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Chugh Shopping Ctr. Inc. v. Ameris Bank

The trial court improperly denied the shopping center's motion to set aside the default judgment granted to the bank based on the failure to satisfy O.C.G.A. § 9-11-60 subsection d 3 without addressing whether the shopping center presented sufficient evidence to satisfy § 9-11-60 subsection d 2.

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Ameris Bank1 filed suit on a promissory note against Chugh Shopping Center, Inc.,2 eventually procuring a default judgment. About two years later, Chugh Shopping Center filed a motion to set aside the default judgment as prematurely entered, given its bankruptcy protections at the time. The trial court denied the motion to set aside, and Chugh Shopping Center appeals. For reasons that follow, we vacate the judgment and remand this case for proceedings not inconsistent with this opinion.

On October 20, 2009, Ameris Bank filed a complaint against Chugh Shopping Center, which was served with process on October 30, 2009. On March 15, 2010, Ameris Bank filed a motion for default judgment against Chugh Shopping Center for reason that “over forty-five days have now elapsed without Chugh Shopping Center, Inc.’s filing of an answer or other response in this Court.”3 And on March 24, 2010, the trial court entered an order in which it found that “over forty-five days have now elapsed without Chugh Shopping Center, Inc.’s filing of an answer or other response in this Court,” and therefore granting Ameris Bank default judgment in an amount in excess of $3,500,000.

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