Turner v. Nat'l Collegiate Student Loan Trust 2007-4

Full title: TURNER et al. v. NATIONAL COLLEGIATE STUDENT LOAN TRUST 2007–4.

Court: Court of Appeals of Georgia.

Date published: Aug 10, 2017

803 S.E.2d 797 (Ga. Ct. App. 2017)

Opinion

A17A1004.

08-10-2017

TURNER et al. v. NATIONAL COLLEGIATE STUDENT LOAN TRUST 2007–4.

Kunle Ogundele, Atlanta, for Appellants. Brannon William Lee Carson, for Appellee.

Self, Judge.

Kunle Ogundele, Atlanta, for Appellants.

Brannon William Lee Carson, for Appellee.

Self, Judge.

This appeal arises from a suit on a promissory note and the trial court's grant of summary judgment in favor of the lender. On appeal, the appellants, Bianca and Wilbur Turner, assert that the trial court erred because: (1) the record failed to establish a valid assignment of the note to the appellee, National Collegiate Student Loan Trust 2007–4; and (2) an affidavit from Bianca Turner shows that she was not properly served with the summons and complaint. We cannot reach the merits of these claims, however, because the record before does not include documents critical to the appeal.

The notice of appeal in this case states that only certain listed items will be included in the record, and that all other documents, which are not identified, should be excluded. This is exactly opposite the manner prescribed for a notice of appeal by OCGA § 5–6–37 (notices of appeal shall include "a designation of those portions of the record to be omitted from the record on appeal"). Consequently, the record before us is missing documents critical to appellate review of the trial court's grant of summary judgment: the affidavit of Bianca Turner stating where she resided at the time of the allegedly defective service; the return of service for the complaint; and an affidavit from a records custodian regarding the assignment of the loan.

Georgia's appellate courts have made it clear that where the record is incomplete as the result of an appellant's failure to comply with the requirements of OCGA § 5–6–37, the order of the trial court will

be affirmed. An affirmance is required under such circumstances because on appeal the burden is on the appellant, as the party alleging error, to show affirmatively from the record that such error occurred. When the appellant fails to meet that burden, we have no choice but to assume that the judgment complained of is correct and to therefore affirm the same.

(Citations and punctuation omitted.) Curry v. Miller , 328 Ga. App. 564, 565, 763 S.E.2d 489 (2014). In accordance with this well-established law, we too must assume that the record supports the trial court's grant of summary judgment in favor of the lender and affirm.

Judgment affirmed .

Dillard, C. J., and Ray, P. J., concur.