Swanstrom v. Wells Fargo Bank

The illegible copy of the terms and conditions governing a personal guaranty that the plaintiff submitted into the record was not entitled to evidentiary consideration, thus the plaintiff failed to prove that the individual defendant was personally liable for the business line of credit.

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Dexter Swanstrom, Jr. and D&S Auto Air & Transmission, Inc. f/k/a D&S Auto Air & Radiators, Inc. appeal from the trial court’s grant of summary judgment in favor of Wells Fargo Bank on a business line of credit. They assert that genuine issues of fact exist as to whether 1 D&S Auto Air & Transmission, Inc. may be held liable for the debt of D&S Auto Air & Radiators, Inc. and 2 Swanstrom is individually liable for the business debt. For the reasons explained below, we affirm the trial court’s grant of summary judgment with regard to the D&S Auto Air & Transmission, Inc., but reverse with regard to Swanstrom’s personal liability.

Summary judgment is proper when the record reveals no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 c. “We review the trial court’s grant of summary judgment de novo, construing the evidence and all reasonable inferences in favor of the nonmoving party.” Footnote omitted. Melman v. FIA Card Svcs., 312 Ga. App. 270 718 SE2d 107 2011. So viewed, the record shows that Dexter Swanstrom signed a “Wells Fargo Business Platinum Acceptance Certificate” on January 8, 2008 above a line labeled “Owner #1 Signature” on behalf of D&S Auto Air & Radiators, Inc.” He listed his title as “Pres.” beside his signature. Immediately above his signature, the certificate stated: “I certify that I have read and agree with the Terms and Conditions on the reverse side, including the personal guaranty.” The documents in the record, however, do not contain a legible copy of the portion of the Terms and Conditions governing the personal guaranty. The record does contain a Wells Fargo Business Card Visa statement of account prepared for Swanstrom and addressed to both D&S Auto Air & Radiator and Swanstrom.

Swanstrom v. Wells Fargo Bank

The illegible copy of the terms and conditions governing a personal guaranty that the plaintiff submitted into the record was not entitled to evidentiary consideration, thus the plaintiff failed to prove that the individual defendant was personally liable for the business line of credit.

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