Metropolitan Mortg. Fund, Inc. v. Basiliko

• Decision Date: 08 November 1979
• Docket Number: No. 185,185
• Citation: 44 Md.App. 158,407 A.2d 773
• Parties: , 28 UCC Rep.Serv. 100 METROPOLITAN MORTGAGE FUND, INC. v. George BASILIKO et ux.
• Court: Court of Special Appeals of Maryland

Page 158

44 Md.App. 158

407 A.2d 773, 28 UCC Rep.Serv. 100

METROPOLITAN MORTGAGE FUND, INC. v. George BASILIKO et ux.

No. 185.

Court of Special Appeals of Maryland.

Nov. 8, 1979.

Robert A. Wallace, Burtonsville, and Harry E. Taylor, Jr., Upper Marlboro, for appellant.

Leonard C. Collins, Chevy Chase, for appellees.

Argued before MOORE, LOWE and LISS, JJ.

LISS, Judge.

In November of 1972, Metropolitan Mortgage Fund, Inc. appellant (hereinafter, Metropolitan), made loans to a corporation, Crown Oil & Wax Company (hereinafter, Crown) in the amounts of $1,494,800.00 and $912,800.00, respectively. The loans were secured by a deed of trust and two notes in the same amounts. One of the conditions of the loans was that the notes were to be personally guaranteed by the supposed principals of Crown, George Basiliko and his wife, Sophia, appellees, and John J. Gilece, Jr. and his wife, Connie. The deed of trust was subsequently foreclosed leaving a deficiency of $189,059.22 with interest from September 27, 1974. That amount was later reduced to $120,649.51 during the trial below, and at the hearing before this Court, we were advised that the deficiency was further reduced by a credit of $40,000.00 subsequent to the trial.

Gilece, an attorney and nephew by marriage to the Basilikos, was at the time the loan was negotiated serving as president of Crown. A short time after the negotiation of the loan he severed his relationship with crown but returned to guide the corporation through bankruptcy. On November 14, 1974, Metropolitan filed a declaration in assumpsit in the Circuit Court for Montgomery County against the Basilikos, Gilece and his wife. Metropolitan also filed a motion for summary judgment with the declaration. Gilece and his wife filed an answer to the summary judgment motion to which was attached an affidavit in which Gilece swore that the amount of $189,059.22 with interest from September 27, 1974 was not due and owing to the plaintiff as claimed in Metropolitan's suit. Listed with the affidavit were credits claimed by Gilece of approximately $129,000.00, and also included was the contention that there were genuine issues of law and fact which required a trial of the case.

The motions Judge (Shure, J.) denied appellant's motion for summary judgment on several grounds including: the determination that no notice was given as required by Maryland Rule 610 c 2; that there was no military affidavit; that the original note was not in the file and some of the signatures were illegible; that the exhibit indicating bankruptcy was not under triple seal; and that there was an affidavit in the file which indicated a dispute as to part of the claim. Appellant filed an amended motion for summary judgment in which it attempted to cure the several defects noted by the judge in its original motion. No new affidavit in opposition to the new motion was filed either by the Gileces or Basilikos. The judge denied the amended motion noting that the "original notes are now in the file but they were not filed with your motion and were apparently misplaced; the only military affidavit in the file is too remote from the standpoint of time to be considered, there was no certification under seal concerning bankruptcy; there was in the file an affidavit in opposition listing credits in the amount of $129,000.00."

Subsequent to the denial of the motion for summary judgment, an amended plea was filed by the Basilikos in which they denied the execution of the notes. The case came on for trial on January 8, 1979. At that trial, Metropolitan introduced into evidence the deed of trust and the notes allegedly signed by the Basilikos and Goleces. Both George Basiliko and his wife, Sophia, took the stand and testified under oath that the signatures on the notes were not their signatures and denied that they had ever executed any of the exhibits offered by Metropolitan. Other witnesses were called. However, none of them testified they had seen the notes or deed of trust signed by the Basilikos. The Basilikos further testified they never had any interest in Crown and contended they had never heard of the corporation before or after the notes were executed. A number of other documents bearing the signatures of the Basilikos were introduced by Metropolitan for purposes of comparison. Metropolitan had previously submitted known handwriting samples of the Basilikos to a handwriting expert, and although the expert was present in the courtroom, he was not called to testify. The appellees proffered the testimony of a handwriting expert whom they had employed, but the trial judge ruled that testimony would not be necessary. Gilece was called as a witness by the appellant. He testified that it was his understanding that George Basiliko was the sole stockholder of Crown and that the business was operated by George and his brother Gus, who died of a heart attack a week and a half before trial.

