ROGERS v. DEUTSCHE BANK NATIONAL TRUST COMPANY Et Al.
343 Ga. App. 655
Ga. Ct. App.2017Background
- Ameriquest sued Rogers in 2011 seeking reformation of a security deed to add a power-of-sale provision, alleging Ameriquest held the beneficiary interest at filing.
- Rogers answered and challenged Ameriquest's standing; Ameriquest moved for summary judgment in 2012.
- Ameriquest later moved (Aug. 2015) to substitute Deutsche Bank as plaintiff, asserting Ameriquest had assigned its interest to Deutsche Bank in 2009; the trial court granted substitution before Rogers responded.
- Rogers moved to vacate the substitution (June 2016); the trial court denied that motion and granted summary judgment for Deutsche Bank (Dec. 2016).
- The trial court also ordered Rogers to post a supersedeas bond to stay enforcement. Rogers appealed both the denial of the motion to vacate / summary judgment and the supersedeas bond order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court could vacate substitution order after term | Rogers: substitution was improper and may be vacated; interlocutory orders remain subject to revision | Deutsche Bank: motion to vacate filed after term, so court lacked power to vacate | Court: interlocutory substitution order can be vacated while case pending; trial court had authority to act |
| Proper statutory basis for substitution (OCGA § 9-11-25 vs § 9-11-17) | Rogers: substitution under § 9-11-25 improper because alleged transfer occurred before litigation | Deutsche Bank/Ameriquest: § 9-11-25 allows substitution upon transfer of interest | Court: § 9-11-25 applies only to transfers during litigation; § 9-11-17 governs pre-filing transfers and real-party-in-interest issues |
| Whether trial court exercised proper discretion in substituting plaintiff | Rogers: court failed to apply § 9-11-17/§ 9-11-21 and did not consider prejudice or reasons for delay | Deutsche Bank: substitution was justified based on assignment | Court: trial court erred by relying solely on § 9-11-25 and did not show it exercised discretion under § 9-11-17/§ 9-11-21; remand required for proper discretionary analysis |
| Validity of summary judgment and supersedeas bond tied to substituted plaintiff | Rogers: summary judgment and bond rest on improper substitution | Deutsche Bank: judgment and bond valid after substitution | Court: because substitution order must be vacated and discretion re-exercised, summary judgment and supersedeas bond are vacated and case remanded |
Key Cases Cited
- Lott v. Arrington & Hollowell, 258 Ga. App. 51 (2002) (interlocutory rulings remain under court's control while case pending)
- Moon v. State, 287 Ga. 304 (2010) (civil interlocutory rulings do not pass from court's control at end of term)
- Employers' Liability Assurance Corp. v. Keelin, 132 Ga. App. 459 (1974) (OCGA § 9-11-25 applies only to transfers made during litigation)
- Padilla v. Melendez, 228 Ga. App. 460 (1997) (if appellate court cannot tell whether discretion was exercised, remand rather than de novo review is appropriate)
- Town & Country Dodge v. World Omni Financial Corp., 261 Ga. App. 503 (2003) (vacating summary judgment entered for a party that was not the real party in interest)