WILLIAMS et al.
HSBC MORTGAGE SERVICES, INC.
BARNES, P. J., RICKMAN and SELF, JJ.
case involving an action to quiet title, see OCGA §
23-3-42, Joann and Edward Williams appeal from the trial
court's order granting summary judgment in favor of HSBC
Mortgage Services, Inc. ("HSBC"). They assert that
the trial court erred in the following ways: (1) granting
HSBC's motion to open default; and (2) "granting
summary judgment by improperly resolving disputed issues of
material facts and applying the incorrect law." For the
reasons explained below, we reverse the trial court's
order allowing HSBC to open its default.
Williams argue that the trial court should not have granted
the motion to open the default because HSBC failed to set
forth sufficient facts showing a meritorious defense under
oath. In support of this argument, the Williams point out
that the affidavits submitted in support of HSBC's motion
to open its default addressed only the issue of excusable
neglect, that HSBC's answer did not allege sufficient
facts to support a meritorious defense, and that the
verification attached to HSBC's answer was not notarized.
the opening of a default rests within the sound discretion of
the trial court. [Cit.]" C. W. Matthews Contractor
Co. v. Walker, 197 Ga.App. 345, 346 (1) (398 S.E.2d 297)
(1990). But in the absence of the preconditions for opening a
default set forth by the General Assembly in OCGA §
9-11-55 (b), "the trial judge has no discretion to open
the default." (Citations and punctuation omitted.)
Upon the payment of costs, a prejudgment default may be
opened under OCGA § 9-11-55 (b) on one of three grounds
if four conditions are met. The three grounds are: (1)
providential cause, (2) excusable neglect, and (3) proper
case; the four conditions are: (1) showing made under oath,
(2) offer to plead instanter, (3) announcement of ready to
proceed with trial, and (4) setting up a meritorious defense.
This court has previously held that the "showing"
required by this Code section to be made "under
oath" includes the showing of a "meritorious
(Citation and punctuation omitted.) Suntrust Bank v.
Perry, 233 Ga.App. 701 (505 S.E.2d 230) (1998).
this case, the Williams are correct that the affidavits
submitted in support of HSBC's motion to open its default
address only the ground of excusable neglect and contain no
facts establishing a meritorious defense. And while HSBC
asserts that its verified answer satisfied the meritorious
defense precondition, the verification "does not contain
the signature of a notary or any other indication that it was
made under oath. In the absence of a valid jurat, the
purported verification is without effect as an affidavit.
[Cit.]" Id. at 702. See also OCGA §
9-10-113 (governing sufficiency of verification for
affidavits and answers). Accordingly, we do not reach the
question of whether HSBC's answer alleged sufficient
facts setting up a meritorious defense.
there are no other statements under oath relating to
HSBC's defenses in the record, we must conclude that the
trial court erred in granting its motion to open default.
Wilcher v. Smith, 256 Ga.App. 427, 428-429 (568
S.E.2d 589) (2002).
their remaining enumeration of error, the Williams claim that
the trial court erred by granting summary judgment in favor
of HSBC on their claim that HSBC's security interest in
their real property was extinguished by accord and
satisfaction. Based upon our holding in Division 1, this
enumeration of error is rendered moot and we express no
opinion about the merits of the trial court's summary
Barnes, P J, and Rickman, J, concur