Giles v. Swimmer

• Decision Date: 05 March 2012
• Docket Number: No. S11A1371.,S11A1371.
• Parties: GILES et al. v. SWIMMER et al.
• Court: Georgia Supreme Court

290 Ga. 650

725 S.E.2d 220

12 FCDR 738

GILES et al.

v.SWIMMER et al.

No. S11A1371.

Supreme Court of Georgia.

March 5, 2012.

Daniel, Lawson, Tuggle & Jerles, Tom W. Daniel, for appellants.

Brock, Clay, Calhoun & Rogers, Richard W. Calhoun, Parker, Hudson, Rainer & Dobbs, Constance M. Ewing, Nancy H. Baughan, Harold D. Ehrman, for appellees.

BENHAM, Justice.

This case involves an underlying action for quiet title and comes to us from the trial court's grant of appellee Branch Banking & Trust's (BB & T) motion for summary judgment. The facts show that in December 1988, William K. Folds executed a promissory note (the “Note”) to Adolph Swimmer for a loan of $128,000. As collateral, two security deeds were executed from Folds to Swimmer for (i) two four-acre tracts of land and (ii) a one-acre tract of land. The deeds were recorded in Towns County in February 1991. Because Folds was president of Inter–American Construction Company (“Inter–American”), two other security deeds were recorded in March 1991 to “correct” the original security deeds to reflect Inter–American as the entity pledging the tracts of land.

In March 1997, Swimmer assigned the Note and the security deeds for the properties to Gwinnett National Bank (GNB). The collateral assignment was made to secure a master note with GNB and was scheduled to terminate upon Swimmer's repayment of the loan. Two years later, in February 1999, Folds used the one-acre tract of land as collateral to secure a mortgage from Sunshine Mortgage. A security deed reflecting the mortgage loan and a quitclaim deed from Inter–American were recorded on June 14, 1999. Also on June 14, 1999, a quitclaim deed (“the 1999 quitclaim deed”) was recorded releasing “described property” from GNB to Folds and Inter–American; however, the deed failed to attach the description of the property.

BB & T became the successor to GNB in November 2001. By that time, Swimmer had satisfied his GNB loan and the collateral assignment of the one-acre tract of land to GNB had terminated. Four years later, in November 2005, a Satisfaction of Mortgage from Countrywide Home Loans was recorded showing that Folds' 1999 mortgage with Sunshine Mortgage was satisfied. The Satisfaction that was recorded, however, did not reference the security deed from Folds to Sunshine Mortgage, but rather the 1999 quit claim deed from GNB to Folds.

On November 7, 2005, Folds transferred approximately seven acres of the two four-acre tracts of property (the “seven acres”) to Keith Holcomb and Eugene McClure by warranty deed. About a month later, on December 12, 2005, the Towns County court clerk stamped the security deed between Folds and Swimmer for the two four-acre tracts as “satisfied.”

In early 2006, Holcomb and McClure transferred the seven acres to appellants Steve Giles, Ronnie Stroud, and Jackie Greg Taylor by warranty deed. In December 2006, appellants Giles, Stroud, and Taylor subdivided the seven acres into six lots as part of the Hickory Hollow subdivision and then conveyed, by warranty deed, two of the lots to grantees who later intervened as plaintiffs in the quiet title action.

In May 2007, Swimmer submitted to BB & T an “Affidavit of Correction of Termination of Collateral Assignment of Loan Documents and Satisfaction of Promissory Note” (“Affidavit”) and a “Termination of Collateral Assignment of Loan Documents and Satisfaction of Promissory Note and Security Deed” (“Termination”). At Swimmer's lawyer's request, BB & T executed and recorded these documents in June 2007. The Affidavit and Termination essentially provided that the 1999 quitclaim deed from GNB to Folds was incorrectly signed by the bank and was not the correct document to terminate the collateral assignment. In November 2010, while the underlying litigation was pending, the trial court ordered the Affidavit and Termination to be stricken from the county's deed records.

In late December 2008 and early January 2009, Swimmer foreclosed on the original 1991 security deeds from Folds and purchased the property at the foreclosure sale. The appellants and interveners, who purportedly had an interest in the property, were never provided notice of the foreclosure and sale. Appellants filed a complaint against Swimmer and BB & T seeking quiet title and asserting claims of personal injury, slander of title, actual damages, punitive damages, and attorney fees. BB & T moved for summary judgment, and the trial court granted the motion.¹ We affirm.

1. As their first enumeration of error, appellants allege that the trial court erred when it granted...