Hayes v. EMC Mortgage Corp.

The defendant stepped into the shoes of the senior creditor as to the priority of the senior creditor's lien when defendant's predecessor-in-interest paid off the senior creditor's lien on certain real property.

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Clarence Hayes Jr. filed a complaint to foreclose on a judgment lien against certain property. Wells Fargo Bank, NA, predecessor in interest to EMC Mortgage Corp. EMC, counterclaimed seeking a declaration that, under the doctrine of equitable subrogation, it held the first priority lien against the property. EMC moved to be substituted as the defendant/plaintiff-in-counterclaim, and also for summary judgment. The trial court granted the motion for summary judgment ruling that EMC’s security deed was superior to Hayes’s judgment lien.1 Hayes now appeals. For the following reasons, we affirm.2 “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Lau’s Corp. v. Haskins , 261 Ga. 491 405 SE2d 474 1991.” Webster v. Dodson , 240 Ga. App. 4, 5 522 SE2d 487 1999.

The record reveals that on September 24, 2004, Rochelle Sabir conveyed to David Elmore, by general warranty deed, the property located at 1052 Erie Circle, Stone Mountain, Georgia, 30087. A security deed recorded in the Dekalb County Superior Court reveals that Elmore purchased the property with a loan from Resource Bank in the amount of $145,350. This security deed was recorded on October 4, 2004. On April 21, 2005, Hayes obtained a default judgment against Elmore and Sunrise Properties, Inc. in the amount of $872,720.80. Elmore filed the writ of fieri facias “fi. fa.” in Dekalb County on July 14, 2005, but the clerk of court mis-indexed the lien. The clerk filed Hayes’s fi. fa. under “David Elmore and Sunrise Properties, Inc.” rather than “Elmore, David” and “Sunrise Properties, Inc.”

Hayes v. EMC Mortgage Corp.

The defendant stepped into the shoes of the senior creditor as to the priority of the senior creditor's lien when defendant's predecessor-in-interest paid off the senior creditor's lien on certain real property.

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