Vance v. FD 2011-C1 Grove Rd. Ltd. P'ship

• Citation: 795 S.E.2d 747,340 Ga.App. 36
• Decision Date: 29 December 2016
• Docket Number: A16A2224
• Parties: VANCE et al. v. FD 2011-C1 GROVE ROAD LIMITED PARTNERSHIP.
• Court: Georgia Court of Appeals

340 Ga.App. 36

795 S.E.2d 747

VANCE et al.

v.FD 2011-C1 GROVE ROAD LIMITED PARTNERSHIP.

A16A2224

Court of Appeals of Georgia.

December 29, 2016

John A. Christy, Atlanta, Debbie Ann Wilson, for Appellant.

Gregory Michael Taube, Atlanta, for Appellee.

Boggs, Judge.

Gene Vance, Cary Rhodes, and Paula Adams, the guarantors of a $1.65 million loan, appeal from the trial court's grant of summary judgment to FD 2011-C1 Grove Road Limited Partnership ("Grove") on its claim for damages. Because material issues of fact remain regarding the amount of those damages, we reverse.

Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9–11–56 (c). "On a motion for summary judgment the plaintiff, as movant, has the burden of establishing the absence or non-existence of any defense raised by the defendant. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant." (Citations and punctuation omitted.) Greenstein v. Bank of the Ozarks , 326 Ga.App. 648, 649 (1), 757 S.E.2d 254 (2014).

The relevant facts here are undisputed. In 2006, Grove's predecessor in interest, Crescent Bank—Cartersville West, loaned PCG, LLC $1.65 million. The loan was secured by certain real property, and Vance, Rhodes, and Adams were the guarantors for the loan. On April 2, 2013, after PCG defaulted for failing to pay the note upon maturity and the guarantors failed to fulfill their obligation under the guaranty, Grove foreclosed on the property and was the highest bidder at the non-judicial foreclosure sale. The trial court denied Grove's motion to confirm the sale, which would ordinarily prevent Grove from seeking a deficiency judgment. See OCGA § 44–14–161. But the guarantors waived this requirement via language in the guaranties. See PNC Bank, Nat. Assn. v. Smith , 298 Ga. 818, 820–821 (3), 785 S.E.2d 505 (2016) (guarantors may waive condition precedent requirement of confirmation statute); Nine Twenty, LLC v. Bank of the Ozarks , 337 Ga.App. 180, 181 (2), 786 S.E.2d 555 (2016) (same).

Grove subsequently filed a complaint against the guarantors seeking to recover the deficiency owed on the debt, which it claimed included the outstanding principal balance owed on the note of $1,297,112.88, and interest of $498,091.35. The parties filed cross-motions for summary judgment, and following a hearing, the trial court entered a judgment in favor of Grove and against the guarantors in the amount of $1,297,112.88 for outstanding principal, and $845,049.46 in interest and attorney fees. The court entered this judgment after reviewing the "only evidence submitted," the affidavit of Ana Castro, a representative of LNR Partners, LLC, the service provider for the loan. The guarantors now appeal.

1. The guarantors argue that the evidence offered by Grove is "internally inconsistent

and fails to establish the purported amount of the debt due." We agree. Castro averred as follows: that 1) the loan history in "Exhibit F,"¹ attached to her affidavit, "shows the history for payments made on the Note and the history of credits given for payments on the Note from the time LNR began servicing the loan;" 2) "LNR did not receive any payments on the Loan after the foreclosure sale;" 3) Exhibit F "shows that the indebtedness evidenced by the Note remains outstanding and that the principal balance of the indebtedness owed on the Note was $1,474,709.11 as of April 2, 2013;" and 4) another LNR accounting record, "Exhibit G," "shows that the principal balance of the indebtedness owed on the Note was $1,474,709.11 as of April 2, 2013."

As Castro averred, Exhibit G is an LNR payoff statement dated April 2, 2013 showing a principal balance of $1,474.709.11 and a "Payoff Amount" of $1,970,296.01 including fees and interest. But contrary to Castro's assertion that Exhibit F shows that the "principal balance of the indebtedness owed on the Note was $1,474,709.11 as of April 2, 2013," this exhibit, a loan history spreadsheet, shows that the balance on that date was $1,468,903.97, with two regular payments of $11,525.83, a ...