dissenting.
I agree completely with Justice McAnulty’s dissent, which describes how summary judgment was inappropriate in this case under the standard outlined in Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky.1985), and reaffirmed in Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991). I write separately, however, to highlight the conclusion compelled by the Court’s decision given the evidence in the record, namely that we have departed sub silentio from Paintsville Hospital and Steelvest.
Because the Court insists that it is simply applying the old summary judgment standard, the best way to illustrate the departure from the rule for the bench and bar is to look at the evidence itself. In response to the summary judgment motion, the bank produced the affidavit of one of its officers and records of the last four years of McCubbins’s payments on the loan.
The affidavit of the bank officer, David Bush, reads in its entirety as follows:
Comes the undersigned Affiant, David G. Bush, having been first duly sworn, states as follows:
1.The undersigned is the Recovery and Preservation Officer at First Federal Savings Bank, and he is authorized to give this Affidavit.
2. The undersigned has personal knowledge of the facts contained herein and is familiar with the account of Tommy Lee McCubbins, being First Federal Account Nos. 600-001-397 and 601-001-397.
3. That as of February 10, 2004, the unpaid balance on the Note, being First Federal Account No. 600-01-397, was $6,6547.001 with interest thereon at the rate of 9% per annum, until paid.
4. First Federal Savings Bank is the owner and holder of Loan No. 600-01-397 made to Tommy Lee McCubbins, said loan maturing on May 1, 2003.
5. On July 3, 2002, Tommy Lee McCubbins paid off Loan No. 601-001-397.
6. Because the aforesaid loans had similar loan numbers, First Federal Savings Bank mistakenly mailed the original of the Note, assigned First Federal Loan No. 600-01-397, and the original Mortgage securing said Note, to Tommy Lee McCubbins, stamped “Paid in Full” in July 2002.
7. For the same reason, in August of 2003, First Federal Savings Bank mistakenly released the Mortgage securing the aforesaid Note.
8. First Federal Savings Bank did not intend to voluntarily release Tommy Lee McCubbins from his obligations under the aforesaid Note and Mortgage, being First Federal Loan No. 600-01-397, as the referenced loan, on July 3, 2002, had an unpaid balance on the aforesaid Note of $5756.87 with interest thereon at the rate of 9% per annum, until paid.
This 21st day of July, 2004.
*207Isl-
DAVID G. BUSH
As Justice McAnulty’s dissenting opinion points out, this affidavit clearly establishes a genuine issue of material fact regarding whether the discharge of the loan was intentional and voluntary as required by KRS 355.3-604(1). To conclude otherwise is to blatantly disregard Steelvest’s command that “[t]he record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” 807 S.W.2d at 480.
The payment records that the bank produced showed the date and amount of the fifty payments made between April 1999 and July 2003, when McCubbins quit paying on the loan. The records also show a running balance after each payment and indicate that a balance of $5756.87 remained after the last payment was made in July 2003. The majority discounts this evidence by claiming that because the bank failed to produce records of all of the payments going back to when the loan was issued in 1978, it had failed to “meet its burden that any debt remained....” Ante at 204. But the bank’s burden in order to overcome the motion for summary judgment was not to produce perfect and complete proof of every fact related to its claim. Rather, under Steelvest and Paintsville Hospital, the bank needed only produce enough evidence to show the existence of a material issue of fact. Surely an uncontradicted record showing that McCubbins owed the bank over $5700 at the time he chose to quit making payments is sufficient to show the existence of a material issue of fact as to whether part of the debt was still outstanding and unpaid.
We have stated that summary judgment “is only proper where the movant shows that the adverse party could not prevail under any circumstances.” Paintsville Hosp. Co., 683 S.W.2d at 256. And we have gone to great lengths to distinguish our summary judgment standard from the more relaxed one used in the federal courts. Steelvest, 807 S.W.2d at 480-83. Applying the Kentucky standard, summary judgment is clearly inappropriate in this case, given the bank’s evidence. Thus, the Court’s approval of the summary judgment shows a clear departure from our long-standing rule. The only question remaining is whether Steelvest and Paints-ville Hospital have been completely discarded in favor of a more lenient summary judgment standard or the new standard applies only to the detriment of banks and other commercial businesses.
McANULTY, J., joins this dissenting .. opinion.
. This figure includes a typographical error; it should have read "$6,547.00.” However, I have opted to include the entire text of the affidavit, rather than correcting the error.