FRT 2011-1 Trust v. eHealthscreen, LLC et al, No. 2:2013cv00107 - Document 114 (S.D. Ga. 2016)
Court Description: ORDER granting 55 Motion for Summary Judgment on Cross-Claim and Counterclaim to Cross-Claim; granting 57 Motion for Summary Judgment against Plaintiff; denying 59 Motion for Partial Summary Judgment; and denying 65 Motion for Partial Su mmary Judgment against eHealthscreen, LLC. The Clerk of Court is DIRECTED to correct the docket to reflect that the Brysons are the Cross Claimants, while eHealthscreen is the Cross Defendant, with respect to these claims. Plaintiff is hereby ORDERED to notify this Court within fourteen (14) days of the date of this Order as to whether it has any claim against the Brysons with which it seeks to proceed in this action. Signed by Chief Judge Lisa G. Wood on 3/31/2016. (csr)
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FRT 2011-1 Trust v. eHealthscreen, LLC et al Doc. 114 jjn tje aniteb 6tateo Ditritt Court for the boutbern JDitritt of 4eoria &untuitk ibiion FFT 011-1 TRUST, * * Plaintiff, * V. * HEALTHSCREEN, LLC; MACK N. BRYSON; and JANE 0. BRYSON, Defendants. * * CV 213-107 * * * * ORDER This matter comes before the Court on several fully briefed dispositive motions: Defendant eHealthscreen, LLC's "eHealthscreen") Motion for Summary Judgment Against Plaintiff FRT 2011-1 Trust ("Plaintiff") (dkt. no. 57); Plaintiff's Motion for Partial Summary Judgment Against eHealthscreen (dkt. no. 5); eHealthscreen's Motion for Summary Judgment on Crossclaims and for Partial Summary Judgment on Counterclaims to Crossclaims BkL. no. 55); and Defendants Mack N. Bryson ("Mack Bryson") and Line 0. Bryson's (collectively, the "Brysons") Motion for Partial Summary Judgment on Crossclaims and Counterclaims (dkt. 59). For the reasons that follow, eHealthscreen's Motion for Summary Judgment Against Plaintiff (dkt. no. 57) is GRANTED, and AO 72A Dockets.Justia.com airi - at's cross-Motion for Partial Summary Judgment against Js Pfendant (dkt. no. 65) is DENIED. Additionally, H dlhsren's Motion seeking summary judgment on the Brysons' crossclaims and partial summary judgment on its counterclaims Tht. so. 55) is GRANTED. The Brysons' Motion for Partial IoLrrarp Judgment on Crossclaims and Counterclaims (dkt. no. 59) i s ths DENIED.' BACKGROUND Plaintiff is a Delaware statutory trust that claims to have secur i ty interest in the Brysons' real property (the ' peoy") and seeks to foreclose upon the same. See tscreen's SMF 2, 191 43-44; Pl.'s SMF, 191 61-62. The The docket sheet for this case shows that the Brysons, in addition to acing party-Defendants, are Cross Claimants and Cross Defendants, based on their crossclaims against eHealthscreen. The Clerk of Court is hesbv DIRECTED to correct the docket to reflect that the Brysons are the Cross Claimants, while eHealthscreen is the Cross Defendant, with sesooct to these claims. To the extent that the docket lists HOd thsiaeen as a Counter Claimant and the Brysons as Counter Defendants on ahe basis of eHealthscreen's counterclaims, the docket is correct and need not be changed. Each mosarit has submitted a statement of material facts in support I its pending motion. See Dkt. No. 55-3 (eHealthscreen's Statement o Uncontested Material Facts, hereinafter eHealthscreen's SMF 1"); 57-5 (eHealthscreen's Statement of Uncontested Material Facts, hereinafter "eHealthscreen's SMF 2"); Dkt, No. 59 (Brysons' Statement of Undisputed Material Facts, hereinafter "Brysons' SMF"); PH N. 6i-2 (Plaintiff's Statement of Material Facts, hereinafter "Pl.'s mb"). The party opposing each motion has filed a response to d iaatement of material facts. Dkt. Nos. 72, 75-1, 79-4, 80. While the Court, for ease of exposition, cites only to the movants' factual statements for the purposes of this Order, it does so only to the ey.-I-ent. that these statements are consistent with the responses and ifiallv notes any factual contentions about which the parties dis'a g ree. 2 A0 72A (IO. 2) I Brjsons own and currently reside on the Property, which is ateJ in Waverly, Georgia. Brysons' SMF, 191 1 - 2. -Pea Thsreri is a Florida limited liability company that also a rrorts to be a secured creditor of the Brysons and has to exercise its alleged rights in the subject Fr pert,. eHealthscreen's SMF 1, 191 17-18, 30; Brysons' SMF, ¶ 3; P1. ' s SHE, ¶ 6. I. Mack Bryson's Equity Partnership in HealthScreen Disease Management, LLC ("HSDM") in May 2005, HSDM was formed and acquired Mack Bryson's company, Currahee Health Benefits Solutions, Inc. Dkt. No. 71, Er. A Offidavit of Mack Bryson, hereinafter "Mack Bryson ¶ 2. Mack Bryson became an equity partner with a twenty share in HSDM and also agreed to serve as its Chief F Executive Officer. eHealthscreen's SMF 1, ¶ 1; Brysons' SMF, ¶ 3. tsde from Mack Bryson, the equity members of HSDM included Antry Campbell ("Campbell"), J. Melvin Deese ("'Deese"), h11dm McArthur ("McArthur"), and Charles Hendrix ("Hendrix") Prysens' SMF, 91 3; Pl.'s SMF, ¶ 7. A letter dated May 6, 2005, sets forth the agreed-upon :as of Mack Bryson's relationship with HSDM. eHealthscreen's SILF 1, ¶ 2. The letter states, in relevant part: 2. You will draw an advance of distributions in the form of a salary in the amount of $25,000 per month. You will not receive any further distributions until each of the other equity 3 AO '2 (kc. 8 82) I I cembers of the [c]ornpany have received distributions in an amount equal to the amount of distributions you have drawn. An adjustment for reasonable salary compensation will be credited n the calculations at such time of distribution. II. The [c]ompany Massachusetts the amount of from the date will pay the premiums on your Mutual Life insurance policy in $2,305 per month for twelve months hereof. 12. The [c]ompany will transfer the title of the rclompany[ - ]owned Chevrolet Silverado to you once the bank loan secured by the vehicle is paid in full. 13. The [c]ompany will employ David Stephens at a salary of $2500 per month for a period of time up to 18 months. The amounts paid by the [c]ompany pursuant to items numbered 11, 12, 13 above will be accrued on the moany's books as an account receivable due from u to the [c]ompany to be deducted from your future equity member distributions. Lk. No. aS, Ex. A. Upon Mack Bryson becoming an equity member, HSDM began making the $25,000 monthly payment to him as an "advance of distributions in the form of a salary," as well as the other o / oets on his behalf as stipulated in paragraphs eleven, m t a a e, and thirteen. eHealthscreen's SMF 1, 191 6-7. HSDM took dations for these payments, and state and federal taxes withheld from Mack Bryson's monthly paychecks. Mack Bryson At- I., ¶ b. AO 72A (Rex. 4 II. HSDM and eHealthscreen Te four equity members of HSDM other than Mack Bryson— namely, Campbell, Deese, McArthur, and Hendrix—formed and became partners of eHealthscreen in September 2006. Brysons' 5MB, ¶ 4; Pl.'s 3CF, ¶ 8; Mack Bryson Aff., 9191 6, 12. Mack Bryson was not a member of eHealthscreen. Brysons' SMF, ¶ 4; Pl.'s SMF, ¶ 8; 'Idor: Bryson Aff., ¶ 6. HSDM and eHealthscreen were organized and operated as entirely separate and distinct legal entities. Bys os' SMF, ¶ 11. eHealthscreen nevertheless maintains that it and HSIDM operated as a joint venture, because it existed only to provide services to HSDM. Dkt. No. 75-1, 91 11. Hendrix served as President of eHealthscreen and oversaw most of its day-to-day operations. Pl.'s SMF, 91 10. Campbell was Vice Chairman of eHealthscreen and, as a licensed attorney, also handled at least some of the company's legal and other matters. Id. at 91 9. For example, according to McArthur, Campbell was the only member who wrote documents or letters on behalf of efealthscreen. Id. at ¶ 56. As to some matters, the other members needed to review and agree with Campbell's work ri a o him taking action; however, under certain ircorrstaoes, the other members allowed Campbell to act on behalf of eHealthscreen without their express, written authority. Id. at ¶91 9, 48. 