1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ABTREX INDUSTRIES, INC.,

Plaintiff,

Case No. 09-12540

v.

HONORABLE DENISE PAGE HOOD

NATIONAL CITY BANK, a subsidiary

of PNC Bank,

Defendant.

-andPNC BANK, N.A., successor by merger and

f/k/a NATIONAL CITY BANK,

Third-Party Plaintiff,

v.

JP MORGAN CHASE BANK, N.A.; and

WACHOVIA BANK, N.A.,

Third-Party Defendants.

_______________________________________/

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT PNC BANK’S

MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This matter is before the Court on Defendant PNC Bank’s Motion for Summary

Judgment [Docket No. 41, filed on January 13, 2011]. Plaintiff’s filed a response on February

1, 2011 [Docket No. 44, filed on February 1, 2011], to which Defendant filed a reply on

February 15, 2011.

II. STATEMENT OF FACTS

2:09-cv-12540-DPH-MAR Doc # 53 Filed 08/18/11 Pg 1 of 10 Pg ID 1054
2

Plaintiff Abtrex Industries, Inc. (“Abtrex” or “Plaintiff”), a small business, opened a

checking account around or about September 1, 1996 with Valley American Bank & Trust,

which later became National City Bank and, following a merger in 2008, became PNC Bank

(“PNC” or “Defendant”). The account listed the following individuals as authorized signers:

Harold Byars, Keith Byars, David Graham, Kurt Byars, and Kevin Byars. See Signature Card,

Ex. A to Def.’s Mot. for Summ. J. 

In 2006, Plaintiff employed Christina Robbins (“Robbins”) as office manager for

Plaintiff’s Indiana division. In this position, Robins had direct access to Plaintiff’s checks and

account information, as she was responsible for bookkeeping, making deposits to Plaintiff’s

accounts, and reviewing and reconciling Plaintiff’s bank statements. Robbins was supervised by

Keith Byars. 

Between November 24, 2006, and October 8, 2008, Robbins wrote twenty-five checks to

her personal creditors, Juniper and Homecomings, embezzling $291,713.81 from Plaintiff. In

early 2009, while Robbins was purportedly out of the office on medical leave, Keith Byar’s wife,

Judy Byar’s, came into the office to help with the finances. Judy Byars discovered that there

were missing cancelled checks and bank statements. Plaintiff requested copies of the checks

from what was then National City Bank, beginning on March 24, 2009. Plaintiff formally

notified Defendant that it was disputing the forged checks in May of 2009, by signing affidavits

of forgery. Defendant denied Plaintiff’s request to credit the account at issue for the embezzled

funds on the grounds that Plaintiff failed to timely report the unauthorized activity. This lawsuit

ensued. 

Defendant contends that Robbins was able to embezzle this money due to a lack of

2:09-cv-12540-DPH-MAR Doc # 53 Filed 08/18/11 Pg 2 of 10 Pg ID 1055
3

oversight. Although Keith Byars supervised her, he did not review reconciliations prepared by

Robbins, or account statements sent by the bank. Defendant supports its argument of lack of

oversight citing the embezzlement of approximately $70,000 by one of Plaintiff’s previous office

managers. Defendant also states that Plaintiff had a highly informal hiring process, noting that,

although Robbins warned Plaintiff that her previous employer might not provide a favorable

reference, Defendant failed to follow up with the employer and so did not discover tRobbins had

embezzled from that employer.

According to Defendant, Plaintiff’s checking account was governed by a National City

Business Account Agreement (“Account Agreement”), effective July 22, 2006. Under the

agreement, customers, including Plaintiff, had an affirmative duty to review each account

statement “to discovery any alterations; unauthorized signatures, Items, Entries or indorsements;

unauthorized transactions; or errors. . . .” Account Agreement, Ex. B. to Def.’s Mot. for Summ.

