O.C.G.A. § 44-14-161 — First Nat’l Bank & Trust Co

v. Kunes, 230 Ga. 888, 199 S.E.2d 776, 1973 Ga. LEXIS 1098 (1973). O.C.G.A. § 44-14-161, by using the word “debtor,” included all who were presently subject to payment of the debt, or who might be subjected to payment thereof, if within the knowledge of the payee of the note. First Nat’l Bank & Trust Co. v. Kunes, 128 Ga. App. 565, 197 S.E.2d 446, 1973 Ga. App. LEXIS 1547, aff’d, 230 Ga. 888, 199 S.E.2d 776, 1973 Ga. LEXIS 1098 (1973). The term “debtor” in O.C.G.A. § 4414-161(c), appears to refer to the debtor on the underlying debt, i.e., the promissory note, as that is the only party against whom the deﬁciency may be enforced. Commercial Exch. Bank v. Johnson, 197 Ga. App. 529, 398 S.E.2d 817, 1990 Ga. App. LEXIS 1391 (1990). O.C.G.A. § 44-14-161(a) applies to both primary debtors and guarantors; an action for the balance remaining on a note following a foreclosure sale against a guarantor rather than the primary debtor is still an action for a deﬁciency judgment under that section and is barred if no conﬁrmation was obtained. United States v. Yates, 774 F. Supp. 1368, 1991 U.S. Dist. LEXIS 13950 (M.D. Ga. 1991). The deﬁnition of “debtor” in O.C.G.A. § 44-14-162.1 does not apply to O.C.G.A. § 44-14-161. Hill v. Moye, 221 Ga. App. 411, 471 S.E.2d 910, 1996 Ga. App. LEXIS 511 (1996). 44-14-161 It would not matter for purposes of O.C.G.A. § 44-14-161 whether the debtors were primarily or secondarily liable on the debt. First Nat’l Bank & Trust Co. v. Kunes, 230 Ga. 888, 199 S.E.2d 776, 1973 Ga. LEXIS 1098 (1973). Signers of an indemnity agreement are “debtors” within the meaning of O.C.G.A. § 44-14-161 immediately upon the default on the promissory notes and as such should receive notice of conﬁrmation proceedings and be given an opportunity to contest the approval of the sales before claims for the balance of the indebtedness can be prosecuted against them. First Nat’l Bank & Trust Co. v. Kunes, 230 Ga. 888, 199 S.E.2d 776, 1973 Ga. LEXIS 1098 (1973). The term “debtor” as used in O.C.G.A. § 44-14-161 includes a guarantor of the debt. Ricks v. United States, 434 F. Supp. 1262, 1976 U.S. Dist. LEXIS 12889 (S.D. Ga. 1976). Term “debtor” inapplicable to guarantor having limited liability. — The term “debtor” in O.C.G.A. § 44-14-161(c) is inapplicable to guarantors and sureties in circumstances where the guarantor has limited liability as to the underlying debt. Commercial Exch. Bank v. Johnson, 197 Ga. App. 529, 398 S.E.2d 817, 1990 Ga. App. LEXIS 1391 (1990). O.C.G.A. § 44-14-161’s purpose is to pass upon the notice, advertisement, and regularity of the sale and to reinsure that the property was sold for a fair value. It provides debtors with formidable protection against gross deﬁciency judgments. Wall v. Federal Land Bank, 240 Ga. 236, 240 S.E.2d 76, 1977 Ga. LEXIS 1459 (1977). O.C.G.A. § 44-14-161 does not purport to affect the validity of sales but just to prevent deﬁciency judgments in addition to unfair sales. It was intended to supplement the debtor’s right to set aside the sale. FDIC v. Dye, 642 F.2d 837, 1981 U.S. App. LEXIS 14190 (5th Cir. 1981). The public policy behind conﬁrmation proceedings is not to impose an affirmative duty upon the foreclosing party to obtain the true market value of the property. Kennedy v. Gwinnett Com. 536 44-14-161 MORTGAGES, SECURITY, LIENS Bank, 155 Ga. App. 327, 270 S.E.2d 867, 1980 Ga. App. LEXIS 2569 (1980). Protection of debtor from double payment. — The strongest ground of public policy for the enforcement of statutes requiring conﬁrmation in foreclosure proceedings is to protect the debtor from being subjected to double payment in cases where the property was purchased for a sum less than its market value. Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144, 1981 U.S. Dist. LEXIS 14425 (N.D. Ga. 1981). Conﬁrmation statutes are thought necessary to prevent inequities that arise when a creditor buys property on which it has foreclosed at a low price when property values are depressed and the economy is recessionary, and then proceeds to seek a personal judgment against the debtor for the difference between the low price the creditor has paid for the property at the foreclosure sale and the balance of the debt. Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144, 1981 U.S. Dist. LEXIS 14425 (N.D. Ga. 1981); Stamps v. Ford Motor Co., 650 F. Supp. 390, 1986 U.S. Dist. LEXIS 18434 (N.D. Ga. 1986). The courts consistently strike down schemes aimed at avoiding the deﬁciency legislation by illusory changes in form; a ﬂimsy avoidance device based upon an intermediate surety would have no chance of success. Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144, 1981 U.S. Dist. LEXIS 14425 (N.D. Ga. 1981). Guarantors and sureties are protected by O.C.G.A. § 44-14-161. Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144, 1981 U.S. Dist. LEXIS 14425 (N.D. Ga. 1981). O.C.G.A. § 44-14-161 does not operate to extinguish a debt; it just limits the creditor’s remedies. Calvert Fire Ins. Co. v. Environs Dev. Corp., 601 F.2d 851, 1979 U.S. App. LEXIS 12152 (5th Cir. 1979). O.C.G.A. § 44-14-161 does not extinguish the deﬁciency debt; rather, it limits the creditor’s remedies. Hence, a creditor retains the option of selling other security to recover the deﬁciency. Citizens Bank v. Wiggins, 167 B.R. 992, 1994 U.S. Dist. LEXIS 5539 (M.D. Ga. 1994). 44-14-161 O.C.G.A. § 44-14-161 is not applicable to a note and security deed executed prior to the passage of the Act. Atlantic Loan Co. v. Peterson, 181 Ga. 266, 182 S.E. 15, 1935 Ga. LEXIS 70 (1935); Guardian Life Ins. Co. of Am. v. Laird, 181 Ga. 416, 182 S.E. 617, 1935 Ga. LEXIS 105 (1935). Creditor legally may seek, should a deﬁciency exist, to foreclose upon additional collateral, regardless of its compliance with O.C.G.A. § 44-14-161. A creditor does not, however, have an “unqualiﬁed right” to additional collateral when such collateral is under the exclusive, equitable jurisdiction of the bankruptcy court. Synovus Bank v. Brooks (In re Brooks), 479 B.R. 917, 2012 Bankr. LEXIS 4761 (Bankr. N.D. Ga. 2012). Section inapplicable where conveyance by warranty deed. — Creditor’s failure to seek conﬁrmation of any sale of property pursuant to O.C.G.A. § 44-14161 did not bar the creditor from seeking a deﬁciency judgment, where the property owner voluntarily conveyed the property to the creditor by warranty deed for the express purpose of avoiding non-judicial foreclosure, and that section was therefore inapplicable as a matter of law. Ashburn Bank v. Reinhardt, 183 Ga. App. 292, 358 S.E.2d 675, 1987 Ga. App. LEXIS 1939 (1987). Merger of deeds securing same property. — When two deeds secure the same property and are held by the same creditor, the deeds merge and conﬁrmation of the sale is required. United States v. Yates, 774 F. Supp. 1368, 1991 U.S. Dist. LEXIS 13950 (M.D. Ga. 1991). The purchaser at public outcry, whether a party to the debt, or a third person, bids at the sale with full knowledge of enactment of O.C.G.A. § 44-14161, which clearly contains the language that “the court may, for good cause shown, order a resale of the property,” and the purchaser is bound by this language in that section. Davie v. Sheffield, 123 Ga. App. 223, 180 S.E.2d 263 (1971). Questions of fact remained to be determined. — Grant of summary judgment to the creditors was reversed because questions of fact existed as to whether one creditor’s failure to conﬁrm 537 General Consideration (Cont’d) the foreclosure sale barred the claims asserted by it and the other creditor as well as a question of fact existed as to whether all of the debts at issue, including the 2004 loan, were owed to a single creditor and were