Case S21C0048 Filed 07/30/2020 Page 1 of 32

IN THE SUPREME COURT OF GEORGIA

Supreme Court No:

Court OfAppeals Case No: A20A0711

CXJ
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James R. Thomas, Jr., et al. >H

I
Petitioners,
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VS. Wo
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KIA Auto Sport of Columbus,INC., et al. r

Respondents.

PETITION FOR WRIT OF CERTIORARI

PETITIONERS: JAMES R. THOMAS. JR.,PRO SE

PO BOX 252
CUSSETA,GA 31805
(706)989-0233
Jamesabriha@hotmail.com

SABRINA R. THOMAS,PRO SE
PO BOX 252
CUSSETA,GA 31805
(706)989-0233
Jamesabrina@hotmail.com
 Case S21C0048 Filed 07/30/2020 Page 2 of 32

TABLE OF CONTENTS

Table of Citation and Authority •• •

I. Petition For Writ Of Certiorari 1

Introduction 2

II. Brief Statement Offacts And Proceedings Below 3

III. ENUMERATION OF ERRORS 7

IV. ARGUMENTS AND CITATION OF AUTHORITIES 7

(1) Court Of Appeals Err By Failing To Apply OCGA § 9-11-56(C)Standard Of

Review For Summary Judgment 9
(2)Court Of Appeals Err By Affirming A Nunc Pro Tune Order Which Is Based
Upon An Erroneous Legal Theory 9
(3)Court Of Appeals Err By Affirming KAS Order Which Is Based Upon An
Erroneous Legal Theory, 10

V. Conclusion U

Certificate OfService 12

Appendices

June 24, 2020 the Court of Appeals judgment 1

I

July 14, 2020 the Court of Appeals Order. 2

October 7 2019 order granting summary judgment(R-5-9) 3-7
October 7 2019 order denying summary judgment(R-10-11) 8-9
June 12,2012 order(R-20-21) 10-11
September 14,2012 order denying motion for default(R-18-19) 12-13
SunTrust Bank fraudulent Applicant Credit Statement(R-596-598) 14-16

a
 Case S21C0048 Filed 07/30/2020 Page 3 of 32

TABLE OF CITATION AND AUTHORITY

Cases

Adams v. Payne, 219 Ga. 639-640, 135 S.E.2d 423(1964) 10,11

Amin v. Guruom. 280 Ga. 873. 875, 635 S.E.2d 105(2006) 10

Cowart V. Widener. 287 Ga. 622,623.624(697 SE2d 779)("2010). 7,8

Fulton Countyv. Woodside, 222 Ga. 90, 96(2)(149 SE2d 140)(1966) 11

Johnson v. Omondi, 294 Ga. 74, 84-85, 751 S.E.ld288(2013) 2,8

Pendersrass v. Duke, 147 Ga. 10(92SE 649)0918) , 10

Statutes

O.C.G.A. § 16-9-120(4),(5)..... 6

OCGA §16-9-121(a)(1)(5) 2,3,5, 10

O.C.G.A. § 16-9-121(b) 3, 5,9

OCGA § 9-1 l-56(c) 1,3,7,8,9

Rules

GA.S. Ct. R. 38(2) 2

Constitutional Provisions

Under Art. I, Sec. I, Par. I Par. XI(a), ofthe GA. Constr 1

 Case S21C0048 Filed 07/30/2020 Page 4 of 32

PETITION FOR WRIT OF CERTIORARI

Come Now,the Petitioners, James R. Thomas, JR, and Sabrina R Thomas (the

Petitioners or Appellants or Thomases)PRO SE, hereby respectfully petition this

Hon. Court for a Writ of Certiorari to consider issues of great concern, gravity, and

importance to the public, as to the following, among other things;

(a) When, the lower court overlook, or fail to consider the Plaintiffs' pleadings,

affidavits, statutes and,evidence from the defendant that support the plaintiffclaims;

enter a ruling solely on unsupported arguments of the defendant, in its favor, can

such an order be affirm by the Court of Appeal;

(b) When the lower court correctly noted the standard for summary judgment

under OCGA § 9-11-56(c), then fail to apply it, by considering only the defendant,

misrepresentation of the facts which are unsupported by the court record, enter an

order granting summaryjudgment in favor the defendant as the movant, can such an

order be affirm by the Court of Appeal; and

(c) Whether, the Court of Appeal failed to carry out its de novo duty under

OCGA § 9-11-56 (c), when the court order on appeal, and the appellee brief shows

on its face that there was no consideration ofthe Plaintiffs' pleadings, affidavits and

evidence, would violate the Ga. Const, of 1983, Art. I, Sec. I, Par. XI(a)"[t]he right
 Case S21C0048 Filed 07/30/2020 Page 5 of 32

to trial by jury shall remain inviolate." See(Blackwell, J., concurring)in Johnson v.

Omondi. 294 Ga. 74. 84-85. 751 S.E.2d 288(2013).

The Thomases appeal and On June 24, 2020 the Court of Appeals affirmed

without an opinion,(1)The evidence supports the judgment;(2)No reversible error

oflaw appears and an opinion would have no precedential value;(3)The judgment

ofthe court below adequately explains the decision; or(4)The issues are controlled

adversely to the appellant for the reasons and authority given in the appellee's brief.

tApp. 1). And on July 14, 2020 the Court of Appeal deny the motion to reconsider

(App. 2). The Thomases filed this petition within 20 days. See GA. S. Ct. R. 38(2).

