It is not often that a practicing attorney writes an article criticizing a state Supreme Court decision. However, because I have devoted well over four decades to representing small business borrowers and guarantors against banks and other lenders, it seems to me that I have a duty to my fellow practitioners to discuss the Georgia Supreme Court’s very disappointing and hurtful opinion in PNC Bank N.A. v. Smith, 2016 WL 690406.
On Feb. 22, 2016, the Georgia Supreme Court drove the final stake in the heart of the Georgia confirmation statute, O.C.G.A. § 44-14-161, and effectively repealed this venerable law which has protected debtors from unscrupulous lenders for over 80 years. The champagne corks popped in the special assets departments of numerous banks and lenders and in the offices of bank counsel. The predator debt-buyers and some loss-share banks also stopped licking the bones of the small businessmen and -women who they have decimated to toast a great decision. The printing presses in the offices of bank counsel began running immediately with new guaranty agreements and promissory notes.