On cross examination, Gilece admitted that he had neither seen Basiliko sign the notes nor had he obtained them directly from him. Instead, he delivered the documents to Gus Basiliko to get them signed, and thereafter Gus brought them back to him. Additionally, Gilece testified: that his understanding that George Basiliko "ran the show" and was sole stockholder was based on Gus' statement to him; that he later found out that Gus Basiliko represented himself to be George in connection with Crown; that he never saw George at the various meetings in connection with Crown; and that Gus "ran a lot of things and blamed a lot of them on George." Gilece also admitted to the Judge: that most of the discussions concerning the loan or corporation were with Gus Basiliko; that he never had any discussion with George until he found that there might be a problem with payment on the notes (at the end of 1974 and into 1975); and that when Gus signed George's name they looked similar (especially the way they both signed their identical last name).

At the conclusion of the trial, the trial judge (Cave, J.) found that Metropolitan had failed to meet its burden of proof in its claim against the Basilikos, dismissed the suit against the Basilikos, and entered a judgment against the Gileces in the amount of $120,649.51. No appeal has been filed as to the latter judgment, and Metropolitan has only appealed the action of the trial court's dismissing Metropolitan's claim against the Basilikos.

The issues raised by appellant are stated as follows:

I. Whether the court below erred when it denied the plaintiff's motion for summary judgment?

II. Whether the court erred in ruling that the denial of the genuineness of the signatures by George and Sophia Basiliko, without more evidence produced by the defendant, were sufficient to rebut the presumption given the plaintiff that the signatures were genuine?

III. Whether the court erred in giving judgment to the appellees, George and Sophia Basiliko, when it did not make a finding of fact that the signatures were invalid?

Appellant complains bitterly that the trial court erred in denying its motion for summary judgment. Summary judgment is properly granted under Rule 610 "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law." Dietz v. Moore, 277 Md. 1, 4, 351 A.2d 428, 431 (1976). "The function of a summary judgment procedure is not to try the case or decide the issues of fact raised; it is merely to determine whether or not there is an issue of fact to be tried and if there is none, to cause judgment to be rendered accordingly." Lynx, Inc. v. Ordnance Products, Inc., 273 Md. 1, 7, 327 A.2d 502, 508 (1974).

The Court of Appeals in Guerassio v. American Bankers Corp., 236 Md. 500, 204 A.2d 568 (1964) detailed how issues of fact were to be raised under the summary judgment rule when it stated:

Appellee's pleadings and affidavits set out prima facie the elements necessary to entitle it to a summary judgment as a matter of law. Thereupon, appellants were required either to discredit appellee's averments as untrue or to specify evidence which would give rise to a triable issue of material fact. Appellants' pleadings and affidavits do not discredit appellee's averments as untrue. The only issue, therefore, is whether appellants have specified some opposing evidence which would raise a triable issue of material fact. Such evidence must be indicated to the court in the form of an affidavit or deposition in support of the answer to the motion stating a fact or facts which would negative the appellee's right to a summary judgment. Maryland Rule 610 a 3; Molesworth v. Schmidt, 196 Md. 15, 20, 75 A.2d 100. (236 Md. at 503, 204 A.2d at 570.)

It is clear from the record that the appellees in their response to appellant's motion for summary judgment did not file an answer or affidavit which would negative appellant's right to a summary judgment. However, the trial judge below concluded that the appellant had not made out a case for summary judgment because of a number of defects in the exhibits and affidavits filed in support of appellant's motion. On the basis of this determination, the trial judge directed that the case proceed to...