given for the same purpose. Bryant v. Optima Int’l, 339 Ga. App. 696, 792 S.E.2d 489, 2016 Ga. App. LEXIS 642 (2016). When foreclosure sale is ﬁnal. — The crying of a sale on the courthouse steps is only a step toward ﬁnalizing a foreclosure sale and does not, without more, serve as evidence of a consummated foreclosure sale. Gooden v. Buffalo Sav. Bank, 21 B.R. 456, 1982 Bankr. LEXIS 4389 (Bankr. N.D. Ga. 1982). A foreclosure sale is not ﬁnal until the deed is transferred. Gooden v. Buffalo Sav. Bank, 21 B.R. 456, 1982 Bankr. LEXIS 4389 (Bankr. N.D. Ga. 1982). Creditor not required to foreclose prior to seeking judgment on a note. — Trial court’s decision granting summary judgment in favor of a creditor on the creditor’s suit on a promissory note and guaranty executed by debtors was proper. The creditor was not required to foreclose on the property securing the note and obtain judicial conﬁrmation under O.C.G.A. § 44-14-161(a) prior to seeking judgment on the note. Reese Developers, Inc. v. First State Bank, 306 Ga. App. 13, 701 S.E.2d 505, 2010 Ga. App. LEXIS 848 (2010). O.C.G.A. § 44-14-161(a) did not bar a bank from ﬁrst suing the guarantors on their guarantees and then, eleven months later, conducting a nonjudicial foreclosure sale of the collateral because, at the time the bank ﬁled suit on the guarantees, the bank had no deﬁciency to recover because the bank had not conducted a nonjudicial sale of the property. State Bank of Tex. v. Patel, 453 Fed. Appx. 857, 2011 U.S. App. LEXIS 19958 (11th Cir. 2011). Foreclosure sale properly conducted and consummated with bank as purchaser. — Foreclosure sales were properly conducted and consummated under O.C.G.A. § 44-14-161 because a bank purchased the secured properties at the sale after the debtor defaulted on promis- 44-14-161 sory notes to the bank, the requisite procedures for the sale were followed, and the fact that the bank conveyed the debtor’s interest to the bank’s wholly-owned subsidiary under a separate agreement did not undercut the underlying sales. Peachtree Homes, Inc. v. Bank of America, N.A., 315 Ga. App. 243, 726 S.E.2d 737, 2012 Ga. App. LEXIS 347 (2012). Property omitted from appraisal meant invalid foreclosure sale. — Good cause existed to believe that the property did not sell for true market value because the lender’s bid at the foreclosure sale was based on an appraisal that did not include the entire land mass or full extent of the property at issue. Based on this clear omission in the appraisal, the trial court was authorized to ﬁnd that the property did not sell for fair market value at the foreclosure sale. Ciuperca v. RES-GA Seven, LLC, 319 Ga. App. 61, 735 S.E.2d 107, 2012 Ga. App. LEXIS 1022 (2012), cert. denied, No. S13C0563, 2013 Ga. LEXIS 402 (Ga. Apr. 29, 2013). Sales Made on Foreclosure Under Power of Sale Court of Appeals would not construe O.C.G.A. § 44-14-161, which is operative only in the limited circumstance that the sale of the property does not satisfy the underlying debt and then solely in the discretion of the parties, so as to engraft judicially upon the power of sale a tacit requirement to seek and secure conﬁrmation in every instance that the power is exercised or face the possibility of suit merely because the debtor is of the belief fair market value was not obtained. