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Community & Southern Bank v. First Bank of Dalton

Court of Appeals of Georgia, First Division

February 28, 2018

COMMUNITY & SOUTHERN BANK
v.
FIRST BANK OF DALTON et al. STEARNS BANK, N. A.
v.
FIRST BANK OF DALTON et al.

          BARNES, P. J., MCMILLIAN and RICKMAN, JJ.

          McMillian, Judge.

         These consolidated appeals require us to once again consider how the proceeds from the sale of certain real property following foreclosure should be distributed among three banks with participation interests in the underlying loans. In Case No. A17A2121, appellant Community & Southern Bank ("CSB") contends that upon remand from this Court, the trial court erred by re-entering the same judgment in favor of First Bank of Dalton ("Dalton"), Community Bank of Pickens ("Pickens Bank") and Stearns Bank, N. A. ("Stearns") despite our direction in the previous appeal to vacate and reconsider certain issues. Community & Southern Bank v. First Bank of Dalton, 338 Ga.App. 341 (790 S.E.2d 80) (2016) ("CSB I"). In Case No. A17A2122, appellant Stearns contends that the trial court erred by finding that a jury must determine how the proceeds from the sale should be distributed among the participating banks.

         The facts are largely undisputed. In 2004, Gilmer Bank made two loans, one for $3, 700, 000 ("Loan 74744") and the other for $1, 800, 000 ("Loan 74747") to real estate developer A. S. Dover Development, Inc. ("Dover").[1] Both loans were secured by a security deed that encumbered the same parcel of undeveloped land, which Dover planned to develop into residential lots as part of a subdivision. Each loan agreement referenced the security deed, and the security deed referenced the two loans.

         Shortly thereafter, under the terms of separate Participation Certificates and Agreements (collectively "Participation Agreements"), Gilmer sold a 27.07 percent participation interest in Loan 74744 to Dalton; a 27.07 percent participation interest in that loan to Pickens Bank, and a 45.946 percent participation interest in that loan to Jasper Banking Company ("Jasper"). In 2006, Gilmer Bank entered into a Participation Agreement with Jasper for a 100 percent participation interest in the other loan, Loan 74747.[2] Each Participation Agreement referenced the security deed. The Participation Agreements were subsequently renewed under substantially identical terms, with the last renewal occurring in 2008. When Gilmer ultimately failed in 2010, the FDIC transferred Gilmer's assets and responsibilities, including the loans and administration of the Participation Agreements, to CSB.[3] Jasper Bank also failed and its assets, including the Participation Agreements, were ultimately transferred to Stearns. Id.

         In 2013, Dover defaulted on both loans, and CSB purchased the property in foreclosure for over $1.61 million. In December 2014, CSB sold the property to a third party for $1, 452, 470.12. A few days after the sale, Dalton and Pickens Bank filed a petition seeking a temporary restraining order, interlocutory injunction, and declaratory judgment against CSB and Stearns, contesting CSB's right to deduct its fees and expenses prior to distributing the funds to the Participating Banks, and further alleging that based upon "information and belief, " CSB intended to distribute the proceeds from the sale "contrary to contract and the parties' course of performance." Dalton and Pickens Bank also gave notice of its intent to enforce the attorney fee provision of their Participation Agreements if CSB did not distribute the funds from the sale within ten days. CSB and Stearns filed answers to the petition, and Stearns also filed a counterclaim against Dalton and Pickens Bank, contending the proceeds of the sale should be distributed on a pro rata basis between Loan 74744 and Loan 74747.[4]

         Several months later, on March 2, 2015, CSB filed a motion to tender the funds from the sale into the trial court registry. In making the tender, CSB specifically represented to the trial court that:

There is a dispute as to the proper distribution of the . . . sale proceeds between the parties. Simultaneously with the filing of the Motion [CSB] tenders the amount of $862, 565.70 into the Registry of the Court for determination of its proper distribution. The funds are submitted in four checks as follows: (a) $266, 611.59 representing [Stearns'] portion of sale proceeds from the collateral for loan 74744; (b) $156, 830.01 representing [Pickens Bank's] portion of sale proceeds from . . . loan number 74744; (c) $156, 830.01 representing [Dalton's] portion of sale proceeds from . . . loan number 74744; (d) $282, 294 representing [Stearns'] . . . portion of sale proceeds from . . . loan number 74747.

