Moore v. Goldome Credit Corp.

Decision Date21 June 1988
Docket NumberNo. 76459,76459
Citation187 Ga.App. 594,370 S.E.2d 843
PartiesMOORE et al. v. GOLDOME CREDIT CORPORATION et al.
CourtGeorgia Court of Appeals

E. Herman Warnock, McRae, for appellants.

Thomas H. Hinson II, Macon, for appellees.

BIRDSONG, Chief Judge.

This is an appeal from the order of the superior court granting summary judgment to the appellee Goldome Credit Corporation (GCC). Appellants assert that the trial court erred in concluding that appellee GCC was a holder in due course, and that GCC was not a holder in due course and thus was subject to the claims which appellant had against KBS Homes. Moreover, appellant asserts that appellee GCC's motion for summary judgment specifically relied upon the non-existence of any agency relationship between GCC and KBS, and speculates that the trial court's order "was based solely on the theory that since GCC had no agency-employment relationship then [appellant's] 'personal defenses' [of fraud in the inducement and failure of consideration] were not available against GCC's status as HIDC." Finally, appellants assert that GCC's status as a HIDC is immaterial as GCC waived all benefits or advantages thereof by virtue of a waiver clause contained in the security agreement which it was assigned by KBS.

Appellants contracted with KBS Homes to purchase a partially prefabricated "Cedric" model home, which was to be erected on appellants' land. Appellants, during the course of their transaction with KBS, executed a certain note, security agreement, and other security paper. The security agreement was subsequently assigned to the appellee. The document contained the required notice that "ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER...." It is averred that KBS constructed another model home on appellants' property, using defective materials. Appellant subsequently brought suit against both KBS and GCC, alleging that "KBS was an agent of Goldome." In their complaint appellants aver fraud, fraudulent misrepresentation, and give notice of failure of consideration. Appellants seek the remedies of rescission of the loan documents, damages, and temporary and permanent injunctive relief to preclude foreclosure of the security instruments. KBS did not file defensive pleadings and is in default. GCC answered and counterclaimed. Subsequently, GCC filed a motion for summary judgment. Appellants did not respond to the motion, instead relying on the information already before the trial court and their complaint which was sworn to before a notary by appellant Mary Frances Moore.

Appellants enumerate as error that the trial court erred by granting summary judgment in favor of appellee GCC. Held:

Appellee asserts that appellants failed to follow certain procedural rules found in the Uniform Rules of Superior Courts. Although appellants apparently failed to comply with the technical provisions of Rules 6.2 and 6.5, Uniform Rules for the Superior Courts, particularly by failing to file any affidavit or similar responsive material to appellee's motion for summary judgment, this failure does not entitle appellee automatically to receive favorable consideration of his motion. Rather, it results in the appellants losing a very valuable opportunity to persuade the trial court in their favor. See generally, Spikes v. Citizens State Bank, 179 Ga.App. 479(1), 347 S.E.2d 310, holding that "appellant's failure to comply ... resulted in his loss of opportunity to persuade the trial court.... Since appellant failed to comply in any way with the [r]ules ... he cannot be heard to complain that the wheels of justice have rolled over him." "[O]n summary judgment, the movant has the burden of showing 'there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law.' [Cit.] When, as in the instant case, the movant is the defendant, he has the additional burden of piercing the plaintiff's pleadings and affirmatively negating one or more essential elements of the complaint." Corbitt v. Harris, 182 Ga.App. 81, 83, 354 S.E.2d 637. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Bridges v. Interstate Truck Leasing, 171 Ga.App. 361, 319 S.E.2d 531; see Dickson v. Dickson, 238 Ga. 672, 675, 235 S.E.2d 479, citing Holland v. Sanfax Corp., 106 Ga.App. 1, 126 S.E.2d 442.

Appellee also attacks appellants' complaint as being inadequately verified for summary judgment purposes. A properly verified pleading containing specific factual allegations "must be considered in opposition to affidavits filed in support of a motion for summary judgment and may defeat the motion." Davis & Shulman's Ga.Practice & Procedure (5th ed.), Complaints, § 7-17, citing Foskey v. Smith, 159 Ga.App. 163, 164, 283 S.E.2d 33, cert. vacated, 249 Ga. 32, 289 S.E.2d 248. However, a verified pleading has no greater effect than an affidavit tendered pursuant to OCGA § 9-11-56(e), and must comply with the Rule 56(e) requirement that both supporting and opposing affidavits shall be made on "personal knowledge." Foskey, supra, 159 Ga.App. at 164, 283 S.E.2d 33.

In this case, appellant Mary Frances Moore attempted to verify the complaint in the following manner: "[T]he undersigned ... after being duly sworn on oath deposes and...

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  • Coffey v. Brooks County
    • United States
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    • March 20, 1998
    ...and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga.App. 594, 595-596, 370 S.E.2d 843. The reasonable inference to be drawn from this testimony is that Deputy Rowe could not testify unequivocally tha......
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    ...evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga.App. 594, 595-596, 370 S.E.2d 843. On motions for summary judgment, the court cannot resolve the facts or reconcile the issues (Fletcher v. Amax, ......
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    ...all reasonable doubt, and construing the evidence and all inferences and conclusions therefrom in her favor (Moore v. Goldome Credit Corp., 187 Ga.App. 594, 595-596, 370 S.E.2d 843), her evidence was not sufficient to withstand the grant of summary judgment. Although Dr. Thornton's testimon......
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