In Elizondo, an attorney was scammed by a putative client. See Cadence Bank v. Elizondo, No. 20-0273, 2022 WL 815946 (Tex. Mar. 18, 2022). The attorney was tricked into negotiating and depositing a fraudulent cashier’s check by an email scam. More specifically, examination of emails between Elizondo and his “client” showed typical signs of a scam. Elizondo deposited the cashier’s check, received a notice of provisionally deposited funds, and a day or two later requested that a wire transfer be sent. Subsequently, the purported maker’s bank dishonored the cashier’s check, which caused Elizondo’s account to become overdrawn. Cadence reversed the provisional deposit and Elizondo refused to pay the deficit. The attorney was supposed to earn a $10,000.00 non-refundable retainer for doing little or no work.
The attorney tried to argue that a bank’s wire transfer request form caused him to believe that the wire transfer would only be done based on “verified collected funds.” The attorney argued that the wire transfer request form caused a new contract to be created that trumped all of the UCC provisions and deposit agreement provisions regarding deposited funds and provisionally credited funds. Ultimately, the Texas Supreme Court denied Mr. Elizondo’s arguments and explained that there was not a meeting of the minds to form a new contract based on a subjective belief of what was allegedly occurring. The Texas Supreme Court also explained that the “wire transfer form that respondent relies on did not create the contractual duty he claims.” Businesses can use this case to try to prevent customers from trying to avoid written contractual terms. This case also provides good analysis for banks in allowing them to have an overall deposit agreement and still be able to use a request form when doing a wire transfer or allowing the purchase of a cashier’s check. Of course, the underlying appellate opinion remains a good warning that banks need to be careful on what forms they use and this is a good reminder for banks to continually update and review the forms they are using. I have drafted a new wire transfer request form that banks should use as a result of this case.
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Cadence Bank NA v Elizondo