J. at 10. Following such a discovery, the depositor (in this case, Plaintiff) must notify the bank

of the issue in writing within fourteen days. See id. Plaintiff contends that it is not bound by the

Account Agreement. 

Defendant brings this motion for summary judgment on the grounds that Plaintiff’s

claims fail under the Account Agreement, under Michigan law, and under the Uniform

Commercial Code.

III. SUMMARY JUDGMENT STANDARD

Pursuant to Fed. R. Civ. P. 56(c), summary judgment may only be granted in cases where

“the pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

2:09-cv-12540-DPH-MAR Doc # 53 Filed 08/18/11 Pg 3 of 10 Pg ID 1056
4

party is entitled to judgment as a matter of law.” The moving party bears the burden of showing

no dispute as to any material issue. Equal Employment Opportunity Comm’n v. MacMillan

Bloedel Containers, Inc., 503 F.2d 1086, 1093 (6th Cir. 1974). A dispute must be clear from the

evidence in order to deny such a motion. Such a dispute must not merely rest upon the

allegations or denials in the pleadings, but instead must be established by affidavits or other

documentary evidence. Fed. R. Civ. P. 56(e). When ruling, the Court must consider the

admissible evidence in the light most favorable to the non-moving party. Sagan v. United States

of Am., 342 F.3d 493, 497 (6th Cir. 2003). 

IV. ANALYSIS

A. Account Agreement

Defendant contends that Plaintiff’s claims are barred as a matter of law by the express

agreement of the parties. According to Defendant, Plaintiff was bound to the terms of the

Account Agreement because it was and continued to be a customer of PNC Bank. Plaintiff

argues that it was never a party to the Account Agreement. When Plaintiff opened up an account

with Valley American Bank & Trust Co., a signature card was signed, binding Plaintiff “to the

terms stated on this contract and disclosures received on this date.” The Account Agreement

purported to bind Plaintiff, states that “Depositor, by signing the signature card for the Account,

by using the Account or by permitting an authorized signer to use the Account, agrees to the

provisions of this Agreement which are subject to amendment and further agrees that this

Agreement is binding on Depositor’s successors, representatives and assigns.” Account

Agreement, Ex. B to Def.’s Mot. for Summ. J. at 1. By continued use of the account, Plaintiff

was bound by the terms of the agreement.

2:09-cv-12540-DPH-MAR Doc # 53 Filed 08/18/11 Pg 4 of 10 Pg ID 1057
5

According to the deposition testimony of Anna Patterson, a PNC employee with

responsibility for training on bank policies for detecting fraud, and the employee who completed

the internal investigation of Abtrex’s claim against PNC, Defendant never determined whether a

copy of the agreement had ever been forwarded to Plaintiff. Defendant argues that the testimony

of Keith Byars belies any argument that Plaintiff did not receive a copy of the Account

Agreement. In actuality, Keith Byars testified that “ . . .nobody would have seen [the Account

Agreement] but me, and I don’t know if I actually looked at it or not if I did receive it.” Dep. of

Keith Byars, Ex. A to Def.’s Reply Brief. The question of whether Plaintiff ever had a copy of

the Account Agreement and whether it should have been on notice of the terms and conditions

within remains a question of fact for the trier of fact, rendering summary judgment on the issue

inappropriate.

B. Michigan Uniform Commercial Code

1. Exercise of Ordinary Care by Defendant

Defendant contends that Plaintiff’s claims are also barred under the Michigan Uniform

Commercial Code, M.C.L. § 440.4406. Pursuant to M.C.L. § 440.4406(3),

If a bank sends or makes available a statement of account or items pursuant

to subsection (1), the customer must exercise reasonable promptness in 

examining the statement or the items to determine whether any payment was

not authorized because of an alteration of an item or because a purported

signature by or on behalf of the customer was not authorized. If, based on the

statement or items provided, the customer should reasonably have discovered

the unauthorized payment, the customer must promptly notify the bank of the 

relevant facts.

In this case, Plaintiff does not dispute that account statements were made available to it. 