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867, 1980 Ga. App. LEXIS 2569 (1980). O.C.G.A. § 44-14-161 lays down a condition precedent to obtaining a deﬁciency judgment in cases where “any real estate is sold on foreclosure, without legal process, under powers contained in security deeds,” and the sale does not cover the amount of the debt. On its face, that section refers only to the foreclosure procedure. Gentry v. Hibbler-Barnes Co., 113 Ga. App. 1, 147 S.E.2d 31, 1966 Ga. App. LEXIS 939 (1966). In a foreclosure sale, issues which go to the heart of the underlying ob- 538 44-14-161 MORTGAGES, SECURITY, LIENS ligation itself should be raised within the conﬁnes of a subsequent action for a deﬁciency judgment. Alexander v. Weems, 157 Ga. App. 507, 277 S.E.2d 793, 1981 Ga. App. LEXIS 1882 (1981). Debt secured. — A note for a downpayment is not a part of the “debt secured” for the balance owing unless so described in the instruments themselves. Murray v. Hasty, 132 Ga. App. 125, 207 S.E.2d 602, 1974 Ga. App. LEXIS 1617 (1974). Intent of parties. — That portion of mortgage containing the power of sale is to be construed so as to effectuate the intention of the parties, and the power must be exercised in accordance with the intention of the parties as indicated in the clause in the mortgage conferring the power. The power is conferred for the purpose of enabling the mortgagee to collect the debt. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867, 1980 Ga. App. LEXIS 2569 (1980). When a power of sale is exercised all that is required of the foreclosing party is to advertise and sell the property according to the terms of the instrument, and that the sale be conducted in good faith. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867, 1980 Ga. App. LEXIS 2569 (1980). The foreclosing party is not an insurer of the results of the exercise of the power of sale; that party’s only obligation is to sell according to the terms of the deed, in good faith, and to obtain the amount produced by such a sale. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867, 1980 Ga. App. LEXIS 2569 (1980). The remedy by sale will be taken to have satisﬁed the primary obligation to pay the debt unless the creditor conforms to the law by making a proper showing that the security in fact brought in its true market value, which is then credited against the primary obligation. Gentry v. Hibbler-Barnes Co., 113 Ga. App. 1, 147 S.E.2d 31, 1966 Ga. App. LEXIS 939 (1966). Where property sold under foreclosure brings the full amount of the debt secured by a deed to secure debt, O.C.G.A. § 44-14-161 is inapplicable since that section only applies where the 44-14-161 sale brings less than the amount of the debt secured by the deed. Nationwide Fin. Corp. v. Banks, 147 Ga. App. 73, 248 S.E.2d 54, 1978 Ga. App. LEXIS 2618 (1978). A creditor with notes secured by a deed to secure a debt is not put to an election, but may pursue remedies under both instruments concurrently until the creditor obtains a satisfaction of the debt under either. Norwood Realty Co. v. First Fed. Sav. & Loan Ass’n, 99 Ga. App. 692, 109 S.E.2d 844, 1959 Ga. App. LEXIS 935 (1959); Brown v. Georgia State Bank, 141 Ga. App. 570, 234 S.E.2d 151, 1977 Ga. App. LEXIS 1997 (1977); Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321, 254 S.E.2d 475, 1979 Ga. App. LEXIS 1835 (1979). A creditor who holds a promissory note secured by a deed is not put to an election of remedies as to whether the creditor shall sue upon the note or exercise a power of sale contained in the deed, but the creditor may do either, or pursue both remedies concurrently until the debt is satisﬁed. Taylor v. Thompson, 158 Ga. App. 671, 282 S.E.2d 157, 1981 Ga. App. LEXIS 2366 (1981). Available remedies. — There is nothing in O.C.G.A. § 44-14-161 which says that the creditor may not, if the creditor chooses, obtain satisfaction of the debt by reducing it to judgment and levying it on whatever property the creditor chooses, whether or not it has been pledged as security for the particular debt evidenced by the note. Gentry v. Hibbler-Barnes Co., 113 Ga. App. 1, 147 S.E.2d 31, 1966 Ga. App. LEXIS 939 (1966). A holder of a note who is also the grantee of a deed to secure the indebtedness of the note is not forced to exercise the power of sale in the deed to secure the debt. On the contrary, the holder may at holder’s option elect to sue on the note and to exercise rights pursuant to O.C.G.A. § 44-14-210 or to exercise the power of sale, to seek judicial conﬁrmation of the sale and to sue for deﬁciency pursuant to O.C.G.A. § 44-14-161. Brown v. Rooks, 240 Ga. 674, 242 S.E.2d 128, 1978 Ga. LEXIS 800 (1978). A secured creditor has an option of either proceeding to suit on the note, or of 539 Sales Made on Foreclosure Under Power of Sale (Cont’d) foreclosure by exercise of the power of sale, seeking conﬁrmation and then suing for the deﬁciency. Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321, 254 S.E.2d 475, 1979 Ga. App. LEXIS 1835 (1979). The holder of a note who is also the grantee in a deed to secure the indebtedness of the note is not forced to exercise the power of sale in the deed. The holder may sue on the note or exercise the power of sale. Trust Inv. & Dev. Co. v. First Ga. Bank, 238 Ga. 309, 232 S.E.2d 828, 1977 Ga. LEXIS 1010 (1977); Stewart v. Diehl, 219 Ga. App. 821, 466 S.E.2d 913, 1996 Ga. App. LEXIS 26 (1996). Failure to satisfy untacked judgment from proceeds of foreclosure sale of security deed not a “deﬁciency”. — When defendant-assignee was assigned a note that was in default and a security deed by defendant-assignor, the assignee’s judgment, not being a contractual obligation, did not tack on to the note and become one obligation; since the judgment does not tack, the failure to satisfy the judgment from the proceeds of a foreclosure sale of the security deed under a power of sale contained therein does not constitute a “deﬁciency” within the meaning of O.C.G.A. § 44-14-161. Cook v. F & M Bank, 247 Ga. 661, 279 S.E.2d 199, 1981 Ga. LEXIS 831 (1981). When a creditor who holds a promissory note secured by a deed to secure debt containing a power of sale sues on the note and obtains a money judgment and thereafter elects to exercise the power of sale in the deed to secure debt, and the proceeds of such sale are not sufficient to satisfy the judgment, the creditor is not required to comply with O.C.G.A. § 44-14-161 before attempting to enforce further the judgment. Taylor v. Thompson, 158 Ga. App. 671, 282 S.E.2d 157, 1981 Ga. App. LEXIS 2366 (1981). Claims not barred as improper deﬁciency actions. — Trial court erred in ruling that a bank’s claims against borrowers and guarantors for breach of promissory notes were barred as improper deﬁciency actions under O.C.G.A. § 44-14161(a) due to the bank’s failure to seek 44-14-161 conﬁrmation after the foreclosure auctions because although the bank conducted and bid at foreclosure auctions of the real property that secured the notes, the transfer of a borrower’s right of possession and the borrower’s equity of redemption to the bank as the foreclosure sale purchaser never occurred; three days after the foreclosure auctions, the bank notiﬁed the borrowers that the bank rescinded any actions taken with respect to foreclosure and that the foreclosures were not and would not be consummated, and by deﬁnition, the conﬁrmation procedure had no application when there had been no foreclosure sale. Legacy Cmtys. Group, Inc. v. Branch Banking & Trust Co., 310 Ga. App. 466, 713 S.E.2d 670, 2011 Ga. App. LEXIS 579 (2011), aff’d in part and rev’d in part, 290 Ga. 724, 723 S.E.2d 674, 2012 Ga. LEXIS 300 (2012), vacated in part, 316 Ga. App. 496, 729 S.E.2d 612, 2012 Ga. App. LEXIS 594 (2012). Waiver of conﬁrmation. — When a buyer of foreclosed properties bought the properties for less than the amounts owed, but the buyer’s efforts at conﬁrmation of the sales failed, the buyer was nevertheless entitled to pursue the guarantors of the notes on the properties for the deﬁciency because the guarantors had waived “any and all rights or defenses based on suretyship,” and the conﬁrmation defense under O.C.G.A. § 44-14161(a) was based on suretyship. York v. RES-GA LJY, LLC, 336 Ga. App. 253, 784 S.E.2d 96, 2016 Ga. App. LEXIS 