Nelson v. Hamilton State Bank

771 S.E.2d 113, 331 Ga. App. 419, 2015 Ga. App. LEXIS 168
CourtCourt of Appeals of Georgia
DecidedMarch 20, 2015
DocketA14A1921
StatusPublished
Cited by5 cases

This text of 771 S.E.2d 113 (Nelson v. Hamilton State Bank) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nelson v. Hamilton State Bank, 771 S.E.2d 113, 331 Ga. App. 419, 2015 Ga. App. LEXIS 168 (Ga. Ct. App. 2015).

Opinion

Branch, Judge.

Jimmy R. Nelson signed a commercial promissory note in favor of Bartow County Bank (BCB) in the original principal amount of $2,977,019.70. Upon Nelson’s default, Hamilton State Bank (HSB), the successor-in-interest to BCB, brought suit on the note. The trial court granted summary judgment to HSB for $2,866,990.37 plus post-judgment interest. On appeal, Nelson contests the amount of the indebtedness and asserts that there is a genuine issue of material fact as to whether HSB’s actions directed at his business partner and cousin Dolph Nelson (“Dolph”) impaired Nelson’s ability to make payments to HSB. For the reasons that follow, we affirm the judgment of liability and reverse as to damages.

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). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

So construed, the record shows that Nelson and Dolph are each fifty percent owners of one or more corporate entities related to the family furniture business; that in 2005, two of the corporate entities entered into a $3.9 million loan with BCB with the final payment due on February 21,2010 (the “furniture business loan”); and that Nelson was on the board of directors of BCB during that entire time.

Meanwhile in March 2007, Dolph purchased a residence and obtained a purchase money loan for $586,729.50 from BCB. The associated security deed included a “dragnet clause,” which provided that the real estate secured the residential loan and “any and all other and further indebtedness now owing or which may hereafter be owing, however incurred, to [BCB], its successors and assigns, by [Dolph Nelson] and [his] successors in title.”1 In November 2007, Dolph obtained an equity line of credit (ELOC) on the residence and used the proceeds to pay off the purchase money note on the residence. Although the purchase money loan was satisfied as a result, BCB did not cancel the original purchase money security deed that contained the dragnet clause.

Next, on June 7,2010, Nelson and Dolph “renewed” the furniture business loan by each entering into personal loans with BCB: Nel[420]*420son’s loan, at issue in this case, was in the amount of $2,977,019.70; and Dolph’s loan was in the amount of $2,980,336.97. Nelson avers that for several reasons, including certain banking regulations, BCB required personal loans instead of another commercial loan in the name of the furniture business entities. Thereafter, the furniture business made 16 monthly payments on each of the personal loans but none after October 2011.

In the meantime, in April 2011, BCB was closed by the Georgia Department of Banking and Finance; the Federal Deposit Insurance Company was appointed a receiver; and it assigned Nelson’s promissory note to HSB. In October 2011, Dolph paid off the equity line of credit, and the furniture business made its last payments on the Nelson and Dolph 2010 promissory notes. Dolph learned several months later that HSB continued to hold an interest in his personal residence as security for payment of his 2010 $2.9 million note.

In March 2012, HSB brought separate suits against Nelson and Dolph for the unpaid balance on the two personal notes. The trial court separately granted summary judgment in favor of HSB in both cases. And Dolph, who is represented by the same attorneys, has filed a separate appeal.

1. Nelson contends that the trial court erred by rejecting as a matter of law his defense that his and Dolph’s 2010 promissory notes were inextricably intertwined such that Nelson should be excused from payment because of HSB’s actions vis-a-vis Dolph. Nelson asserts that HSB breached its contract with Dolph regarding the security on his home and improperly “asserted leverage” over Dolph by use of the dragnet clause, which, Nelson argues, should have been extinguished when Dolph satisfied his residential purchase mortgage debt in November 2007 with the proceeds of the ELOC. Nelson also asserts that there are issues of fact as to whether HSB intended to consider Dolph’s residence as a part of its security for Dolph’s 2010 promissory notes. We agree with HSB that this enumeration of error lacks merit.

First, Nelson has not asserted that he was a party to or a third-party beneficiary of Dolph’s residential mortgage, the ELOC, or Dolph’s 2010 promissory note. Accordingly, he lacks standing to raise claims based on those transactions. Dominic v. Eurocar Classics, 310 Ga. App. 825, 828 (1) (714 SE2d 388) (2011) (“As a general rule, one not in privity of contract with another lacks standing to assert any claims arising from violations of the contract.”) (citations omitted). See also Jurden v. HSBC Mtg. Corp., 330 Ga. App. 179 (1) (765 SE2d 440) (2014) (where plaintiff was not a party to loan agreement or assignment of security interest nor a third-party beneficiary under [421]*421either agreement, he lacked standing to challenge either agreement) (physical precedent only); OCGA § 9-2-20.2

Instead, Nelson argues that the two 2010 promissory notes were “inextricably intertwined” and that therefore he was affected by HSB’s actions vis-á-vis Dolph’s promissory note. See Iwan Renovations v. North Atlanta Nat. Bank, 296 Ga. App. 125, 128 (1) (673 SE2d 632) (2009) (“As a general rule, two debts that are incurred for the same purpose, secured hy the same property, held by the same creditor, and owed by the same debtor are inextricably intertwined.”) (citations and footnotes omitted). When separate debts are seen as inextricably intertwined, Georgia courts reviewing confirmation of foreclosure sales will examine the foreclosure of both debts when determining whether a deficiency judgment is allowed under the confirmation statute (OCGA § 44-14-161).3 We know of no case law, and Nelson has not cited any, showing that this doctrine has been applied outside of the determination of whether deficiency judgments are allowed. We decline to do so here.

Because Nelson has no standing to assert defenses based on Dolph’s contractual relationship with HSB, this enumeration of error is without merit.

2. Nelson contends that the judgment amount is not supported by competent evidence in the record. In his appellate brief, he states that he “admits to execution of the Note but not the amount entered by the court.” We agree that an issue of fact remains as to the amount.

“Where a party sues for damages, it has the burden of proof of showing the amount of loss in a manner in which the trial judge can calculate the amount of the loss with a reasonable degree of certainty.” Myers v. First Citizens Bank & Trust Co., 324 Ga. App. 293, 296 (2) (750 SE2d 378) (2013) (suit on a note) (punctuation and footnote omitted); see also Lockwood v. Fed. Deposit Ins. Corp., 330 Ga. App.

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Bluebook (online)
771 S.E.2d 113, 331 Ga. App. 419, 2015 Ga. App. LEXIS 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-hamilton-state-bank-gactapp-2015.