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Court of Appeals of Georgia.


No. A13A1712.

Decided: February 06, 2014

Scott Harold Michalove, Joshua Neil Tropper, for Appellant. Ron Dean Eckland, Benjamin Alexander Stone, John David Stuart, James Pefanis, for Appellee.

Wells Fargo Bank, N. A., filed this action in the Superior Court of Fulton County seeking, among other relief, a declaratory judgment that it has a valid lien against certain property in Forsyth County pursuant to a deed to secure debt granted by James Pefanis to AME Financial Corporation to secure a promissory note, Further, Wells Fargo seeks a declaration that its lien is entitled to first priority status, and, in particular, that its lien is superior to a writ of execution held by Evangelina Forsberg as a result of a personal injury judgment that she had obtained against Pefanis. Forsberg filed a counterclaim, seeking a declaration that she has a lien against the property that is first in priority and that Wells Fargo has no valid lien at all against the property. Wells Fargo filed a motion for partial summary judgment on the issue of the priority of its lien compared to Forsberg's interest in the property, and Forsberg also filed a motion for summary judgment. After a hearing, the trial court granted Forsberg's motion for summary judgment and denied Wells Fargo's motion for partial summary judgment. Wells Fargo appeals, and, for the reasons explained below, we reverse the grant of summary judgment in Forsberg's favor.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]” OCGA § 9–11–56(c).

Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9–11–56(c) have been met. In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624(1)(a), 697 S.E.2d 779 (2010). See also Morgan Enterprises v. Gordon Gillett Business Realty, 196 Ga.App. 112, 395 S.E.2d 303 (1990) (“On cross-motions for summary judgment, each party must show there is no genuine issue of material fact regarding the resolution of [the essential] points of inquiry and that each, respectively, is entitled to summary judgment; either party, to prevail by summary judgment, must bear its burden of proof.”).

The record shows the following undisputed facts. On September 8, 1994, Paul and Jacalyn Gawron conveyed 14.21 acres of real property located in Forsyth County in fee simple via warranty deed to Ron Eckland. On the same day, Eckland conveyed 10.0 acres of the property via quitclaim deed to himself and to James Pefanis as joint tenants with right of survivorship.1 The 10.0 acre tract is improved with a single family home with an address of 6835 Matt Highway, Cumming (“the property”). On December 15, 1997, Eckland conveyed his interest as a joint tenant in the property to Pefanis via warranty deed recorded March 6, 1998. On June 1, 2007, Pefanis conveyed his interest in the property via quitclaim deed back to Eckland.2 That deed was recorded on April 22, 2008. Superior Court of Forsyth County, Book 5107, Pages 195–196. On February 26, 2009, Eckland conveyed his interest in the property via quitclaim deed to Twenty Six Properties, LLC.3 That deed was recorded on June 3, 2009. Superior Court of Forsyth County, Book 5442, Pages 407–408.

In several separate transactions between December 1997, when Eckland conveyed his interest in the property to Pefanis, and June 2007, when Pefanis conveyed the property back to Eckland, Pefanis borrowed money, using the property as security, and conveyed the property to lenders via deeds to secure debts. At issue in this case is a deed to secure debt Pefanis executed on June 28, 2006, conveying the property to AME Financial Corporation to secure a 30–year promissory note with the original principal amount of $1,425,000. Wells Fargo purchased that secured debt from AME Financial Corporation on August 2, 2006.

On December 17, 2007, Forsberg filed a lawsuit in the federal district court for the Northern District of Georgia, Case No. 1:07–cv–3116–JOF–RGV, alleging that, while she was an employee of AME Financial Corporation, Pefanis sexually harassed her. On March 19, 2008, while Forsberg's suit was pending, Eckland filed a copy of the June 28, 2006 deed to secure debt conveying the property to AME Financial Corporation. Superior Court of Forsyth County, Book 5072, pp. 178–199. Along with the deed, which until then had never been recorded, Eckland filed his affidavit, in which he deposed that his law firm had been the closing attorney for the transaction and that the original deed to secure debt had been lost or misplaced. Although the debt that the deed secured had a term of 30 years, the deed that Eckland filed had been altered to show that the debt had a term of only 3 years.

