Bethea v. Kennedy

• Decision Date: 03 October 1985
• Docket Number: No. 70795,70795
• Parties: BETHEA et al. v. KENNEDY et al.
• Court: Georgia Court of Appeals

Page 732

335 S.E.2d 732

176 Ga.App. 328

BETHEA et al. v. KENNEDY et al.

No. 70795.

Court of Appeals of Georgia.

Oct. 3, 1985.

Charles B. Merrill, Jr., James C. Potts, Jr., Swainsboro, for appellants.

Joel E. Williams, Jr., Reidsville, for appellees.

McMURRAY, Presiding Judge.

On November 7, 1980, Harry E. Bethea, Bobby E. Story and E. Kim Evans (defendants), executed a promissory note in favor of Kenneth T. Kennedy and Edwina R. Kennedy (plaintiffs) in the principal amount of $139,900. The note was made payable to the plaintiffs as consideration for the sale of real and personal property and was secured by a deed to secure debt on real property located in Tattnall County, Georgia. (The defendants signed the promissory note as individuals and not in any representative capacity.) The defendants defaulted in payment and the plaintiffs brought an action to collect on the note, seeking judgment against the defendants for principal, interest and attorney fees. Alternatively, the plaintiffs sought relief under the Power of Sale contained in the deed to secure debt and a judgment against the defendants for any deficiency in unpaid principal and interest. Subsequently, the plaintiffs were served with a filing in the United States Bankruptcy Court and were notified that Corinna Farms, Inc. (debtor corporation) claimed an interest in the property listed as collateral in the deed to secure debt. In accordance with the general stay provision of the Bankruptcy Code (11 USC § 362), the plaintiffs amended the complaint, withdrawing their claim for relief under the deed to secure debt. The plaintiffs proceeded against the defendants individually under the note.

Defendants Story and Evans answered the plaintiffs' complaint denying all material allegations and alleging that the plaintiffs' action is barred by the debtor corporation's filing in the United States Bankruptcy Court. See 11 USC § 362. Defendant Bethea denied all material allegations of the complaint and cross-claimed against defendants Story and Evans for set-off in the event the plaintiffs obtain a judgment against him for damages. The plaintiffs then filed a motion for summary judgment with affidavits supporting their claim for relief. The trial court determined that there was no genuine issue as to any material fact before the court for determination and granted summary judgment in favor of plaintiffs. From this order the defendants appeal. Held:

1. The defendants filed an unsigned document purporting to be the affidavit of defendant Harry E. Bethea. This document is technically deficient and thereby presents no facts in opposition to the plaintiffs' motion for summary judgment. See Raley v. Mayor etc. of Warrenton, 120 Ga. 365, 368(2), 47 S.E. 972; State v. Barnett, 136 Ga.App. 122, 123, 220 S.E.2d 730.

2. In their only enumeration of error the defendants argue that the trial court erred in granting the plaintiffs' motion for summary judgment because the plaintiffs' action is precluded by the general stay provisions of the Bankruptcy Code (11 USC § 362). We do not agree.

11 USC § 362 provides for the automatic stay of a proceeding against a debtor or the property of the estate of a debtor. General Motors Acceptance Corp. v. Yates Motor Co., 159 Ga.App. 215, 217(2), 283 S.E.2d 74. "The purpose of an automatic stay...