concurring in part and dissenting in part.
I concur fully with all that is said in Case No. A13A1791.
I dissent in Case No. A13A1790 because I disagree with the majority’s conclusion in Division 2.1 believe that the Bank presented sufficient evidence to establish that it is entitled to enforce the notes and guaranties.
As an initial matter, based on the documents and on Felker’s affidavit, the Bank has established that it is the real party in interest as a transferee of the notes and guaranties.1
Moreover, the Greenstein Defendants failed to establish a genuine issue of material fact as to the Bank’s right to enforce the notes and guaranties. Contrary to the conclusion of the majority, Felker’s affidavit, which was based “upon [his] personal knowledge” is sufficient to support the trial court’s finding that the Bank presented evidence that it has present title to the notes and guaranties and was authorized to enforce them. Felker averred as the Bank’s employee that “[o]n March 7, 2007, [Farmers & Merchants] changed its name to First Choice Community Bank 1874”; and “[o]n March 26, 2010[,] First Choice 1874 merged with First Choice Community Bank, and First Choice thereby succeeded to the rights of First Choice 1874.” As a current employee of the Bank, which succeeded in interest to the business records of First Choice, Felker was competent to testify as to information contained in the Bank’s records in the present case.2 The *657Greenstein Defendants did not respond to those statements with any significant claim that the notes and guaranties were negotiated, transferred, or assigned to any entity outside the Farmers/First Choice 1874/First Choice chain prior to the FDIC’s receivership of First Choice’s assets or that the notes or guaranties were paid in full or released prior to the suit. Instead the Greenstein Defendants made only the bald assertion that sufficient evidence was not presented.3 Such an assertion did not meet the requirement of OCGA § 9-11-56 (c) sufficient to create a dispute as to whether the Bank, as the current entity in physical possession of the instrument with evidence of successor rights to the title of First Choice’s assets, is not entitled to enforce the instrument. “ ‘Although an opposing party is entitled to the benefit of reasonable inferences, an inference cannot be based on mere conjecture or probability, or on evidence that is too uncertain or speculative.’ ”4
Decided March 28, 2014. Schreeder, Wheeler & Flint, John A. Christy, Jared W. Heald, for appellants (case no. A13A1790). Weener & Nathan, Philip H. Weener, Eric J. Nathan, Matthew L. Reeder, for appellants (case no. A13A1791). Jones & Walden, Leon S. Jones, L. Paul Owens III, Monica L. Vining, for appellee.I am authorized to state that Chief Judge Phipps and Judge Branch join in this dissent.
See OCGA §§ 11-3-203 (b) (“Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course”), 11-3-301; Lee v. Muller, 200 Ga. App. 139, 140 (1) (407 SE2d 108) (1991) (explaining the difference of a transfer of an instrument and the negotiation of an instrument); Northeast Factor & Discount Co. v. Mtg. Investments, 107 Ga. App. 705 (131 SE2d 221) (1963) (“transfer for value, without indorsement, vests in the transferee such title as the transferor had, and the transferee may bring suit thereon in his own name”); Robbins v. Welfare Financial Corp., 95 Ga. App. 90, 92 (1) (96 SE2d 892) (1957) (transferee of a negotiable instrument may effectuate suit in its own name even without evidence of a written assignment or endorsement of the instrument by named payee).
See, e.g., Phillips v. Mtg. Electronic Registration Systems, Case No. 09-CV-2507 at *4-*8 (II) (D.C. N.D. Ala., decided Apr. 5, 2013) (employee of successor institution may competently testify to personal knowledge garnered from documents received from predecessor institution in order to fulfill summary judgment requirements). See also United States v. Jakobetz, 955 F2d 786, 801 (2nd Cir. 1992) (stating that “[ejven if the document is originally created by another entity, its creator need not testify when the document has been incorporated into the business records of the testifying entity”); United States Bank Nat. Assoc. v. American Screw & Rivet Corp., Case No. 09-C-7312 (D.C. N. Ill., Aug. 10, 2010) (order granting summary judgment finding that employee of receiving bank who acquired assets through the FDIC was competent to offer testimony under Fed. R. Evid. 803 as to the failed hank’s records); In re: Trafford Distributing Center, 414 BR 858, 862 (1) (U.S.B.C. S.D. Fla., Sept. 1, 2009) (“Personal knowledge can come from review of the contents of business files and records.”) (punctuation omitted).
Of the numerous guarantors, only the Greenstein Defendants contested the Bank’s standing as the real party in interest, not because there is any real question that the name change and merger took place, but instead by interposing generic responses to the Bank’s Statement of Material Facts Not in Dispute “that [the Bank] has [failed to] establish [these facts] through the proper submission of evidence into the record.” While a plaintiff is required to prove its case, here, where the Greenstein Defendants admitted in their answers that CEP-Ten signed the first and second promissory notes and that they signed the first and second guaranties, these tactics appear interposed to delay payment of a legitimate debt rather than as an actual challenge to the evidence.
Dew v. Motel Properties, 282 Ga. App. 368, 373 (2) (638 SE2d 753) (2006).