                               FIFTH DIVISION
                              MCFADDEN, P. J.,
                           BRANCH and BETHEL, JJ.

                   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


                                                                    March 13, 2018




In the Court of Appeals of Georgia
 A17A2039. DELPIANO v. JPMORGAN CHASE BANK, N. A.

      MCFADDEN, Presiding Judge.

       Daniel David Delpiano appeals from the trial court’s order granting judgment

on the pleadings to JPMorgan Chase Bank, N. A. (the bank) in the bank’s action to

reform a security deed. “A plaintiff is entitled to a judgment on the pleadings under

OCGA § 9-11-12 (c) only when there is a complete failure to state a defense to the

plaintiff’s claims and, based on the undisputed facts found in the pleadings, the

plaintiff is entitled to a judgment as a matter of law.” Georgia Farm Bureau Mut. Ins.

Co. v. Croft, 322 Ga. App. 816, 817 (746 SE2d 285) (2013) (citations omitted). In this

case, the undisputed facts found in the pleadings do not establish that the bank was

entitled to a judgment as a matter of law, because they do not demonstrate all of the

essential elements of the bank’s claim. So we reverse. Given this ruling, we do not
consider the merits of Daniel Delpiano’s alternative argument regarding his

affirmative defense.

      On appeal,

      we review de novo the trial court’s decision on a motion for judgment
      on the pleadings, and we construe the pleadings in a light most favorable
      to the appellant, drawing all reasonable inferences in [his] favor. All
      well-pleaded material allegations of the opposing party’s pleading are
      to be taken as true, and all allegations of the moving party which have
      been denied are taken as false.


Poole v. In Home Health, 321 Ga. App. 674 (742 SE2d 492) (2013) (citation

omitted).

      The bank, the moving party in this case, filed a verified complaint on May 17,

2016, that pertinently1 alleged the following: In or around June 2015 it was assigned

all right, title, and interest in a security deed, dated March 29, 2005, that encumbered

property owned by Daniel Delpiano. The deed secured a loan to Pamela Delpiano,

and the parties to that deed were Pamela Delpiano and the bank’s predecessor in

interest. “Upon [the bank’s] information and belief, as the result of a clerical error and


      1
       We only discuss those allegations relevant to the trial court’s ruling as to
Daniel Delpiano. The bank also brought its action against several other defendants.
Those other defendants are not parties to this appeal.

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mutual mistake that was unknown to and/or inadvertently overlooked by the parties

at the time that the [s]ecurity [d]eed was signed, the signature line for the unofficial

witness to P[amela] Del[p]iano’s signature was left blank.” Other documents signed

at the same time contained the signature of an unofficial witness. “Upon [the bank’s]

information and belief, [Pamela] Del[p]iano and [the bank’s predecessor in interest]

intended for the [s]ecurity [d]eed to secure the [l]oan and to provide [the bank’s

predecessor in interest] with a first priority security interest in the [p]roperty.” Pamela

Delpiano transferred her interest in the property to Daniel Delpiano on July 6, 2010,

by way of a quitclaim deed pursuant to a divorce decree. Pamela Delpiano failed to

make her scheduled monthly payments on the loan secured by the property, but the

bank has been unable to perfect a first priority security interest and foreclose due to

the lack of the unofficial witness’s signature on the security deed. The bank sought

equitable reformation of the security deed and a declaration that the security deed was

“valid, enforceable, and occupie[d] a first priority lien position and security interest

in the [p]roperty to [the bank] pursuant to the [s]ecurity [d]eed, nunc pro tunc to April

30, 2005, the date the [s]ecurity [d]eed was recorded in the Fulton County, Georgia

real estate records.”



                                            3
      Daniel Delpiano, the opposing party in this case, filed a verified answer and an

amended answer. In those pleadings, he admitted that he is the current owner of the

property and that he received his interest in the property from Pamela Delpiano by

way of a quitclaim deed dated July 6, 2010. He either denied the remaining

allegations of the bank’s complaint outright or stated that he could neither admit nor

deny those allegations. He also asserted numerous affirmative defenses, including that

the statute of limitation barred the bank’s claim.