155 (2016), aff’d, 300 Ga. 869, 799 S.E.2d 235, 2017 Ga. LEXIS 229 (2017). Decision of the court of appeals that upheld deﬁciency judgments against the guarantors was affirmed as the guarantors waived any defense based on the failure of the creditor to conﬁrm the relevant foreclosure sales because the contractual language of the commercial guaranties made it clear that the guarantors waived any defenses under an anti-deﬁciency law such as O.C.G.A. § 44-14-161; and such a waiver was permitted by law. York v. RES-GA LJY, LLC, 300 Ga. 869, 799 S.E.2d 235, 2017 Ga. LEXIS 229 (2017). Where various forms of collateral, including two pieces of real estate, were 540 44-14-161 MORTGAGES, SECURITY, LIENS provided as security for a single agreement, and both pieces of real estate were foreclosed but only one foreclosure was conﬁrmed, all obligations under the agreement were discharged and any further actions under the agreement were barred. Surety Managers, Inc. v. Stanford, 633 F.2d 709, 1980 U.S. App. LEXIS 11044 (5th Cir. 1980), cert. denied, 454 U.S. 828, 102 S. Ct. 121, 70 L. Ed. 2d 104, 1981 U.S. LEXIS 3241 (1981). Effect of dragnet clauses. — Where a deed to secure debt given to secure a speciﬁc note described therein, containing a dragnet or open-end clause making the property conveyed thereby security for all other debts and obligations either then or thereafter owed by the grantor to the grantee, if foreclosed by exercise of the power of sale in the security deed for which no conﬁrmation of sale was sought, the grantee is not barred from maintaining an action to recover on another note between the same parties, subsequently made for another loan and secured by a security deed on a different property. Vaughn & Co. v. Saul, 143 Ga. App. 74, 237 S.E.2d 622, 1977 Ga. App. LEXIS 2193 (1977). Where there are separate debts arising from separate contractual obligations, failure to conﬁrm the foreclosure arising from one of the obligations does not bar action on separate obligation, even if the obligations relate to same subject matter. Surety Managers, Inc. v. Stanford, 633 F.2d 709, 1980 U.S. App. LEXIS 11044 (5th Cir. 1980), cert. denied, 454 U.S. 828, 102 S. Ct. 121, 70 L. Ed. 2d 104, 1981 U.S. LEXIS 3241 (1981); Clements v. Fleet Fin., Inc., 206 Ga. App. 736, 426 S.E.2d 910, 1992 Ga. App. LEXIS 1760 (1992), cert. denied, No. S93C0565, 1993 Ga. LEXIS 303 (Ga. Mar. 19, 1993). O.C.G.A. § 44-14-161 did not bar an automobile credit corporation from pursuing a recovery under notes and security deeds relating to loans from business assets and inventory that were separate obligations from that securing a real estate loan sold at an unconﬁrmed foreclosure sale. GMAC v. Newton, 213 Ga. App. 405, 444 S.E.2d 805, 1994 Ga. App. LEXIS 635 (1994), cert. denied, No. S94C1445, 1994 Ga. LEXIS 1013 (Ga. Sept. 16, 1994). 44-14-161 Trial court did not err by granting summary judgment to the lender in the lender’s suit on a note because the mortgage loans were held by different entities when the other lender foreclosed on the lender’s ﬁrst-priority security deed, thus, the loans were not inextricably intertwined and the deﬁciency could be collected by the lender. Hildebrand v. Bank of America, N.A., 332 Ga. App. 175, 772 S.E.2d 790, 2015 Ga. App. LEXIS 157 (2015), cert. denied, No. S15C1305, 2015 Ga. LEXIS 622 (Ga. Sept. 8, 2015). Creditor may sue only on independent obligation. — A creditor’s action against debtors to recover on a balloon note with a cross default clause after default on a separate purchase money note, after the creditor purchased the property personally under powers contained in the security deed and did not obtain judicial conﬁrmation of the foreclosure sale, was a prohibited attempt to recover a deﬁciency judgment on a debt secured by a purchase money security deed, not an attempt to recover on an independent, separate