“How can a lawyer defend someone he knows is guilty?” A short answer is that much of our freedom depends on the principle that a criminal defendant is innocent until proven guilty and must have the opportunity to require the state to prove its case. Civil liability is similar: a plaintiff has the burden of proof and a defendant must have the right to require the plaintiff to satisfy it. Yes, these principles have definite implications for provision of public defenders and pro bono and legal aid counsel. My purpose for the reference here, however, is much more limited and, to some, mundane.
To prove liability on a promissory note, the lender must show that the borrower signed the note, received the loan proceeds and failed to repay the loan in accordance with the note. With perhaps some variation depending upon the facts of the case, with that proof the lender is entitled to payment; but it must still prove the amount due, its damages. My clients and I recently required a lender to satisfy this burden.
In each of Myers v. First Citizens Bank, 750 S.E.2d 378 (Ga. App., 2013) and Gregg v. First Citizens Bank & Trust Co., 328 Ga.App. 87, 761 S.E.2d 514 (Ga. App., 2014), First Citizens filed a motion for summary judgment. It alleged the execution of the promissory notes and their nonpayment. The evidence for damages was an affidavit from a bank officer stating in conclusory fashion the principal, interest and attorneys’ fees due, with no backup for the calculations. The trial court granted the motion for summary judgment, and my clients elected to appeal.
The Georgia Court of Appeals in both cases agreed that First Citizens failed to prove the amounts due. The lender failed to show payment history, the application of payments made by the borrowers and the calculations of interest and attorneys fees.
At the damages hearings following the remands by the Court of Appeals, First Citizens this time presented live testimony by a bank officer whom the court determined to be a”qualified witness.” (see O.C.G.A. Sec. 24-8-803 (6). The witness presented in detail the payment history of the loans and the calculation of interest and attorneys’ fees. The court determined the evidence sufficient and granted judgment on the amount claimed by the lender. My clients decided to appeal no further, but they had at least held First Citizens to its proof.