5 A() 72A 0) I III. The Property and the Secured Promissory Note in Favor of eHealthscreen in ily and September 2006, the Brysons refinanced the Property with First Chatham Bank ("FCB") and, in doing so, :' ted owo deeds to secure debt granting liens on the Property B. eHalthscreen's SMF 2, 191 2 - 3; Pl.'s SMF, 191 3-4 In November 2006, two members of HSDM informed Mack Bryson t at e needed to execute a secured promissory note agreeing to pay eIJalthscreen certain sums of money or else his relationship w• I-ISDM would be severed. eHealthscreen's SMF 1, 191 10, 15- . According to the HSDM members, they did so because HSDM had been ninq steady "advance[s] of distributions in the form of a salary" to tack Bryson and other payments on his behalf as contemplated in the May 6, 2005, letter, while "no distributions were ever made to the members of HSDM." Id. at 9191 3, 6-9. "h us, the HSDM members required that Mack Bryson promise to pay o -thscreen these amounts, as well as any future amounts, Pese HSDM ultimately had not made any equity member d sti1 utions from which these amounts could be deducted. Id. pg Lu The Promissory Note, dated November 27, 2006, states, in pertinent part, as follows: FOR VALUE RECEIVED, Mack W. Bryson, an individual resident of 2310 Horsestamp Church Road, Waverly, Georgia 31565 ("Borrower") promises to pay, on the Gatsity Date (defined below), to the order of 6 V)A 2) I eHealthscreen, LLC, a Georgia limited liability company ("Lender"), at such place as the Lender may designate in writing, the principal sum of Five Hundred Fifty[-]Seven Thousand Five Hundred Eighty[ - ]One Dollars ($557,581.00) (the "Initial Principal Amount"), which sum was outstanding as of November 27, 2006[,] plus such further sums as may have been or may hereafter be advanced by Lender to Borrower as listed or to be listed on the Schedule of Loans and Payments attached hereto, together with interest on such principal sums. This Promissory Note is referred to herein as the "Note." As used herein, "Maturity Date" shall be the thirtieth (30th) day succeeding receipt by the Borrower of a written demand by Lender for payment hereunder. Interest shall accrue on the principal sums advanced under this Note from the date each advance of principal was made as recorded on the Schedule of Loans and Payments attached hereof until paid at the annual rate of interest of eight percent (8%) . Unless otherwise stated herein, all interest shall be due and payable on the Maturity Date. All interest accruing hereunder as to any advance of principal shall be computed on the basis of actual days elapsed, over a year of 365 days, from the effective date for the Initial Principal Amount as to such amount and from the date of each respective advance for all subsequent loans. The Initial Principal Amount is intended to reflect, as the initial entry on the Schedule of Loans and Payments, the sums advanced by Lender to Borrower on or prior to the effective date hereof. As further loans or advances have been made or are made by Lender to Borrower, if any, such loans and advances shall be recorded on this Note on the Schedule of Loans and Advances. As payments are made of the sums due under this Note, an entry of same shall be recorded on the Schedule of Loans and Advances. Borrower shall maintain a duplicate copy of the Schedule of Loans and Advances, and periodically Lender and Borrower will verify and reconcile the entries on such Schedule. AO 72A (Rex. 8 82) 7 I 1cuid it become necessary to collect this Note through an otherwise, promise(s) reasonable attorney, by legal proceedings, or the undersigned[,] including endorsers, to pay all costs of collection, including attorneys' fees. This Note shall be secured by a Security Deed on the PirDprty located in the [C]ounty of Camden, [S]tate of Georgia described on Exhibit "A" attached hereto and made apart hereof. Lender shall have, in addition to ts remedies under this Note, all the remedies of a holder of a security deed under the laws of the State of Georgia. like. Go. 54-2, pp. 1-2. The attached Security Deed conveys an interest in the Brysons' Property to eHealthscreen as security for MacK Bryson's payment on the Promissory Note. Id. at pp. 6, S. Mack Bryson signed the Promissory Note, and he and his wife signed the Security Deed, in favor of eHealthscreen. a thscreen's SMF 1, 191 17 - 18; Brysons' SMF, ¶ 6. In the subsequent months, Mack Bryson's relationship with HSDM, includ i ng his receipt of monthly payments, continued as it had before. eHealthscreen's SMF 1, ¶ 20. Mack Bryson received s- ral additional payments from HSDM, and he initialed next to the entries for these payments on the Schedule of Loans page of the Promissory Note. See id. at 191 21-26. As of December 20, The Schedule of Loans and Payments shows that Mack Bryson never rad the final two entries, dated November 16, 2007, and December 2007, dkt. no. 54-2, p. 5; however, the Brysons do not dispute 0 thaL Mack Bryson received payments after the last initialed entry on r S, 2007, and do not challenge the extent to which these t amounts are reflected on the Schedule of Loans and Payments page, see ri hItLsen's SMF 1, 191 25-27. 8 (.) 7A (1O. 8 42) U , t°e amount of principal owed under the Promissory Note had grown $883,860. Id. at ¶ 27. The Brysons maintain that since the beginning of Mack F:s r's relationship with HSDM, all parties had understood "that [his] compensation was to be a salary." Mack Bryson 1ff., i 8. Mack Bryson contends that he "was never told [he] would have to repay any of [the] salary paid to [him]" and "would ,, - e er have entered into an employment relationship with [HSDM] he sole purpose of paying back a loan." Id. at ¶ 7. Further, he asserts that "at the time of [his] hiring[,] there were no discussions concerning what would occur if distributions were not made to the other partners," and it was never contemplated that eHealthscreen, a not-yet-formed company, would oave any avolvement with or benefit from his employment iarioship with HSDM. Id. at 191 9-12. The Brysons allege t'-, at they nevertheless executed the Promissory Note and Security Deed in favor of eHealthscreen under duress and out of fear that 1J39M would otherwise terminate Mack Bryson's employment and iiscn - iooe making payments to him. eHealthscreen's SMF 1, IT lC, l. IV. Refinancing and Subordination Issues in early 2007, the Brysons sought to refinance their loan s e cu red by the first FCB lien on the Property and contacted g lender Resource Mortgage Banking, Ltd. ("Resource"). AO 72\ (Rex. 8 82) 9 eFLalt screen's SNF 2, 191 5 - 6; Pl.'s SMF, ¶ 11. Resource ret ained a local attorney (the "closing attorney") to represent 'ts inter e sts and handle the closing of the refinancing tr sct a. eHealthscreen's SMF 2, 191 6 - 7; Pl.'s SMF, 191 11, l. As an absolute condition precedent to extending funds to e Aysoi s, Resource required that it receive a first-position p ten on the Property. Pl.'s SMF, ¶ 14. An updated t itle abst i~ act listed the following encumbrances in order on i: ity: 1 the first FOB Security Deed recorded in July 2000; te seco ne. FOB Security Deed recorded in September 2006; and tee bealthscreen Security Deed recorded in January 2007. h'al hsren's SMF 2, The a gree ment 191 10-11, 13; Pl.'s SMF, 91 13. losing attorney contacted FOB and obtained an subordinating its second security interest in the Ps orty to Resource's prospective interest. eHealthscreen's f'JF 2, ¶11 9-11. The closing attorney then spoke with H slsceen members Campbell and Hendrix in June 2007, and Campbell made a handwritten note on a paper napkin stating that Aa tsreen would subordinate its interest to the Resource uu faxed the note to the closing attorney. Id. at ¶ 24; P .'s SHE, hr±Hwi 5 ¶91 15, 26-27. While neither party viewed the a note as a final subordination agreement, the closing attorney immediately closed on the refinancing transaction, at which time the Brysons executed a Security Deed granting AO ) 72A (R\. 2) 10 Rsuce an interest in the Property. eHealthscreen's SMF 2, 191 1; P: . 