The Thomases has attached in the "Appendices"fApp.^ as reference certain Court

ofAppeal records which shows on their face, why this honorable Court should Grant

the Petition, as to the following;

INTRODUCTION

The heart the Thomases case in the lower court and this appeal is the evidence of

a forgery ofthe Thomases original "Applicant Credit Statement"(ACS)to purchase

a vehicle, the Thomases claims, among other things, that defendant "KIA Auto

Sport"(KAS)"created a fraudulent ACS"(K-ACS), Violating OCGA §16-9-121(a)

(1)(5),IR-596-8J App.14-16; and the defendant "SunTrust Bank"("STB") used K-

 Case S21C0048 Filed 07/30/2020 Page 6 of 32

ACS, Violating O.C.G.A. § 16-9-121(b). K-ACS was presented to the lower court

in all ofthe Plaintiffs pleadings and by STB in its motion for summary judgment.

On June 12, 2012 a former judge without addressing the merits of the claims

concerning the creation of K-ACS, dismissed the Thomases OCGA §16-9-

121(a)(l)(5) claims against KAS, see "tR-20J App.10-11"("KAS Order"). KAS

Order did not address the O.C.G.A. § 16-9-121(b) claims against STB.

On 10/07/2019 a different judge granted STB cross motion for summary

judgment, based solely on iSTB's misrepresentation of, among other things, KAS
Order dismissed the Thomases identity theft and RICO claims against STB,the order

is void of any consideration or analyze of the K-ACS or the statute O.C.G.A. § 16-

9-121(b), the Thomases' pleadings, and affidavits, or KAS Order which did not

addressed or dismissed the claims against STB. See "(R-5) App. 3-7)" ("Order

GSJ"). compare with (R-IOJ App.8-9T Clearly the KAS Order does not support the

Order GSJ, nor,is it supported by the evidence in the court record, nor is it supported

by the appellee brief Filed 12/18/2019 in the Court of Appeal.

The Court of Appeal judgment, among other things, failed to satisfy its de novo

duty under OCGA § 9-11-56 (c), and therefore is in direct conflict with Georgia

statutes and the Appellate Courts controlling authority.

11. Brief Statement Offacts And Proceedings Below

 Case S21C0048 Filed 07/30/2020 Page 7 of 32

The trial court record shows; the Thomases filed their original with affidavits, on

12/02/2011('R-23T later amended complaints on 3/21/2012 (R-139), and on

9/26/2017(Ri392),that show the following;

On 9/30/2009, the Thomases went to KAS. Sabrina Thomas filled out by hand

an ACS, in the applicant section on the first page fill in her true identifying

information, and on the second page James Thomas true identifying information and

on the last page of the ACS, Sabrina signed as the applicant, on 9/30/09 and James

signed as the co applicant, on 9/30/09. ('R-25 at H 9),(R-44 at ^ 9T See SunTrust

Bank Statement of Material Fact(R-591 at^ 1).

On 10/07/2009 KAS while in possessing of the Thomases ACS, without their

knowledge, permission, or consent, replace the first and second pages of ACS with

K-ACS with the printed date of 10/07/2009 switch Thomases identity as applicant

and co-applicant with fraudulent inflated income,fR-44 at 19,R-48,49,50).

On 10/08-09/2009, and afterward STB approved K-ACS which clearly shows on

its face that it is altered and fraudulent and continue for years to use K-ACS to

damage the Thomases credit rating rate with knowledge of K-ACS was fraudulent.

(R-318-386T (R-392T fR-652-675T

On 12/02/2011 The Thomases filed their complaint given Case number 11-CV-

154 that was set for trial on September 24, 2012 before the assigned presiding trial

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 Case S21C0048 Filed 07/30/2020 Page 8 of 32

judge Arthur Smith, III, (R-lShl: ('R-623-625). The claims against KAS, among

other things, the creating of K-ACS in violation of OCGA §16-9-121(a)(1){5):

Without authorization or consent, or creates, uses, or possesses with

intent to fraudulently use any counterfeit or fictitious identifying
information concerning a real person with intent to use such counterfeit
or fictitious identification information for the purpose ofcommitting or
facilitating the commission of a crime or fraud on another person.

See(R-24-28TIR-HO). And the claims against STB,among other things,knowingly

accepted and use K-ACS with knowledge it was fraudulent that show the first two

pages of K-ACS has a printed 10/07/2009 and the third signature agreement page

with no printed date but signed by the Thomases on 09/30/2009, on its face shows

K-ACS was altered and a fraud, a violation of O.C.G.A. § 16-9-121(b):

A person commits the offense of identity fraud by receipt of fraudulent

identification information when he or she willingly accepts for
identification purposes identifying information which he or she knows
to be fraudulent, stolen, counterfeit, or fictitious. In any prosecution
under this subsection it shall not be necessary to show a conviction of
the principal thief, counterfeiter, or fraudulent user.

See ('R-596-8IAPP.14-16, rR-318-386I.tR-392ITR-652-675) and IR-591 1-3),

On the 01/26/2012 KAS filed it untimely answer and a motion for arbitration and

dismissed ofthe claims against it,(R-46-50). On or before 3/7/2012 KAS contacted

the former-judge Jordan for a hearing, on its motion on 3/23/2012,(R-292, R-294-

296):(R-626-628). On 3/21/12 STB filed a notice to bifurcate the case,(R-ISS). On

4/24/2012 the Thorhases' filed a Motion for default against KAS,(R-189).KAS filed
 Case S21C0048 Filed 07/30/2020 Page 9 of 32

its motion to open the default on 5/10/2012,(R-222). On 6/11/2012 the former-judge

signed an order granted KAS motion for arbitration and dismissed of the claims
against it, which was entered on 6/12/2012,

" The Court hereby DISMISSES the Thomas's claims for identity theft
and a RICO Act violation. By voluntarily providing their "identifying
information" to KIA, the Thomas's claim does not rise to the level of a
violation of O.C.G.A. § 16-9-121 (a)(1),(5)andO.C.G.A. § 16-9-120(4),
(5). The Court finds their claim for identity theft without merit.
Furthermore,the Court also finds the Plaintiffs' allegations of a RICO Act
Violation meritless. The Plaintiffs' have made no showing of a "pattern of
racketeering activity" and therefore, this claim is also DISMISSED."

