158 Ga. App. 651 | Ga. Ct. App. | 1981
Lead Opinion
The Citizens & Southern National Bank (C&S) appeals from the following order of the trial court:
“Plaintiff filed a Writ of Possession (Mortgage Foreclosure) pursuant to Ga. Code Ann. § 67-702 et seq. Defendant Gretta C. Abbott filed an Answer under oath alleging certain legal and equitable defenses. Defendant Reginald D. Abbott filed a Plea for Stay on Account of Bankruptcy and, after discharge in said bankruptcy, filed a Plea of Discharge subsequent to being granted a Discharge in Bankruptcy. The Defendant Gretta C. Abbott filed a Motion for Summary Judgment as did the Plaintiff.
“On January 11,1977, Defendant R. D. Abbott executed a Note to the Plaintiff in the amount of $5,756.76 giving Plaintiff as collateral a security interest in a 1977 Oldsmobile Cutlass automobile . . . This Automobile is the subject of this proceeding. The Notes guaranteed by Defendant R. D. Abbott and the Note for the automobile contained an ‘open-end’ or ‘other indebtdness’ clauses [sic].
“The defensive pleadings further showed ... that a divorce was granted between [Mr. and Mrs. Abbott] herein on June 19,1979. The Divorce Decree provided that, as part of her permanent alimony, Defendant Gretta C. Abbott be granted Defendant R. D. Abbott’s interest in the automobile which is the subject of this proceeding. Shortly after judgment in the divorce proceeding, Defendant Gretta C. Abbott contacted the Plaintiff as to the balance due on the automobile and was advised that such balance was $1,094.77. This amount was paid by Defendant Gretta C. Abbott on July 3,1979 to and accepted by plaintiff.
“It was the contention of Gretta C. Abbott that, in contacting the Plaintiff to determine the amount due, and by reason of the several Notes, the amount due, insofar as she was concerned, was an amount in dispute. The amount stated by Plaintiff in relation to the automobile was then paid by Mrs. Abbott and accepted by Plaintiff in satisfaction of its interest in the automobile, thus affording to the Defendant Gretta C. Abbott the benefit of Accord and Satisfaction and thereby estopping the plaintiff from asserting any further claim to a security interest in the automobile, to wit: 1977 Oldsmobile Cutlass ....
“It is hereby ORDERED that . . . Summary Judgment be entered in favor of Defendant Gretta C. Abbott and against Plaintiff. Likewise, the Plaintiffs Motion for Summary Judgment is herewith denied.”
The trial court’s conclusion, upon the facts and contentions it succinctly stated, is eminently correct. The appellant bank, although it gave notice that the husband’s corporate notes were in default in April, 1979, interposed no claim to the Cutlass automobile, which was secured by another note, and which the bank now claims it is entitled to by virtue of the “open-end clause” in that note. In June, 1979, the
The bank suffered no extreme prejudice as the bank was fully aware of Mrs. Abbott’s pleaded defense that she had paid the obligation and the bank had accepted payment; and any “extreme prejudice” the bank does suffer is due to its own failure to claim the automobile before it was lawfully transferred to and paid for by another, and to its acceptance of that other’s payment of the debt on the car. Moreover, we do not see how the bank could fairly accept the payment of a purchase-money obligation from one party and then refuse to release title to the collateral, as it did in this case, because it intends to use that collateral to satisfy obligations of a third party. Had the bank not obliged itself and Mrs. Abbott by suing for possession of the car as it did, she might have had a cause of action against the bank for fraud.
We are authorized by law to affirm the verdict below in any case, because the appellant offers us no transcript of the trial court hearing below. When no transcript is included in the record, we must assume the evidence was sufficient to support the judgment below. Burns v. Barnes, 154 Ga. App. 802 (1) (270 SE2d 57).
Judgment affirmed.
Rehearing
On Motion for Rehearing.
On motion for rehearing, the appellant C & S Bank makes various contentions as to facts and issues which it alleges this court
Accordingly, the motion for rehearing is denied.