Branch Banking & Trust Co. v. Dortic, D. ( 2023 )

J-S45001-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 BRANCH BANKING & TRUST : IN THE SUPERIOR COURT OF COMPANY : PENNSYLVANIA : : v. : : : DANIEL DORTIC : : No. 1914 EDA 2022 Appellant : Appeal from the Judgment Entered June 23, 2022 In the Court of Common Pleas of Northampton County Civil Division at No(s): 2019-C-7086 BEFORE: OLSON, J., STABILE, J., and MURRAY, J. MEMORANDUM BY OLSON, J.: FILED FEBRUARY 09, 2023 Appellant, Daniel Dortic, appeals from the judgment entered on June 23, 2022, in favor of Plaintiff, Branch Banking & Trust Company (hereinafter “Plaintiff”), and against Appellant, in the amount of $49,984.27. We affirm. The trial court ably summarized the underlying facts and procedural posture of this case: Plaintiff filed a complaint against [Appellant] on August 5, 2019, seeking judgment against him in the amount of $49,984.27 plus costs. Plaintiff averred in the complaint that [Appellant] is the holder of a credit agreement (“Credit Line Agreement”), the terms and conditions of which were agreed to by the parties. Plaintiff further averred that [Appellant] defaulted under the terms and conditions of the credit agreement by failing to make the required payments when due and that [Appellant] has an outstanding balance due and owing to Plaintiff in the amount of $49,984.27. On August 5, 2019, [Appellant] filed an answer to the complaint with new matter and a counterclaim. In his J-S45001-22 answer, [Appellant] stated that he is without sufficient knowledge to admit or deny that he is the holder of the credit agreement because he “does not recall any amounts owed on the alleged account.” In response to the averments in the complaint concerning his alleged default of the terms and conditions of the credit agreement and the alleged due and owing balance, [Appellant] denied [the averments], stating that he “is without sufficient knowledge to admit or deny the allegation[s]” because he [was] without documentation that indicate[d] that he could be in default and/or documentation showing any amounts due to Plaintiff. In [Appellant’s] counterclaim for conversion, [Appellant] ask[ed] that judgment be entered in his favor because Plaintiff exercised wrongful dominion and control when it withdrew money in excess of $30,000 from a joint account, owned by [Appellant] and his wife as tenants by the entireties, in order to offset the default on [Appellant’s] individual obligation to Plaintiff under the Credit Line Agreement. On October 27, 2021, Plaintiff filed a motion for summary judgment and a memorandum of law in support thereof, arguing that there [was] no genuine issue of material fact and requesting [the trial court] to enter judgment against [Appellant] in the sum of $49,984.27. Regarding [Appellant’s] counterclaim, Plaintiff explain[ed] in his motion for summary judgment that on January 7, 2019, it offset from [Appellant] and his wife’s Joint Checking Account and Joint CD Account amounts in the sums of $16,082.61 and $11,588.36, respectively, to pay down the amount due and owing under [Appellant’s] Credit Line Agreement. Plaintiff further explain[ed] that these offsets were permissible pursuant to the Credit Line Agreement that [Appellant] entered into on August 9, 2016, as well as a Bank Services Agreement sent to [Appellant] and his wife on or about May 9, 2016. ... Section 19 of [Appellant’s] executed Credit Line Agreement states, in relevant part, Right to Setoff: You [(Plaintiff)] have the right to deduct any money I owe for a minimum Periodic Payment more than 15 days past due or the entire unpaid Outstanding -2- J-S45001-22 Balance (if the entire Outstanding Balance is due for any reason set forth in the Termination, Payment in Full paragraph) from any bank account I have at any of your offices or from any other money I have which is held by or due from you. Credit Line Agreement at ¶ 19. Section 13 of the Bank Services Agreement, sent on May 9, 2016 to [Appellant] and his wife with respect to their jointly[] held accounts, provides, in relevant part, the following: RIGHT OF SETOFF: You hereby assign and grant to [Plaintiff] a security interest in all accounts as security for your obligations to the [Plaintiff] existing now or in the future. [Plaintiff] reserves the right of setoff against any of your accounts without prior notice to you to repay any debt or obligation owed to us by you or any co-owner of your account as principal, endorser, or guarantor. This means that we have the right to apply part or all of the funds in your account for the satisfaction of any debt you or any co-owner of the account owes us. If your account is an individual account, our right of setoff may be exercised to repay your debts, whether they are owned by you individually or jointly with others. All of the funds in a joint account may be used to repay the debts of any co-owner, whether they are owed individually, by a co-owner, jointly with other co-owners, or jointly with