(Footnote omitted) see KAS Order. On 9/14/2012 the former-judge denying the

motion for default Motion for Default and entered a nunc pro tune order to May 1,

2012, see (R-18^ Ann. 12-13. The court record is void of any action taken by the

former-judge on May 1, 2012 to justify the nunc pro tune order.(R-782-786i.

Later Judge Smith recused himself on 10/18/2012 (R-256), then later all judges

in the Chattahoochee Judicial Circuit, ('R-785) the case was assigned to Judge

Lumsden on 10/13/2016(R-774).

On 09/08/2017 the Thomases filed a verified motion for summaryjudgment STB

fR-318-386L On 01/08/2018 STB filed an unverified cross motion for summary

judgment fR-561\ in which STB made the claim, that is unsupported by the court

record, that: "The claims which the Plaintiffs continue to press against SunTrust

Bank have been dismissed, specifically for identity theft and RICO Act violations.
 Case S21C0048 Filed 07/30/2020 Page 10 of 32

by the prior orders ofseveral judges assigned to the case as also noted by this Court

in its recent order"(R-562i and (R-587_52(a)); see the Thomases opposition to STB

motion summary judgment(R-658T the Thomases argue that a search of the court

record failed to produce such an order, also see the Thomases Emergency motion

for continuance,(R-649).

On 10/07/2019 the trial judge entered the Order GSJ to STB on the ground that,

among other things, the KAS Order. See(R-5) App.3-7 and rR-lO) App.8-9.

ENUMERATION OF ERRORS

(1) COURT OF APPEALS ERR BY FAILING TO APPLY OCGA § 9-11-56(c)

STANDARD OF REVIEW FOR SUMMARY JUDGMENT:

(2) COURT OF APPEALS ERR BY AFFIRMING A NUNC PRO TUNC

ORDER:

(3) COURT OF APPEALS ERR BY AFFIRMING KAS ORDER WHICH IS

BASED UPON AN ERRONEOUS LEGAL THEORY:

III. ARGUMENTS AND CITATION OF AUTHORITIES

Summary judgments enjoy no presumption of correctness on appeal, and an

appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56

(c)have been met. This Court reviews the grant ofsummary judgment de novo. See

Cowart V. Widener. 287 Ga. 622 1697 SE2d 7791 (20101. Summary judgment is

proper only "ifthe pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to
 Case S21C0048 Filed 07/30/2020 Page 11 of 32

any material fact and that the moving party is entitled to a judgment as a matter of
law." OCGA § 9-11-56 (c). Thus,

to prevail on a motion for summary judgment, the moving party must

demonstrate that there is no genuine issue of material fact, so that the
party is entitled to judgment as a matter of law. A defendant may do this
by either presenting evidence negating an essential element of the
plaintiffs claims or establishing from the record an absence of evidence
to support such claims.

See id. at 623 (citations and punctuation omitted). The Thomases, as the parties

opposing summary judgment, are entitled to have the evidence in the record viewed
in the light most favorable to them and to have all reasonable inferences from the

evidence drawn in their favor. See id. at 624(1)(a). Also see Johnson v. Omondi

294 Ga. 74. 84-85. 751 S.E.2d 288 t2013)(Blackwell J., concurring),

"When a court considers a motion for summary judgment, it must view

the pleadings and evidence in the,light most favorable to the nonmoving
party,... accept the credibility ofthe evidence upon which the nonmoving
party relies, ... afford that evidence as much weight as it reasonably can
bear, and to the extent that the moving party points to conflicting
evidence,... discredit that evidence for purposes ofthe motion."

The record in the App. 3-16 on their face shows the court failed to consider or

overlooked the Thomases' pleadings, affidavits, statutes, KAS Order, and K-ACS,

the court failed to carry out its obligation under OCGA § 9-11-56 (c), in the light

most favorable to the Thomases and to have all reasonable inferences from the

evidence drawn in their favor. The record shows;

A. KAS Order it did not address the OCGA §16-9-121(b) claim against STB;

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 Case S21C0048 Filed 07/30/2020 Page 12 of 32

B. The court Order GSJ to STB is void of any reciting or reference the Thomases'

claims against STB under OCGA §16-9-121(b), the statute only require a showing

that STB willingly accepts for identifying purpose K-ACS knowing it is fraudulent,

to show a violation. Which K-ACS show on its face.

C. The court Order GSJ to STB is void of any reciting or reference K-ACS or the

Thomases claim Breach of ACS Agreement, on the third page ofK-ACS,(R-661),

(R-598J App.l6, the court concluded "...After reviewing the evidence before it in

the light most favorable to the nonmoving Party, the Court finds there is no

admissible evidence in the record to show that the defendant breached the agreement

between the parties." See Order GSJ,Breach of ACS Agreement(R-7)App.6-7.

(1) COURT OF APPEALS ERR BY FAILING TO APPLY OCGA $ 9-11-56 (cj

STANDARD OF REVIEW FOR SUMMARY JUDGMENT:

The Court of Appeal failed to satisfy its de novo duty that the requirements of

OCGA § 9-11-56(c)have been met when affirmed the trial court Order GSJ which

is based solely on the consideration of the movant party STB's unverified,

unsupported, and misrepresented pleadings in STB favor, overlooking all evidence,

the Thomases pleadings, affidavits, and statutes that support the Thomases claims as

the nonmovant. Which is clearly in conflict with OCGA § 9-11-56 (c).