's SMF, 9191 29, 31. Although the closing attorney had planned send a formal subordination agreement to hd1tricreer after the closing, he did not do so until October Jic. eI-Iealthscreen's SMF 2, 191 36, 39; Pl.'s SMF, ¶ 35. eneaitnscreen never signed the formal agreement. Pl.'s SMF, ¶ U V. . eHealthscreen's Attempt to Enforce Its Alleged Rights I-ISDP had continued to make regular payments to Mack Bryson at 1 east December 20, 2007, eHealthscreen's SMF 1, ¶ 28, and t orninared his employment on March 23, 2010, Brysons' SMF, ¶ . Approximately one year later, on March 3, 2011, HPdtthsreen mailed Mack Bryson a demand letter seeking pay-,Tent of the principal balance of $883,860 under the Promissory Note. I-I atohs:ren's SMF 1, 91 29; Brysons' SMF, 91 9. Mack Bryson fused to comply with the demand for payment and denied that I-i iltsreen had any authority to enforce the Promissory Note to foreclose on the Property pursuant to the Security Deed. oh lLthscreen's SMF 1, 91 30; Brysons' SMF, 191 11-12. According to the Brsons, there was no privity of contract between Mack Bryso n and eHealthscreen, and eHealthscreen never provided any consideration, monetary or otherwise, in exchange for the Promissory Note and Security Deed. Brysons' SMF, 191 10-11. On AC 72\ (Rev. 11 Decem-cer 30, 2011, Campbell, Deese, McArthur, and Hendrix dissolved PSDM in the State of Georgia. Id. at ¶ 8. VI. Further Filings in the Property Records In April 2013, an individual claiming to be a servicer for Plaintiff recorded a Missing Assignment Affidavit in the pl-opefty records. Pl.'s SMF, ¶ 42. The affidavit states that Resource has assigned to Plaintiff the Security Deed that the Br 17soos executed in its favor, Id. at ¶ 43, but that "[r]epeated attempts to locate the original assignment or to obtain the replacement assignment have failed," dkt. no. 57-3, p. 3. The affi davit indicates that the assignment "has been lost without recording OL inadvertently not prepared," Pl.'s SMF, ¶ 44, and thus purports to give record notice that an assignment of this interest actually took place, dkt. no. 57-3, p. 3. In October of that year, eHealthscreen, attempting to document the alleged priority of its lien, filed an Affidavit as to Facts Affecting Title to Land asserting that it had not subordinated its interest in the Brysons' Property to another lienholder. Pl.'s SIPF, ¶1 39, 43; Dkt. No. 93, Ex. J. VII. Plaintiff's Filing of Suit Plaintiff filed suit against eHealthscreen and the Brysons in this Court on August 12, 2013, naming the Brysons as Defendants only to the extent that Plaintiff's claims for relief st eHealthscreen may affect their ownership interest in the 12 72A (Rex. 8 0) I Property. Dkt. No. 1, ¶ 8. In count one of the Complaint, Plaintiff seeks a declaratory judgment that its security interest in the Brysons' Property takes priority over that of Fealthscreen. Id. at 191 37-47. Plaintiff's counts two through four claim damages for breach of contract, promissory estoppel, and fraud, respectively, based on eHealthscreen's alleged :reement to subordinate its interest and subsequent refusal to so. Id. at 191 48-65. In count five of the Complaint, Plaintiff requests an equitable subordination of eHealthscreen's interest, so as to move Plaintiff to first priority lienholder on the Property. Id. at ¶91 66-73. Finally, in count five, Plaintiff seeks to hold eHealthscreen liable for its attorney's te-es and litigation costs pursuant to O.C.G.A. § 13-6-11. Id. at ¶ 74. VIII. Pending Motions On November 15, 2013, the Brysons filed an Answer to Plaintiff's Complaint, as well as a Cross-Complaint against Healthscreen. Dkt. No. 11. Count one of the Brysons' CrossComplaint requests a declaratory judgment finding that the Promissory Note between Mack Bryson and eHealthscreen is invalid and unenforceable due to lack of consideration, and that eHealthscreen thus has no authority to foreclose on the Property under the related Security Deed. Id. at pp. 15-16. Count two • nr1iminr\T 2 interlocutor- and 13 \() 72 (Rc\. S 52) I nrnnnt iniinctinn.q aaJnst ehealthscreen's foreclosure on the Property, and count ae claims entitlement to attorney's fees and costs under 13-6-11. Id. at pp. 16-17. eciaitnscreen filed an Answer and various counterclaims in - sp rise LO the Brysons' crossclaims on December 6, 2013. Dkt. No. Is. Iri addition to finding the Promissory Note and Security DI valid, eHealthscreen asks that the Court hold Mack Bryson i_c for breach of the Promissory Note, in the amount of principal and interest due thereunder. Id. at pp. - 7-8. H r_thscseen also seeks the entry of a special lien on the Property and payment of its attorney's fees and costs in litigating the crossclaims and counterclaims. Id. at p. 8. The Prpsoos tiled an Answer to eHealthscreen's counterclaims raising the affirmative defense of lack of consideration on December 24, '013 . JIct. No. 20. On August 26, 2014, eHealthscreen filed the instant Motion for Summary Judgment in its favor on the Brysons' crossclaims. EIc. ci . 55-1. eHealthscreen's Motion also requests partial judgment on its counterclaim against Mack Bryson for breach of the Promissory Note, specifically moving for summary ruirios in its favor on the issues of liability and amount of principal but leaving the issue of interest, in addition to its ri counterclaim for attorney's fees, for resolution upon the entry of e fHJdI judgment in this case. Id. at p. 2. The Brysons A0 ) 72A (Rev. 882) 14 r sccu nd e d in opposition to eHealthscreen's Motion, dkt. no. 71, ~ drO, o n August 27, 2014, made their Motion for Partial Summary 1jrrot on Crossclaims and Counterclaims, dkt. no. 59. The Brysons mov e for a summary ruling on the issue of the validity o f the Promissory Note but do not address their crossclaims for injunctive relief and attorney's fees. Dkt. No. 59. eealthscreen also filed its Motion for Summary Judgment on all = Plaintiff's claims on August 26, 2014. Dkt. No. 57-1. Pl aintiff submitted a response to this Motion, dkt. no. 77, and made 4 ts 'lotion for Partial Summary Judgment on its promissory soppl and equitable subrogation claims on September 2, 2014, 65-1. IX. Plaintiff's Submissions Regarding Its Interest in the Property In support of its briefing on these motions, Plaintiff has roo se v eral documents that were produced to the other parties during the discovery period, or that were obtained by its co uns(, 1 luring the briefing period and disclosed at that time. - See 1st. No. 63-2; Dkt. No. 77, Ex. B; Dkt. No. 91; Dkt. No. 93, E -,- s. 5 B, P I. - S p e cifically, Plaintiff has submitted a copy of its Answers to elalthscreen's discovery interrogatories, which are dated L1&- P 24, 2014, and which were verified under oath as true by Chin, an authorized signatory of Port Asset 15 AO ) 72A (Rex. 8 0) I Jrr2ostrator LLC, Plaintiff's affiliate. Dkt. No. 63-2, p. 13. in response resQonse to eHealthscreen's interrogatory regarding any consideration that Plaintiff paid to Resource in exchange for s ILeqel interest in the Property, Plaintiff stated the f 1 w: No consideration was given by [Plaintiff] to Resource Plaintiff presumes consideration was given by the secondary market purchaser (who is unknown to . . Plaintiff presumes Plaintiff) to Resource . consideration was given by Thornburg Mortgage Seurities Trust 2007-5 to this secondary market purchaser (unknown to Plaintiff) or one of possibly multiple subsequent secondary market purchasers in the chain of ownership interest (all of which are unknown Plaintiff up to Thornburg Mortgage Securities Trust 2007-5). FOOF UB Securities LLC & FCOF UST REO LLC paid, approximately $17 million to the Thornburg 11 rtoe Securities Trust 2007-5 securitization trustee for 25 mortgage loans, including the subject rrrtgage loan. FOOF UB Securities LLO deposited mortgage loans, including the subject mortgage loan, 'to a trust that it owned 100% of, FCOF TMST Trust. In connection with a financing, FCOF US Securities LLC conveyed ownership of FOOF TMST Trust (including all ot irs assets, which, in turn, included the subject mortgageloan), to its affiliate FOOF PWL LLC. In _fl11, in connection with [Plaintiff's] securitization, FOF TMST Trust distributed mortgage loans, including he subject mortgage loan, to its parent FCOF PWL LLC FCO F PVJL LLC sold mortgage loans, including the subject mortgage loan, for cash to FORT Asset Funding m")ll-i LLC, the securitization depositor. FORT Asset Funding 2011-1 LLC, in turn, deposited mortgage loans, including the subject mortgage loan, to [Plaintiff] "u. at pp. 7-8. Plaintiff has also filed under seal the Sale and Administration Agreement between FCOF PWL LLC, FORT Asset Fund \() 2\ (Rc\. 