Summary judgment is proper where: (1) no genuine issue of material fact remains to be litigated; (2) a moving party is entitled to judgment as a matter of law; and (3) when the evidence is viewed most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, a conclusion adverse to the nonmoving party.
The business president, in her official capacity, executed a note and mortgage to the bank in order to secure a business loan. The business was listed as the borrower on the note, but appellants were jointly and severally liable. Although many monthly payments were made, no balloon payment was made. Eventually, the bank made a demand for payment on the note and then it filed the foreclosure complaint. The trial court granted summary judgment to the bank against the president, and it entered a default judgment against the business. The trial court thereafter denied appellants’ motion for relief from judgment. The president appealed.
Did the trial court err in granting summary judgment to the bank?
The court found no error in the trial court’s rulings. There were no issues of material fact that precluded summary judgment. The bank showed its entitlement to foreclosure, and it did not waive appellants’ default where the loan documents contained “anti-waiver” provisions. The court held that appellants failed to provide evidence to support any of the grounds for relief from judgment under Rule 60(b)(1) through (5), and they failed to allege a meritorious defendant. As operative facts that would have warranted relief under Rule 60(B) were not alleged, an evidentiary hearing was not required. The court affirmed the judgment of the trial court.