THOMAS et al.
STATE BANK AND TRUST COMPANY
Reconsideration denied December 8, 2014.
Note. Fulton Superior Court. Before Judge Adams.
Merolla & Gold, A. Todd Merolla, for appellants.
Busch White Norton, Bryan E. Busch, Laura H. Mirmelli, Vanessa Y. Suh, Tawana B. Johnson, for appellee.
MCFADDEN, Judge. Andrews, P. J., concurs, and Ray, J., concurs in the judgment only.
This appeal challenges the grant of summary judgment to a bank on its claims for breach of two promissory notes and a guaranty. Because the movant bank failed to meet its burden of showing that there exists no genuine issue of material fact that it is the current holder of the notes and guaranty, we reverse.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review a trial court's grant of summary judgment de novo, construing the evidence, and all reasonable conclusions and inferences drawn from it, in favor of the nonmovant.
Clay v. Oxendine, 285 Ga.App. 50 (645 S.E.2d 553) (2007) (citations and punctuation omitted).
So viewed, the evidence shows that on July 21, 2009, Stanley Thomas obtained a loan from The Buckhead Community Bank and signed a promissory note promising to repay the principal amount of $355,015. On September 15, 2009, Kevin Case also obtained a loan from The Buckhead Community Bank and signed a promissory note promising to repay the principal amount of $35,686.79. Thomas executed a guaranty to repay Case's note.
The Buckhead Community Bank subsequently failed, and the Federal Deposit Insurance Corporation (" FDIC" ) was appointed receiver for the failed bank. On December 4, 2009, the FDIC entered into a Purchase
and Assumption Agreement with State Bank and Trust Company, which provided that State Bank desired to purchase certain assets and assume certain liabilities of the failed Buckhead Community Bank, and that the FDIC assigned its interests in the failed bank's assets to State Bank.
[330 Ga.App. 275] On March 25, 2011, State Bank filed the instant action against Thomas and Case, claiming default and seeking recovery under the Buckhead Community Bank promissory notes and guaranty. On March 12, 2012, State Bank filed a motion for summary judgment, claiming that the notes and guaranty had been transferred to it by the Purchase and Assumption Agreement. Thomas and Case opposed the motion, asserting that the bank had not shown it was in fact the holder of the notes and guaranty because the Purchase and Assumption Agreement did not identify the assets transferred and it ...