80 2011-1 LLC ("FORT Asset Funding"), and Plaintiff. Dkt. 16 No. lx. B. As described in Plaintiff's interrogatory response, the Sale and Administration Agreement reflects that i s signatories agreed on October 31, 2011, that FCOF PWL LLC and other a hers would transfer certain mortgage loans to FORT Asset Funding, and that Fort Asset Funding would sell the same airinaff. Id. at Ex. B, p. 13. The agreement contemplates e sal e, transfer, assignment, and conveyance of the mortgage loans listed, on the Mortgage Loan Schedule attached as Exhibit here ; however, Plaintiff has not included the Mortgage un Schedule with the copy of the agreement filed in this case. Ii. at En. B, pp. 31-33, 69. Plaintiff has also produced the original promissory note and a certified true copy of the Security Deed executed by the Bsns is favor of Resource in June 2007. Dkt. No. 93, Exs. G, I. -Alonq with these documents is an original allonge to the note simultaneously executed by Resource's owner and President a ha' ftme, Michael A. covino ("covino") . Id. at Ex. H. The allonge iescribes the Property, the principal balance due on the rat, and the parties thereto, but Covino intentionally left ask the field entitled, "pay to the order of." Id. Additionally, Plaintiff has submitted a copy of a Corporation Assignment of Deed of Trust that Covino executed approximately one week later in the presence of a notary and arother witness. Id. at Ex. B. The corporation Assignment of AO 7 2A (Rc. 17 'D'eed of Trust purports to grant, assign, and transfer Resource's interest in the Property under the Security Deed, but, like the oil oqe, leaves blank the space for identifying the assignee. I. Covino has since explained that the assignment "was eitd in blank with the understanding that at some point[,] FCLC would fill it in that was in custody of it and in custody of the note." Dkt. No. 91-1 (Deposition of Covino, hoiFattr "0avino Dep."), 42:9-12. ioh, Plaintiff has filed the original Corporation ssonrrnt of Deed of Trust that Covino executed but that 0Th tlff's counsel thereafter "completed" by filling in Plaintiff's name as assignee during Covino's deposition on Feb-uary 12, 2015. Dkt. No. 93, p. 2 & Ex. A. Plaintiff states its counsel did so "[a]t [its] instruction . . . , and with r no objection by . . . Covino, . . . to document the transfer from Resource to Plaintiff in preparation for filing it in the Camden County property records prior to foreclosure." Id. at p. L. Covino testified that he had no objection to Plaintiff's counsel writing Plaintiff's name and address in the blank space ended for the assignee. Covino Dep., 30:17-22, 32:23-33:9. ovino nevertheless testified that Resource had ceased all ope-cations in early 2008, and that he had resigned his position as President and sought to dissolve the entity at that time. It. o AO 72A (Rex. 8 0) : R 8:12. When informed at his deposition that Resource 18 remains registered as a corporation in the State of New York, Covino recognized that he "apparently" still holds the position of sole owner. Id. at 8:7-12, 28:10-14. Even so, Covino insisted that he no longer has authority to act on behalf of Resource. Id. at 8:5-18 ("Q: Are you still [P]resident of s)uLce? A: No, I resigned my position ......Q: Do you still have capacity to act on behalf of Resource? A: No."); see also id. at 28:4-14, 33:18-21. X. eHealthscreen's Notice to the Court On June 10, 2015, eHealthscreen filed a Notice to inform The Court that the Supreme Court of Georgia had granted writ of urtiorari in the case of Ames v. JP Morgan Chase Bank, N.A., C A14A2131 (Ga. Ct. App. Feb. 27, 2015), cert. granted, No. S15G1007 (2015), and would likely take up the issue of standing to challenge the validity of an assignment of a security deed. Tht. No. 101-1. This Court issued an Order directing the parties to submit briefing regarding the impact, if any, that the Ames decision might have on the disputed issues in this case. Dkt. No. 104. Plaintiff thereafter filed a brief distinguishing the standing issue in Ames from the issues here and urging the Court not to delay deciding the instant motions pending an outcome in that case. Dkt. No. 105. By contrast, eHealthscreen and the Brysons characterize the Ames decision as potentially relevant to eHealthscreen's ability to challenge 19 \ fl 72A 2) Plaintiff's interest in the Property, see dkt. nos. 107-08, and the Br,sns specifically request that the Court withhold a ruling in this case pending that decision, dkt. no. 108, p. 1. STANDARD OF REVIEW Summary judgment is required where "the movant shows that there is no genuine dispute as to any material fact and the mov ant is entitled to judgment as a matter of law." Fed. R. P. 56(a). A fact is "material" if it "might affect the o --- tcome of the suit under the governing law." FindWhat Inv'r Grp.. FindWhat.com , 658 F.3d 1282, 1307 (11th Cir. 2011) jum ing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 '19`6)'. A dispute over such a fact is "genuine" if the " e vidence is such that a reasonable jury could return a verdict s the nonmoving party." Id. In making this determination, the urt is to view all of the evidence in the light most favorable to the nonmoving party and draw all reasonable i.ctrnces in that party's favor. Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F3d 501, 507 (11th Cir. 2000). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Ceotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) . To satisfy this burden, the movant must show the court that there is an absence of evidence to support the nonmoving party's case. 20 AO 72A (Rex. 8 82) I Id. at 35. If the moving party discharges this burden, the u'rha shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of Lact does exist. Anderson, 477 U.S. at 257. The noernovant may satisfy this burden in two ways: First, the nonrrova t "may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict r tI , which was 'overlooked or ignored' by the moving party, who has thus failed to meet the initial burden of showing an bsece of evidence." Fitzpatrick v. City of Atlanta, 2 F.3d d (11th Cir. 1993) (quoting Celotex Corp., 477 U.S. at 3- Brennan, J., dissenting)). Second, the nonmovant "may come 7 tofward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged IJcsiart deficiency." Id. at 1117. Where the nonmovant t atterr,pts to carry this burden instead with nothing more "than a fepettion of his conclusional allegations, summary judgment for h- defendants [is] not only proper but required." Morris v. Rs, 663 F.2d 1032, 1033-34 (11th Cir. 1981) (citing Fed. R. • 16(e)). 21 AO 72A (Rex. 8 82) U I DISCUSSION I. eHealthscreen's and the Brysons' Cross-Motions on the Crossclaims and Counterclaims (Dkt. Nos. 55, 59) efcacthscreen maintains that it is entitled to judgment as d rrder of law on the Brysons' crossclaims, as well as the portions or its counterclaims pertaining to Mack Bryson's 1r1ty and the amount of principal due on the Promissory Dkt. No. 55-1. eHealthscreen argues that the Promissory U c- is did and enforceable, because it is signed by Mack Bryson, and the Brysons fail to prove their affirmative defense of of consideration. Id. at pp. 9-10. According to i-Jocits screen, the Promissory Note was supported by both past J future consideration-namely, HSDM's payments to and on behalf or Mack Bryson prior to the time of signing and its crom -'se to continue their relationship and make subsequent payments to him. Id. at pp. 10-11. eHealthscreen notes that although HSDM furnished the consideration for the Promissory Noce, eHealthscreen may sustain an action as promisee and thirda y beneficiary of the note. Id. at pp. 11-14. eHealthscreen thus requests that the Court find Mack Bryson liable for the amount of principal currently owed under the note. Id. at pp. 17-19. 