A few months after Eckland recorded the June 28, 2006 deed to secure debt (as altered), Forsberg's claim against Pefanis went to trial, and a jury returned a verdict in her favor. The district court entered judgment on October 20, 2009. On November 2, 2009, Forsberg obtained a writ of execution directing that “the goods and chattels, lands and tenements ․ belonging to James Pefanis” be levied to satisfy that judgment. On November 4, 2009, Forsberg filed the writ of execution in Forsyth County, where 6835 Matt Highway is located.

Pefanis defaulted on the June 28, 2006 promissory note in early 2010. On March 3, 2011, Wells Fargo filed this declaratory judgment action, claiming that it has a valid first priority lien against 6835 Matt Highway, which, as to that property, trumps Forsberg's writ of execution.

The trial court granted Forsberg's motion for summary judgment on January 2, 2013. In so ruling, the trial court determined that, because the June 28, 2006 deed to secure debt had been materially altered before Eckland caused it to be filed on March 19, 2008, the filing of the deed to secure debt was fraudulent and ineffectual in establishing the priority of the secured interest relative to other interests in the property.4 The trial court held that, because, as of the date of its ruling, an authentic copy of the June 28, 2006 deed to secure debt had still not been filed, “Forsberg's judgment lien is entitled to priority over the fraudulent ․ security deed [as recorded in 2009] and the unrecorded ․ security deed[,] should it eventually be recorded” in a non-fraudulent manner.

1. Wells Fargo contends that Forsberg's judgment lien has not attached to the subject property and cannot be levied upon. As a result, Wells Fargo contends, the trial court erred in granting Forsberg's motion for summary judgment.

It is fundamental that a writ of execution for the satisfaction of a judgment authorizes a levy only upon property which the judgment debtor owns. OCGA §§ 9–13–3 (“Every execution shall follow the judgment upon which it issued[.]”); 9–13–10 (“Except as otherwise provided by law, executions ․ may be levied on all the estate of the defendant, both real and personal, which is subject to levy and sale.”). See also Stuart Finestone, Ga. Post–Judgment Collection (database updated January 2013), §§ 8:1; 8:4. In this case, the evidence that, as of the date Forsberg acquired the right to seize Pefanis's assets, he had any interest in the real property at issue in this case, 6835 Matt Highway, is, at most, disputed. Regardless the nature of Pefanis's interest in the property before he executed the quitclaim to Eckland on June 1, 2007,5 that recorded quitclaim is evidence that he divested himself of any interest he had in the property on that date. It may be that, after Pefanis executed the June 1, 2007 quitclaim, he reacquired an interest in the property, or that that conveyance to Eckland may at some point be set aside.6 But the record before the trial court when it ruled on the motion for summary judgment did not establish as a matter of law that Pefanis had any legal or equitable interest in the property at any time after he executed the quitclaim. Because the record did not establish that Pefanis had any ownership interest in the property upon which Forsberg's right to seize his assets could attach, the trial court erred in finding as a matter of law that Forsberg holds a judgment lien against the property. It follows that the trial court erred in declaring that Forsberg holds a first priority lien against the property and in granting her motion for summary judgment.7

2. In light of our decision in Division 1, supra, Wells Fargo's remaining arguments are either moot or are premature at this time. Bd. of Natural Resources v. Monroe County, 252 Ga.App. 555, 557(1), 556 S.E.2d 834 (2001) ( “Declaratory judgment will not be rendered based upon a possible or probable future contingency because such a ruling would be an erroneous advisory opinion.”) (citation and punctuation omitted).

Judgment reversed.

ELLINGTON, Presiding Judge.

PHIPPS, C. J., and BRANCH, J., concur.

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