In June 1999, appellee-plaintiff Regions Bank, Georgia the “Bank”, successor in interest to Etowah Bank,1 brought suit in the Superior Court of Paulding County on a promissory note against appellant-defendant E. E. Simmons seeking principal in the amount of $1,485,038.80, plus interest and attorney fees. Simmons timely filed his answer and counterclaim, denying that he owed the principal and interest which the Bank claimed, and alleging that the Bank had refused to honor verbal agreements to extend the amortization schedule on the loan thereby lowering his monthly payments; overcharged interest and late fees; and that he was entitled to actual and punitive damages. On March 6, 2000, Simmons filed a petition for bankruptcy under Chapter 11 in the United States Bankruptcy Court for the Northern District of Georgia. A year later, after a hearing upon the Bank’s motion to determine the amount of its claim against Simmons, the bankruptcy court ruled that the Bank’s claim “shall be allowed in the principal amount of $1,492,358.53, interest as of November 16, 2000 of $280,460.61, plus interest thereafter at the contract rate, which is presently $449.75 a day.” Simmons dismissed his bankruptcy case with prejudice on February 15, 2001. In the superior court, the Bank next moved for summary judgment as to its complaint on the promissory note only, and, on May 7, 2001, the court granted it partial summary judgment thereon. Four months later the Bank moved for summary judgment on Simmons’s counterclaim. On October 19, 2001, Simmons filed his amended counterclaim, averring that the Bank foreclosed on property he pledged as collateral on the note in issue, having “chilled” negotiations for the sale of the property to a third party. Summary judgment for the Bank on Simmons’s counterclaim followed on January 18, 2002, the superior court finding the same barred by the doctrine of res judicata as raising matters put in issue or which might have been put in issue before the bankruptcy court.
On appeal Simmons contends that the superior court erred in granting the Bank’s motion for summary judgment upon his amended counterclaim, arguing that 1 the judgment of the bankruptcy court was not entitled to res judicata effect as not entered at an “adversary proceeding” within the meaning of the rules of federal bankruptcy procedure; 2 the judgment of the bankruptcy court was not entitled to res judicata effect as to the Bank’s motion seeking summary judgment on his counterclaim because no issue on the counterclaim was decided by the trial court upon its grant of partial summary judgment to the Bank as to the value of its claim on the promissory note; and 3 even were the contrary true, res judicata effect cannot extend to matters as to which he had no opportunity to litigate in the bankruptcy court, such matters having arisen after the bankruptcy court entered its judgment against him. Finding no error in summary judgment for the Bank upon Simmons’s counterclaim and a valid counterclaim pending, we affirm with direction. Held:
