, Swift did
not receive any written communication from a depository insti-
tution regarding the CD. She did not receive written notice of
renewal of the CD from any depository institution. She did not
Nebraska Advance Sheets
SWIFT v. NORWEST BANK-OMAHA WEST 623
Cite as 285 Neb. 619
receive any written communication from a depository institu-
tion recognizing its obligation with respect to the CD. She did
not report interest income from the CD on a federal or state
income tax return. Swift did not file this action within 1 year
after July 1, 2008.
Wells Fargo is a federally chartered financial institution
located in Nebraska and is authorized to maintain CD’s. We
conclude Wells Fargo is a depository institution as defined by
§ 25-227(1)(c).
Decker died intestate in 1991. Swift alleges that the original
CD issued on July 19, 1984, has been in her possession since
1985 and that Decker never reclaimed the CD before her death.
Swift asserts that because the provisions of the CD allowed
for automatic renewal and the accrued interest was added to
and made a part of the principal, the CD would mature every
9 months, when it would automatically be renewed for another
9 months.
We must first consider whether the CD at issue was a nego-
tiable instrument and therefore subject to Nebraska’s Uniform
Commercial Code, specifically Neb. U.C.C. § 3-118(e) (Cum.
Supp. 2012).
Article 3 of the Uniform Commercial Code applies to nego-
tiable instruments. Neb. U.C.C. § 3-102(a) (Reissue 2001).
“[N]egotiable instrument” means an unconditional prom-
ise or order to pay a fixed amount of money, with or
without interest or other charges described in the promise
or order, if it:
(1) is payable to bearer or to order at the time it is
issued or first comes into possession of a holder;
(2) is payable on demand or at a definite time; and
(3) does not state any other undertaking or instruction
by the person promising or ordering payment to do any
act in addition to the payment of money . . . .
....
(d) A promise or order other than a check is not an
instrument if, at the time it is issued or first comes into
possession of a holder, it contains a conspicuous state-
ment, however expressed, to the effect that the promise or
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624 285 NEBRASKA REPORTS
order is not negotiable or is not an instrument governed
by this article.
Neb. U.C.C. § 3-104 (Cum. Supp. 2012).
Section 25-227(2) provides:
Subject to subsection (3) of this section, an action to
enforce the obligation of a depository institution to pay
all or part of the balance of a certificate of deposit shall
be commenced by the earlier of:
(a) The time that an action to enforce an obliga-
tion under subsection (e) of section 3-118, Uniform
Commercial Code, must be commenced if the certificate
of deposit is subject to such section; or
(b) Seven years after the later of:
(i) The maturity date of the certificate of deposit;
(ii) The due date of the certificate of deposit indi-
cated in the depository institution’s last written notice of
renewal of the certificate of deposit, if any;
(iii) The date of the last written communication from
the depository institution recognizing the depository
institution’s obligation with respect to the certificate of
deposit; or
(iv) The last day of the taxable year for which a person
identified in the certificate of deposit last reported interest
income earned on the certificate of deposit on a federal or
state income tax return.
The CD in question was not payable to bearer and also
stated that “[m]y certificate is nontransferable except when: . . .
pledged as collateral for a loan; . . . transferred by operation of
law; or . . . transferred on your books or records.” We therefore
conclude that the CD was not a negotiable instrument subject
to article 3 of Nebraska’s Uniform Commercial Code.
The CD provided that it would mature 9 months after the
date issued. It was issued July 19, 1984, and therefore matured
9 months later on April 19, 1985. Swift argues that because
the CD specified that it would automatically renew unless
Norwest was told otherwise, the maturity date would auto-
matically be extended every 9 months. We disagree. “Maturity
date” means the time specified in an account when a CD is first
payable, without taking into account any agreement regarding
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SWIFT v. NORWEST BANK-OMAHA WEST 625
Cite as 285 Neb. 619
renewals. § 25-227(1)(d). The CD matured on April 19, 1985,
and pursuant to § 25-227(2)(b)(i), Swift was required to file an
action no later than April 19, 1992 (7 years after the maturity
date of the CD). This action was commenced over 24 years
from the maturity date of the CD.
Section 25-227(3) provides:
Notwithstanding subsection (2) of this section, an action
to enforce the obligation of a depository institution to pay
all or part of the balance of an automatically renewing
certificate of deposit in existence on July 1, 2008, shall be
commenced by the later of:
(a) Seven years after the later of:
(i) The maturity date of the certificate of deposit;
....
(b) One year after July 1, 2008.
Swift had to commence her action either 7 years after the
maturity date of the CD or 1 year after July 1, 2008. Swift did
not commence her action until November 30, 2009, and there-
fore, her claims are barred by § 25-227.
[3] In Swift’s motion to alter or amend the judgment, she
argued that § 25-227 was unconstitutional because it inhibited
parties from freely contracting, in violation of Neb. Const.
art. I, § 16. This claim was not raised prior to the entry of
summary judgment in favor of Wells Fargo. Because the con-
stitutional issue was not presented to the district court prior to
the summary judgment, we decline to consider it on appeal. A
constitutional issue not presented to or passed upon by the trial
court is not appropriate for consideration on appeal. Shepherd
v. Chambers, 281 Neb. 57, 794 N.W.2d 678 (2011).
CONCLUSION
Swift’s claims are barred by § 25-227, and the district court
did not err in entering summary judgment for Wells Fargo. For
the reasons set forth herein, the judgment of the district court
is affirmed.
Affirmed.
Stephan and Cassel, JJ., not participating.