Summary Judgment. A local car dealer entered into a promissory note agreement with Willie Fleming Dorsey and his mother, Annie Mae Dorsey for the purchase price of a Monte Carlo automobile. This note subsequently was transferred to the appellant, C & S Bank (Bank). The note was made out in the name of Willie Fleming Dorsey whose address was shown on the note to be Star Route 15, Harlem, Georgia. No address was shown for Annie Mae Dorsey other than Star Route Box 15 appearing on the face of the note. After execution of the note, it came into default. The Bank repossessed the car. Thereafter the Bank sent a letter of intent addressed only to Willie Fleming Dorsey at the different address of Route 1, Box 236, Harlem, Georgia, informing Willie Fleming Dorsey that the Bank on a day certain was going to sell the collateral and if there was a deficiency Willie Fleming Dorsey would be held liable for the deficiency. No similar notice was ever sent to Annie Mae Dorsey at any address. A return receipt was received by the Bank signed by Fleming Dorsey and one Daisy Williams. The car was sold at private sale resulting in a substantial deficiency. The Bank then brought suit against both signers of the note, Willie Fleming Dorsey as buyer and Annie Mae Dorsey as co-buyer, seeking the deficiency plus attorney fees. The Dorseys filed their answer and a counterclaim in due time. Subsequently the Bank and the Dorseys, mother and son, filed motions for summary judgment. The Bank moved for summary judgment on January 15, 1981 including therewith its affidavit in support thereof. On January 26,1981, the Dorseys filed their motions for summary judgment. The trial court consolidated the motions for hearing on March 4,1981. The Dorseys did not support with evidence their motions for summary judgment until the filing of affidavits on the Bank on February 25,1981, only seven days before the scheduled hearing on the summary judgments. In their affidavits, the Dorseys asserted that no notice of sale of the collateral with a view toward protecting a deficiency was ever served upon either of them. In their affidavits, the Dorseys showed that Route 1, Box 236, Harlem, Georgia is the residence address of Fleming Dorsey, the father of Willie Fleming Dorsey. The signature appearing on the return receipt is that of the father, Fleming Dorsey, and not that of the co-maker of the note, Willie Fleming Dorsey. They asserted that Willie Fleming Dorsey did not live at Route 1, Box 236 at the time the note was made nor had he lived at that address since the execution of the note. Willie Fleming Dorsey has lived throughout the period from the making of *785 the note at the address shown on the note, Star Route, Box 15, Harlem, Georgia. Both Willie Fleming and Annie Mae Dorsey denied ever receiving notice of the sale. Although it is not clear from the record, it further appears that Annie Mae Dorsey had pledged the title to a Mustang with the Bank for a debt unrelated to the car purchased by Willie Fleming Dorsey. It is inferable that the Bank was holding title to the Mustang as security for the Monte Carlo. Annie Mae Fleming counterclaimed for the return of the title to the Mustang asserting in her affidavit that the indebtedness on that car had been satisfied and the Bank refused to surrender to her the title. The Bank contends that the trial court erred in considering the affidavits of the Dorseys because of their failure to file the affidavits in support of their motions at the same time as their motion for summary judgment (i. e., at least thirty days before the scheduled hearing). Thus appellant argues that in the absence of the affidavits, the appellees (Dorseys) offered no facts denying the note or the deficiency due. The trial court in a rather complete order made findings of fact and conclusions of law (for which this court is appreciative) and granted summary judgment to the Dorseys on the Bank’s motion for summary judgment, denied the Bank’s motion and granted the motion of Mrs. Dorsey on her counterclaim seeking the return of the title to the Mustang. The Bank enumerates as error each of these rulings. Held:
1. In order to reach the merits of the grants and denial of summary judgment, we must first decide whether the trial court erred in considering the affidavits submitted by the Dorseys only seven days before the hearing was scheduled on the motions for summary judgment. This question was recently considered by this court in
Bailey v. Dunn,
Code Ann. § 109A-9 — 504 (3) (Ga. L. 1978, pp. 1081, 1130) provides that disposition of collateral may be at public or private sale but that such sale must be preceded by “... reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor. . . .” Compliance with Code Ann. § 109A-9 — 504 is a condition precedent to recovery of any deficiency between the sale price of the collateral and the amount of the unpaid balance.
Citizens State Bank v. Hewitt,
2. As to Ms. Dorsey’s motion for summary judgment in relation to the title to the Mustang, we are constrained to observe that when one discounts the affidavit untimely filed and erroneously considered by the trial court in support of Ms. Dorsey’s motion and further consider that the appellant Bank has failed or declined to even recognize the counterclaim, there is not any evidence in support or against the counterclaim. In the absence of any evidence, the motion filed by Ms. Dorsey cannot be considered a motion for summary judgment. See
Newsrack Supply v. Heinle,
Judgment reversed.