THOMAS Et Al. v. STATE BANK AND TRUST COMPANY
330 Ga. App. 274
Ga. Ct. App.2014Background
- Buckhead Community Bank failed; FDIC appointed receiver and, via Purchase and Assumption Agreement, transferred assets to State Bank and Trust Company.
- Thomas and Case each independently borrowed from Buckhead; Thomas signed a $355,015 promissory note; Case signed a $35,686.79 promissory note; Thomas executed a guaranty for Case’s note.
- State Bank filed suit on March 25, 2011 seeking default on the notes and the guaranty; State Bank moved for summary judgment on March 12, 2012 asserting transfer under the Purchase and Assumption Agreement.
- At summary judgment, State Bank relied on a purported receiver’s deed/assignment of note and deed to secure debt as the transfer instrument; such documents were not admitted or certified in evidence.
- No competent evidence showed a complete chain of transfer of the notes and guaranty to State Bank; the record lacked a receiver’s deed, bill of sale, or an admissible assignment showing the specific notes.
- The trial court granted summary judgment in favor of State Bank, which the Court of Appeals later reversed, finding genuine issues as to transfer and holder status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether State Bank proved it was the holder of the notes and guaranty. | Thomas and Case argue no transfer of notes/guaranty is shown. | State Bank claims Section 3.1 assigned FDIC interests, and 3.3 required conveyance by receiver’s deed/bill of sale. | No; absence of complete transfer evidence creates genuine issue of material fact. |
| Whether the record contains proper conveyance documents for the transfer. | Record lacks certified, filed receiver’s deed/bill of sale or proper assignment. | State Bank relies on Purchase and Assumption Agreement and attached affidavit. | Record lacks admissible transfer documents; summary judgment improper. |
Key Cases Cited
- Bobick v. Community & Southern Bank, 321 Ga. App. 855 (Ga. App. 2013) (complete chain of assignment supported by evidence)
- Kensington Partners v. Beal Bank Nevada, 311 Ga. App. 196 (Ga. App. 2011) (written assignment of deed and note sufficient to prove transfer)
- Greenstein v. Bank of the Ozarks, 326 Ga. App. 648 (Ga. App. 2014) (affidavits lacking personal knowledge may be disregarded)
- Wirth v. Cash, LLC, 300 Ga. App. 488 (Ga. App. 2009) (summary judgment requires genuine issues of material fact)
- Clay v. Oxendine, 285 Ga. App. 50 (Ga. App. 2007) (summary judgment standard; de novo review)