         Dalton and Pickens Bank objected to the proposed distribution of funds in CSB's motion to tender, and the parties filed motions and cross motions for partial summary judgment on various issues, including the proper distribution of the proceeds among the Participating Banks and whether CSB could deduct its expenses from the total amount available for distribution.

         On August 3, 2015, the trial court entered an order addressing eight separate grounds raised in the parties' motions, finding that: (1) CSB received a payment that it was obligated to distribute to the Participating Banks in the amount of $1.45 million on December 15, 2014, which CSB was required to distribute within ten business days; (2) the Participating Banks were entitled to prejudgment interest pursuant to OCGA § 7-4-15 calculated on the $1.45 million sale price at the rate of seven percent beginning on December 15, 2014; (3) CSB was not entitled to deduct expenses prior to distributing the sale proceeds to the Participating Banks; (4) CSB was not entitled to deduct administrative fees; (5) CSB was liable for late fees; (6) Dalton and Pickens Banks were entitled to attorney fees as prevailing parties as defined in the Participation Agreements; (7) deferring the question of whether CSB's liability should be capped at the sale price to a later date; and (8) based on the proposed amounts as tendered in the trial court, CSB was liable in the minimum amounts to each Participating Banks as follows: Dalton $156, 830.01, Pickens Bank $156, 830.01, and Stearns Bank $548, 905.68 ("August 2015 order"). Adding prejudgment interest, late charges, attorney fees and court costs, the trial court then entered judgment for Dalton in the amount of $179, 838.41; Pickens Bank in the amount of $179, 838.41; and Stearns in the amount of $571, 426.06. The trial court noted that these were the minimum amounts the Participating Banks were entitled to receive and that it had not yet ruled upon the exact amount owed to each participant.

         CSB filed a notice of appeal, which was docketed in this Court as Case No. A16A0313. On appeal, CSB asserted two enumerations of error: (1) the trial court erred by failing to account for and deduct CSB's applicable expenses in collecting the loans from the damages awarded to the Appellees and (2) by granting partial summary judgment and by awarding attorney fees. In CSB I, we vacated the trial court's order, finding that, under the controlling default provision of the Participation Agreements, CSB was entitled to deduct its expenses from the proceeds of the sale before distribution to the Participating Banks and remanded "with instructions for the trial court to consider the amount of expenses CSB may deduct before it distributes any remaining amounts to the Purchaser." And because Dalton and Pickens Bank were no longer prevailing parties with respect to that issue, we also vacated the award of attorney fees on that ground. CSB I, 338 Ga.App. at 346-47 (1) & (2). In so doing, we noted that Dalton and Pickens Bank were prevailing parties on other issues raised in their motion for partial summary judgment and that CSB had not appealed those findings. CSB I, 338 Ga.App. at 347 (2) & n.8.

         Following remittitur, Dalton and Pickens Bank filed a motion for entry of judgment requesting that the trial court distribute the $862, 565.70 CSB had deposited in the trial court's escrow account, arguing that CSB had previously admitted that amount was subject to disbursement and our opinion merely concerned the distribution of any "remaining" amounts over and above the amount CSB tendered in the trial court, that is, the amounts CSB had not deposited in the court's registry. The trial court agreed and also found that Dalton and Pickens Banks remained "prevailing parties" in this matter and left intact the attorney fees included in the previous award. The trial court then re-entered judgment to Dalton and Pickens Bank in the same amount of $179, 838.41, nunc pro tunc to August 3, 2015; that order, which was entered on April 25, 2017, is the subject of the appeal in Case No. A17A2121. The trial court also entered a separate order denying Stearns' motion for summary judgment on the issue of how the proceeds of the sale should be apportioned among the Participating Banks, leaving that issue for resolution by a jury; that order, which was also entered on April 25, 2017, is the subject of the appeal in Case No. A17A2122.[5]

         Case No. A17A2121.

         1. CSB argues that the trial court erred by entering judgment for Dalton and Pickens Bank in the exact same amount as the order on partial summary judgment ...


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