Gregg v. First Citizens Bank & Trust Co. Inc.

Although the plaintiff bank was entitled to summary judgment as to liability in its action seeking to recover on a promissory note, it failed to prove the amount due under such note.

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On February 25, 2010, First Citizens Bank & Trust Company, Inc. issued a promissory note to Sarah and William J. Gregg for the purchase of a lot located at The Currahee Club in Stephens County. The note required 23 monthly payments followed by a balloon payment due on or before March 11, 2012. When the Greggs failed to make certain payments as required, First Citizens filed suit on September 8, 2011 to recover the amount owed. The Greggs admitted that they failed to pay amounts due after April 11, 2011 but claimed a good faith dispute existed concerning the total amount owed. Following discovery, First Citizens moved for summary judgment, which the trial court granted. The Greggs appeal, arguing that First Citizens failed to satisfy its burden to prove the amount due under the note. Because the outcome of this case is controlled by our recent decision in the substantially similar case of Myers v. First Citizens Bank & Trust Co., 324 Ga. App. 293 750 SE2d 378 2013, we affirm the grant of summary judgment as to liability, but vacate the judgment amount and remand this case for a calculation of damages.

As in Myers, First Citizens supported its motion for summary judgment in this case with an affidavit from a bank employee, who averred that she “has knowledge of the facts set forth in the affidavit.” Although the author of the affidavit proffered by First Citizens in this case is different, the remainder of the affidavit appears to be the same. The affidavit stated the amounts due on the note, including single figures for both principal and interest, plus attorney fees, but did not explain how these amounts were calculated. Nor did First Citizens provide evidence concerning the amounts, if any, paid by the Greggs or a basis for the attorney fee or interest calculations. Indeed, the only exhibit attached to the affidavit was a copy of the Greggs’ note.

Gregg v. First Citizens Bank & Trust Co. Inc.

Although the plaintiff bank was entitled to summary judgment as to liability in its action seeking to recover on a promissory note, it failed to prove the amount due under such note.

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