unsecured obligation. Tufts v. Levin, 213 Ga. App. 35, 443 S.E.2d 681, 1994 Ga. App. LEXIS 437 (1994). Subsequent sales. — The words “no action may be taken to obtain a deﬁciency judgment” do not inhibit subsequent sale under power of property other than the property which at a former sale under power had failed to “bring the amount of the debt.” Salter v. Bank of Commerce, 189 Ga. 328, 6 S.E.2d 290, 1939 Ga. LEXIS 724 (1939). Irregular sale due to title status not shown. — The trial court properly entered an order conﬁrming the sale of real property foreclosed on by a bank, under a power of sale contained in a deed to secure debt given by a debtor, as that debtor failed to show that any rights under O.C.G.A. § 44-14-161 or O.C.G.A. § 911-58 were jeopardized, and a claim that the sale was irregular due to the status of the property’s title on the date of the sale fell outside of the ambit of § 44-14-161. Friedman v. Regions Bank, 288 Ga. App. 57, 653 S.E.2d 507, 2007 Ga. App. LEXIS 1139 (2007). Where mortgagors executed two separate loans and gave as security an interest 541 Sales Made on Foreclosure Under Power of Sale (Cont’d) in two separate parcels of real property, and subsequently combined the debts, with the separate parcels remaining as security, the conﬁrmation requirement did not bar the lender, who had foreclosed on one of the properties without conﬁrming the sale, from foreclosing on the other property. Lawson v. Habersham Bank, 233 Ga. App. 88, 503 S.E.2d 341, 1998 Ga. App. LEXIS 902 (1998). Conﬁrmation and Approval of Sale 1. Nature of Proceeding The conﬁrmation required by O.C.G.A. § 44-14-161 is not a civil case within the meaning of Ga. Const. 1976, Art. VI, Sec. XIV, Para. VI (see, now, Ga. Const. 1983, Art. VI, Sec. II, Para. VI), requiring civil cases to be brought in the county where the defendant resides. Wall v. Federal Land Bank, 240 Ga. 236, 240 S.E.2d 76, 1977 Ga. LEXIS 1459 (1977); Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). The conﬁrmation required by O.C.G.A. § 44-14-161 is not an equitable proceeding. Taylor v. Thompson, 158 Ga. App. 671, 282 S.E.2d 157, 1981 Ga. App. LEXIS 2366 (1981). O.C.G.A. § 44-14-161 merely provides for a proceeding whereby the court is called upon to determine whether the duty to conduct the sale according to the terms of the deed and in good faith has been met and the debtor’s concomitant right to have the property extinguish debtor’s debt to the maximum extent possible is protected. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867, 1980 Ga. App. LEXIS 2569 (1980). A conﬁrmation proceeding is summary in nature. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). A conﬁrmation proceeding is not a suit in equity. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). A conﬁrmation proceeding is not an equitable proceeding. — O.C.G.A. § 44-14-161 does not state that the conﬁr- 44-14-161 mation provided therein is an equitable proceeding, and it is not. Cases under that section therefore are not within the jurisdiction of the Supreme Court, but within the jurisdiction of the Court of Appeals. Dockery v. Parks, 224 Ga. 369, 162 S.E.2d 332, 1968 Ga. LEXIS 783 (1968); Taylor v. Thompson, 158 Ga. App. 671, 282 S.E.2d 157, 1981 Ga. App. LEXIS 2366 (1981). The conﬁrmation hearing is not an action in personam, because no personal judgment is recovered. It is not an action in rem, because it does not adjudicate title. Wall v. Federal Land Bank, 240 Ga. 236, 240 S.E.2d 76, 1977 Ga. LEXIS 1459 (1977). Conﬁrmation proceeding not same as wrongful foreclosure suit. — Prior pending wrongful foreclosure action did not require the abatement and dismissal of a bank’s application for conﬁrmation under O.C.G.A. § 44-14-161 because the conﬁrmation proceeding did not involve the same cause of action as the wrongful foreclosure suit, but was instead a special