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Lockwood v. Federal Deposit Insurance Corp.

Court of Appeals of Georgia

December 30, 2014

LOCKWOOD
v.
FEDERAL DEPOSIT INSURANCE CORPORATION

Page 830

Note. Fulton Superior Court. Before Judge Baxter.

Miles Patterson Hansford Tallant, Kevin J. Tallant, Molly M. Anderson, for appellant.

Schulten, Ward & Turner, Kevin L. Ward, Andrea L. Pawlak, for appellee.

DILLARD, Judge. Doyle, P. J., and Miller, J., concur.

OPINION

Page 831

Dillard, Judge.

Joseph K. Lockwood appeals the trial court's grant of summary judgment to the Federal Deposit Insurance Corporation (" FDIC" ), as receiver for Silverton Bank, N.A., on the FDIC's action on a promissory note. On appeal, Lockwood contends that the trial court erred in granting the FDIC's motion for summary judgment when (1) the FDIC failed to provide notice in the manner delineated by OCGA § 13-1-11 (a) (3); (2) there was a genuine issue of material fact as to the amount owed upon the note; and (3) discovery was still pending. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the nonmovant (Lockwood),[1] the record reflects that on September 14, 2007, Lockwood executed a promissory note in the principal amount of $120,000 with the Bankers Bank, N.A., which later changed its name to Silverton Bank, N.A. Silverton Bank subsequently went into receivership with the FDIC acting as receiver.

On March 7, 2013, the FDIC sent Lockwood a notice of default and demand for immediate payment upon the promissory note, demanding payment of $83,053.08 it claimed remained due on the note, in addition to accruing interest. The demand also purported to give notice of the FDIC's intent to enforce the provisions of the note requiring Lockwood to pay all costs, including attorney fees, if full payment was not made within 10 days.

When payment was not forthcoming, the FDIC filed its verified complaint for breach of promissory note on April 1, 2013. The FDIC then filed a motion for summary judgment in September 2013. This motion was supported by an affidavit from one of the FDIC's asset managers, who averred that $80,036.09 remained unpaid on the principal balance and that unpaid interest had accrued up to $3,304.36 as of March 28, 2013, and would continue to accrue at a rate of $13.0624 per day. Additionally, the asset manager averred that late charges were owed in the amount of $200[2] and that the note provided for the recovery of 15 percent of the principal and interest as attorney [330 Ga.App. 514] fees. In support of these averments, a loan-statement and loan-history sheet were attached as exhibits.

The trial court granted the FDIC's motion for summary judgment in November 2013, awarding judgment in the amount of $83,340.45 plus per diem interest,[3] attorney fees and expenses of 15 percent of the principal and interest, court costs, and post-judgment interest. This appeal by Lockwood follows.

1. First, Lockwood contends that the trial court erred in awarding attorney fees when

Page 832

the FDIC failed to provide correct notice under OCGA § 13-1-11 (a) (3). We disagree.

OCGA § 13-1-11 provides, in relevant part, that

[t]he holder of the note or other evidence of indebtedness or his or her attorney at law shall, after maturity of the obligation, notify in writing the maker, endorser, or party sought to be held on said obligation that the provisions relative to payment of attorney's fees in addition to the principal and interest shall be enforced and that such maker, endorser, or party sought to be held on said obligation has ten days from the receipt of such notice to pay the principal and interest without the attorney's fees.[4]

And as we recently emphasized, compliance with the notice requirement of OCGA § 13-1-11 (a) (3) is a " mandatory condition precedent" to the recovery of attorney fees under this statute.[5]

Here, the FDIC's March 7, 2013 letter to Lockwood informed him of his default upon the promissory note and demanded payment of the remaining amount due, as well as instructed him that it was giving him notice under OCGA § 13-1-11 (a) (3) that if he " fail[ed] to pay the [i]ndebtedness within ten (10) days of [the] letter," it would initiate legal action and seek all available remedies, including attorney fees and expenses.

Lockwood contends on appeal that the trial court erred in awarding attorney fees when this notice was deficient by its failure to specify that payment was due within ten days of receipt of the letter. And while he is correct that the March 2013 letter failed to comply [330 Ga.App. 515] with the dictates of OCGA § 13-1-11 (a) (3),[6] the trial court did not err in awarding attorney fees because the FDIC provided sufficient notice under the statute in its later-filed complaint.[7] Indeed, in addition to referencing the notice-of-default letter, the FDIC's complaint separately provided notice (1) of its intention to " enforce the provisions of the Note that require [Lockwood] to pay all costs, including attorney fees, in addition to all other amounts due," and (2) that if he " fails to pay all principal and interest owing on the Note within ten (10) days of receipt of this Complaint, he will be obligated for the payment of attorney fees in accordance with Georgia law." [8]

Thus, notwithstanding the deficient notice in the FDIC's notice-of-default letter, the separate notice in the complaint satisfies the dictates of OCGA § 13-1-11 (a) (3).[9] It is

Page 833

well settled that notice under this statute " may be given any time between maturity of the [330 Ga.App. 516] obligation and ten days prior to judgment." [10] As such, when a pleading, setting up a claim on a note or other evidence of indebtedness which authorizes recovery of attorney fees, " alleges that notice of intent to seek attorney fees has been given and that notice is thereby given, and the notice otherwise conforms to the requirements of [OCGA § 13-1-11 (a) (3)], such notice is sufficient to authorize an award of attorney fees." [11] Accordingly, the trial court did not err in awarding attorney fees to the FDIC.[12]

2. Next, Lockwood argues that the trial court erred in awarding $83,340.45 to the FDIC when there was a genuine issue of material fact as to the amount owed upon the note. Again, we disagree.