Plaintiff also does not argue that it exercised reasonable promptness. Instead, Plaintiff argues

that the bank could only transfer funds out of the account upon request by an individual

2:09-cv-12540-DPH-MAR Doc # 53 Filed 08/18/11 Pg 5 of 10 Pg ID 1058
6

authorized on the signature card, and Robbins was not authorized to remove funds. Plaintiff

further argues that, pursuant to M.C.L. § 440.3403, the fact that Robbins forged the signature of

Keith Byars does not provide Defendant the necessary authorization to transfer the funds. 

M.C.L. § 440.3403 states “unless otherwise provided . . . an unauthorized signature is ineffective

except as the signature of the unauthorized signer in favor of a person who in good faith pays the

instrument or takes it for value. . . . [t]he civil or criminal liability of a person who makes an

unauthorized signature is not affected by any provision of this article which makes the

unauthorized signature effective for the purposes of this article.” (emphasis added). These

provisions indicate that the state legislature contemplated that the bank should not be held liable

for forged signatures, accepted in good faith and not disputed by the account holder. 

Plaintiff argues that Defendant’s failure to exercise ordinary care in accepting the forged

checks renders Defendant liable in the amount of the unauthorized funds. Pursuant to M.C.L. §

440.4406(5), if a “customer provides that the bank failed to exercise ordinary care in paying the

item and that the failure substantially contributed to loss, the loss is allocated between the

customer . . . and the bank” to the extent each contributed to the loss. Defendant argues that it is

entitled to summary judgment, as Plaintiff cannot make a showing that Defendant failed to

exercise ordinary care. In this case, ordinary care is defined as:

observance of reasonable commercial standards, prevailing in the area in which

the person is located, with respect to the business in which the person is engaged.

In the case of a bank that takes an instrument for processing for collection or 

payment by automated means, reasonable commercial standards do not require 

the bank to examine the instrument if the failure to examine does not violate the

bank’s prescribed procedures and the bank’s procedures do not vary unreasonably

from general banking usage not disapproved by this article or article 4.

M.C.L. § 440.3103(g). 

2:09-cv-12540-DPH-MAR Doc # 53 Filed 08/18/11 Pg 6 of 10 Pg ID 1059
7

According to the deposition testimony of Anna Patterson, a PNC employee whose

responsibilities include training bank employees on policies for detecting forged signatures, it

was not bank policy to “physically examine every check that comes through.” Dep. of Anna

Patterson, Ex. K to Def.’s Mot. for Summ. J. at 35:20-22. The Michigan statute does not require

examination of the check. M.C.L. § 440.3103(g). However, Defendant has not demonstrated

that its internal policy does not vary from reasonable commercial standards. Defendant states

that signatures are not manually reviewed, due to the computerized and automated process of

handling checks. Plaintiff provides evidence of one check processed by Defendant that

contained no signature at all. Ex. A to Pl.’s Response to Def.’s Mot. for Summ. J. Defendant

has not proffered evidence that reasonable commercial standards do not require any signature. 

Summary judgment is not appropriate on this issue, as there remains a genuine issue of fact for

the trier of fact as to whether Defendant exercised “ordinary care.”

2. Exercise of Ordinary Care by Plaintiff

Defendant argues that Plaintiff’s failure to exercise ordinary care in its business

operations caused the loss, and, therefore, Plaintiff is barred from recovery. M.C. L. §

440.3406(1) provides that:

A person whose failure to exercise ordinary care substantially contributes to an

alteration of an instrument or to the making of a forged signature on an instrument

is precluded from asserting the alteration or the forgery against a person who, in 

good faith, pays the instrument or takes it for value or for collection.

