TURNER Et Al. v. NATIONAL COLLEGIATE STUDENT LOAN TRUST 2007-4

FOURTH DIVISION
DILLARD, C. J.,
RAY, P. J. and SELF, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
August 10, 2017
In the Court of Appeals of Georgia
A17A1004. TURNER et al. v. NATIONAL COLLEGIATE SE-038
STUDENT LOAN TRUST 2007-4.
SELF, Judge.
This appeal arises from a suit on a promissory note and the trial court’s grant
of summary judgment in favor of the lender. On appeal, the appellants, Bianca and
Wilbur Turner, assert that the trial court erred because: (1) the record failed to
establish a valid assignment of the note to the appellee, National Collegiate Student
Loan Trust 2007-4; and (2) an affidavit from Bianca Turner shows that she was not
properly served with the summons and complaint. We cannot reach the merits of
these claims, however, because the record before does not include documents critical
to the appeal.
The notice of appeal in this case states that only certain listed items will be
included in the record, and that all other documents, which are not identified, should
be excluded. This is exactly opposite the manner prescribed for a notice of appeal by
OCGA § 5-6-37 (notices of appeal shall include “a designation of those portions of
the record to be omitted from the record on appeal”). Consequently, the record before
us is missing documents critical to appellate review of the trial court’s grant of
summary judgment: the affidavit of Bianca Turner stating where she resided at the
time of the allegedly defective service; the return of service for the complaint; and an
affidavit from a records custodian regarding the assignment of the loan.
Georgia’s appellate courts have made it clear that where the record is
incomplete as the result of an appellant’s failure to comply with the
requirements of OCGA § 5-6-37, the order of the trial court will be
affirmed. An affirmance is required under such circumstances because
on appeal the burden is on the appellant, as the party alleging error, to
show affirmatively from the record that such error occurred. When the
appellant fails to meet that burden, we have no choice but to assume that
the judgment complained of is correct and to therefore affirm the same.
(Citations and punctuation omitted.) Curry v. Miller, 328 Ga. App. 564, 565 (763
SE2d 489) (2014). In accordance with this well-established law, we too must assume
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that the record supports the trial court’s grant of summary judgment in favor of the
lender and affirm.
Judgment affirmed. Dillard, C. J., and Ray, P. J., concur.
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