In September 2006, Donald and Claudine Gallagher filed a declaratory judgment action in the Superior Court of Fulton County, asking the court to issue a ruling that would remove any cloud from the title of property they acquired in February 2006. Specifically, they asked the court to rule that they purchased such property without notice of a judgment lien held by Buckhead Community Bank against the seller, Caryn Snyder, that the lien was outside of their chain of title, and that, as a result, they were good faith purchasers for value. After considering the parties’ cross-motions for summary judgment, the court ruled that the Gallaghers failed to exercise due diligence in discovering the lien and granted the Bank’s motion for summary judgment. The Gallaghers challenge the court’s conclusion on appeal. For the following reasons, we reverse the court’s judgment and remand this case with direction for the court to grant the Gallaghers’ motion for summary judgment. “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.” Citation omitted. Benton v. Benton , 280 Ga. 468, 470 629 SE2d 204 2006. Under OCGA § 9-11-56 e, when a party moves for summary judgment and supports his or her motion by submitting affidavits, depositions, or answers to interrogatories, the nonmoving party “may not rest upon the mere allegations or denials of his or her pleading, but his or her response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he or she does not so respond, summary judgment, if appropriate, shall be entered against him or her.” “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. at 470. So viewed, the record shows the following undisputed facts.
In May 2001, The Buckhead Community Bank “the Bank” obtained a judgment against Caryn Mlaver and her husband, Bernard Mlaver, in a lawsuit arising from a loan by the Bank to the Mlavers in connection with the husband’s medical practice. The Bank secured a writ of fieri facias “fi. fa.” against “Caryn Mlaver” and “Bernard Mlaver,” and the fi. fa. was recorded in the general execution docket of Fulton County in June 2001. The Mlavers divorced in 2002, and the decree restored Caryn Mlaver’s maiden name, “Caryn Eve Snyder.” In 2003, Caryn Snyder and her father, Robert Snyder, purchased a condominium in Fulton County “the property”. There is no evidence that, at the time of that purchase, the Bank knew that Caryn Mlaver was using her maiden name or that she had purchased real property in that name. Thus, the Bank did not amend the fi. fa. to refer to “Caryn Snyder” or to the property that she had purchased under that name.
