                            FOURTH DIVISION
                              DILLARD, C. J.,
                        DOYLE, P. J., and MERCIER, J.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                     June 21, 2018




In the Court of Appeals of Georgia
 A18A0440. PERFORMANCE FOOD GROUP, INC., v. DAVIS.                           DO-015

      DOYLE, Presiding Judge.

      This case arises from a petition for interpleader, OCGA § 48-4-5 (b), filed on

October 14, 2016, by Terresa Davis, in her capacity as Pierce County Tax

Commissioner, following the sale of 534 Gordon Street (“the Property”) at a tax sale

from which excess funds were generated. The two respondents to the interpleader

were PrimeSouth Bank (“the Bank”) and Performance Food Group (“PFG”). The

Bank moved for summary judgment, asserting a claim for the excess funds, and after

a hearing, the trial court granted the Bank’s motion. PFG appeals, arguing that the

trial court erred by granting the Bank’s motion because (1) the Bank’s purchase of the

Property at the tax sale and the Bank’s subsequent foreclosure on its deed to secure

debt after the tax sale resulted in a merger of estates such that the Bank’s security
deed no longer had priority for purposes of the excess tax sale funds; (2) the result

that the Bank gets both the property and the excess tax sale funds is inequitable; and

(3) the Bank’s motion for summary judgment was not supported by competent

evidence of the existing debt. Because the Bank’s motion was not supported by

competent evidence, we are constrained to reverse the grant of summary judgment in

its favor.

             Summary judgment is proper if the pleadings and evidence show
       that there is no genuine issue as to any material fact and that the moving
       party is entitled to a judgment as a matter of law. On appeal from a trial
       court’s grant of summary judgment, we conduct a de novo review,
       construing all reasonable inferences in the light most favorable to the
       nonmoving party.1


       Viewed in this light, the record shows that Ashley D. Lee and Dana Larson

Bowen appeared as record title holders to the Property, for which $18,385.16 in

delinquent property tax was owed. On July 5, 2016, Davis held a tax sale of the

property, which generated $89,100 and an excess of $70,714.84, of which funds




       1
      (Citations and punctuation omitted.) Roberts v. Community & Southern Bank,
331 Ga. App. 364 (771 SE2d 68) (2015).

                                           2
Davis notified the Bank, PFG, and various other interested parties.2 At the time of the

sale, the Bank held a deed to secure debt on the property, which originally was filed

in 2007 and was modified in 2012 in an amount over $400,000,3 and PFG held a lien

based on a writ of fieri facias in the amount of $74,292.90 filed in 2014.

      In support of its motion for summary judgment, the Bank submitted the

affidavits of bank employees Tony Crews and Chris Sinclair to support the amount

remaining unpaid on the note; Crews and Sinclair, however, merely averred that

Bowen and Lee “owed more than Four Hundred Thousand ($400,000) to [the] Bank

under the Promissory Note at the time of the Tax Sale.” Neither affidavit contains a

reference to or attaches any Bank documents to support this outstanding balance, and

neither affidavit contains an averment to a specific outstanding balance at the time the

affidavits were prepared.

      Prior to the end of the redemption period, the Bank foreclosed on the Property

pursuant to its deed to secure debt and purchased the property for $20,000.



      2
       Huddle House, Inc., also responded to the interpleader action with claims on
the excess funds, but they have not appealed from the trial court decision.
      3
        In its claim letter, the Bank contended that the promissory note was for an
“original principal amount of $405,278.14” and as of August 1, 2016, “more than”
$400,000 was owed.

                                           3
       1. As an initial matter, we note that the trial court’s order, which was entered

on June 20, 2017, relied on this Court’s decision in DLT List, LLC v. M7VEN

Supportive Housing & Dev. Group,4 for the proposition that the distribution of excess

funds should be made based on the right to the funds at the time of the tax sale. But

that decision had already been disapproved of in part by the Georgia Supreme Court

after it granted certiorari in that case.5

       PFG’s argument that the Bank’s purchase of the tax deed merged with its deed

to secure debt after the tax sale, thereby making first in line PFG’s claim to the excess

tax sale funds via its lien, is without merit.

               The doctrine of merger applies where the legal and equitable
       interests in property become merged in the same person. Unless there is
       an agreement to the contrary or it is the intention of the party in whom
       the equitable and legal estates unite that there be no merger, the merger
       results. The person contending that no such merger took place has the
       burden of proof.6



       4
           335 Ga. App. 318 (779 SE2d 436) (2015).
       5
       See DLT List, LLC v. M7VEN Supportive Housing & Dev. Group, 301 Ga.
131, 135-136 (2) (800 SE2d 362) (2017) (“DLT List II”).
       6
       Barron Buick v. Kennesaw Co., 105 Ga. App. 451, 454-455 (2) (124 SE2d
918) (1962).

