Scott v. Aetna Finance Company., 201 Ga. App. 81, 410 S.E.2d 203 (1991)

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Judgment reversed. Carley and Beasley, JJ., concur.

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Judgment reversed. Carley and Beasley, JJ., concur.

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Ralph S. Goldberg, for appellant.

The appellee, Aetna Finance Company brought suit against the appellant, James Scott, seeking to recover the unpaid balance allegedly due on a promissory note. In his answer, Scott denied liability on the ground that the note violated the Georgia Industrial Loan Act (OCGA 7-3-1 et seq.); however, the parties thereafter entered into a written agreement whereby he was to continue making payments on a slightly reduced balance and Aetna was to defer seeking a judgment so long as these payments remained current. Asserting that Scott had defaulted in making these payments, Aetna subsequently moved for summary judgment on the complaint; and the trial court granted the motion, awarding it judgment in the principal amount of $1,162, plus interest and court costs. The case is before us pursuant to our grant of Scott's application for a discretionary appeal from that ruling. Held:

Aetna's motion for summary judgment was predicated solely on Scott's failure to comply with the terms of the promissory note and his subsequent repayment agreement. Thus, his Industrial Loan Act defenses were not addressed in the trial court's order. "[O]n motion for summary judgment the burden was upon the plaintiff, as movant, to conclusively establish the absence or nonexistence of any defense. . . . The defendant's answer raised an issuable defense which the proof offered by the plaintiff failed to effectively negate." Duke Enterprises v. Espy, 140 Ga. App. 527, 530 (231 SE2d 522) (1976). Inasmuch as Scott's Industrial Loan Act defenses have not been addressed, we hold that the trial court erred in granting Aetna's motion for summary judgment.

Goodman, Hudnall, Cohn & McManus, H. Gilman Hudnall, for appellee.

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