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Cruickshank v. Fremont Investment & Loan

The record showed that the first defendant served the plaintiff with its response within the 30-day period as O.C.G.A. § 1-3-1 d 3 requires.

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Kenneth Cruickshank sued Fremont Investment & Loan, McCurdy & Candler, L.L.C., and Mortgage Electronic Registration Systems, Inc. “MERS” asserting, among numerous other claims, wrongful foreclosure.1 The trial court granted Fremont’s, McCurdy’s, and MERS’s motions for summary judgment and denied Cruickshank’s cross-motion for summary judgment as untimely filed. On appeal, Cruickshank claims that his requests for admissions were admitted by Fremont, McCurdy, and MERS because McCurdy and MERS failed to respond to the requests in a timely manner or to make a filing contemplated by the Uniform Superior Court Rules, and that the admissions, in turn, created issues of material fact precluding the grant of summary judgment.2 We disagree for the reasons set forth below. “On review of a grant of summary judgment, we apply a de novo standard of review and view the evidence in the light most favorable to the nonmovant. If there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law, summary judgment is proper.”3

Viewed independently of the requests for admissions, the evidence shows that Fremont loaned Cruickshank $290,454. The loan was secured by a first priority security deed in favor of Fremont and its nominee, MERS, encumbering certain Cobb County real property. Cruickshank defaulted on the loan and failed to cure the default within 30 days of notice thereof.

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