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Patrick Malloy Communities LLC v. Community S. Bank

Although the plaintiff bank demonstrated that it was the real party in interest with authority to enforce the note and guaranty against the defendants, material discrepancies between the affidavit the bank submitted and the payment history for the loan created a factual issue over the amount of unpaid principal, interest and contractual attorney fees the defendants owed on the note and guaranty.

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Patrick Malloy Communities, LLC PMC and J. Patrick Malloy, Jr. appeal the trial court’s grant of summary judgment in favor of Community Southern Bank CSB on CSB’s claims for breach of a promissory note and guaranty. The appellants contend that CSB failed to prove, through competent evidence, that CSB had been assigned the rights to the note and guaranty by the Federal Deposit Insurance Corporation FDIC, as receiver for the failed bank that previously held those debt instruments. Consequently, the appellants contend that CSB failed to demonstrate its status as the real party in interest with authority to enforce the note and guaranty. The appellants further argue that discrepancies between an affidavit submitted by CSB and a payment history for the loan account precluded the grant of summary judgment as to the amount of damages owed to CSB.

Because the uncontroverted, competent evidence of record demonstrate that CSB was the assignee of the note and guaranty, we affirm the trial court’s grant of summary judgment to CSB on its claim that the appellants were liable for breach of those debt instruments. However, because material discrepancies between the affidavit submitted by CSB and the payment history for the loan create a factual issue over the amount of unpaid principal, interest, and contractual attorney fees owed on the note and guaranty, we reverse the trial court’s grant of summary judgment to CSB as to the amount of damages.

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