SECOND DIVISION
MILLER, P. J.,
MERCIER and COOMER, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
December 22, 2020
In the Court of Appeals of Georgia
A19A1676. NATIONAL COLLEGIATE STUDENT LOAN TRUST
v. 2007-1 v. BELL.
MERCIER, Judge.
National Collegiate Student Loan Trust 2007-1 (“NCSLT”) sued Shaquavia
Bell on a promissory note, alleging she defaulted on her obligation to repay the loan.
Bell filed a special appearance and answer stating, inter alia, that NCSLT lacked
standing to sue in its own name and that she was not properly served with the
complaint and summons. Bell moved to dismiss the complaint, arguing that NCSLT
lacked standing to pursue any action in any Georgia court, that the court lacked
personal jurisdiction over her, and that she received insufficient service of process.
The trial court heard the motion to dismiss and entered an order stating that NCSLT,
as a trust, could only pursue a civil action through its trustee, that it must substitute
its trustee as the real party in interest, and that failure to do so may result in dismissal
of the action. Based on its finding that the action was not then prosecuted in the name
of the real party in interest, the court declined to address the other motions filed by
the parties.1
NCSLT did not substitute the party as directed in the order, but filed a motion
for reconsideration, contending that it is not an express trust but a Delaware statutory
trust and, as such, is recognized as an unincorporated association with capacity and
standing to sue in Georgia courts. The court denied NCSLT’s motion for
reconsideration and entered a final order dismissing the action “for want of a plaintiff
with standing.” NCSLT now appeals, asserting that a Delaware statutory trust is an
unincorporated association with the right, capacity, and standing to sue in its own
name, and that an unincorporated association is unlike traditional common law or
express trusts that have no separate personality apart from their trustees.
The outcome of this case is controlled by our recent decision in Nat. Collegiate
Student Loan Trust 2007-3 v. Clayborn, ___ Ga. App. ___ (Case No. A20A1571,
decided October 23, 2020), where we reversed the trial court’s dismissal of NCSLT’s
1
Prior to the court’s order, NCSLT filed motions to transfer the case and to
vacate service of process. Bell’s motion to dismiss included the additional grounds
of lack of personal jurisdiction and insufficient service of process.
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action against a different borrower. We held that “NCSLT, despite its nomenclature
as a ‘trust,’ is a Delaware unincorporated association. As such, it is a separate legal
entity entitled to maintain an action in its own name in Georgia. Accordingly, the trial
court erred by dismissing the complaint.” Slip op. at 7 (1). NCSLT presents the same
arguments here that it presented in Clayborn. Therefore, for the reasons explained in
Clayborn, we reverse the trial court’s judgment in this case. And, because the trial
court declined to rule upon the parties’ pending motions in light of its dismissal for
lack of standing, we remand this case for the court to consider those motions.
Judgment reversed and case remanded. Miller, P. J., and Coomer, J., concur.
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