In this breach of contract action based on an agreement to purchase automobile loans, defendant Cleveland Motor Cars, Inc. CMC appeals the grant of summary judgment to plaintiff Bank of America, N. A. Specifically, CMC contends that the trial court erred in ruling that the bank had no duty to mitigate its damages arising from CMC’s breach of an express warranty. As the agreement expressly relieved the bank from the duty to mitigate damages arising from the breach, we affirm. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 c. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp .1 So viewed, the record shows that CMC and Bank of America entered into an agreement whereby the bank purchased automobile loans made by CMC to its buyers. As part of the agreement, CMC expressly warranted to the bank i that each car buyer i.e. borrower “is who he, she or it purports to be,” and ii that each car buyer “has not fraudulently used the identity of another person to purchase the” car.
In February 2006, CMC sold a BMW to an individual who financed the $50,239 purchase by fraudulently using an incorrect social security number and credit profile to obtain a loan. By September 2006, no payments had been made on the loan, and it is undisputed that in a notice dated September 21, 2006, Bank of America learned that the vehicle had been abandoned, impounded, and subjected to a lien for the $305 redemption fee. In a letter to CMC dated October 4, 2006, the bank reported the fraud to CMC and demanded that CMC repurchase the loan, stating that the vehicle would be released for sale on October 30, 2006.2 The car was sold at auction by the impound company, and, after CMC located the car, the bank unsuccessfully attempted to repossess the car from the ultimate purchaser for value. Despite the bank’s demands, CMC never repurchased the loan.
