TSELIOS Et Al. v. SARSOUR
341 Ga. App. 471
Ga. Ct. App.2017Background
- Plaintiff Jad Sarsour sued Demetrios and George Tselios on a promissory note for $80,000 plus interest and attorney fees, alleging default. Complaint was unverified.
- Defendants answered generally denying knowledge and asserted defenses; one defendant initially defaulted but timely opened the default.
- Sarsour moved for summary judgment attaching the note and a January 11, 2016 demand letter; he submitted no affidavits, depositions, or other sworn evidence.
- The note required written notice of a missing or dishonored payment and defined "Default" as failure to cure an untimely payment within five business days after receipt of such written notice.
- Trial court, after defendants failed to respond, granted summary judgment for Sarsour awarding principal, accrued interest, and attorney fees.
- On appeal, the Court of Appeals reversed, holding Sarsour failed to present competent evidence establishing that defendants defaulted under the note's specific cure provision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper on the promissory note claim | Sarsour argued the note and demand letter established defendants' default and entitlement to judgment | Defendants argued plaintiff did not present competent, sworn evidence showing the note's cure period expired and default occurred | Reversed: plaintiff failed to make a prima facie showing of default under the note because no competent evidence proved failure to cure within five business days after written notice |
| Whether a nonresponse by defendant permits "default summary judgment" | Sarsour relied on defendants' failure to respond to the motion | Defendants noted failure to respond does not eliminate plaintiff's burden to produce competent evidence | Held that failure to respond does not allow a default summary judgment; movant still must show entitlement to judgment as a matter of law |
| Admissibility/weight of exhibits and unsworn filings | Sarsour treated the note, demand letter, pleadings, brief, and Rule 6.5 statement as sufficient evidence | Defendants argued unsworn pleadings and Rule 6.5 statements are not competent evidence | Court held the note and demand letter were admissible (self-authenticating) but unsworn pleadings, briefs, and Rule 6.5 statement are not competent evidence to establish default |
| Burden shifting once note appears past due | Sarsour contended the note being past due shifted the burden to defendants to raise defenses | Defendants contended burden shifts only if plaintiff produces competent evidence of default under the note's terms | Court held burden shifts only if plaintiff presents competent evidence that the note's default condition was met; here plaintiff did not meet that burden |
Key Cases Cited
- Barnett v. Atlanta Indep. Sch. Sys., 339 Ga. App. 533 (construction of evidence on summary judgment)
- ABI Investments, LLC v. FSG Bank, Nat. Ass'n, 326 Ga. App. 367 (plaintiff must show competent evidence of default under note before burden shifts)
- Rapps v. Cooke, 234 Ga. App. 131 (no default summary judgment; movant must show entitlement to judgment)
- Roca Properties, LLC v. Dance Hotlanta, 327 Ga. App. 700 (treatment of promissory-note default at summary judgment)
- Jaycee Atlanta Dev., LLC v. Providence Bank, 330 Ga. App. 322 (self-authentication and evidentiary rules for loan documents)