Skott v. Bank of America Illinois

Fletcher, Presiding Justice,

concurring.

While I concur fully in the majority opinion, I write separately to suggest another possible basis for affirming the trial court.

The record demonstrates that Skott considered the promissory note executed by the Williams to Modern Mortgage to be a negotiable instrument within the meaning of Georgia’s Uniform Commercial Code.² If it is a negotiable instrument, then under OCGA § 11-3-603 (3), the Williams, as makers, were authorized as a matter of law to pay Modern Mortgage until Skott, as the assignee, notified them by registered or certified mail of the assignment and that payment was to be made to Skott. Furthermore, because of the agency relationship between Modern Mortgage and Skott, the Williams’ payment to Modern Mortgage discharged their liability on the note pursuant to OCGA § 11-3-603 (1). Therefore, the Williams were never in default under the promissory note and Skott was not authorized to seek foreclosure under the security deed.

I am authorized to state that Justice Carley joins in this concurrence.

Decided April 8, 1996. William H. Arroyo, for appellant. Morris, Manning & Martin, Joseph R. Manning, Ann R. Schildhammer, James C. West III, for appellees.

2 OCGA § 11-1-101 et seq.