(2) COURT OF APPEALS ERR BY AFFIRMING A NUNC PRO TUNC

ORDER WHICH IS BASED UPON AN ERRONEOUS LEGAL THEORY:
 Case S21C0048 Filed 07/30/2020 Page 13 of 32

It is well settled that the "entry of an order nunc pro tune cannot serve to supply

the court's nonaction,or to supply an order which it failed to make." See Pendersrass

V. Duke. 147 Ga. 10 192 SE 6491(1918)."When this court discovers from the record

that a judgment brought here for review is void for any reason, it will of its own

motion reverse it." Citations and punctuation omitted.) Adams v. Payne, supra at

639-640. 135 S.E.2d 4230964).

There is no evidence in the court record that the former judge took any action on

May 1, 2012 or after to open the default before entering on 9/14/2012 the nunc pro

tune order to May 1, 2012. See lR-20) App.10-11,(R-18) App.12-13 also see the

clerk minutes(R-783). Therefore the nunc pro tune order and the KAS Order,should

be vacated.

(3) COURT OF APPEALS ERR BY AFFIRMING KAS ORDER WHICH IS

BASED UPON AN ERRONEOUS LEGAL THEORY

The KAS Order did not address the Thomases claim that KAS created K-ACS

with the intent to commit bank fraud in violation of O.C.G.A. § 16-9-121 (a)(1),

(5). And therefore was based upon an erroneous legal theory. An "appellate court

cannot affirm a trial court's reasoning which is based upon an erroneous legal

theory." Amin v. Guruom, 280 Ga. 873. 875,635 S.E.2d 105 (2006).

Further court record shows that the former judge who entered KAS Order was

not authorized to preside over the case under the 2012 method of assignment which

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 Case S21C0048 Filed 07/30/2020 Page 14 of 32

was assigned to Judge Smith. When a Judge act in a case without, Authority or

jurisdiction, require setting aside, all hisjudgment,as being a nugatory and void. See

Fulton County v. Woodside, 222 Ga. 90,96(2)(149 SE2d 140j(1966)."When this

court discovers from the record that a judgment brought here for review is void for

any reason, it will of its own motion reverse it." Citations and punctuation omitted.)

Adams v. Pavne, 219 Ga. 639-640, 135 S.E.2d 423(1964).

Conclusion

Therefore the Thomases respectfully ask this Court to consider the facts as

shown above and in the App. reference the court record on appeal. The Court of

Appeal failed to satisfy the de novo requirements when issuing its the judgment in

this appeal which is in conflict with this Court's decision, although the Court of

Appeal judgment is NOT TO BE OFFICIALLY REPORTED having no

precedential value, but still in the public eyes the issues in this case and in cases like

it, will be of great concern, gravity, and importance to the public. Certiorari is

warranted to correct that error and ensure that standards are the same for all parties

to civil litigation in Georgia.

R^pectfiilly subnuttf^d on this 30^^ day of July Z020,

Sabrina R. Thomas, Pro Se, & / James R. Thomas Jr.,^o Se

P.O. BOX 252 Cusseta GA 31S05 (706)989-0233
Jamesabrina@hotmail.com

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 Case S21C0048 Filed 07/30/2020 Page 15 of 32

CERTIFICATE OF SERVICE

I hereby certify that I have this this 30^^ , day of July, 2020 served the above and
foregoing petition on all parties of record by placing a true and correct copy of

same in the United States Mail, first-class postage prepaid and addressed to the

following counsel ofrecord:

MONICA K. GILROY E.CARSON LANGE

3780 MANSELL RD. 1301 RIVERPLACE BLVD
STE 140 STE 1500
ALPHARETTA,GA 30022 JACKSONVILLE,FL 32207
GEORGIA BAR No. 450385 GEORGIA BAR No. 140140
ATTY. FOR SUNTRUST BANK ATTY. FOR KIA AUTO SPORT OF
COLUMBUS.INC.

Sabrina R. Thomas, Pro Se, & /James R. Thomas Jr., Pr^afSe

P.O. BOX 252 Cusseta GA 318^05 (706)989-0233
Jamesabrina@hotmail.com

12
 Case S21C0048 Filed 07/30/2020 Page 16 of 32

FIFTH DIVISION
REESE,P. J.,
MARKLE and COLVIN,JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk's office within ten
days ofthe date ofdecision to be deemed timely filed.
htb)s://www.gaappeais.us/ruies

DEADLiNES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUSTBESUBMITTED IfldTHIN
THE TIIVSES SETBY OUR COURT RULES.

June 24,2020

NOT TO BE OFFICIALLY
REPORTED
In the Court of Appeals of Georgia
A20A0711. THOMAS et al. v. KIA AUTO SPORTS OF COLUMBUS,
INC.etal.

Reese,Presiding Judge.

In this case,the following circumstances exist and are dispositive ofthe appeal:

(1)The evidence supports the judgment;

(2) No reversible ermr of law appears, and an opinion would have no

precedential value;

(3)Thejudgment ofthe court below adequately explains the decision; and

(4) The issues are controlled adversely to the appellants for the reasons and

authority given in the appellee's brief.

Thejudgmentofthe courtbelow thereforeis affirmed in accordance with Court

of Appeals Rule 36.

The Appellants' motion for sanctions is denied.

Judgment affirmed. Markle and Colvin, JJ., concur.

Appendices 1
 Case S21C0048 Filed 07/30/2020 Page 17 of 32

Court of Appeals
of the State of Georgia

ATLANTA, July 14, 2020

The Court ofAppeals hereby passes thefollowing order:

A20A0711. JAMES R. THOMAS, JR. et al. v. KIA AUTO SPORTS OF

COLUMBUS,INC.et al.

Upon consideration ofthe motion for reconsideration,filed in the above-styled

case on behalfofthe Appellants, the motion is hereby DENIED.

Court ofAppeals ofthe State ofGeorgia

ioim Clerk's Office,Atlanta. 07/14/2020
/ certify that the above is a true extractfrom
the minutes ofthe Court ofAppeals ofGeorgia.
Witness my signature and the seal ofsaid court
hereto affixed the day amiyear last above written.

