The Austin Chronicle

Don't Bank on It

The folks at Dragon's Lair learn an expensive lesson from Bank of America

By Emily Pyle, March 3, 2006, News

You don't expect your money to go missing from a bank. If it did, you might expect the bank to take some notice. Not so, says David Wheeler, proprietor of Dragon's Lair Comics & Fantasy, which has stores in Austin, Round Rock, and San Antonio. According to Wheeler, the store made nearly $32,000 in deposits to Bank of America that were never credited to Dragon's Lair's account. Bank of America has denied responsibility for the missing money. "The basic point of a bank is to keep your money safe," Wheeler says. "Bank of America failed at that."

The process by which Dragon's Lair employees made night deposits is one familiar to retail workers everywhere. After closing, they counted the cash and checks from the register and filled out a closing sheet, noting the amounts of each, as well as a deposit slip for the bank. The cash, checks, and deposit slip went into a special bag provided by the bank, which was then sealed. An employee drove the deposit over to Bank of America's drive-through night depository at 911 W. 38th, opened the depository drawer with a key, and dropped the deposit bag inside. He or she turned the drum inside the drawer once to drop the deposit bag inside the depository building, then once more, just to be sure the bag had dropped, then shut the drawer and drove away.

Between April 2004 and February 2005, 25 such deposits, totaling $31,871, went missing. According to the store's records, nine different employees made the missing deposits. Those employees say they followed the normal closing procedure each time. But on those nights, after employees drove away from the depository, the money appears to have vanished. Bank of America did not credit the deposits to the store's account and does not acknowledge that the money was ever received.

Something Happened

The first deposit went missing on April 24, 2004, and deposits continued to disappear at the rate of one or two a month for several months. Then the rate of disappearance slowly increased. Between October and November, 10 deposits vanished. The missing deposits went unnoticed at first, until customers began calling Wheeler, saying checks written to the store had never been cashed. Wheeler asked his then-bookkeeper to look into the missing checks. She told him everything seemed to be in order. "She probably wasn't the best bookkeeper she could have been," Wheeler says.

That bookkeeper was replaced in December 2004. When the new bookkeeper, Luray Richmond, took over, her office was "piled high with boxes of unsorted papers," she says. The store's accounts had not been reconciled in more than a year. When Richmond started to reconcile the store's accounting records with the bank's, she found deposits reportedly made by the store but never credited by the bank to their account. According to Richmond, the deposits that went missing were some of the largest each month, with large amounts of money in cash and small amounts in checks. The total monies, as well as the amounts of cash and checks, were written by employees on the outside of the deposit envelope, Richmond notes. "If someone wanted to steal one of these, they would know exactly what they were getting," she says.

Richmond alerted Wheeler to the missing deposits in January 2005. Wheeler questioned the store's employees, who said the deposits had been made as usual. Wheeler believed them. Three-quarters of the store's employees had at some point made deposits that went missing, and several had, at the time of the deposits, been giving rides to other employees, who also vouched that the deposits had been made. "If there were some sort of conspiracy among my employees, most or all of them would have to be involved," Wheeler says. "I have some smart people working here, but I don't believe there was a storewide conspiracy. I think the simplest answer is the most likely – something happened on the bank's end."

In Limbo

Wheeler then queried the bank, where his business has had an account since 1986. He faxed over a list of the missing deposits to the bank's branch manager, Maria Acuna. The bank promptly lost the list, so Wheeler faxed it again. On Feb. 5, another night deposit of $1,361 was not credited to the store's account. Richmond discovered the loss Feb. 10. "This was in real time," Richmond says. "We let the bank know immediately, this is still happening." After that, no more deposits went missing. The bank told Wheeler that Vice-President of Corporate Investigations Johnny Snow was conducting an internal investigation of the missing deposits. The bank's investigation apparently turned up nothing of interest. (Snow declined to be interviewed for this article. A "media specialist" in Florida, with no personal knowledge of the case, gave the following statement by e-mail: "We take every allegation seriously. And we conduct a thorough investigation when allegations are made." The bank cited "customer privacy reasons" for refusing to discuss details of the case – even after a privacy waiver signed by Wheeler was faxed to its office.) In a letter to Wheeler's lawyer, dated May 5, 2005, Snow denied the bank's responsibility for the missing deposits, stating that "no evidence was ever presented or found that leads the bank to believe that the deposits were ever made."

Wheeler asked the bank to review tapes from the night depository's security cameras and was told that there were no cameras either inside or outside the depository. The bank also informed him that while they would cooperate with any police investigation, they did not intend to report the missing deposits to the police themselves. Wheeler contacted the Austin Police Department, and APD Detective Sean Harkins questioned employees of both the bank and the store. But without security tapes or any other hard evidence to review, APD's investigation stalled. "It's just one person's word against another," Harkins says. "It's kind of hard to follow up on when you don't have anything to go on. Unless some kind of investigative lead comes up, the case will stay in limbo." The investigation is classified "Suspended (Not Clear)."

Wheeler next called the FBI, which investigates crimes involving bank fraud, but was told that, since 9/11, the FBI only investigates such cases when the amount missing exceeds $200,000. Wheeler then contacted the federal comptroller of currency, who contacted the bank, who sent another letter to Wheeler denying that the missing funds had ever been received. As a last resort, Wheeler wrote to Bank of America's CEO Kenneth Lewis, asking him to intervene. "Thus far it appears that the bank's only interest has been to deny liability," Wheeler wrote. "The matter has been handled by bank employees as though it is of little significance." In a reply letter, Assistant Vice-President Jodi Hester wrote, somewhat inaccurately, "The matter has been thoroughly investigated to the satisfaction of law enforcement officials on federal and local levels. ... At this time we consider the matter closed."

Wheeler considered suing the bank and consulted Austin attorney Travis Phillips. Phillips told Wheeler he had a good basis for a negligence suit against the bank, but that he could only expect to recover the $32,000 lost. Legal fees involved in fighting the case would likely be twice that amount. Wheeler hopes to find other bank clients with missing deposits; if he did, he would consider a class-action suit against the bank. Until then, he is stymied. Wheeler is still banking with Bank of America; he is loath to sacrifice the liberal line of credit the store has built up over 20 years as a bank client, and still hopes his efforts to recover the missing money will receive more attention if he is a current client.

In the meantime, there is now an extra step in the Dragon's Lair closing process: Employees take deposits into the bank in the morning by hand, and are sure to get a receipt from the bank for the deposited money. "It just seems safer that way," Wheeler says. end story

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