Banks v. Echols

In this foreclosure action, Eunice Banks “Banks” appeals from the trial court’s grant of summary judgment to the estate of Ed P. Echols by and through its executors, N. G. Echols and N. P. Echols collectively, “Echols”. The trial court’s order granting summary judgment in favor of Echols was based upon Echols having obtained a default judgment against Jimmy Banks, Banks’s former husband1 who previously owned the property. Because we conclude that the trial court erred in concluding that Banks was bound by the default judgment obtained against her ex-husband, and because the record establishes that questions of fact remain as to whether the foreclosure was otherwise proper, we reverse. To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. We review de novo a trial court’s grant of summary judgment. Citation omitted. Steed v. Fed. Nat. Mtg. Corp. , __Ga. App.__, 1 Case No. A09A1634, decided Dec. 30, 2009. So construed, the record shows that on June 10, 1980, Ed Nichols conveyed real property, including a home, via warranty deed to Jimmy Banks for a purchase price of $17,500. Because Ed Echols agreed to finance a portion of the purchase price, Jimmy Banks executed a deed to secure debt in favor of Ed Echols in the principal amount of $16,000 the “Security Deed”. The Security Deed provided that it would mature on June 14, 2000, and that it would accrue interest at a rate of 11 per annum.

Banks was married to Jimmy Banks from 1978 through 1998, at which time they separated. Following their separation, Jimmy Banks conveyed the subject property to Banks via a quit claim deed. Banks took over the payments on the Security Deed at that time. Prior to 1997, the payments were submitted to Ed Echols but, following Ed’s death, they were submitted to Ted Echols.