DocketNumber: A12A0343
Citation Numbers: 316 Ga. App. 253, 728 S.E.2d 854, 2012 Fulton County D. Rep. 2013, 2012 WL 2161413, 2012 Ga. App. LEXIS 531
Judges: Miller
Filed Date: 6/15/2012
Status: Precedential
Modified Date: 10/19/2024
Bank of the Ozarks (the “Bank”), as successor to the original lender, pursued an action to recover the outstanding balance on a
“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.” (Citation and punctuation omitted) Kensington Partners v. Beal Bank Nevada, 311 Ga. App. 196 (715 SE2d 491) (2011).
So viewed, the evidence shows that on October 4, 2006, Angel Business Catalysts executed a promissory note in favor of Unity National Bank (“Unity”), in the principal sum of $440,943. The Guarantors executed individual guarantees of the note. In March 2010, after Angel Business Catalysts failed to meet its repayment obligations under the note, Unity filed suit against Angel Business Catalysts and the Guarantors to recover the outstanding balance on the note. Unity was subsequently closed, and the Federal Deposit Insurance Corporation (“FDIC”) was appointed as receiver for Unity.
Through a purchase agreement, FDIC assigned its interest in the note, the individual guarantees, and other related loan agreements to the Bank. The Bank was subsequently substituted as the party plaintiff. Thereafter, the Bank moved for summary judgment. In support of its summary judgment motion, the Bank submitted the affidavit of its special assets manager, which set forth the parties’ contracts, debt obligations, and amounts due. Following a hearing, the trial court granted the Bank’s motion.
1. The Guarantors contend that the trial court erred in granting the Bank’s motion for summary judgment because the Bank failed to show that the affidavit and the attached documents were admissible as business records. We disagree.
Creating an exception to the hearsay rule, the Business Records
Any writing or record . . . made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.
(Punctuation omitted.) OCGA § 24-3-14 (b).
However, before such a writing or record is admissible, a foundation must be laid through the testimony of a witness who is familiar with the method of keeping records and who can testify thereto and to facts which show that the entry was made in the regular course of a business at the time of the event or within a reasonable time thereafter.
(Footnote omitted.) Ishak v. First Flag Bank, 283 Ga. App. 517, 519 (642 SE2d 143) (2007). “Atrial court’s decision to admit evidence as an exception to the hearsay rule will not be disturbed absent an abuse of discretion.” (Footnote omitted.) Id.
Here, the Bank’s special assets manager, who previously held the same position for Unity, averred that he was the custodian of records for the Bank; that the business records relating to the note were transferred and delivered to the Bank from the FDIC as the receiver for Unity; that these documents included the original note and individual guarantees; that the records were obtained in the regular course of business; and that the Bank relied upon information provided by the FDIC regarding the payment history of the note. Although the Guarantors claimed that any documents transferred to the Bank were inadmissible since the special assets manager failed to state that he had personal knowledge as to how the documents were prepared and maintained by Unity,
2. The Guarantors next contend that the documents attached to the affidavit did not establish the debts owed by each individual. Their contention is without merit.
By using an affidavit to establish the balance due on an agreement, the Bank was “required to attach to the affidavit copies of the records relied upon and referred to therein that were pertinent to [the Guarantors’] debt.” (Punctuation, footnote and emphasis omitted.) Melman v. FIA Card Svcs., 312 Ga. App. 270, 272-273 (2) (718 SE2d 107) (2011).
Here, the special assets manager’s affidavit referred to payoff statements listing the total amount owed by each of the Guarantors. These payoff statements, which were attached as exhibits to the affidavit, qualified as business records since the special assets manager testified that he had personal knowledge that the statements were made in the regular course of the Bank’s business. Cf. Ishak, supra, 283 Ga. App. at 519 (loan history report admissible as a business record where bank president averred that, based upon his personal knowledge, the report was maintained in the ordinary course of business); Wickes Lumber v. Energy Efficient Homes, 157 Ga. App. 303, 303 (1) (277 SE2d 298) (1981) (summary account statement was admissible where company’s accounts receivable
[Since] the [payoff statements] conform [ed] to the provisions of the [Business Records Act], they themselves stand as a witness of the correctness of the account and ma[d] e a prima facie case which shift [ed] the burden of proof to the defendant debtor to show the items contained in the records, or some of them, [were] not correct.
(Punctuation and footnote omitted.) Melman, supra, 312 Ga. App. at 273-274 (2); cf. Kensington, supra, 311 Ga. App. at 198-199 (3) (affidavits which provided that bank received loan and related documents, including guaranties, from FDIC in normal course of business, and which attached as an exhibit the loan payment history, were sufficient to set forth debt and interest due).
Once the Bank made its prima facie case of its entitlement to recover against the Guarantors, the burden then shifted to the Guarantors to “come forward with rebuttal evidence. To do so, the [Guarantors] must set forth specific facts showing the existence of a genuine issue of disputed fact.” (Citations and punctuation omitted.) Dawson Pointe, LLC v. SunTrust Bank, 312 Ga. App. 338 (718 SE2d 570) (2011). The Guarantors, who admitted guaranteeing a certain amount, presented no evidence that the items contained in the payoff statement were incorrect, or that there was a genuine issue to be tried. Since the Guarantors failed to come forward with evidence to create a genuine issue of material fact as to the amount of debts owed, the trial court properly granted summary judgment to the Bank. Cf. Melman, supra, 312 Ga. App. at 273-274 (2) (summary judgment properly awarded to creditor when debtor failed to introduce evidence rebutting creditor’s affidavit and an attached business record establishing debt owed); Kensington, supra, 311 Ga. App. at 199 (3) (summary judgment properly awarded to creditor where debtor presented no evidence contradicting affidavits and business records that established debt owed); Gerben v. Beneficial Ga., 283 Ga. App. 740, 742-743 (642 SE2d 405) (2007) (affidavit and documents named in affidavit and included in record were sufficient evidence to support creditor’s motion for summary judgment).
Judgment affirmed.
The complaint also named as a defendant Angel Business Catalysts, LLC, which had executed the underlying note. The Bank received a default judgment against Angel Business Catalysts. The Guarantors do not challenge the entry of the default judgment against Angel Business Catalysts.
Contrary to the Guarantors’ claim, this Court’s decision in Arrow Financial Svcs. v. Wright, 311 Ga. App. 319 (715 SE2d 725) (2011), does not squarely support their argument that the Bank’s affidavit was inadmissible since the affiant did not state that he had personal knowledge of the manner in which Unity’s documents were created. In Arrow, the trial court found that the witness did not have the requisite personal knowledge to authorize admission of documents sent from the original lender to the assignee regarding the debt’s origins. Arrow,
“[T]he General Assembly has instructed that the Business Records Act ‘shall be liberally interpreted and applied.’ ” (Punctuation and footnote omitted.) Ishak, supra, 283 Ga. App. at 519; see also OCGA§ 24-3-Í4 (d).