Opinion
64070.
DECIDED SEPTEMBER 10, 1982. REHEARING DENIED SEPTEMBER 30, 1982.
Action on note. DeKalb State Court. Before Judge Seeliger.
Fredric Chaiken, for appellant.
Virginia Bips, for appellees.
The National Bank of Georgia sued Lenaki Keriaze and Ruth Tyree on a note secured by a 1979 Mercury Cougar. Keriaze and Tyree answered and admitted executing the note but denied liability on the note. They subsequently filed a counterclaim alleging that they were damaged by the Bank's negligent failure to obtain and hold the title to the automobile. The trial court denied the Bank's motion for summary judgment on the note and denied Keriaze and Tyree's motion for summary judgment on the counterclaim. We granted the Bank's application for interlocutory review of the denial of its motion for summary judgment.
Appellant contends that the trial court erred by denying its motion for summary judgment because the Bank had established a prima facie case of appellees' liability on the note. Appellees admitted execution of the note and failed to raise any viable defenses to the note. Appellees' counterclaim alleges a negligent failure of the Bank to perform a duty implied by the contract, i.e., to obtain and retain the title to the automobile. However, such a counterclaim is not a defense to the note. Appellees failed to submit any evidence to controvert appellant's prima facie case, and since appellees did not establish a legally sufficient defense, the Bank is entitled to summary judgment on the note. Area v. Cagle, 148 Ga. App. 769, 770 ( 252 S.E.2d 655) (1979); Freezamatic Corp. v. Brigadier Ind. Corp., 125 Ga. App. 767 ( 189 S.E.2d 108) (1972). However, the case must go back to the trial court for a jury trial on appellees' counterclaim which is still pending.
Judgment reversed. Deen, P. J., and Pope, J., concur.