Clerk.

Appendices 2
 Case S21C0048 Filed 07/30/2020 Page 18 of 32

IN THE SUPERIOR COURT OF CHATTAHOOCHEE COUNTY

STATE OF GEORGIA

JAMES R THOMAS JR.,

SABRINA R THOMAS,

Plamtiffs,
CSvil Action Number;
ll-CV-154

KIA AUTO SPORT OF COLUMBUS,

INC.,and
SUNTRUST BANK,

Defendants.

ORDER

This matter comes beR)ie the Court on Defendant SunTrust Bank (hereinafter

■Defendant") Motion for Stanmaiy Judgment After fully considering the tsiefe,

reviewing all pl^dings in the matter, and consideration of applicable Georgia Law, this

Court hereby GRANTS Defendant's Motion for Summary Judgment finding as follows:

I. STANDARD OF REVIEW.

Summary jud^i^t is proper "if fee pleadings, depositions, answers to

intenx^atories, and admissions on file, together wife the affidavits,if any, show that there

is no genuine issue as to any material fact and that fee moving party is entitled to a

judgment as a matter of law." O.C.G.A § 9-11-56(c). Thus, to prevail on a motion for

summary judgment, "the moving party must demonstrate that there is ik) genuine issue of

material fact," Montgomery v. Barrow, 286 Ga. 896, 898 (2010), so that fee party "is

sniitled to judgment as a matter of law." Kagflan v. City of Sandy Springs, 286 Ga. 559,

560 (2010).
A.q-.55-'^.!ig!5'' -A- ■■
OCT 0 7 2019
Laura Marion
Olerk Superior Court
Chattahooonee County, (hA
— - n- -

Appendices 3
 Case S21C0048 Filed 07/30/2020 Page 19 of 32

"A HftfenHanf may do tius by either pr^enting evidencie negatihg an essaitial

ftlftmrnt ofthe plaintifFs cl^nos or establishing fl»m the record an absence ofCTidence to
supportsuch clmms." O^ethorpe Dev. Group, bic. v. Coleman,271 Ga. 173,173(1999).
Thus,**the rule with regard to suminary jtaigment" is that a defendant who will not bear
the burden ofproof at trial need not affirmatively disprove the nonmoving party's case,
but may point out by reference to the evidence in the record that there is an.absence of
evidence to support any essential element of the nonmoving party's case. Cox Enters.,
Inc. V. Nix,274 Ga. 801, 803 (2002).Where a defendant moving for summary judgment
"discharges thj.^ burden,the nonmoving party cannot rest on its pleadings, but rather mu^

jointto sjwcific evidence giving rise to atriable issue." Lau's Corp., Inc. v. HasMns,261
Ga.491,491 (1991); O.C.G.A. § 9-11-56 (e).

n. HISTORY

James Thomas and Sabrina Thomas(hereinafter "Plaintiffe") Complaint arises as

a result of the PlainttfiPs purchase of an automobile from named Defendant, KIA

I'ditosport of Columbus (hereinafter "KIA"). The urdisputed evidence of record reveals
that on S^tember 30, 2009, the Plaindfrs in cormection with purchasing a vehicle from
KIA, entered into an agreement Each signed a "Vehicle Buyer's Order","Applicant's

Credit Statement", and "Retail InstaUinent Agreement" (heieinaftea: collectively fee

'Contract"). In fbcrtherance offee Contract the Plaintifife provided KIA wife their credit
information, including their names, social security numbers, occupations and salaries.

sCIA subsequently provided fee Piaintiffe' credit infoimadon to SunTirust Banking to

James R Thomas Jr.
Sabrina R Thomas,
V.

RJaAjuto Sport ofCohanbas,INC.£

SunTrusiBank
n-CV-154
CSiattahootJtee County Superior Coari

Appendices 4
 Case S21C0048 Filed 07/30/2020 Page 20 of 32

secure finnnritng for the vehicle. SuaTrust Bank approved the PIsdntifFs for financing and
Pl^tiffe on November 9, 2009 signed up for SunTrust's autopay program to make

pEQTOents to SunTrust in relation to.the financing for the vehicle. In August of 2010,

Plaintiffs' sought to rescind the loan and voluntarily return the vehicle, SunTrust

repossessed the Vehicle in October of2010 due to Plaintifife' feilure to make a payment

since July of2010.

nL FINDINGS OF FACT AND LAW

CountII:"Identity Theft, Conspiring,Ratification ofIdentity

Theft& Fraud"; Count IV:"Violations of6A RICO"

First,,the Court takes into account the previous order ofHon. Frank J. Jordan Jr.

dismis^g all claims ofIdentity Theft and RICO Act Violation claimed by the Plaintife,

thus all arguments in relation Gount ll and CountIV are moot.

Count VI;"Violation of GA Fair Business Practice Act"

Plaintiffclaims that Defendant violated the Georgia Fair Business Practice Act by

■'opening its doors by committing and ccmspiimg to commit identity theft ftaud causing
die plaiotiffe to become liable for a ftaudulent auto loan at a higher price."

After reviewing the e'vidence before it in the light most favorable to tiie nomno'ving

party, tiie Plaintiffs, the Court finds .that the Plaintifife. have not presented sufficient
evidoice to show that the Defendant violated the Act. The evidence of record shows that
... Jam& R Thomas Jr.
SabrfnaR Thomas,
V.