Although Lockwood does not dispute that a sum is owed upon the note, he takes issue with the amount awarded by the trial court and points to alleged inconsistencies in the documents attached to the asset manager's affidavit when the attached exhibits showed " unapplied credits" and " unapplied payments" with no given explanation. Additionally, Lockwood asserts that the asset manager had no personal knowledge as to the attached evidence.

(a) First, as to the issue of personal knowledge, in his affidavit, the asset manager set out his role and personal access to and knowledge of the records that were transmitted to the FDIC when Silverton Bank was placed into receivership, which included the payment records attached to his affidavit as an exhibit, and which records he averred were " kept and maintained in the course of regularly and necessarily conducted business activity." And we have consistently rejected similar arguments as to an alleged lack of personal knowledge when records have been transferred between businesses.[13] This line of precedent applies here, too, despite the fact that the motion for summary judgment was filed, considered, and [330 Ga.App. 517] ruled upon after the provisions of Georgia's new Evidence Code went into effect.[14] Accordingly, Lockwood's argument as to a lack of personal

Page 834

knowledge by the asset manager is without merit.

(b) Second, as to Lockwood's argument that the payment records contain inconsistencies giving rise to a genuine issue of material fact as to the amount owed, this contention likewise lacks merit. Indeed, the payment-history records reflect payments and late charges, as well as a total of $80,036.09 owed upon the remaining principal balance as of September 19, 2013. Nevertheless, Lockwood argued before the trial court and argues again before this Court that the payment-history records contain inconsistencies as to the amount owed upon the principal because the records include " unapplied payments" and other " unapplied credits" with no explanation as to why these payments and credits did not apply to the principal balance.

It is well established that, in an action on a promissory note, the plaintiff has the burden of proving that the " defendant is indebted to him and in a definite and correct amount." [15] Here, the FDIC presented the payment-history records showing a definite amount outstanding on the principal balance and also submitted an affidavit from the asset manager authenticating the records.[16] And after the FDIC produced this evidence, Lockwood was not at liberty to rest upon his pleadings, but was instead required to point to specific evidence giving rise to a triable issue concerning his indebtedness.[17] As we have previously explained, mere conclusions are " not sufficient [330 Ga.App. 518] to withstand specific facts," [18] and a party opposing a motion for summary judgment, when the moving party has presented evidence of the necessary certitude, " must, in his opposing affidavits, set forth specific facts showing a genuine issue to be decided." [19]

In the case sub judice, Lockwood's speculations as to the potential impact of the otherwise nondescript " unapplied payments" and " unapplied credits" to his indebtedness were not sufficient to overcome the FDIC's prima facie case that Lockwood owed a " definite and certain amount" as reflected in the outstanding principal balance.[20] Indeed, Lockwood did not submit any documentary evidence--for example, copies of endorsed checks--of payments he made that had not already been credited to the principal balance.[21] Accordingly, the trial court did not

Page 835

err in awarding the FDIC with the $80,036.09 that its evidence showed remained outstanding on the principal balance.

3. Lastly, Lockwood argues that the trial court erred in granting summary judgment when discovery was still pending between the parties. Once again, we disagree.

Under OCGA § 9-11-56,

[s]hould it appear from the affidavits of a party opposing the motion [for summary judgment] that he cannot, for reasons stated, present by affidavits facts essential to justify his opposition, the court may refuse the application for judgment, or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had, or may make such other order as is just.[22]

[330 Ga.App. 519] And here, Lockwood argues that the trial court erred by granting summary judgment to the FDIC when its discovery responses were not due until after the deadline for his response to the motion for summary judgment.

The record reflects that when the FDIC commenced this action in April 2013, it concurrently commenced discovery by serving Lockwood with requests for admissions. However, Lockwood did not serve the FDIC with written discovery requests until one week after it filed its motion for summary judgment in September 2013. The responses to Lockwood's requests were due November 7, 2013, but the FDIC responded on November 1, 2013.[23] Nevertheless, Lockwood filed his response to the motion for summary judgment that same day and did not thereafter supplement his response. In his response, Lockwood asserted that outstanding responses to his discovery requests rendered him " unable to put forward his complete defense" to the motion and, additionally, he averred that " because discovery is ongoing, the balance of principal remaining on the Note is unknown." The trial court ruled upon the motion on November 13, 2013.

First, regardless of whether or not Lockwood received responses to his discovery requests prior to filing his response to the motion for summary judgment, he made no attempt to rely upon his own documentation as to payments made and allegedly uncredited toward the principal balance.[24] Additionally, in requesting a continuance, Lockwood did not " show that if the continuance were granted, what relevant and material evidence would be produced in opposition to the motion for summary judgment." [25] Moreover, despite his assertion that discovery requests remained outstanding, the record reflects that the FDIC served Lockwood with its responses the same morning he filed his opposition to the motion for summary judgment. Despite this fact, Lockwood took no further action to supplement his response.[26] Under these facts, the trial court did not abuse its discretion in granting summary judgment to the FDIC.[27]

Page 836

[330 Ga.App. 520] Accordingly, for all of the foregoing reasons, we affirm the trial court's grant of summary judgment to the FDIC.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.


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