Ware v. Multibank 2009-1 RES-ADC Venture, LLC
327 Ga. App. 245
| Ga. Ct. App. | 2014Background
- Reginald B. Ware executed three commercial promissory notes in favor of Omni (First, Second, Third), each secured by deeds to secure debt on separate Atlanta properties; the First was later modified.
- Omni failed in March 2009; the FDIC became Receiver and later assigned the Notes to Multibank by omnibus assignments and allonges.
- Multibank sued Ware for unpaid principal, accrued interest, and contract attorney’s fees; Ware, pro se, admitted execution and default but raised defenses (lack of privity, amount, trustworthiness of records).
- Multibank moved for summary judgment supported by an affidavit of Niral Shah (attorney-in-fact for Multibank’s manager) attaching the Notes, deeds, assignments, and payment histories for the First and Second Notes (Third Note payment history missing).
- The trial court granted summary judgment for Multibank; appellate court affirmed liability on all three Notes, affirmed damages for First and Second Notes, reversed damages as to the Third Note and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (Ware) | Defendant's Argument (Multibank) | Held |
|---|---|---|---|
| Admissibility/authentication of business records | Shah cannot authenticate Omni records because she was not Omni personnel and Omni was closed | Shah, as custodian/qualified witness for successor, can authenticate records under business‑records exception | Admissible: successor’s witness may authenticate; records trustworthy absent specific evidence undermining them |
| Trustworthiness of records due to Omni/Fraud prosecutions | Omni’s alleged fraud undermines trustworthiness of records transferred to Multibank | No evidence linking alleged Omni executive fraud to Ware’s loan records; bank records presumptively reliable | Rejected Ware’s conjecture; trustworthiness not shown to be compromised |
| Sufficiency of Shah’s affidavit to prove liability | Affidavit insufficient because parts rely on records not attached (esp. Third Note payment history) | Affidavit and attached Notes show execution and default; payment histories attached for First and Second suffice for damages there | Liability: proven for all three Notes; affidavit sufficient for liability but incomplete as to damages for the Third Note |
| Proof of damages | Ware contends amounts are not proven and Shah omitted Third Note payment history | Multibank points to Notes’ terms and attached payment histories for First and Second; attorney‑fees formula recited in Notes | Damages proved with reasonable certainty for First and Second Notes; insufficient proof for Third Note damages -> remand for damages proof |
| Validity of assignments/allonges | Allonges not properly affixed; assignment defective so Multibank lacks standing | Multibank showed chain of assignments and no defense by Ware; even imperfect allonge may still yield assignee status (subject to defenses) | Assignment records sufficient to show Multibank’s standing; Ware raised no valid defense to assignment |
| Right to jury trial | Ware argues trial court erred by granting summary judgment without explicit waiver of jury | Summary judgment proper where no genuine issue of material fact exists | No error: summary judgment appropriate on liability and on damages for First and Second Notes; remand only for Third Note damages |
Key Cases Cited
- Brown v. Mowr Enters., LLC, 322 Ga. App. 93 (Ga. Ct. App.) (pro se appellant must comply with court rules)
- Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719 (Ga. Ct. App.) (party alleging error must show it in record)
- Hanna v. First Citizens Bank & Trust Co., Inc., 323 Ga. App. 321 (Ga. Ct. App.) (summary judgment standard)
- Alexander v. Wachovia Bank, N.A., 305 Ga. App. 641 (Ga. Ct. App.) (note and execution establish prima facie liability)
- Myers v. First Citizens Bank & Trust Co., Inc., 324 Ga. App. 293 (Ga. Ct. App.) (plaintiff must prove damages with reasonable certainty)
- Angel Bus. Catalysts, LLC v. Bank of the Ozarks, 316 Ga. App. 253 (Ga. Ct. App.) (successor may authenticate predecessor’s business records)
- SKC, Inc. v. eMag Solutions, LLC, 326 Ga. App. 798 (Ga. Ct. App.) (authentication of business records by successor’s witness)
- Hodges v. Putzel Elec. Contractors, Inc., 260 Ga. App. 590 (Ga. Ct. App.) (portions of affidavits based on personal knowledge remain admissible)
- Big Sandy P’ship, LLC v. Branch Banking & Trust Co., 313 Ga. App. 871 (Ga. Ct. App.) (nonmovant must produce specific facts to defeat summary judgment)
- Hosch v. Colonial Pac. Leasing Corp., 313 Ga. App. 873 (Ga. Ct. App.) (assignment must be in writing to be enforceable by assignee)