1°c Brysons contend that summary judgment is warranted in their favor on the issue of the Promissory Note's validity as it 72A (Rc\. 8 82) 22 certns to both their crossclaims and eHealthscreen's nrrc aims. Dkt. No. 59. The Brysons assert that the PromIssory Pate is invalid for lack of consideration, because LP's past payments to Mack Bryson were a salary, not a loan, I their existing employment agreement already ensured their tioeJ relationship and future payments. Dkt. No. 71, pp . Poacher, the Brysons emphasize that eHealthscreen never errpoved or made payments to Mack Bryson, and that HSDM and Mack Bryson could not have intended eHealthscreen to be a third-party beneficiary of their employment agreement because it was not in existence when they entered into the contract. Dkt. No. 59, pp. C. Pci is eHealthscreen a third-party beneficiary under the r css ry Note, the Brysons argue, because it cannot be both a promisee, and thus a party, to the contract, in addition to a third-party beneficiary thereof. Dkt. No. 83, pp. 6-7. Is an action on a promissory note under Georgia law, "a ieinan cay establish a prima facie right to judgment as a matter of law by producing the promissory note and showing that s aeuted." Gentile v. Bower, 477 S.E.2d 130, 133 (Ga. Apo. 1996) (citing Jay Gleason Advert. Serv., Inc. v. su S.E.2d 43 (Ga. Ct. App. 1989)). Where a claimant ds in demonstrating that a note is prima facie valid, the burden shifts to the obligor to establish an affirmative defense of scement. Id. (citing Kelly v. AO ) 72A (R\. 23 Pierce Roofing Co., 469 S.E.2d 469 (Ga. Ct. App. 1996)). Fai ure of consideration is an affirmative defense, and, if proven, :he burden shifts back to Lh= claimant to show the nonexistence of any genuine issue of as to the affirmative defense. a d. (citing O.C.G.A. § 9- fl_ in the case at bar, eHealthscreen demonstrates a prima ta right to judgment by producing a copy of the Promissory Note executed by Mack Bryson in its favor on November 27, 2006. See JDkt. No. 54-2, pp. 1-2; eHealthscreen's SMF 1, 191 17-18; 5rs rs' SMF, ¶ 6. While the Brysons raise the affirmative def ense of lack of consideration, dkt. no. 71, pp. 3-11, their argument in this regard lacks merit. As eHealthscreen shows, the record contains sufficient evidence that HSDM furnished aeration to support the agreement set forth in the Promissory Note. The consideration necessary for a valid promissory note is ho hich is "sufficient to support a simple contract." § 11-3-303(b). "IC]onsideration is valid if any oflt accrues to him who makes the promise, or any injury to him rv receives the promise." Edgar v. Edgar Casket Co., 187 .E.io 925, 926 (Ga. Ct. App. 1972) . The fact that consideration flows from a person other than the promisee, as in is cose, does not affect the promisee's right to enforce the pr cse. Id. at 927 ("Where A. makes a promise to B., and the 24 AO 72 2) I consideration therefor is furnished by C., the promisee, B., may maintain suit thereon." (quoting Hawkins v. Cent. of Ga. Ry. ., 46 S.F. 82, 85 (Ga. 1903))) . Consideration may consist of "a promise of performance, to the extent the promise has been performed." See O.C.G.A. § 11D-3U3(a) (1). Although an agreement may lack consideration when ifade because the promisee is not bound to comply, "it becomes binding when he subsequently furnishes the consideration contemplated by doing what he was expected to do." Breed v. Nat'l Credit Ass'n, 88 S.E.2d 15, 18 (Ga. 1955) (quoting Brown Bowman, 46 S.F. 410 (Ga. 1903)). accomplishes [I]f the promisee the object contemplated, then the promise is It somewhat misses the mark to focus on whether eHealthscreen, as cavee on the Promissory Note, could also be a third-party beneficiary r he same. In a third-party beneficiary situation, "[t]here must be f promise by the promisor to the promisee to render some performance to a third person[,] and it must appear that both the promisor and the promisee intended that the third person should be the beneficiary." Rowe v. Akin & Flanders, Inc., 525 S.E.2d 123, 125 (Ga. Ct. App. 1999) second alteration in original) (quoting Se. Grading v. City of Atlanta, 324 S.E.2d 776 (Ga. Ct. App. 1984)) . As Mack Bryson issued the note promising to pay a specified amount to eHealthscreen, see no. 54-2, pp. 1-2, eHealthscreen became both the payee and oromisee under the note. While HSDM members negotiated the execution of the Promissory Note, there is no dispute that eHealthscreen took delivery of the note and attempted to exercise the right to payment hereunder, see eHealthscreen's SMF 1, 91 10, 15-16, 29; Brysons' SMF, T 9. See O.C.G.A. § 11-3-105(a) ("'Issue' means the first delivery of a instrument by the maker or drawer, whether to a holder or nonholder, for the purpose of giving rights on the instrument to any person."); Jones v. Phillips, 513 S.E.2d 241, 242-43 (Ga. Ct. App. 1999) (issuance, or delivery, of a promissory note is a prerequisite to enforceability, and production of the note entitles a holder to ecover, absent a defense thereto) . eHealthscreen is thus a party to Promissory Note, not a third-party beneficiary thereof, and may t_- en - orce Mack Bryson's obligations under the same. , 25 72A (Rex. S 82) I rendered valid and binding." Id. (quoting Hall v. Wingate, 126 S.F. 796, 307 (Ga. 1924)) in return for his promise to pay eHealthscreen a specified amount, PSEM agreed to continue its relationship with Mack Bryson and to make further payments to him. See eHealthscreen's SMF 1, ¶i 10, 15-16. The Brysons argue that this agreement nr1u led no undertaking beyond the obligations that HSDM had assumed at the outset of their employment relationship. See Dk . 71, pp. 3-11. However, as reflected in the May 6, 05, l etter, HSDM and Mack Bryson had neither defined a fixed term for their relationship nor contemplated any right to payrrerroutside of that relationship. See Dkt. No. 55, Ex. A. re suit, HSDM was not obligated to continue the relationship and payments and could have terminated Mack Bryson and ceased taratser payments at anytime. Voyles v. Sasser, 472 S.E.2d 80, 81 Se, Sr. App. 1996) (agreement for indefinite term was L-aminable at either party's will (citing Morris v. Park Newspapers of Ga., Inc., 255 S.E.2d 131 (Ga. Ct. App. 1979))). Endeed, it is undisputed that Mack Bryson signed the note in November 2006 out of fear that HSDM would do precisely just that. Se eHealthscreen's SME 1, ¶91 10, 17-18. When HSDM awed through with its agreement to continue to employ Mack Bryson and pay additional amounts to him, id. at ¶91 20-26, the promise became binding, and the Promissory Note was then 26 AO ) 72 2) I scoortect oy sufficient consideration. See Breed, 88 S.E.2d at ic(employer's promise of continued employment sufficient rsiieracon for existing employee's noncompetition agreement nere emp -loyee was terminable at will); cf. Glisson v. Glob. S-. Srvs., LLC, 653 S.E.2d 85, 87 & n.8 (Ga. Ct. App. 2007) p rris of continued employment did not constitute consideration for noncompetition agreement where employer was already contractually obligated to retain employee for term of yea.- S,, - . That Mack Bryson alleges to have signed the Promissory Note u:r Hiress and out of fear of termination, see eHealthscreen's SMF 1, ¶5 10, 17-18, does not change this result. Notably, the Brs us did not raise duress as a defense to eHealthscreen' s rtercaims, see dkt. no. 20. See Gouldstone v. Life Inv'rs Ins. Co. of Am., 514 S.E.2d 54, 56 (Ga. ct. App. 1999) (duress is ofriumative defense) . Even if the Brysons had properly asserted this defense, their argument would fail, because there is no evidence suggesting that HSDM made any threats of physical harm that effectively deprived Mack Bryson of his free ci . See Miller v. Calhoun/Johnson Co., 497 S.E.2d 397, 399 G. St. App. 1998) ("'Duress which will avoid a contract must ± the ?uysons point out that HSDM's commitment to Mack Bryson was not explicitly stated in the Promissory Note, dkt. no. 83, p. 7, it need t have been to constitute valid consideration, See Riddick w. Evans, 274 S.E.2d 40, 41 (Ga. Ct. App. 1980) ("A recitation of consideration in the instrument is not essential to recovery.") 