Kia Auto Sport ofColumbus. INC. &

SunTrust Bank
ll-CV-154
ChaPahoochee County Superior Court

Appendices 5
 Case S21C0048 Filed 07/30/2020 Page 21 of 32

die Defend^t provided ftnancmg on a vehicle that the Plaintiffs purchased from KIA.In
completing required paperwork with KIA in relation to the purchase of the v^iicle,
Ptaintiffe authorized KIA to send fiiiancial and identificatiDn information to third parties

in order to gain finanring. Georgia Courts have held that to be succe^fiiil in a claim of
Violation ofthe Georgia Fait Business Practice Act the Plaintiff most show "a violation

of the Act, causation, and injury."Zlrii'maTWi v. Linda Martin Homes Corp^ 279 Ga, 137,

139, 610 S.E.2d 68,70(2005). Plaintiffs have failed to show that the. Defendant violated

the act and that such violation caused injury for which the Plaintiffs are entitled to relief

from the court.

For the foregoing reasons, there is no genuine issue of material :&ct on the claim

of "Violation of Georgia Fair Business Act" and as such Defendant is endtied to a

Summary Judgment as a matter oflaw as to Count VI.

Count Vn:"Breach of ACS Agreement Fraud"

Plaintiffs claim that "Defendant along with co-defendant KIA altered

Plaintiffe' identity information without their knowledge and consent" The plaintiff also

i^aguely pleads that the Defendant committed ftaud in relation to the ACS agi^anent.

Afta- reviewing the evidence before it in the d^tmostfavorable to the nonmovrng

oafty, the Court fihds there is no admissible evidence in the record to show that the

defendant breached the agreement between the parties. Furdiermore,the Courtfinds that

he PlaintifFhas failed to plead fiaud with particularity as required by O.C.GA.. § 9-11-9

James R. Thomas Jr,
Sabrina R. Thomas,
V.

Kia Auto Sport ofColumbus, INC. &

SunTrvst Bank
lJ-CV-154
Chattakoochee Cotmty Superior Court

Appendices 6
 Case S21C0048 Filed 07/30/2020 Page 22 of 32

(b). The undisputed evidence shorn that On October 8,2009 the Defendant received the

Contract between KIA and the Plaintiffs dated September 30, 2009 and upon review

^proved the Plainti£fe for fiaancing of the vehicle. Subsequent to such approval the

PlaintifiEs began making payments to the Defendant and set up automatic payments using

SunTrust's automatic payment system.

For the foregoing reasons, there is no genmne issue of material foct on the claim

of"Breach of ACS Agreement Fraud" and as such Defendant is entided to a Summary

Judgment as a matter oflaw as to Count VII.

IV. CONCLUSION.

For the foregoing reasons, this Court hereby finds Defendant is entitled to

judgment a matter of law as to all of Plaintifis' claim and ORDERS judgment for the

Defendant on all claims.

so ORDERED this M day ofOctober,2019.

I KathermeOC. Lumsden
Judge, Superior Court
Houston Judicial Circuit

James R. Thomas Jr.

SabrtnaR. Thomas,
V.

Kia Auto Sport ofCobanbus,INC. &

SunThistBank
. ll-CV-154
Chattahoochee County Si^>erior-Court

Appendices 7
 Case S21C0048 Filed 07/30/2020 Page 23 of 32

IN THE SUPERIOR COURT OF CHATTAHOOCHEE COUNTY

STATE OF GEORGIA

JAMES R.THOMAS JR.,

SABRINA R.THOMAS,
//
Plaintifis,
Civil Action Number:

KIA AUTO SPORT OF COLUMBUS,

INC.,and '
SUNTRUST BANK,

Defendants.

ORDER DENYING PLAINTIFFS'MOTION FOR SUMMARY JUDGMENT

PMnliEEs filed aMotion for Summary JiK^menton February 25,2017 and a Second

Motion for Sunmrary judgment on September 8, 2017(Hereinafter collectively "Motions

for Summaiy Judgment")'against Defendant SunTrust Bank (Hereinafter,"Defendant?')in

the above-refcrraiced matter.No requestfor Oral Arguments were made in accordance with

Ga.Unif. Super. Ct R.6.3.

1. STANDARD OF REVIEW.

To prevail atsummary judgmentrmder O.C.G.A. §9-11-56,the moving party must

demonstrate that there are no genuine issues of any material feet and that the undisputed

facts, viewed in the light most fevorable to the nonmoving party, supportjudgment as a

matter oflaw. Lau's Corp. v. Ha-skins. 261 Ga.491 (1991).

n. .FINDINGS OF FACT AND LAW

In Plaintiffe' Motions for Summary Judgment are based solely on claims ofIdentify
Theft and RICO Act violations. On June 11,2012 Hon.Frank J. Jordan Jr. issued an order

dismissing all such claims. Thus,the PldntifiEs' argmnents are moot.

10

Appendices 8
 Case S21C0048 Filed 07/30/2020 Page 24 of 32

After careful consideratioa of tiie pleadings, motioji, and the applicable Georgia,

law,the Courtfinds that there are no genuine issues ofmaterial fact left for a finder offact
to determine, and that the undisputed fects, viewed in the light most fevofable to the

nonmoving party,supportjudgment as a matter oflaw against the Plaintiff.

Therefore, the Court hereby DiaSIES the Plaintiffs' Motion for Smnmary

Judgment.

SO ORDERED,this the day ofSeptember,201

K.Lums
Judge, Superior Court
Houston Judicial Circuit

)l

Appendices 9
 Case S21C0048 Filed 07/30/2020 Page 25 of 32

IN THE SUPERIOR COURT OF CHATTAHOOCHEE COUNTY

STATE OF CEORGIA
JAMES R.THOMAS,JR..
and SABRINA R.THOMAS, CASE NO.: ll-CV-154

Plaintiffs,
■j
'S3.
''S.,..r>'eiocii

JUN I 2zmz
vs. tMMBlloieil

bk.

KIA AUTOSPORT OF JUDGE FRANK J. JORDAN,JR.

COLUMBUS,INC., and
SUNTRUST BANK,
Defendants.

