Formaro v. Suntrust Bank

In this action to collect a loan, debtor Randy Formaro appeals the summary judgment granted to creditor Suntrust Bank, arguing that i the Suntrust officer’s affidavit regarding the debt was not based on the personal knowledge of the officer, and ii some evidence showed that the debt had been settled by accord and satisfaction when a third party sent a check to Suntrust “in full payment” of the debt, which check Suntrust negotiated. We hold that Formaro waived any complaints about defects in the affidavit when he failed to object to the affidavit below, and that the criteria for establishing accord and satisfaction were not met. Accordingly, we affirm. 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. O.C.G.A. § 9-11-56 c. A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp .1

So viewed, the evidence shows that Formaro agreed to repay a bank any loans he received from that bank under his home equity line of credit. Suntrust, as successor to that bank, sought to collect the $97,700.53 plus interest loaned Formaro under the line of credit. When Formaro failed to pay, Suntrust filed the present action. Suntrust moved for summary judgment, submitting an affidavit from its finance officer who testified that she was personally familiar with the transaction and with the loan documents. The affidavit set forth the amount and history of the unpaid debt and attached the loan documents. Raising no complaints about the affidavit, Formaro opposed the motion solely on the ground that the debt had been settled through accord and satisfaction when Suntrust negotiated a $152.18 check sent by a third party to Suntrust, which check was accompanied by a cover letter that such was payment in full of the Formaro debt. Finding that the payment from the third party did not meet the criteria of OCGA § 13-4-103 b for accord and satisfaction, the trial court granted summary judgment to Suntrust, giving rise to this appeal.