27 AO 725 (Rex. I consist of threats of bodily or other harm, or other means amounti ,na to coercion, or tending to coerce the will of another, and actcsiiv inducing him to do an act contrary to his free . . . One may 'not void a contract on grounds of duress rr because he entered into it with reluctance, the contract is very disadvantageous to him, the bargaining power of the parties was unequal or there was some unfairness in the nego tiations preceding the agreement'" (quoting Tidwell v. rt:, 282 S.E.2d 104 (Ga. 1981))). Thus, the undisputed facts show that HSDM's agreement to continue its relationship with and payments to Mack Bryson ci r10 - d adequate consideration for his promise to pay Ithscreen the stipulated amount. The Court need not consider whether HSDM's past payments to Mack Bryson constituted u0itional consideration in support of the Promissory Note. As s -_ifficfent consideration was exchanged, the Promissory Note is a1id and enforceable by eHealthscreen, and Mack Bryson is 1itob1 for any payments due thereunder. As to the amount of Mack Bryson's liability, the undisputed record fats support a finding that Mack Bryson owes eHeealthscreen a principal balance of $883,860. At the time of signing the Promissory Note, Mack Bryson agreed to pay Haic2soreeri "the principal sum of . . . $557,581 . . . plus .such -Further sums . . . as listed or to be listed on the AO 72A (Re. 0) 28 SIedoie of Loans and Payments attached hereto, together with terst on such principal sums." Dkt. No. 54-2, p. 1. It is undisputed that HSDM made regular payments to Mack Bryson until at least December 20, 2007, and the Schedule of Loans and Payments reflects that the principal balance as of that date was eHealthscreen's SMF 1, 191 27-28. While Mack Bryson never initialed the final two entries on the schedule, dkt. no. 54-2, p. 5, he does not dispute his re-ceipt of these payments or the accuracy with which they were roe <ici on the Schedule of Loans and Payments, see I-IeslLthscroen's SMF 1, ¶91 25-27. Notably, the Brysons' briefing on the instant motions focuses only on Mack Bryson's liability on he note and does not attempt to challenge eHealthscreen's representations as to the amount of such liability. See Dkt. 005. 59, 71, 83. Because there is no genuine dispute as to the principal balance owed pursuant to the terms of the Promissory Note, eHealthscreen is entitled to judgment as a matter of law on its counterclaim for $883,860 in principal. el-lea thscreen's Motion for summary judgment on the Brysons' crossclaims and partial summary judgment on its counterclaims is thus GRANTED. The Brysons' Motion for Partial Summary Judgment on A() 72& (Rc\. the crossclaims and counterclaims is DENIED in its entirety. 29 I- II, Plaintiff's and eHealthscreen's Cross-Motions on Plaintiff's Claims (Dkt. Nos. 57, 65) eoeaithscreen moves for summary judgment in its favor on a1 f flaintiff's claims, arguing, in part, that Plaintiff has t proven that it has any rights under the Security Deed that the Brysons granted to Resource. Dkt. No. 57-1, pp. 11-14. Specifically, eHealthscreen argues that the Missing Assignment yfliid -'t filed in the property records does not meet the statutory requirements to create a presumption that an a ssignment of that deed to Plaintiff ever occurred. Id. Even if Plaintiff had proven its rights as assignee of that deed, Fpalthscreen asserts that Plaintiff's bases for alleging priority and entitlement to damages-namely, breach of contract, promissory estoppel, fraud, and equitable subrogration-lack rr ri. Id. at pp. 14-32. eHealthscreen further contends that F any event, Plaintiff is not entitled to an award of attorney's fees, because a bona fide controversy exists between eh. parties. Id. at pp. 32-33. Plaintiff counters that eHealthscreen, as a stranger to the alleged assignment between Resource and Plaintiff, has no SLdFii a to challenge the validity of the same. Dkt. No. 65-1, pp. 11 II.. Even so, Plaintiff goes on to argue that its possession of the following documents, which its counsel obtained and produced during the briefing period for these 30 A() 7FA (Re. I motions, renders eHealthscreen's argument concerning the Missing Assignment Affidavit moot and proves that Plaintiff is the proper assignee of the Resource Security Deed: (1) the original Promissory note and allonge, as well as the certified true copy the Security Deed, executed by the Brysons in favor of Resource; (2) a copy of the corporation Assignment of Deed of Trust executed in blank by covino on behalf of Resource; and (3) the original corporation Assignment of Deed of Trust that Plaintiff's counsel filled in with Plaintiff's name, at ILaintiff's direction and without any objection by covino, during this litigation. Dkt. No. 93, pp. 1-5. Although Plaintiff contends that its holding of these documents obviates further proof of its interest in the Property, Plaintiff nevertheless argues that it demonstrates the chain of consideration paid for the note and custody of the blank assignment, through its verified Answers to interrogatories discussing the Resource-Thornburg transfer and the subsequent rrisfers leading up to Plaintiff and its filing of the Sale and Administration Agreement between FCOF PWL LLC, FORT Asset Funding, and Plaintiff. Id. at pp. 3-4. Additionally, Plaintiff claims that it is entitled to judgment as a matter of iavi on its claims of promissory estoppel and equitable subrogation. Dkt. No. 65-1, pp. 14-28. \072A (Rc. 8 82) 31 A. eHealthscreen's Standing to Challenge Plaintiff's Interest in the Property As a general matter, one who is not a party to an assignment o f a security deed lacks standing to challenge its A ty under Georgia law. See Breus v. NcGriff, 413 S.E.2d -n, nH Au Ga. Ct. App. 1991); see also McKinley v. Fed. Home rtg. Corp., No. CV 212-124, 2013 WL 4501327, at *3 (S.D. tu. 22, 2013) (concluding that the plaintiff was a stranger to the assignment of a security deed to the defendant and thus lacked standing to challenge it); Bandele v. Deutsche Bank Nat'S Tr-.--.Co., Co. 1:11CV4257TWT, 2012 WL 1004990, at *2 (N.D. Ga. Mar. 2 2, 2012) (same). Courts have applied this principle to preclude a debtor-plaintiff from affirmatively seeking to set ssicA' a foreclosure or obtain other relief from a creditorA indant based on the alleged invalidity of an assignment to S ee, e.g., McKinley, 2013 WL 4501327, at *3; McFarland v. EA Home Loans Servicing, LP, No. 1:11CV04061RWS, 2012 WL 2205566, at *3 (N.D. Ga. June 14, 2012) . In other cases, courts e found that this rule prevents a debtor-defendant who nravously treated a creditor-plaintiff's assignment as valid from later attempting to raise invalidity of the assignment as an affirmative defense. See Sutton v. Bank of Am., N.A., No. -A- 9 765-P, 2012 WL 2394533, at *5 (N.D. Ga. Apr. 11, In •Breus, the] debtor was estopped from disclaiming 32 AO 72\ 2) I h- assignee's rights under assignment after treating [the] assignee as having properly acquired the indebtedness." (citing Brus, 413 3E.2d at 539-40)); see also Merchant's Grocery Co. v. Shawnee Mill Co., 72 S.E.2d 797, 800 (Ga. Ct. App. 1952) 'finding that the defendant was estopped from challenging the plaintiff's standing to sue for breach of contract because it ? dealt- the plaintiff as it had with the assignor of the utract raver, at least one other district court in Georgia has conC -_, deJ that this principle does not apply where a party challenges an assignment as a defense, rather than a basis for affirmal-i7e relief, and the party has not previously treated the