Lockwood v. Federal Deposit Insurance Corporation
330 Ga. App. 513
| Ga. Ct. App. | 2015Background
- In 2007 Lockwood signed a $120,000 promissory note (Bankers Bank → Silverton Bank). Silverton later failed and FDIC became receiver.
- FDIC sent a March 7, 2013 default letter demanding payment of about $83,053.08 and referencing attorney-fee recovery if not paid within ten days; letter omitted the statutory phrase “ten days from receipt.”
- FDIC filed a verified complaint on April 1, 2013 and moved for summary judgment in September 2013, supported by an asset manager affidavit and loan/payment-history exhibits showing principal outstanding of $80,036.09 and accrued interest/late charges.
- Trial court granted summary judgment in November 2013 for $83,340.45 plus per diem interest, attorney fees (15% of principal and interest), costs and post-judgment interest.
- Lockwood appealed, arguing (1) defective OCGA § 13-1-11(a)(3) notice barred attorney fees; (2) genuine dispute over amount owed because of “unapplied credits/payments”; and (3) summary judgment was premature because discovery was incomplete.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FDIC gave the § 13-1-11(a)(3) notice necessary to recover attorney fees | March 7 letter was defective because it failed to specify ten days from receipt; thus fees improper | Complaint separately gave the ten-day-from-receipt notice required; notice in complaint suffices | Court held attorney-fee award proper because the complaint provided adequate statutory notice |
| Whether a genuine issue of material fact existed as to the amount owed (unapplied credits/payments) | Payment-history shows unexplained "unapplied" credits/payments creating a factual dispute about principal balance | Asset manager affidavit authenticates transferred business records showing a definite outstanding principal; Lockwood offered no specific contrary evidence | Court held no triable issue; FDIC met its prima facie burden and Lockwood failed to produce specific contrary evidence |
| Whether summary judgment should have been deferred because discovery was ongoing | Lockwood argued outstanding discovery was needed to prove uncredited payments and contest balance | Lockwood served limited discovery late; FDIC responded before decision; Lockwood did not identify what additional discovery would produce or supplement his opposition | Court held trial judge did not abuse discretion in denying continuance and granting summary judgment |
Key Cases Cited
- Best v. CB Decatur Court, LLC, 324 Ga. App. 403 (Ga. Ct. App.) (statutory notice under OCGA § 13-1-11 is a mandatory condition precedent for attorney-fee recovery)
- New House Prods., Inc. v. Commercial Plastics & Supply Corp., 141 Ga. App. 199 (Ga. Ct. App.) (complaint may supply statutory ten-day notice when otherwise absent)
- Termnet Merch. Servs., Inc. v. Phillips, 277 Ga. 342 (Ga.) (trial court lacks discretion to deny fees when § 13-1-11 conditions are unquestionably satisfied)
- Angel Bus. Catalysts, LLC v. Bank of the Ozarks, 316 Ga. App. 253 (Ga. Ct. App.) (business records transferred between entities may be admitted and authenticated)
- Bogart v. Wisc. Inst. for Torah Study, 321 Ga. App. 492 (Ga. Ct. App.) (plaintiff must prove indebtedness in a definite amount; opponent must raise specific facts to create triable issue)