Household Finance Corp. v. Rogers

223 S.E.2d 462, 137 Ga. App. 315, 19 U.C.C. Rep. Serv. (West) 342, 1976 Ga. App. LEXIS 2431

• Court: Court of Appeals of Georgia
• Decided: January 6, 1976
• Docket: 51307
• Status: Published

Opinions

Stolz, Judge.

There are no issues of fact to be resolved in this case. The litigation involves a suit filed by W. J. Rogers and Lena Rogers seeking the $100 penalty referred to in Code Ann. § 109A-9 — 404 for failure of the defendant to furnish them with a termination statement as provided in said Code section. The plaintiffs’ theory is that the loan was null and void, hence no security interest could be taken pursuant to the contract. The termination statement would authorize the removal of the security interest of record. The contract in question is virtually identical with

Argued September 30, 1975 Decided January 6, 1976 Rehearing denied January 21, 1976.

the contract declared void by this court in Patman v. General Finance Corp., 128 Ga. App. 836 (2) (198 SE2d 371). As in Patman, there is nothing in the contract showing the amount of insurance or the premium charged therefor. Code Ann. § 25-319 (Ga. L. 1955, pp. 431, 444) requires that "the amount of each class of insurance carried and the premiums paid thereon” be included in the loan contract or a written itemized statement and a copy thereof delivered to the borrower. The only issue in the case is the validity or non-validity of the loan contract (R. 5). It shows on its face that it does not meet the statutory requirements and is void under our decision in Patman. There is no contention that there are other writings between the parties. The plaintiffs have pierced the defendant’s answer. If there were other writings, it is incumbent for the defendant to come up with them (which it has not) or suffer judgment. See Crutcher v. Crawford Land Co., 220 Ga. 298, 303 (138 SE2d 580). "When a motion for summary judgment is made. . . an adverse party may not rest... [on] his pleading, but his response,... must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” (Emphasis supplied.) Code Ann. § 81A-156 (e) (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238). "It is thus seen that it is the duty of each party at the hearing on the motion for summary judgment to present his case in full.” Summer-Minter & Associates v. Giordano, 231 Ga. 601, 604 (203 SE2d 173). The contract is null and void. The trial judge will not be reversed on the bare possibility that there may be "other writings between the parties to this loan.” If "other writings” existed, it was the defendant’s duty to place them in evidence in opposition to the motion for summary judgment. See Crutcher v. Crawford Land Co., supra; Summer-Minter & Associates v. Giordano, supra.

Judgment affirmed.

Bell, C. J., Deen, P. J., Quillian, Clark, Webb and Marshall, JJ., concur. Pannell, P. J., and Evans, J., dissent. Harris Bullock, for appellant. Myron N. Kramer, for appellees.