ORDER V

Pending before the Cout is Defendant Kia Autosport of Columbus,Inc.'s,

Motion to Dismiss Cotiiplaint or,in the Alternative, to Stay the Proceedings and
Compel Arbitration.

DISCUSSION

After considering tiie arguments ofboth parties, as well as all ofthe

evidence,the Court hereby GRANTS Defendant Kia Autosport's Motion to Stay

the Proceedif^ and Compel Arbitration.

All ofthe claims ofthe Thomas's' are subject to arbitration. In completing

the purchase oftheir automobile fiom'Kia Autosport of Columbus,tiae Thomas's

signed two arbitration agreements,both of which clexirly state that all claims

on
Appendices 10
 Case S21C0048 Filed 07/30/2020 Page 26 of 32

arising from the sale shall be arbitrated.. FurdKamore,this Court rinds the
arbitration agreements valid and all issues are arbitrable under the language ofthe

arbitration agreement.'
The Court hereby DISMISSES the Thoinas's claims for identity thefi and a

RICO Act violation- By voluntarily providing their "identifying thfbrraation" to

KIA,the Thomas's claim does not rise to the level ofa violarion ofO.C.G_A.§ 16-

9-121 (a)(1),(5)and O.C.G.A.§ 16-9-120(4),(5). The Court finds their claim for
identity theft without merit. Furthermore, the Court also jElnds.the Plaintiff'
allegations ofa RICO Act Violation meritless. The Plaintife' have made no
showing ofa "pattern ofracketeering activity"^ and therefme,this claim Is also
DISMISSED.

Based upon the foregoing discussion and the findings of&ct and

conclusions oflaw,the Court hereby GRANTS Defendant K.ia Autosport's Motion

to Stay the C^e and Compel Arbitration.

So ORDERED this 11th day ofJune,2012.

HONORABLfiLl'l^^kNK J.JORDAN JR.

SUPJERjORCOURT OF CKL\TTAHOOCHBE COUNTY
CHATTAHOOCHEE JUDICIAL dRCUIT

'Krui V. Whaccap Haus. Or<mp,268 Ob.Api>.436.442-43(On. Cl.App.20O4).

= O.C.C.A. g 16-14-4.

. A\
Appendices 11
 Case S21C0048 Filed 07/30/2020 Page 27 of 32

IN THE SUPERIOR COURT OF CHAXTAHOOCHEE COUNTY

STATE OF GEORGIA
JAMES R.THOMA^ JR.,
and SABRINA R,mOMAS, CASE NO.: ll-CV-154

Plaintifis,

V.

KIAAUTOSPORTOF JUDGE FRANK J. JORDAN,JR.

COLUMBUS,INC.,and
SUNTRUSTBANIC
Defendants.

ORDER DENYING PLAINTIFFS' MOTION FOR DEFAULT FINAL

JUDGMENT

Pending before the Court is Plaintiff' Motion for DefaultFinal JiK%ment

Against Defendant Kia Auto Spmt of Columbus,Inc. Under O.C.G.A. § 9-11-

55(a),the defeult*'may be opened as a matter ofright... upon the payment of

costs." Because this case was filed by Plaintiffs' as indigents, no costs had accrued

at the time Defendants sought to open the default Therefore,the default shall be

opened as a matter ofright, Pl^tififs' Motion for Default Final Judgment is

hereby DENIED.

|DMS Q-aock,
SEP 14 2012
(junUErtan
CaskBusanwOM"'

Thomas,et al. v. Kia,et at

Oider Denying Motion for Itefaiilt

it
Appendices 12
 So ORDERED this 11th day ofSeptember,2012 nuncpro tune iVfay 1,
2012.

HONG J.JORDAN OR-

SUPERIOR' CHATTAHOOCHBE COUNTY
CHATTAHOi HE ICIAL CIRCUIT

Thomas,et v. Ria,et al.

Ckder Denying Motion for Default

Appendices 13
Page 28 of 32 Filed 07/30/2020 Case S21C0048
 Case S21C0048 Filed 07/30/2020 Page 29 of 32

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Appendices 14
 Case S21C0048 Filed 07/30/2020 Page 30 of 32

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Appendices 15
 Case S21C0048 Filed 07/30/2020 Page 31 of 32

o
CD
AORBEMENT

Tho vvorft ^u,""yowr and Voins" mean aadi peisun sulunHfing Itih apptleatlon. Ria %wonl3 •wo." *ua," "dut* and lauis* as used
U1
bdow laferloiiSi(hadaaJer,and tothe nfmnslaltftitttuUixds) SQtautQd loTGCChnyour ^^Icallon.
any Mar apptmion aubmtttod in oonascliin wlih the proposad tranaacfion to dm
g- wwuwns^^waflw w you^ustn» otalfts.lMs AppftcaUon wfii be revfswed by euch fUiandaf instluilk:ns m beftaif ot titona^vesemi
us n daatefe cn adgiiari, In aeyrfanoe vnth the FUr CretQt RGpojtb^ Act, you auttiorizs ihat sucfi financial IfwffluBons may subcitft your
w
* eppncsDoitfl to otner.finBncw instSiiUons.' •

