Greenstein v. Bank of Ozarks
326 Ga. App. 648
Ga. Ct. App.2014Background
- Bank seeks to enforce two promissory notes and guaranties after CEP-Ten Mile Resorts defaulted; notes governed by Georgia law but foreclosed nonjudicially in Tennessee; Bank foreclosed and filed deficiency action in Georgia; Greenstein Defendants challenge real-party-in-interest and amounts; CEP-Ten Defendants argue Georgia confirmation procedures apply; trial court granted summary judgment to Bank on liability; two appeals filed: A13A1790 (Greenstein) and A13A1791 (CEP-Ten).
- Greenstein Defendants argue Bank failed to prove successor status as real party in interest and failed to prove amounts owed; Felker affidavit offered as evidence of successor status but portions about name change and merger deemed inadmissible; without those, Bank lacked evidence linking to original lenders.
- CEP-Ten Defendants argue Georgia confirmation procedures OCGA § 44-14-161(a) apply despite choice-of-law to Georgia law; Bank’s foreclosure occurred in Tennessee, so no Georgia confirmation required; court agrees no confirmation required; ambiguities exist as to amounts, so remand and vacate.
- Trial court held Bank proved holder status but lacked admissible chain of title evidence; on A13A1790 the court’s grant of summary judgment to Bank reversed due to lack of real-party-in-interest showing; on A13A1791 the court vacated and remanded for clarification of liability versus amount adjudication.
- Court notes that under OCGA § 9-11-56(c) the movant bears burden to show entitlement; on appeal review is de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Real party in interest established? | Greenstein: Bank failed to prove successor status. | Greenstein: Felker affidavit inadmissible portions nullify link. | Reversed summary judgment for Greenstein defendants. |
| Georgia confirmation required after out-of-state foreclosure? | CEP-Ten: choice-of-law to Georgia requires confirmation. | CEP-Ten: Tennessee sale not subject to Georgia confirmation. | Confirmation not required; no reversal for this issue. |
| Amounts recoverable under notes/guaranties? | Bank: amounts proven; liability established. | Defendants: record ambiguity about whether judgment on liability includes amounts. | A13A1791 remanded to resolve liability vs. amount issue; A13A1790 reversed on liability. |
Key Cases Cited
- Sawgrass Builders v. Key, 212 Ga. App. 138 (1994) (real-party-in-interest evidence requirements; reversal when lacking chain of title)
- Goddard v. City of Albany, 285 Ga. 882 (2009) (affidavits must show personal knowledge; parts based on records may be disregarded)
- Sullivan v. Fabe, 198 Ga. App. 824 (1991) (when affiant’s personal knowledge is unclear, portions may be inadmissible)
- Capital City Developers v. Bank of North Ga., 316 Ga. App. 624 (2012) (addressed prima facie case; not controlling where real-party-in-interest is challenged)
- Angel Business Catalysts v. Bank of the Ozarks, 316 Ga. App. 253 (2012) (business records and admissibility in successor-bank context)