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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 ...


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