Leonard J. Brancewicz v. Sms Financial P, LLC.
A21A1104
Ga. Ct. App.Sep 7, 2021Background
- In 2006 Leonard J. Brancewicz completed and signed a Small Business Credit Application for Penn Beaver Pharmacy as both authorized representative and personal guarantor; the application referenced a separate "Small Business Premium Credit Line Agreement."
- A credit line was opened (originally with National City Bank), activity occurred from 2007–2015, and statements show use, fees, and eventual charge‑off: $99,119.66 principal plus finance charges.
- SMS Financial P, LLC (assignee) sued Brancewicz in 2019 to collect the charged‑off balance; the complaint attached the signed credit application but not the separate credit‑line agreement referenced in the application.
- SMS moved for summary judgment and submitted affidavits, account ledgers, and mailed account statements as business records showing the account issuance, usage, balance, and that Brancewicz was a guarantor.
- The trial court granted summary judgment in favor of SMS (including attorney fees); Brancewicz appealed solely arguing that SMS’s failure to produce the separate written Agreement barred summary judgment against him as guarantor.
- The Court of Appeals affirmed, holding that production of the separate agreement was not required where the creditor produced other pertinent records establishing formation/use of the account, the guaranty, the outstanding balance, and no dispute of charges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SMS had to produce the separate "Small Business Premium Credit Line Agreement" to obtain summary judgment against the guarantor | Brancewicz: without the Agreement, SMS cannot prove his personal liability | SMS: issuance/use of account plus signed application and business records establish the contract, guaranty, and indebtedness | The court: no, production of the separate agreement is not required; SMS produced sufficient records and summary judgment affirmed |
Key Cases Cited
- Melman v. FIA Card Svcs., 312 Ga. App. 270 (creditor need only produce records pertinent to the debtor's account to establish a prima facie collection case)
- Davis v. Discover Bank, 277 Ga. App. 864 (issuance and use of card/account can form the contract even if the later formal agreement is not produced)
- League v. Citibank, 291 Ga. App. 866 (summary judgment for creditor affirmed where creditor showed account issuance, balance, and nonpayment)
- Hill v. American Express, 289 Ga. App. 576 (credit card contract may arise by use of the card rather than signature)
- Houghton v. Sacor Financial, 337 Ga. App. 254 (distinguished: reversal there was based on statute of limitations, not absence of a written agreement)