Sawnee Forest, LLC v. Cre Venture 2011-1, LLC
339 Ga. App. 339
Ga. Ct. App.2016Background
- Sawnee Forest executed a promissory note in 2006 payable to Crescent Bank and Trust Company and later executed a replacement/note modifications (2008, 2009, 2010).
- Crescent Bank and Trust Company was closed in 2010; the FDIC was appointed receiver and executed assignments/allonges purporting to transfer loan documents to CRE Venture 2011-1, LLC (CRE).
- In April 2012 Sawnee Forest executed a loan modification directly with CRE, which recited that CRE had purchased the original loan documents from the FDIC and included Sawnee’s warranty that it had no defenses to payment.
- CRE alleged default, demanded payment in 2013, and sued Sawnee Forest and a guarantor; guarantor’s appeal was later dismissed due to bankruptcy.
- At summary judgment CRE submitted an affidavit from its asset manager (with an allonge, FDIC assignments, loan history) and later filed an amended affidavit (adding the original notes and modifications) more than two months before the hearing.
- The trial court granted partial summary judgment on liability for CRE; Sawnee appealed arguing (1) the court improperly considered the amended affidavit and (2) CRE failed to prove a complete chain of assignment/privity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by considering CRE’s amended affidavit | Burrola’s amended affidavit was filed timely (over 30 days before hearing) and corrected an error; court had discretion to allow it | The amended affidavit should be excluded under OCGA § 9-11-6(d) and Harrell because it was supplemental and untimely | No abuse of discretion — amended affidavit was filed more than 30 days before the hearing and court permissibly considered it |
| Whether CRE established privity/standing to enforce the note (chain of assignment) | CRE relied on the 2012 loan modification signed by Sawnee (identifying CRE as Lender and reciting CRE purchased the loan from the FDIC), the allonge/assignments, and note documents to show its right to sue | Sawnee argued CRE failed to prove a complete assignment chain from Crescent Bank - Midway to CRE and thus lacked privity/standing | CRE had privity via the 2012 loan modification directly with Sawnee; CRE made a prima facie showing and Sawnee presented no competent defense, so CRE was entitled to judgment as a matter of law |
Key Cases Cited
- Harrell v. Federal Nat. Payables, 264 Ga. App. 501 (trial court should not consider late supplemental affidavit absent excusable neglect)
- Heritage Constr. Corp. v. State Bank & Trust Co., 316 Ga. App. 25 (summary judgment review standard)
- Vandegriff v. Hamilton, 238 Ga. App. 603 (promissory note execution can establish prima facie right to judgment)
- Wirth v. Cach, LLC, 300 Ga. App. 488 (privity/assignment principles for enforcing contractual payment rights)
- Shropshire v. Alostar Bank of Commerce, 314 Ga. App. 310 (purpose and flexibility of affidavit timing requirements under OCGA rules)