SCHINDLER, J.
Bernice Vedos appeals the summary judgment dismissal of her action against Wells Fargo Bank, in which she alleged that the bank improperly paid out funds on a check she had drawn on her personal checking account without requiring it to be endorsed. The trial court granted the bank's motion for summary judgment on the ground that Vedos's action against the bank was barred by the three-year statute of limitations in Article 4 of the Uniform Commercial Code (UCC), RCW 62A.4-111. We affirm.
FACTS
This case involves a fraudulent investment scheme. Jerry King persuaded elderly people, including Bernice Vedos and her late husband, to give him large sums of money to invest. The Vedoses first met with King in January 1997 for the purpose of having a will and trust prepared. King advised them to purchase an annuity with F-G Life. To do so, they sold an interest in another fund and purchased the annuity.
After Vedos's husband died in July 1999, King advised her to invest in Golden Age Planning. Vedos made out and signed a check, dated July 18, 1997 and drawn on her personal checking account at Wells Fargo Bank, to Golden Age Planning in the amount of $69,838.68.
Subsequently, again on King's advice, Vedos wrote him checks totaling $53,000 to invest in another investment, Wishbone Properties.
Golden Age Planning had an account at Wells Fargo Bank. King was president of Golden Age Planning and an authorized signatory on Golden Age Planning's account at Wells Fargo.
The record contains a photocopy of the front and back of Vedos's July 18 check to Golden Age Planning. The back of the check does not contain an endorsement. Rather, all that appears is a handwritten notation of a Washington driver's license number, presumably King's. There is also a Wells Fargo stamp indicating that the check was presented for payment on July 21, 1997. The record does not contain information about what became of the proceeds of the check.
Although the trial court found that a material issue of fact exists about whether Vedos's check was deposited into Golden Age Planning's account, what became of the proceeds of the check is not dispositive of the issue presented on appeal.
All of King's investments turned out to be shams. King eventually pleaded guilty to fraud and is now in prison.
On November 1, 2000, Vedos filed a lawsuit against King and Wells Fargo. Against King, she alleged securities fraud, common law fraud, and violations of the Consumer Protection Act. King did not respond to the complaint, and Vedos obtained a default judgment in the amount of $132,838.68. Against Wells Fargo, Vedos sought to recover the amount of her check to Golden Age Planning ($69,838.68) because the bank failed to obtain an endorsement before cashing the check.
RCW ch. 19.86.
Wells Fargo moved for summary judgment on the ground that Vedos's claim was barred by the UCC's one-year statute of limitations, RCW 62A.4-406(f), and also by the UCC's three-year statute of limitations, RCW 62A.4-111.
The trial court granted Wells Fargo's motion for summary judgment and dismissed Vedos's claim. The court concluded that Vedos's claim was barred by the three-year statute of limitations, and disagreed with Wells Fargo that Vedos's claim was also barred by the one-year statute of limitations.
The court denied Vedos's motion for reconsideration.
DISCUSSION
When reviewing an order of summary judgment brought under CR 56, we engage in the same inquiry as the trial court and consider the facts and all reasonable inferences from those facts in the light most favorable to the nonmoving party. Summary judgment is appropriate if the pleadings, affidavits, depositions, and admissions on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.
Right-Price Recreation, L.L.C. v. Connells Prairie Community Council, 146 Wn.2d 370, 381, 46 P.3d 789 (2002).
CR 56(e).
Bank deposits and collections, and the relationship between a bank and its customer, are governed by Article 4 of the UCC. RCW 62A.4-111 requires that an action "to enforce an obligation, duty, or right" arising under Article 4 of the UCC "must be commenced within three years after the cause of action accrues." In her action against Wells Fargo, Vedos alleges that the bank acted contrary to its obligations under Article 4 by paying out funds from Vedos's checking account on a check that did not contain an endorsement. She argues that she "had a right to expect" that the bank would verify the existence of an endorsement. Vedos's claim against Wells Fargo arises out of the bank/customer relationship that was created when Vedos opened her checking account with Wells Fargo and is a claim to enforce an obligation, duty, or right arising under Article 4 of the UCC. Pursuant to RCW 62A.4-111, it had to be commenced within three years of the date the cause of action accrued. The latest action giving rise to Vedos's claim occurred on July 21, 1997, when the bank cashed her check made out to Golden Age Planning. Her lawsuit was filed on November 1, 2000, more than three years after July 21, 1997, and beyond the RCW 62A.4-111 period of limitations. The trial court properly granted the bank's motion for summary judgment of Vedos's claim.
