C & R Financial Lenders, LLC v. State Bank & Trust Co.
320 Ga. App. 660
Ga. Ct. App.2013Background
- State Bank & Trust Company sued C & R Financial Lenders, Victor Smith, and Brian Lee for default on promissory notes and guaranties.
- On August 5, 2011, the trial court granted summary judgment in State Bank's favor against all defendants.
- On December 16, 2011, appellants moved under OCGA § 9-11-60(g) to set aside, claiming they did not receive notice.
- The trial court denied the motion; no findings were made on whether appellants or their attorneys received notice.
- Affidavits submitted by appellants' attorneys argued lack of notice; the court deemed parts inadmissible hearsay.
- This court vacated the order and remanded to make Cambrón-based notice findings; if no receipt occurred, the motion must be granted and judgment re-entered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cambrón requires receipt findings | Appellants contend receipt of notice was not shown. | Sending notice suffices if properly issued. | Remand to make Cambrón findings; if no receipt, grant motion. |
| Admissibility of affidavits asserting lack of notice | Affidavits show personal knowledge of notice issues. | Court erred in finding hearsay in the affidavits. | Affidavits not hearsay; trial court error. |
| Effect of no receipt of notice on setting aside | If no notice was received, the motion to set aside should be granted. | Only sending notice matters; receipt is irrelevant. | If no receipt found, motion to set aside must be granted and judgment re-entered. |
Key Cases Cited
- Cambrón v. Canal Ins. Co., 246 Ga. 147 (1980) (notice must be both sent and received under Cambrón)
- Pierce v. State, 289 Ga. 893 (2011) (remands for Cambrón findings; no notice requires setting aside)
- Veasley v. State, 272 Ga. 837 (2000) (timely notice required to uphold rulings; may set aside without notice)
- Sea Tow/Sea Spill of Savannah v. Phillips, 247 Ga. App. 613 (2001) (notice receipt crucial; failure to receive triggers relief)
- Fremichael v. Doe, 221 Ga. App. 698 (1996) (undisputed lack of notice supports setting aside)