                                             4
      After a tax sale of property encumbered by liens, the purchaser of the tax deed

has a defeasible fee in the property, which becomes a fee simple interest if the

property is not redeemed during the statutory period after the tax sale.7 As for the

excess proceeds from the tax sale, they should have been distributed first to the Bank,

as the trial court found, and then to any other recorded lien holder, such as PFG.8 No

case law supports PFG’s argument that the Bank’s first-priority security lien was

merged into their tax deed purchase for purposes of divesting the Bank’s priority

claim to the excess funds. Indeed, case law supports the opposite conclusion. “[If] the

creditor buys in the property at the sale to protect himself, it would be unreasonable

to hold that, by uniting the legal and equitable interest, he intended to advance a

subordinate claim to priority over his own claim.”9 Moreover, at the time that the

Bank purchased the tax deed to the property, it did not own the right of redemption

— the other interested parties including PFG could have redeemed the property,

thereby divesting the tax deed from the Bank and returning the interest via quit-claim



      7
       See Nat. Tax Funding v. Harpagon Co., 277 Ga. 41, 42-43 (1) (586 SE2d
235) (2003).
      8
          See DLT List II, 301 Ga. at 134-136 (2).
      9
          Barron Buick, 105 Ga. App. at 456-457 (2).

                                           5
deed to Lee and Bowen, leaving the Bank’s security deed in place in the order of

priorities going forward.10

      We also reject PFG’s contention that the Bank’s later security deed foreclosure

on the property prohibited it from claiming the proceeds. At the time of the tax sale,

the Bank’s security deed was in force and in first priority position. What may have

occurred after that time does not affect the proper payment of excess funds in the

event that the Bank’s interest was valid at the time of the tax sale.11

      We also disagree with PFG’s argument that the result is inequitable.12 PFG

could have bid on the Property at the Bank’s security deed foreclosure sale in order

to gain unencumbered ownership of the Property and later sell it to cover the purchase

price and lien amounts, but it chose not to take that risk.13 PFG also could have

redeemed the property, but in that case, the result would have been that the excess

proceeds were paid to the Bank for its security deed, and the Bank would have had


      10
           See Nat. Tax Funding, 277 Ga. App. at 42-43 (1).
      11
           See DLT List II, 301 Ga. at 134-136 (2).
      12
         See Barron Buick, 105 Ga. App. at 456-457 (2) (“In equity[,] the rules of law
are not followed, and the doctrine of merger is not favored.”) (punctuation omitted).
      13
        See Ray v. Atkins, 205 Ga. App. 85, 89 (3) (421 SE2d 317) (1992), quoting
Sweat v. Arline, 186 Ga. 460, 461 (2) (197 SE 893) (1938).

                                           6
a super lien for the tax-sale price on the property going forward, which would have

been higher in priority than that of PFG.14 In these circumstances, PFG’s lien, as

usually is the case with subordinate interests, goes unpaid via the excess proceeds and

the proceeds from the later foreclosure sale.

      Accordingly, we discern no error in the trial court’s finding that no merger

occurred here.

      2. PFG argues that the trial court erroneously relied upon the affidavits of

Crews and Sinclair to hold that the Bank’s deed to secure debt was outstanding.

Pretermitting whether the trial court should have allowed Sinclair’s affidavit, neither

the affidavit of Crews or Sinclair provide a specific figure for the outstanding

balance, but aver that “over $400,000” was outstanding on the security deed, and

neither affidavit attaches business records to support the statements regarding

remaining balances. Although there is little case law regarding the burden of proof

related to remaining lien interests in interpleader actions, these bare affidavits would

be an insufficient showing in order to collect on the security deed against a debtor.15



      14
           See DLT List II, 301 Ga. at 134-136 (2).
      15
      Cf. Roberts, 331 Ga. App. at 370-371 (2); Ware v. Multibank 2009-1
RES-ADC Venture, LLC, 327 Ga. App. 245, 249-251 (2) (758 SE2d 145) (2014).

                                           7
The Bank was required to show that it had a valid priority interest in the excess funds,

and because it failed to provide proof of an outstanding balance, we must reverse the

grant of summary judgment.16

      Judgment reversed. Dillard, C. J., and Mercier, J., concur.




      16
         See OCGA § 48-4-5 (b) (“[E]xcess funds shall be distributed by the superior
court to the intended parties, including the owner, as their interests appear and in the
order of priority in which their interests exist.”) (emphasis supplied). Cf. Salas v. JP
Morgan Chase Bank, N.A., 334 Ga. App. 274, 283 (4) (779 SE2d 48) (2015) (“a party
seeking judgment on a suit on a note is not entitled to summary judgment as to the
amount of the debt where it offers no testimony or any documentation explaining its
method of calculating the specific amounts sought such that the trial court is unable
to confirm the party’s calculation of the purported damages”) (punctuation omitted).

                                           8
