Stamps v. Bank South, N.A.
| Decision Date | 14 May 1996 |
| Docket Number | No. A96A0312,A96A0312 |
| Citation | 471 S.E.2d 323,221 Ga.App. 406 |
| Parties | STAMPS v. BANK SOUTH, N.A. |
| Court | Georgia Court of Appeals |
Thomas P. Stamps, pro se.
Joseph A. Carragher, Jr., Atlanta, for appellee.
Thomas P. Stamps defaulted on a promissory note he gave to Bank South, N.A. (the Bank). Stamps appeals from the trial court's order granting the Bank's motion for summary judgment on its complaint to collect sums due on the note and denying his motion for summary judgment.
After the default, Stamps, an attorney acting pro se, proposed a settlement arrangement agreed to by the Bank, under which Stamps admitted the full amount of the indebtedness owed under the note in excess of $200,000 plus interest and attorney fees, agreed to settle the debt by making periodic payments totaling $190,000, and agreed the Bank could take a consent judgment against him for the full amount of the admitted indebtedness if he failed to make the agreed upon payments. The agreement was set forth in three documents: (1) a complaint by the Bank against Stamps for the debt due under the note, which was captioned for filing in the Superior Court of DeKalb County; (2) an "acknowledgment of service" executed by Stamps in connection with the complaint and (3) a consent order executed by Stamps and the Bank for filing in connection with the complaint. Under the terms of the consent order, Stamps agreed to make certain periodic payments to settle the debt on or before June 1, 1993, waived his right to respond to the complaint or open default, and agreed the Bank was entitled to file the action and take an immediate judgment against him for the full remaining indebtedness on the note pursuant to the consent order. All of the documents were drafted and signed by the parties in December 1992, but, pursuant to the agreement, none of the documents was filed in the trial court at that time.
Stamps failed to make the agreed upon payments, and, on June 2, 1993, the Bank notified Stamps that it was proceeding under the agreement to obtain a judgment from the trial court. On June 17, 1993, the Bank filed the complaint, acknowledgment of service, and consent order in the Superior Court of DeKalb County. On the same day, the trial court signed and entered the consent order giving a judgment in favor of the Bank. It is undisputed that, on August 3, 1993, after the Bank obtained the judgment on the note, it conducted a foreclosure sale on real property held as security by the Bank for the note and applied the sale proceeds to the amount due on the judgment. The Bank concedes that it did not seek confirmation of the foreclosure sale pursuant to OCGA § 44-14-161 because it relied on the fact that it had a prior judgment on the note pursuant to the consent order. See Taylor v. Thompson, 158 Ga.App. 671, 282 S.E.2d 157 (1981). The record also reflects that in November and December 1993 Stamps was aware of the judgment and subsequent foreclosure and engaged in further negotiations with the Bank for payment of the remaining indebtedness.
On August 3, 1994, over a year after entry of the consent order, Stamps moved to set aside the consent order on grounds that it was a void confession of judgment because it failed to comply with the requirements of OCGA § 9-12-18. He also alleged in the motion that he was making a special appearance claiming the trial court lacked personal jurisdiction over him because of insufficient service of process. On October 18, 1994, the trial court set aside the consent order on the basis that it was an unlawful confession of judgment made in December 1992 prior to the filing of the complaint in June 1993 in violation of the provision in OCGA § 9-12-18(b) providing that no confession of judgment may be made in the absence of a pending action. See Whitley v. Southern Wholesale Corp., 45 Ga.App. 445, 164 S.E. 903 (1932); Information Buying Co. v. Miller, 173 Ga. 786, 788-792, 161 S.E. 617 (1931). The trial court made no ruling on Stamps' insufficiency of service claim. On December 4, 1994, we denied the Bank's application for an interlocutory appeal from the trial court's order setting aside the judgment. The Bank did not contest this ruling by way of cross-appeal.
On April 20, 1995, the Bank moved for summary judgment on its complaint for the balance due on the note on the basis that Stamps had failed to file an answer to the complaint. On May 19, 1995, Stamps filed a pleading styled as an "amended answer" to the complaint which included the defense of insufficiency of service of process. On the same day, Stamps also filed a motion for summary judgment and a brief in support of his motion and in response to the Bank's motion. In response to the Bank's motion for summary judgment, Stamps contended: (1) that no answer to the complaint was required because he was not served with summons in the action and did not waive service of summons; and (2) that if an answer was required, his motion to set aside served as a timely answer which raised all applicable defenses. In support of his motion for summary judgment, Stamps contended that the Bank's claim for the amount remaining due on the note after foreclosure was barred because there was no valid judgment on the note prior to the foreclosure and the Bank failed to seek confirmation pursuant to OCGA § 44-14-161.
The trial court granted the Bank's motion for summary judgment concluding Stamps waived service of process by executing the "acknowledgment of service" document filed with the complaint and was in default for failure to file a timely answer after the complaint was filed. The trial court denied Stamps' motion for summary judgment. Stamps appeals from the grant of the Bank's motion and the denial of his motion.
1. Stamps claims the trial court erred by granting summary judgment in favor of the Bank because he was not served with the summons, and the suit was therefore subject to dismissal for lack of personal jurisdiction.
It is undisputed that Stamps was never served with the summons issued pursuant to OCGA § 9-11-4 when the complaint was filed. Service of summons, unless waived, is required in order to inform the defendant that suit has been filed, that he must answer within a specified time, and that failure to respond will result in judgment by default. Jones v. Jones, 209 Ga. 861, 862-863, 76 S.E.2d 801 (1953); OCGA § 9-11-4(b). "In the absence of service in conformity with [the statutory] rules, or the waiver thereof, no jurisdiction over the defendant is obtained by the court, and any judgment adverse to the defendant is absolutely void." DeJarnette Supply Co. v. F.P. Plaza, Inc., 229 Ga. 625, 626(4), 193 S.E.2d 852 (1972). In the absence of such legal service or a waiver thereof, "the court has no jurisdiction to enter any judgment in the case unless it be one dismissing the case for lack of jurisdiction." Id. at 625(2), 193 S.E.2d 852.
Stamps did not waive service of summons in the "acknowledgment of service" document executed by him and filed with the complaint. The "acknowledgment of service" executed by Stamps prior to the filing of the complaint stated that:
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