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Tallahassee State Bank v. Macon

The subordination clause in the plaintiffs' real estate sales agreement merged into their security deed and was extinguished.

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Tallahassee State Bank “TSB” appeals from the order of the Superior Court of Henry County, which granted a partial summary judgment in favor of plaintiff landowners Edwin and Norma Macon in this suit to cancel or to modify a security deed.1 TSB also challenges the court’s order denying its motion for summary judgment. This suit concerns, in part, the relative priority of security interests in a parcel of real property held by the Macons, who sold the parcel to a developer, and by TSB, which extended a construction loan to the developer. After a hearing, the trial court determined that TSB’s security interest is superior to the Macons’ security interest, but only to the extent that the developer actually used the proceeds of TSB’s construction loan to develop the property. Based on this determination, the trial court granted the Macons’ motion for partial summary judgment on their petition for a declaratory judgment. The trial court then determined the amount of TSB’s first priority interest to be $37,989.86 and entered judgment, ordering TSB to quitclaim its interest in the property to the Macons upon receipt of that amount from them. TSB appeals from those orders, contending that the trial court erred in limiting its first priority interest and in denying its motion for summary judgment as to the Macons’ remaining claims. For the reasons explained below, we reverse in part, as to the trial court’s priority determination.

1. To prevail at summary judgment under OCGA § 9-11-56,

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