Before determining whether Plaintiff exercised ordinary care, it must be resolved that Defendant

acted in good faith. Having already found a genuine issue of material of fact as to whether

Defendant exercised ordinary care, whether Plaintiff’s own failure to exercise ordinary care, if

any such failure existed, caused or contributed to the loss in this case remains a genuine question

2:09-cv-12540-DPH-MAR Doc # 53 Filed 08/18/11 Pg 7 of 10 Pg ID 1060
8

of material fact.

Defendant argues that a drawer who fails to adequately supervise an employee

responsible for all banking duties substantially contributes to the forgeries. Defendant then

argues that Robbins, who handled bank account statements, accounts payable and receivable,

made deposits, and had responsibility for other banking duties, was not supervised, and the

failure to supervise Robbins caused Plaintiff’s loss. Plaintiff argues Robbins was never

authorized to remove funds from the Abtrex bank account and it reasonably believed that

Plaintiff would be notified if its corporate checks were cashed by consumer credit card or

mortgage companies. Whether Robbins was adequately supervised, and whether any lack of

supervision contributed to Plaintiff’s loss is an issue of fact to be decided by the trier of fact. 

3. Limitation on Liability

Plaintiff concedes that M.C.L. § 440.4406(6) limits its recovery, if any, to $92,274.22. 

This section provides that “without regard to care or lack of care of either the customer or the

bank, a customer who does not within 1 year after the statement or items are made available to

the customer discover and report his or her unauthorized signature . . . is precluded from

asserting against the bank the unauthorized signature or alteration.” (emphasis added). In this

case, Plaintiff reported the forgeries to the bank in May of 2009, limiting any possible recovery

to checks appearing on Plaintiff’s statements after May of 2008. After May 2008, there were

five checks that appeared on the statements, totaling $92,274.22. As a matter of law,

Defendant’s liability, if any, is limited to the amount of $92,274.22.

C. Conversion

Defendant argues Plaintiff’s conversion claim must fail as a matter of law. “[F]unds

2:09-cv-12540-DPH-MAR Doc # 53 Filed 08/18/11 Pg 8 of 10 Pg ID 1061
9

deposited in a bank account are not specific and identifiable, in relation to the bank’s other

funds, to support a claim for conversion against the bank.” Fundacion Museo de Arte v. CBITDB Union Bancaire Privee, 160 F.3d 146, 148 (2nd Cir. 1998). Under M.C.L. §

440.3420(1)(i), “[a]n action for conversion of an instrument may not be brought be the issuer.” 

Plaintiff argues that the Uniform Commercial Code recognizes that the drawer [or issuer] of an

instrument has an adequate remedy against the bank for a credit to the account for unauthorized

payment of the check. That an adequate remedy is available to a party who establishes liability

exists does not negate the statutory rule that the issuer of an instrument cannot bring an action

for conversion. See U.C.C. §3-420(i) (“An action for conversion of an instrument may not be

brought by the issuer or acceptor of the instrument.”); see also Pamar Enters. v. Huntington

Banks, 580 N.W.2d 11, 16 (Mich. Ct. App. 1998)(The “drawer of the check may not maintain an

action for conversion.”). As the issuer of the check, Plaintiff is barred from suing for

conversion as a matter of law, and summary judgment is proper as a matter of law.

V. CONCLUSION

Accordingly,

IT IS ORDERED that Defendant PNC Bank’s Motion for Summary Judgment [Docket No.

41, filed on January 13, 2011] is GRANTED IN PART (limiting any liability to $92,274.22 and

 dismissing Plaintiff’s conversion claim) and DENIED IN PART (on whether liability exists under

the Account Agreement or state statute).

2:09-cv-12540-DPH-MAR Doc # 53 Filed 08/18/11 Pg 9 of 10 Pg ID 1062
10

s/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: August 18, 2011

I hereby certify that a copy of the foregoing document was served upon counsel of record on August

18, 2011, by electronic and/or ordinary mail.

s/LaShawn R. Saulsberry 

Case Manager

2:09-cv-12540-DPH-MAR Doc # 53 Filed 08/18/11 Pg 10 of 10 Pg ID 1063