other persons or entities having no interest in your account. Debts subject to our right of setoff include those owed by you from another joint account in which you are a co-owner even though the debt may not have been directly incurred by you, as well as debts for which you are only secondarily liable. Our security interest and our right of setoff also applies: (i) when we give you credit for or cash a third-party check which is returned to us unpaid for any reason or is counterfeit regardless of the timing of said return; (ii) to cover overdrafts created in any account held by you or in which you have an interest whether or not you consented to the overdraft or are otherwise responsible for it; (iii) to recover service charges or fees owed by you or any joint owner of your account; (iv) to reimburse [Plaintiff] for any -3- J-S45001-22 costs or expenses in enforcing its rights, including, without limitation, reasonable attorneys’ fees and the costs of litigation to the extent permitted by law. We may exercise our right of setoff or security interest even if the withdrawal results in an early withdrawal penalty or the dishonor of subsequent checks. You agree that [Plaintiff] will not be responsible for dishonoring items presented against your account when the exercise of our right of setoff or security interest results in insufficient funds in your account to cover the items. Our right of setoff or security interest may be exercised before or after the death of any account holder and can follow the proceeds to any other account held at [Plaintiff]. Failure of [Plaintiff] to exercise its right of setoff as provided herein on any occasion when the right arises does not affect [Plaintiff’s] right to exercise its right of setoff at a later time for the same occurrence or for any subsequent occurrence. The security interest granted by this Agreement is consensual and is in addition to [Plaintiff’s] right of setoff. Certain federal or state laws may be interpreted to protect funds received from federal or state agencies from setoff. You agree that our right of setoff applies to all funds deposited into your account, including funds received from the Social Security Administration and other federal or state agencies. By continuing to deposit these funds into your account you agree to allow [Plaintiff] to exercise its right of setoff against these funds, and not to assert any claim or defense that these deposits are exempt from setoff based on any federal or state law, rule, or regulation. Bank Services Agreement at ¶ 13 (emphasis added). ... On November 26, 2021, [Appellant] filed a response in opposition to Plaintiff’s motion for summary judgment, admitting that Plaintiff and [Appellant] both executed a Credit Line Agreement on August 9, 2016 and that Plaintiff offset amounts from accounts jointly held by [Appellant] and his wife to pay down the amount due and owing under the Credit Line Agreement. However, . . . [Appellant argued] that while -4- J-S45001-22 the right of setoff is recognized as part of the common law of Pennsylvania, Plaintiff has not established that it was entitled to take money of another person ([Appellant’s] wife) to pay a debt due by a depositor [(Appellant)]. [Appellant] further contends that his and his wife’s mere receipt of the Bank Services Agreement may not be sufficient to demonstrate that they consented to the offset in order to overcome a conversion claim. Trial Court Opinion, 6/23/22, at 1-3 and 5-6 (some capitalization and citations omitted). On June 23, 2022, the trial court dismissed Appellant’s counterclaim for conversion, granted Plaintiff’s motion for summary judgment, and entered judgment in Plaintiff’s favor, and against Appellant, in the amount of $49,984.27. Trial Court Order, 6/23/22, at 1. Appellant filed a timely notice of appeal. He raises one claim to this Court: Did the trial court judge abuse his discretion in determining that there was no genuine issue of material fact as to whether Plaintiff’s conversion of the funds contained in [Appellant’s] jointly held entireties bank account violated the doctrine of tenancy by entireties in allowing the funds owed by [Appellant] and his spouse, in entireties, to be converted for a debt individually owed by [Appellant]? Appellant’s Brief at 5 (some capitalization omitted). We have reviewed the briefs of the parties, the relevant law, the certified record, and the opinion of the able trial court judge, the Honorable Jennifer R. Sletvold. We conclude that Appellant is not entitled to relief in this case, for the reasons expressed in Judge Sletvold’s June 23, 2022 opinion. Therefore, we affirm on the basis of Judge Sletvold’s thorough opinion and adopt it as -5- J-S45001-22 our own. In any future filing with this or any other court addressing this ruling, the filing party shall attach a copy of Judge Sletvold’s June 23, 2022 opinion. Judgment affirmed. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 2/9/2023 -6- Circulated 01/30/2023 01:58 PM