      At this stage of the proceedings, the bank has “failed to show that [it is] clearly

entitled to judgment,” Sherman v. Fulton County Bd. of Assessors, 288 Ga. 88, 90

(701 SE2d 472) (2010), because the undisputed facts found in the pleadings do not

satisfy the elements that the bank, as plaintiff, must prove to obtain judgment on its

reformation claim. To prevail, the bank bears the burden of showing “by clear,

unequivocal and decisive evidence that both [parties to the security deed] made a

mutual mistake in preparation of the instrument and that the [bank] was not so

negligent in executing the instrument or discovering any mistake appearing therein

as to be estopped to ask for reformation.” Cox v. Smith, 244 Ga. 280, 282 (1) (260

SE2d 310) (1979). (The parties presume that a defect in the attestation of the



                                           4
instrument is a type of mistake that is capable of being reformed, so we do not

address that issue.)

       Daniel Delpiano effectively denied the bulk of the bank’s complaint, either by

denying the allegations outright or stating that he could neither admit nor deny them.

See OCGA § 9-11-8 (b) (answer indicating that party is “without knowledge or

information sufficient to form a belief as to the truth of an averment . . . has the effect

of a denial”). For purposes of the motion for judgment on the pleadings, the

allegations denied by Daniel Delpiano — including all of the allegations pertaining

to the intent of the parties to the security deed and the purported mutual mistake —

must be taken as false. Georgia Farm Bureau Mut. Ins. Co., 322 Ga. App. at 817.

Compare Rolling Pin Kitchen Emporium v. Kaas, 241 Ga. App. 577, 578 (2) (527

SE2d 248) (1999) (plaintiff entitled to judgment on the pleadings where defendants

admitted all essential elements of complaint).

       Nevertheless, the bank argues that it is entitled to judgment on the pleadings

because a different defendant, Pamela Delpiano, admitted to the allegations in the

complaint regarding intent and mutual mistake by failing to answer or otherwise

respond to the complaint. See generally Willis v. Allstate Ins. Co., 321 Ga. App. 496,



                                            5
498 (740 SE2d 413) (2013) (defendant in default admits all well-pleaded material

allegation of complaint). We disagree.

      Although Pamela Delpiano’s default

      result[ed] in an admission as to [Pamela Delpiano] of the truth of all
      well-pleaded material facts alleged against [her] in the complaint, [her]
      default does not have the same effect as to [her] co-defendant, [Daniel
      Delpiano], who is not in default. An admission predicated upon a default
      is operative against the particular party who makes default, and does not
      bind a co-defendant who appears and contests the litigation.


Stokes v. McRae, 247 Ga. 658, 659 (2) (278 SE2d 393) (1981) (citations and

punctuation omitted). See Banks v. Echols, 302 Ga. App. 772, 775 (1) (a) (691 SE2d

667) (2010) (party cannot rely on default judgment against one defendant to obtain

judgment authorizing foreclosure against co-defendant who had denied complaint

allegations and raised affirmative defenses to claims); Anthony v. Larios, 256 Ga.

App. 248, 248-249 (568 SE2d 135) (2002) (defendant driver’s admission by default

that he was an uninsured motorist does not bind plaintiff’s uninsured motorist

carrier). Because Daniel Delpiano appeared and contested the litigation, Pamela

Delpiano’s default, and the admissions that arose from her default, are not binding

upon him. So Pamela Delpiano’s “admission by default presented no evidence for .


                                         6
. . consideration in [the ruling on the motion for judgment on the pleadings].” Stokes,

supra.

         Because the bank cannot rely on Pamela Delpiano’s admissions by default to

bind Daniel Delpiano, the bank cannot show, on its motion for judgment on the

pleadings, the essential elements of its claim for reformation. And because the bank

is not entitled, at this stage, to a judgment reforming the security deed, it is not

entitled to a declaration of its rights premised on a reformed security deed.

Consequently, because the bank “failed to show that [it is] clearly entitled to

judgment, the trial court erred in granting the motion for judgment on the pleadings.”

Sherman, 288 Ga. at 95.

         Given this conclusion, we need not address Daniel Delpiano’s alternative

argument that his answer stated an affirmative statute-of-limitation defense

precluding the bank from obtaining judgment on the pleadings.

         Judgment reversed. Branch and Bethel, JJ., concur.




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