ars JiuTLefit as valid. See LSREF2 Baron, LLC v. Alexander SRP 'uTrtrrLents, IJLC, 17 F. Supp. 3d 1289, 1306 (N.D. Ga. 2014). The o rt in that case reasoned that "[i]t is [the plaintiff] who has the burden of proving its case, and as one seeking to V Ii [an assignment], [the plaintiff] has the burden of es - ablishing that it has the legal authority to do so." Id. 1- This r as cuing is consistent with the requirement in Georgia t'-.at a Plaintiff purporting to be an assignee of a contract-and thus the real party in interest with the right to sue to enforce the same -must prove that the assignment actually took place in order proceed with its claim. See, e.g., Hutto v. CACV of Colo., LL, 707 S.E.2d 872, 874-75 (Ga. Ct. App. 2011); Green v. \() 725 (Rn. L 2) 33 Cavalry Portfolio Servs., LLC, 700 S.E.2d 741, 741-42 (Ga. Ct. 1011); Wirth v. Cach, LLC, 685 S.E.2d 433, 434-36 (Ga. Ct. App. L09 The rule limiting standing to challenge an assignment of a security deed has no application in this case. Plaintiff alleges that its right.to sue to determine the priority of the hers on the Brysons' Property derives from its status as assignee of the Resource Security Deed. See Pl.'s SMF, 9191 61Halthscreen challenges the alleged assignment as a defense to this action, not as a ground for obtaining affirmative relief from Plaintiff. Notably, nothing in the record suggests that eHealthscreen had any interaction with Plaintiff prior to this litigation, much less treated Plaintiff as the proper assignee of the Resource Security Deed. As a sut, it appears that eHealthscreen has standing to raise the of whether Plaintiff meets its burden of proving that it s tne rai party in interest with a right to sue on the 1r1 p The Georgia Supreme Court's decision to grant certiorari in Peas, No. A14A2131, does not disrupt this conclusion. In Ames, the debtor - plaintiffs filed suit to halt the defendant's attempts to foreclose on their property, claiming that their mortgage nder invalidly assigned the security deed executed in its favor to the defendant. See No. A14A2131. The issue V) 72A (Re. 8 $2) 34 prenrd to the Georgia Supreme Court on appeal is whether the _ ~Leo raia Court of Appeals erred in holding that the debtor- elix- tfts lack standing to challenge the validity of the ass i gnment of the security deed to the defendant. See id. Significantly, nothing suggests that the Court will take up tao ve ry different question of whether a lienholder-defendant has nt1ng to challenge the existence of an assignment where the r a -G - tiffclaims to be the assignee of a security deed and brings suit to determine the priority of their respective rrirss. The Court, therefore, finds no basis upon which to conc' u ,de that the Ames decision will impact eHealthscreen's Ity to question Plaintiff's interest in defending against c _s orlority action. 6 B. Plaintiff's Proof of the Alleged Assignment I n Georgia, "a security deed which includes the power of sale the is s contract[,] and its provisions are controlling as to ghs of the parties thereto and their privies." T 'ts mry l V. Bank of Am., 740 S.E.2d 434, 436-37 (Ga. Ct. App. alteration in original). "[A]n action on a contract s h all he brought in the name of the party in whom the legal iies in the contract is vested." Hutto, 707 S.E.2d at 874 To the extent that the Brysons' briefing on Ames suggests that this ca se should he stayed pending the Georgia Supreme Court's decision, see okt no, 108, p. 1, such a request is not properly before the r, se Fed. R. Civ. P. 7(b) (1) ("A request for a court order must be uiade iy motion.") and, even if it were, would be due to be denied S reasons discussed here. 35 '\() 72\ (Rex. 8 82) I I aleeraciori in original) (quoting O.C.G.A. § 9-2-20(a)). "A c sty may assign to another a contractual right . including the right to sue to enforce the right," id. (quoting 5i8, 685 t S.E.2d at 433); however, an assignee suing to enforce right must put forth evidence "showing that [it] received a a a1id assignment of contract rights making it the real party in interest to sue on the contract," Green, 700 S.E.2d at 742 'CiSg Wirth, Lu's Corp. v. Haskins, 405 S.E.2d 474 (Ga. 1991), and 685 S.E.2d at 433). Relevant to the assignee-plaintiff's burden is that "an assignment must be in writing" and "must identify the assignor and assignee" for the contractual right to be enforceable by the ss sae. Hutto, 707 S.E.2d at 874 (quoting Wirth, 685 S.E.2d at 433) . With the respect to the transfer of a security deed in pa icular, the writing must also "be signed by the grantee, or t the deed has been previously transferred, by the last r sferee, and shall be witnessed as required for deeds." 1-lapies v. MoCalla Raymer, LLC, No. 1:11-CV-3149-TWT, 2014 WL 493, at *10 (N.D. Ga. Aug. 7, 2014) (citing O.C.G.A. § 4414 64; I n re Cummings, 173 B.R. 959, 962 (Bankr. N.D. Ga. 1994); Real Estate Law & Procedure § 21-45 (6th ed. 2011) ; and . § 1-15 (noting that a security deed must meet all of the 4uis rsents applicable to deeds generally, including that it cuss name the grantor and grantee, include words of conveyance 36 AO 72A (Rex. I or grant, sufficiently describe the property conveyed, be properly executed and attested, and be delivered)) . Where, as here, there have been multiple transfers of a contractual right, tiere cannot be any 'break in the chain of written assignments necessary to establish that [the assignee is] the real party in terest to bring the suit on the contract." Green, 700 S.E.2d at 7 42 (citing Wirth 685 S.E.2d at 433) 1. Documents Executed by the Brysons and Resource in 2007 llaintiff's production of the original promissory note signed by the Brysons in favor of Resource, as well as the original allonge to the note executed in blank by Covino, see 1k. no. 93, exs. G-H, is insufficient to prove that Plaintiff ever received a valid assignment of Resource's security interest in the BLysons' real property. Rights pursuant to a promissory note are distinguishable from those under a security deed. See You v. JP Morgan Chase Bank, 743 S.E.2d 428, 432-33 (Ga. 2013) ("It is true that a promissory note is a negotiable instrument subject to Article 3 of the UCC. It is also true that Article 3 provides generally that only the holder of an instrument is entitled to enforce the instrument. However, it is equally true rat, here, [the assignee] does not seek to enforce the note but satnei is enforcing its rights under the security deed, which is not a negotiable instrument and is therefore not governed by 37 AO 72 A 2) i-udicie 3. (citations omitted) (citing O.C.G.A. §§ 11 - 3 - 104, 11Plaintiff's possession of the note and allonge-even if Pl a'Intiff could prove a valid assignment of the same-does not s --- Qgest in any way that Plaintiff ever obtained rights to the Property pursuant to the related Security Deed. dcr does Plaintiff's holding of a certified true copy of t'I_Ie Seurity Deed signed by the Brysons in favor of Resource suffice. See Dkt. No. 93, Ex. I. Georgia law is clear that ny ssster of a security deed must be in writing and meet certain requirements to be valid. See O.c.G.A. § 44-14-64. Possession ft a certified true copy of the original Security Deed falls short of demonstrating that any subsequent, valid assignment of ts teen to Plaintiff ever took place. 