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Tsepas v. JPMorgan Chase Bank, N.A.

Court of Appeals of Ohio, Fifth District, Stark

April 3, 2017

GEORGE H. TSEPAS Plaintiff-Appellant
v.
JPMORGAN CHASE BANK, N.A. Defendant-Appellee

         Appeal from the Stark County Court of Common Pleas, Case No. 2015 CV 02471

          For Plaintiff-Appellant STEVEN A. ARMATAS.

          For Defendant-Appellee MICHAEL N. UNGAR DANIELA PAEZ Ulmer & Berne LLP.

          Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.

          OPINION

          Baldwin, J.

         {¶1} Plaintiff-appellant George H. Tsepas appeals from the September 8, 2016 Judgment Entry of the Stark County Court of Common Pleas granting summary judgment in favor of defendant-appellee JPMorgan Chase Bank, N.A.

         STATEMENT OF THE FACTS AND CASE

         {¶2} Appellant George H. Tsepas is a customer of appellee JPMorgan Chase Bank, N.A. ("Chase"). On or about February 17, 2012, appellant George H. Tsepas signed a Chase Personal Signature Card for a Chase Plus Savings account ending in 3937. The Signature Card indicated that the account was a joint account and that the co-owners of the account were "George H. Tsepas or Marina G. Tsepas or Angela A. Tsepas." Both Marina and Angela are appellant's daughters. The Signature Card contains signatures for both appellant and Angela A. Tsepas and states that Marina G. Tsepas's signature was on file. By signing the Signature Card, appellant agreed to be bound by "the terms and conditions contained" in the Chase Deposit Account Agreement governing the joint account.

         {¶3} The Chase Deposit Account Agreement provides that ownership of an account "is determined by the most current signature card." The Agreement further states, in relevant part, as follows:

When two or more people are listed as owners of a personal account, the account is a "joint account" and each owner is a "joint owner."… If one joint owner requests that we do not pay items authorized by a different joint owner, we may restrict the account and refuse to pay all items (including items authorized by the owners making the request), but we are not required to do so. If we restrict the account, we may not release the restriction unless all joint owners agree in writing to remove it. No request to restrict the account will affect items that we paid before the request. If we decide not to restrict the account, all joint owners remain responsible for items subtracted from the account.
Any joint owner may close the account. We may choose whether or not to act upon other instructions of any joint owners, including adding an additional owner to the account, without the signature of the other joint owners. We may also pay all or any part of the funds in the account to a court or government agency if we receive a garnishment, levy or similar legal process that identifies any of the joint owners.

         {¶4} Appellant, on April 25, 2013, signed the Safe Deposit Box Contract Card for safe deposit box No. x-xxx-4. By signing the card, appellant agreed to be bound by the agreements and terms contained in the Safe Deposit Box Lease Agreement. Paragraph 8 of the Safe Deposit Lease Agreement provides, in relevant part, as follows:

Liability of Bank: The Bank has no knowledge of and exercises no supervision over the box, nor over examination or removal of any of the property at any time contained in said box. The tenant assumes all risks of injury of loss or damage of any kind (including but not limited to loss or damage due to fire, water, other mishap, robbery or burglary) arising out of the deposit of anything in the box provided the Bank has exercised ordinary care.

         {¶5} On February 2, 2015, appellant executed a Power of Attorney ("POA") designating Marina Tsepas as his attorney-in-fact. The POA granted her authorization to have access to and make withdrawals from or deposits in any safe deposit box that appellant had access to and, in paragraph 11, to "enter any safe deposit box which I [appellant] may rent alone or in connection with others, and to place or remove property to or from said box." Appellee Chase, in accordance with the same, added Marina Tsepas as POA to appellant's safe deposit box.

         {¶6} On November 25, 2015, appellant filed a verified complaint against appellee Chase, asserting claims for breach of fiduciary duty, violations of the Ohio Uniform Fiduciaries Act and replevin. Appellant, in his complaint, alleged that, on or about January 26, 2015, his daughters, without his knowledge, withdrew $200, 000.00 from the savings account ending in 3937 and transferred the money into two new checking accounts, one in the name of Angela A. Tsepas and the other in the name of Marina G. Tsepas. Appellant also alleged that, on or about February 3, 2015, his daughter Marina accessed his safe deposit box, which he believed might have contained $90, 000.00, and that she may have transferred the contents of such box into a new safe deposit box opened solely in her own name. In his complaint, appellant also alleged that he executed a Revocation of the POA on June 4, 2015 and visited the bank on the same day with his attorney and presented an executed and notarized copy of the POA Revocation to Jeanne Volz, appellee's agent, who urged him not to effectuate the POA Revocation. Appellant alleged that he listened to Volz and that, on June 8, 2015, Marina Tsepas withdrew money from the account that she had opened in her own name.

         {¶7} On May 13, 2016, appellee filed a Motion for Summary Judgment. Appellant, on June 13, 2016, filed a memorandum in opposition to appellee's motion and, on June 15, 2016, filed a Motion for Summary Judgment regarding possession of the contents of the original safe deposit box. Appellee, on June 28, 2016, filed a reply brief in support of its Motion for Summary Judgment. Appellant, on July 1, 2016, filed a Motion for Summary Judgment regarding ownership of the funds deposited in the original savings account. Appellee, on July 8, 2016, filed a memorandum in opposition to appellant's Motion for Summary Judgment regarding the contents of the safe deposit box and appellant filed a reply to the same on July 13, 2016.

         {¶8} Appellee, on July 14, 2016, filed a memorandum in opposition to appellant's Motion for Summary Judgment and appellee, on July 27, 2016, filed a reply to the same. Subsequently, on September 2, 2016, appellant filed a motion seeking leave to file a surreply brief in opposition to appellee's reply brief in support of its Motion for Summary Judgment.

         {¶9} As memorialized in a Judgment Entry filed on September 8, 2016, the trial court granted appellee's Motion for Summary Judgment and denied appellant's two Motions for Summary Judgment.

         {¶10} Appellant now appeals from the trial court's September 8, 2016 Judgment Entry, raising the ...


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