Moore v. Wachovia Mortg. Co.

Decision Date14 May 1976
Docket NumberNo. 2,No. 52065,52065,2
Citation138 Ga.App. 646,226 S.E.2d 812
PartiesM. J. MOORE v. WACHOVIA MORTGAGE COMPANY
CourtGeorgia Court of Appeals

Albert A. Roberts, Robert P. Midtlyng, East Point, for appellant.

Smith, Cohen, Ringel, Kohler & Martin, John A. Howard, Atlanta, for appellee.

MARSHALL, Judge.

This is an appeal from a summary judgment on the record and pleadings entered by the trial court in favor of the mortgagee, Wachovia Mortgage Company, appellee here and plaintiff below. The judgment was based upon Moore's default on a promissory note executed to Wachovia. The promissory note was secured by a deed to real property. Upon default, Wachovia exercised its power of foreclosure sale and subsequently obtained a confirmation of the sale. The foreclosure sale left an outstanding deficiency on the note of $237,860.16, comprised of $424,122.53 due on the principal, $31,408.63, as accrued interest, and $67,329.67 as attorney fees, less the $285,000 realized on the foreclosure sale. The present suit began as a demand for the payment of the deficiency. Appellant, Moore, raises five enumerations of error. Held:

1. In enumeration 1(a) appellant complains that there were genuine issues of fact which precluded the grant of summary judgment. The basis of this contention is that the promissory note called for payment of interest 'at 3% above the prime rate in effect from time to time at Wachovia.' Since the interest was not otherwise specified, Moore contends there was a factual issue to be established. Examination of the note, however, discloses that the interest was at the 'prime rate,' presumably that established and charged by Wachovia as a matter of record, and in view of the terms of the note, obviously so understood by the parties to this suit. This 'prime rate' was charged by Wachovia on short term loans to all large businesses with the highest credit standing. In accordance with the provisions in the note, changes in the 'prime rate' resulted in conforming the interest charged in the note. The changes in the note were conformed on the first day of the month following changes in the 'prime rate.' Thus the interest rate as pleaded was definite and ascertainable and was a matter of record available to Moore as well as Wachovia. Moore admitted signing the note and does not controvert its provisions. However, Moore denied that he owed $31,408.63 as interest on the note. Though the rate of interest was easily ascertained, no evidence by way of stipulation, deposition or admission was offered to establish the rate or rates of interest during the life of the unmatured note. In the absence of such evidence and in the face of Moore's denial there remained an issue of fact as to the amount of interest due. Since there was an issue as to the amount of interest, this question of fact also pervaded the undifferentiated judgment for the deficiency due. The state of this record leaves unresolved genuine issues of material facts relating to the amount of interest yet to be resolved. Wachovia, as movant for summary judgment, failed in its burden of showing the absence of any genuine issue of fact which under applicable principles of substantive law would entitle it to a judgment. It follows that the trial court erred in extending its grant of summary judgment to include the issue of the amount of the interest. Raven v. Dodd's Auto Sales &c., Inc., 117 Ga.App. 416, 160 S.E.2d 633. See also Falls v. Fickling, 137 Ga.App. 330, 223 S.E.2d 752, and cits.

2. Enumeration 1(b) contends the order and judgment of the court was in error because the judgment of $237,860.16 did not segregate the amount into principal, interest and attorney fees. Moore asserts such a judgment allows the possibility of interest to be collected on interest, citing Harris v. Usry, 77 Ga. 426(1). That case is inapposite. In that case a total amount due including unspecified principal and interest was demanded. Judgment with the interest thereon was ordered, thus allowing interest on interest. In this case the principal, interest and attorney fees are separately stated in the pleadings, are easily calculable by simple arithmetic and, as stated, are well within the range of the judgment of the court. See ...

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13 cases
  • Shropshire v. Alostar Bank of Commerce, s. A11A1770
    • United States
    • United States Court of Appeals (Georgia)
    • February 23, 2012
    ...any evidence to establish interest rate based on bank's prime rate, and debtor denied liability), citing Moore v. Wachovia Mtg. Co., 138 Ga.App. 646, 647(1), 226 S.E.2d 812 (1976) (where bank offered no evidence by way of stipulation, deposition, or admission to establish variable interest ......
  • Lawson v. Duke Oil Co., 59448
    • United States
    • United States Court of Appeals (Georgia)
    • July 16, 1980
    ...Co., 129 Ga.App. 685, 688-689, 201 S.E.2d 26. Compare Brittain v. Reid, 220 Ga. 794, 797(2), 141 S.E.2d 903; Moore v. Wachovia Mtg. Co., 138 Ga.App. 646, 649(4), 226 S.E.2d 812. Judgment DEEN, C. J., QUILLIAN, P. J., and SHULMAN, BIRDSONG, CARLEY and SOGNIER, JJ., concur. SMITH and BANKE, J......
  • Goodson v. Pointer, A12A1298.
    • United States
    • United States Court of Appeals (Georgia)
    • October 31, 2012
    ...it is the evidence of record which determines the validity or invalidity of the grant of summary judgment); Moore v. Wachovia Mtg. Co., 138 Ga.App. 646, 647(1), 226 S.E.2d 812 (1976) (noting where bank offered no evidence by way of stipulation, deposition, or admission to establish variable......
  • Dawson Pointe, LLC v. SunTrust Bank, A11A1427.
    • United States
    • United States Court of Appeals (Georgia)
    • November 1, 2011
    ...of the note was improper.” Garrett v. Atlantic, etc., 157 Ga.App. 103(1), 276 S.E.2d 152 (1981); see also Moore v. Wachovia Mtg. Co., 138 Ga.App. 646, 647(1), 226 S.E.2d 812 (1976) (absent evidence of the interest rate by way of stipulation, deposition, or admission, in the face of the debt......
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