Vou eyrpo that wb may obtain a omsumer credit raport pcfkwScai^ from ono or more eonsumBf ireporting Doenclos Ccredil bitoaiti)la
connection wrfih the propcsBtf uansaetion end any rsnowal* raftnar^ng, mznStbatUHior osdenslon ott^ttrensacilon. you bIbo obioq ttiet
we venyaKllale of ours may obtain one or mom consumer eredlt reports on you at any time wh&tBoaver. (ryouasl«,youw|llbeta(dwhDlftorB »
cai« ropart was rOt^BSled. and If so.the name and acfdra&a ot any oodft bureau from wMiwb or cur Gfll^teoMotrted your tfedlt lapod.
You WO may verify your wnployment»pGy,assets and debts,and that ar^yone roctfving e copy of this Is autheitaedto provide
us witti sucb lrfdhnatlon. You hirther aiifiierlze us to gsther whatever cradH and emptoymard htsioiy wo consider neceasaiy and appropiiafe In
ovantsflng this oppCteadon and anyePtcf appScatieite submttied En connection wllh the proposiMl uvtsaetiaru
Wb may keep pits appEcatliin and any cthar eppOcaltan autxnnied id us and irdomaScn abaut you tvlteUier or not ttw appTiEatlsn Is
sppiOTBd. YoucerttiyihallhalnloimailononUiaappueaiianandlnanyaihsreppneidloasuMnllledloua,latiuaandosiiipiaia. Youundeislond
dial iaite slBlementa meysublect you to otidnal penalties.
FEDERAL NOTICES
IMPORTAMTINFDRMAHqM ABOUT PR0CE0URE5 FOR OPENING A NEW ACCOUNT To help lira3 c. Qovemmentfightthe(undlog oftematsm
and money laundeifng actWtics.Fedeiallow rcouiraa all nnanelBJ Instllufionslo ohtain, uaiily, ai^■Bcomr bifot^dnlKalUtmtfTias'eacfa unon
*mo opma an oosoiml. Wtirt mio moans for you; When you open an ascounl, wo wta ask fim-your name, addrass, dalo ol birth, and rther
Iidbiinetiaii that <Hn edfoar us to idcnllly you. Wo rnay alsa amlo too your drtvera fioonso or lAharldcnlJ^Ing doeumenls.
STATE NOTICES '
oaiBomla RosWontsi Anap|fiIeaai,nnianfod.ii^appiyforasoparaUBmuiit,
OHoRasHome: OMoIaws^ialnstdlsatntlnallanKKtultetnaifiaciediiQrainakeGiBrilteiiuaByaMidlatiloloaa enKStNOrtby eusliMneis and that
credit lepDitlno agoncles modnmin s^iemte crertil historlas on each Indhrtdual upon icqimst The Ohio Civil Rights Commlsston etkldfdslars
compfiancBWlih ttib tow.

New Hampahlra Realdenta: IF ttils h an oppOcailan tor bafioon nnendnii, you era eniHled to receivs, upon requesl. a wrmsn esumats a uia
monlhly payment amount thai would bo loqidrad to lellnanee lha balleen payrnent at flia Uma sud> payment Is due hasad on the creiitiMlB eonieni
Rtflnanebig programs.
Naw York Reatdento: In coanecUan eSUi your appKcadon for eiedit, we may request a censumer report which eordslna Monniulan on your eroidl
wortoiness, orodt standing, parsenal enaiaoiertstlirs and geneml KSiutailon. II vie gimu you ererto, we or our loan somlQor nmy nntar oddHond
eonsuDier ropoita In cennactlon WKh arty update, renewal or extension ol the oiedil. H you ask us, we wtntatl you wnother we obtained a eensuner
report andII we clldL we will iell you the name qnd.addiea9 ol the eonsumor repoilkig agoney that gave eo too raport.
VefBmniRasJdonta: By slgnhig below you euthoiliaus raid our employees or agents to obtain and veidylnlonnationdboul you (Imluifag ana or -
more credit reports, intonnatim about your onpioymart and banhlng end credit relallonsiifps) that we may doom necessary or ipprotate In
evaluating your loan appBcalton. Byour epplleailon is aptveved and Iha loan Is madOk ytM elsa aulhdilzB us, and our eniplayBea end agents, to
oblBln eddmonel cieda reports snd other tntoimallsn otieiit you In coonoefim wiSi rev&ming die escount. Increasing Itie evallEMB credit on Iho
account (it sppticsblo), tsklirg coUectton on tho Grmaunt, or for any other Icgfitoieiepotpohd,
MnM tWtseonaSn Realdmrtst Wlseaftdn law pnwidea Ihot no provtslen ol nay mmbal property agreement, or unllatoral slalemBM, or ooud
Ohtor applied to martla) propony WO advemsly effoct a eiadUorta Inleirssis untosa, prior to the ttmo dial Oia eredA to granted, Iho eedilor Is
toiitobed wllh a fm el the agreement, stofement or decroo, or has ostuei knowlsd^ of Uto advsrea pitMSslon.' 0 yea era makbig thto a^salton
IndlviduB^, and not totolty with your spousa. the (all nema «td cuneni address d your rerause must lie propeia diselased In die cortippfieanl
oeefiim of this appficafian.

TT^rnrtViiidiEiw'^ »<ii)n»nigiiiiftwmiiiiiN Wfrtiiiifmiiwijini miniiidiij,

lC^»?ipyfaS^ »l«g' gFiwd(»"iSi

iurnn J
AOrUCAMTS aOHATUnS CO-APPUbKMTSGUSHAninE ' aAl€
mxahimtb ressbvao.

Appendices 16
 Case S21C0048 Filed 07/30/2020 Page 32 of 32

JAn£S THOriAS
(706) 909-0233 2 LBS I OF I
THE UPS STORE 13302 SHP UTS 2 LBS
1639 BRADLEY PARK DR .STE 500 DATES 30 JUL 2020
COLUnSUS GA 31904-3620

SHIP CLERKS OFFICE - NATHAN DEAL JUD. CN

TO: SUPREME COURT OF GA
FL 1 . STE 1 100
330 CAPITOL AVE SE

dTLftlilfl GH 3B334-9Bfl2
axv:

Gf) 363 9-02

mm.

UPS GROUN
TRACKING «: IZ lAF 631 03 4534 7070

BILLING: P-'P

tEFIliI
ll mo 3Z02(f
ElaillM at 411 si.vu .