Scott v. Aetna Finance Co.

Court of Appeals of Georgia

Scott v. Aetna Finance Co.

410 S.E.2d 203, 201 Ga. App. 81, 1991 Ga. App. LEXIS 1200

CourtCourt of Appeals of Georgia

DecidedSeptember 3, 1991

DocketA91A1030

StatusPublished

Cited by2 cases

This text of 410 S.E.2d 203 (Scott v. Aetna Finance Co.) 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

Scott v. Aetna Finance Co., 410 S.E.2d 203, 201 Ga. App. 81, 1991 Ga. App. LEXIS 1200 (Ga. Ct. App. 1991).

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Opinion

Banke, Presiding Judge.

The appellee, Aetna Finance Company brought suit against the appellant, James Scott, seeking to recover the unpaid balance allegedly due on a promissory note. In his answer, Scott denied liability on the ground that the note violated the Georgia Industrial Loan Act (OCGA § 7-3-1 et seq.); however, the parties thereafter entered into a [82]*82written agreement whereby he was to continue making payments on a slightly reduced balance and Aetna was to defer seeking a judgment so long as these payments remained current. Asserting that Scott had defaulted in making these payments, Aetna subsequently moved for summary judgment on the complaint; and the trial\court granted the motion, awarding it judgment in the principal amoúnt of $1,162, plus interest and court costs. The case is before us pursuant to our grant of Scott’s application for a discretionary appeal from that ruling. Held:

Decided September 3, 1991. Ralph S. Goldberg, for appellant. Goodman, Hudnall, Cohn & McManus, H. Gilman Hudnall, for appellee.

Aetna’s motion for summary judgment was predicated solely on Scott’s failure to comply with the terms of the promissory note and his subsequent repayment agreement. Thus, his Industrial Loan Act defenses were not addressed in the trial court’s order. “[0]n motion for summary judgment the burden was upon the plaintiff, as movant, to conclusively establish the absence or nonexistence of any defense. . . . The defendant’s answer raised an issuable defense which the proof offered by the plaintiff failed to effectively negate.” Duke Enterprises v. Espy, 140 Ga. App. 527, 530 (231 SE2d 522) (1976). Inasmuch as Scott’s Industrial Loan Act defenses have not been addressed, we hold that the trial court erred in granting Aetna’s motion for summary judgment.

Judgment reversed.

Carley and Beasley, JJ., concur.

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Banke, Presiding Judge.

The appellee, Aetna Finance Company brought suit against the appellant, James Scott, seeking to recover the unpaid balance allegedly due on a promissory note. In his answer, Scott denied liability on the ground that the note violated the Georgia Industrial Loan Act (OCGA § 7-3-1 et seq.); however, the parties thereafter entered into a [82]*82written agreement whereby he was to continue making payments on a slightly reduced balance and Aetna was to defer seeking a judgment so long as these payments remained current. Asserting that Scott had defaulted in making these payments, Aetna subsequently moved for summary judgment on the complaint; and the trial\court granted the motion, awarding it judgment in the principal amoúnt of $1,162, plus interest and court costs. The case is before us pursuant to our grant of Scott’s application for a discretionary appeal from that ruling. Held:

Decided September 3, 1991. Ralph S. Goldberg, for appellant. Goodman, Hudnall, Cohn & McManus, H. Gilman Hudnall, for appellee.

Aetna’s motion for summary judgment was predicated solely on Scott’s failure to comply with the terms of the promissory note and his subsequent repayment agreement. Thus, his Industrial Loan Act defenses were not addressed in the trial court’s order. “[0]n motion for summary judgment the burden was upon the plaintiff, as movant, to conclusively establish the absence or nonexistence of any defense. . . . The defendant’s answer raised an issuable defense which the proof offered by the plaintiff failed to effectively negate.” Duke Enterprises v. Espy, 140 Ga. App. 527, 530 (231 SE2d 522) (1976). Inasmuch as Scott’s Industrial Loan Act defenses have not been addressed, we hold that the trial court erred in granting Aetna’s motion for summary judgment.

Judgment reversed.

Carley and Beasley, JJ., concur.

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410 S.E.2d 203, 201 Ga. App. 81, 1991 Ga. App. LEXIS 1200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-aetna-finance-co-gactapp-1991.

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