In this litigation pending in the Superior Court of Fulton County, Branch Banking & Trust Company asserts claims, inter alia, for the breach of a series of promissory notes against the borrowers and against parties that guaranteed the notes, which are all related corporate entities. The parties filed cross-motions for partial summary judgment. After a hearing, the trial court entered partial summary judgment in favor of the bank on certain issues and in favor of the borrowers and guarantors on others, as detailed below. Both sides appeal part of the trial court’s ruling. For the reasons explained below, we affirm in part and reverse in part. In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Citations omitted. Benton v. Benton , 280 Ga. 468, 470 629 SE2d 204 2006.
At issue are 16 promissory notes executed between 2005 and 2008 by the bank as the lender and by either Legacy Investment Group, LLC “Legacy Investment” or Tampa Investment Group, Inc. “Tampa Investment” as the borrower for the development of residential subdivisions in Georgia. The notes were secured by deeds to secure debt and were guaranteed by either two or three of the following entities: Legacy Communities, LLC “Legacy Communities”, Tampa Financial Company, Inc. “Tampa Financial”, Legacy Communities Group, LLC “Legacy Group”, SRB Investment Services, LLLP “SRB Investment”, and SFB Investment, LP “SFB Investment”. After the borrowers defaulted on the notes, the bank provided notice of foreclosure as to nine of the notes and, at foreclosure auctions conducted on June 2, 2009, was the sole and winning bidder. Three days later, the bank notified the borrower that it rescinded any actions taken with respect to foreclosure and that the foreclosures were not and would not be consummated. On June 22, 2009, the bank filed the instant action against the borrowers and guarantors. Because of common issues on appeal, we consider the notes in the following related groups: A Three notes executed in 2005, 2006, or 2007, either by Legacy Investment1 or by Tampa Investment2 as the borrower and guaranteed by Tampa Financial and either by Legacy Communities3 or by Legacy Group,4 which were foreclosed upon and the properties sold at auction on June 2, 2009. B Five notes executed in 2005, 2006, or 2007, either by Legacy Investment5 or by Tampa Investment6 as the borrower and guaranteed by Tampa Financial and by either Legacy Communities7 or by Legacy Group,8 which were not the subject of foreclosure proceedings. C Six notes executed in 2008, by Tampa Investment as the borrower and guaranteed by Legacy Group, SRB Investment, and SFB Investment the “2008 guarantors”, which were foreclosed upon and the properties sold at auction on June 2, 2009.9 D Two notes executed in 2008, by Tampa Investment as the borrower and guaranteed by the 2008 guarantors, which were not the subject of foreclosure proceedings.10 In its complaint, the bank asserted claims against the borrower and against the guarantors for amounts due under each of the notes.