RCW 62A.4-101 et seq.
Br. of Appellant at 10.
Because we agree with the trial court that Vedos's action is barred by the three-year statute of limitations, RCW 62A.4-111, we do not address Wells Fargo's argument that her action is also barred by the one-year statute of limitations, RCW 62A.4-406(f).
Vedos does not address the applicability of RCW 62A.4-111 to her action, even though that is the ground upon which the trial court granted Wells Fargo's motion for summary judgment. Rather, she argues that her action against Wells Fargo is governed by the six-year contract statute of limitations, RCW 4.16.040. We disagree. The contract Vedos relies on is the consumer account agreement the bank issues to customers when they open a deposit account. The customer account agreement does not contain a promise by the bank that it will verify that the necessary endorsements appear on a check before it pays out funds. Vedos does not identify a specific provision in the customer account agreement that the bank breached. Rather, she relies on the choice of law provision that says accounts are governed by the laws and regulations of the United States and the laws of the state in which the bank office that holds her account is located. However, this choice of law provision is not a term or condition of the contract that the bank can breach.
The provision states:
Your account is governed by the laws and regulations of the United States and, to the extent applicable, the laws of the state in which the Bank office that holds your account is located (unless the Bank has notified you in writing that the laws of another state shall govern your account), without regard to conflicts of laws principles. If you were not physically present at an office of the Bank when you opened your account (for example, if you opened your account by phone, through the mail, or over the Internet), your account will be governed by the laws of the state in which the principal office of the Bank is located, unless the Bank notifies you that your account has been assigned to a particular office of the Bank. You and the Bank agree that any lawsuits, claims, or other proceedings arising from or relating to your account or this Agreement, including without limitation, the enforcement of any dispute resolution program in this Agreement and the entry of judgment on the arbitration award, shall be venued exclusively in the state or federal courts in the state whose laws govern your account. CP 62.
We note, moreover, that, pursuant to RCW 62A.1-103, principles of contract law will not apply to an action under the UCC if displaced by a particular provision of the UCC. Article 4 sets forth a customer's rights against its bank for the improper payment of checks drawn on the customer's account. These provisions displace principles of contract law. See e.g., Halifax Corp. v. First Union Nat'l Bank, 262 Va. 91, 546 S.E.2d 696, 704 (2001). Even if, therefore, the customer account agreement would support a breach of contract claim, such a claim would nevertheless be governed by Article 4's statute of limitations, not the contract statute of limitations.
Vedos also argues that Wells Fargo was negligent because it breached the duty it owes its customers to use due care in the payment of checks on customers' accounts. While the bank does have a duty to use due care, this duty is a statutory duty, based in Article 4 of the UCC. Accordingly, Vedos's claim is governed by Article 4's three-year statute of limitations, RCW 62A.4-111.
See Swiss Baco Skyline Logging, Inc. v. Haliewicz, 18 Wn. App. 21, 27, 567 P.2d 1141 (1977).
See id., citing RCW 62A.4-401 and 62A.4.402 as the provisions out of which the bank's duty arises.
Vedos contends Wells Fargo is liable for conversion of the funds in her account. Even if the bank were liable for conversion, Vedos's conversion claim is time-barred. Pursuant to RCW 62A.3-118, an action for conversion must be brought within three years after the cause of action accrues.
The statute provides in relevant part: "Unless governed by other law regarding claims for indemnity or contribution, an action (i) for conversion of an instrument, for money had and received, or like action based on conversion, . . . must be commenced within three years after the cause of action accrues." RCW 62A.3-118(g).
We affirm the trial court's summary judgment dismissal of Vedos's action against Wells Fargo.
The parties did not raise or analyze the issue of whether the discovery rule applies to actions under Article 4 in their opening briefs. Both parties submitted supplemental authority addressing this issue. However, "[w]e do not consider arguments raised for the first time . . . in supplemental authority." Downie v. State Farm Fire Cas. Co., 84 Wn. App. 577, 582-83 n. 7, 929 P.2d 484 (1997). See also, Hatch v. Tacoma Police Dep't, 107 Wn. App. 586, 591, 27 P.3d 1223 (2001) (we do not address questions not raised or briefed by the parties).
BECKER and COX, JJ., concur.