2. Corporation Assignment of Deed of Trust Plaintiff's evidence of a copy of the Corporation As s "gnme-It of Deed of Trust executed by Covino in blank, see 4:t. no. ft, ax. B, is insufficient to demonstrate any assignment ot the Resource Security Deed to Plaintiff. An 2ssioni-rent of a security deed must identify the grantee, see Ha y n e s, 2014 it 3908433, at *10, and, therefore, a security deed assigned in blank is invalid, see Bald Mountain Park, Ltd. v. ii -\,T, 863 F.2d 1560, 1562 (11th Cir. 1989); Etheridge v. Boroughs, 74 S.E.2d 873, 875 (Ga. 1953) . Additionally, a valid - nsto or a security deed must be signed by the grantee or the 38 A() 72\ mv. I I sat transferee. See Haynes, 2014 WL 3908433, at *10. Here, he Corporation Assignment of Deed of Trust executed by Covino purports to transfer a security interest to an unidentified pasty and is not signed by Plaintiff, the alleged grantee, or FORT Asset Funding, the last alleged transferee preceding cthrtiff. See Dkt. No. 93, Ex. B. The assignment, therefore, is incomplete and ineffective to transfer any interest as a matter of law. Plaintiff's attempt to have its counsel "complete" the igiral Corporation Assignment of Deed of Trust to reflect a transfer to Plaintiff, see id. at ex. A, does not cure the fioiies in this evidence. "It is settled law that a deed rs1cnnsd as blank cannot be completed without authorization from the grantor." Bald Mountain Park, Ltd., 863 F.2d at 1562 (citing Etheridge, 74 S.E.2d at 873) . While Covino denied having any objection to Plaintiff's counsel filling in the prdtion Assignment of Deed of Trust at his deposition, he iIs sifeo that Resource is now defunct; that he has resigned o7 :1 his position as President; and that he no longer has authority to act on its behalf. See Covino Dep., 7:18-8:12, , 3:23-33:9. Under these circumstances, no reasonable uror mold find that Covino's opinion was representative of t5a of Resource as an entity and thus constituted authorization by A0 ) 72A (RCN. 2) grantor to complete the assignment. Even if it did, the 29 ass i g n ment would still fail to contain the signature of FORT Asset Funding, the last alleged transferee of the security interest prior to Plaintiff. 3. Chain of Consideration Pl aintiff's submissions regarding the chain of conside ration paid for the Resource note and Security Deed also fal ls sho rt of showing any valid assignment of the Security Deed Plaintiff. An assignee proves a valid assignment of rights b y showing that there is no "break in the chain of written oets necessary to establish that [it is] the real party in int e rest." ~ Virth 685 Green, 700 S.E.2d at 742 (emphasis added) (citing S.E.2d at 433). Moreover, "[t]estimony regarding the contents of business records, unsupported by the records themselves, by one without personal knowledge of the facts co nstitutes inadmissible hearsay." Nyankojo v. N. Star Capital Acquisition, ijlns Pkts. 679 S.E.2d 57, 60 (Ga. Ct. App. 2009) (quoting v. Martin, 513 S.E.2d 536 (Ga. Ct. App. 1999)). I aioif fails to put forth evidence of a chain of written nre ments of the Resource Security Deed and, instead, attempts to sr ii these transfers primarily through its own certified Answ e rs to N toy, t 5 ere Fort AO 72A (Rex. 8 82) interrogatories. See Dkt. No. 93, pp. 3-4 & Ex. D. A sset is no evidence that the authorized signatory of Administrator LLC who verified these Answers, dkt. 40 o. 63-2, p. 13, has personal knowledge that any of the alleged rc sfers occurred. cihole Plaintiff points to a copy of the Sale and Administration Agreement between FCOF PWL LLC, FORT Asset Ft2cc, and Plaintiff, even this evidence is insufficient to prove the final link in the alleged chain of assignments. An dsi4I1rrer10 of a security deed must include a sufficient description of the property conveyed. Haynes, 2014 WL 3908433, ring 2 Ga. Real Estate Law & Procedure § 21-15). While the Sale and Administration Agreement purports to assign convey the sellers' interests in the mortgage loans listed on d Mortgage Loan Schedule attached thereto, Plaintiff has ci g1-coed to include the Mortgage Loan Schedule with the copy of ragreement filed in this case. See Dkt. No. l , 69. 77, Ex. B, pp. A reasonable juror viewing this evidence could not co nc lude that FCOF PWL LLC and, in turn, FORT Asset Funding ra sfrred any mortgage lien on the Brysons' Property. See Hutto, Jul S.E.2d at 875 ("[T]he Bill of Sale stated that it was srij assignment of 'certain accounts' listed in 'Exhibit A'; there is no document attached thereto labeled 'Exhibit '[T]his evidence, even together with the reasonable in'erences from it, was insufficient to establish [a valid sscrrrt of rights . . . ].'" (last alteration in original) tHo Nankojo, 679 S.E.2d at 57)); Wirth, 685 S.E.2d at 491 41 AO 72A (Rex. 8 82) I I here is no contract or Appendix A appended to the Bill of Sale ihIca identifies [the debtor's] account number as one of niats . . . assigned.") . t C. Conclusion Plaintiff thus fails to come forward with evidence that it Is the assignee and thus the real party in interest with respect to the Resource Security Deed. As Plaintiff's priority and damg s claims are premised upon its holding of a valid security interest in the Brysons' Property, the Court need not inquire iirther to conclude that Plaintiff cannot succeed in proving those clalms. Rather, because Plaintiff cannot show that it is prop-et party to pursue these claims, summary judgment in favor eHealthscreen is appropriate. See Benson v. Asset The Phasing Assignment Affidavit filed in the property records, see dkr. so. 57-3, p. 3, likewise fails to satisfy Plaintiff's burden at his stage. A recorded affidavit that meets certain requirements and sets forth facts or circumstances affecting title to land gives rise to rebuttable presumption that the facts stated therein are true. 1 a . OG.A. § 44-2-20. The Missing Assignment Affidavit in this case -res that Resource assigned the Security Deed to the Property to Pftntift, Pl.'s SMF, ¶ 43, but that "[r]epeated attempts to locate the original assignment or to obtain the replacement assignment have f ift," dkt. no. 57-3, p. 3. As the record reflects, Plaintiff's I later Obtained the documents pursuant to which Plaintiff dl os to have received an assignment of the Security Deed, thus :rig any presumption that the assignment cannot be found because Is A, as lost or never prepared. Indeed, Plaintiff recognizes that its subsequent production of these documents renders this basis for pLoving its interest as assignee moot. See Dkt. No. 93, p. 5 ("Given that the original assignment, now completed, has been put in the reccEd, 'Hea thscreen's arguments about the validity of the Missing Assignment Affidavit[ and] the existence of the assignment[] . . . are a -ploot. "I A() 71A (Rc. 8 82) 42 Acceptance, LLC, 712 S.E,2d 83, 84 (Ga. Ct. App. 2011) (citing Hutto, 707 S.E.2d at 875; Green, 700 S.E.2d at 742; and Wirth, 635 S.IE.2d at 435-36) . eHealthscreen's Motion as to Plaintiff's aims is thus GRANTED, and Plaintiff's cross-Motion on the same s DENIED. CONCLUSION In light of the foregoing, eHealthscreen's Motion for unmary Judgment on Crossclaims and for Partial Summary Judgment c ou trclaims to Crossclaims (dkt. no. 55) is GRANTED in its entirety. The Brysons' Motion for Partial Summary Judgment on rossclaims and counterclaims (dkt. no. 59) is DENIED. The Clerk of Court is DIRECTED to enter the appropriate judgment on te Brysons' crossclaims against eHealthscreen and to terminate he Brysons as Cross Claimants and eHealthscreen as a Cross Defendant in this case. With respect to eHealthscreen's counterclaims, the Court finds only that eHealthscreen is entitled to a ruling in its favor on the issues of liability and amount of principal, and, therefore, these claims and parties -e-main pending for resolution of interest and attorney's fees at r later date. Further, eHealthscreen's Motion for Summary Judgment Against Plaintiff (dkt. no. 57) is GRANTED, and Plaintiff's Motion for Partial Summary Judgment against this Defendant (dkt. no. 65) is DENIED. AO 72 (Rev. 8 82) The Clerk of Court is DIRECTED to enter the 43 approprIate judgment as to these claims and to dismiss rctbscreen as a Defendant in this case. As Plaintiff named t Btps ns as Defendants based only the possibility that P.iritifO' s claims against eHealthscreen might have impacted r ownership interest in the Property, Plaintiff is hereby ORDERED o notify the Court within fourteen (14) days of the of this Order as to whether it has any claim against the Brsc s with which it seeks to proceed in this action. SO ORDERED, this 31ST day of March, 2016. LISA GODHEY WOOD, CHIEF JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA 44 A0 72\ (Rex. 8 S2) I
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