statutory proceeding and not a complaint which initiated a civil action or suit. BBC Land & Dev., Inc. v. Bank of N. Ga., 294 Ga. App. 759, 670 S.E.2d 210, 2008 Ga. App. LEXIS 1304 (2008). Conﬁrmation served as res judicata and collateral estoppel. — Trial court properly granted summary judgment to the lender on the borrower’s wrongful foreclosure counterclaim because the earlier conﬁrmation of the foreclosure sale precluded the claim under either the doctrine of res judicata and collateral estoppel. Flint Timber, L.P. v. AgSouth Farm Credit, ACA, 347 Ga. App. 271, 819 S.E.2d 76, 2018 Ga. App. LEXIS 502 (2018), cert. denied, No. S19C0237, 2019 Ga. LEXIS 308 (Ga. Apr. 29, 2019). Liability of parties not adjudicated. — Except as to the conﬁrmed amount of the sale, the conﬁrmation judgment does not establish the liability of any party with regards to the indebtedness. Harris & Tilley, Inc. v. First Nat’l Bank, 157 Ga. App. 88, 276 S.E.2d 137, 1981 Ga. App. LEXIS 1674 (1981). Title to property. — The conﬁrmation judgment is not a personal judgment against any party and, strictly speaking, it does not adjudicate the title of the 542 44-14-161 MORTGAGES, SECURITY, LIENS property sold. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980); Harris & Tilley, Inc. v. First Nat’l Bank, 157 Ga. App. 88, 276 S.E.2d 137, 1981 Ga. App. LEXIS 1674 (1981). The proceeding here is not a suit but an application to the judge of the superior. Jonesboro Inv. Trust Ass’n v. Donnelly, 141 Ga. App. 780, 234 S.E.2d 349, 1977 Ga. App. LEXIS 2067 (1977); Wammock v. Smith, 143 Ga. App. 186, 237 S.E.2d 668, 1977 Ga. App. LEXIS 2237 (1977); Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). Suit to void sale not equivalent. — While a petition to set aside is a suit in equity, a conﬁrmation proceeding is an “application” limited in scope and requiring speciﬁed procedures. Georgia law, by establishing different tests for conﬁrmation and for voiding sales, indicates the two are not equivalent. FDIC v. Dye, 642 F.2d 837, 1981 U.S. App. LEXIS 14190 (5th Cir. 1981). Not a proceeding against bankrupt. — Where the conﬁrmation of the sale is the only act taking place after bankruptcy of debtor, it is neither the assertion of a lien against the bankrupt or the bankrupt’s property, nor a “proceeding” against the bankrupt. Jonesboro Inv. Trust Ass’n v. Donnelly, 141 Ga. App. 780, 234 S.E.2d 349, 1977 Ga. App. LEXIS 2067 (1977). This statutory framework does not authorize conﬁrmation of sales of personalty. Gordon v. Weldon, 154 Ga. App. 531, 268 S.E.2d 796, 1980 Ga. App. LEXIS 2270 (1980). Since O.C.G.A. § 44-14-161 does not apply to sales of personalty, the conﬁrmation court is without authority to address matters concerning sales of personalty, even if they are related to the sale of realty; consequently, the issue of whether various items of equipment were sold separately or were included in the sale of a tract of land is not an issue that the conﬁrmation may address. Walton Motor Sales, Inc. v. Ross, 736 F.2d 1449, 1984 U.S. App. LEXIS 20368 (11th Cir. 1984). Initiation of proceedings. — While O.C.G.A. § 44-14-161 provides that no sale made under a power shall be con- 44-14-161 ﬁrmed unless the superior court is satisﬁed the property brought its true market value, there is no requirement that the foreclosing party initiate proceedings to have the sale conﬁrmed. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867, 1980 Ga. App. LEXIS 2569 (1980). Where the lender was not seeking a deﬁciency judgment against the borrower, it was under no duty to pursue conﬁrmation of a sale; thus, the borrower could not use the conﬁrmation statute to force the resale of property after the lender voluntarily moved to dismiss the proceeding. Gutherie v. Ford Equip. Leasing Co., 210 Ga. App. 763, 437 S.E.2d 482, 1993 Ga. App. LEXIS 1320 (1993), cert. denied, No. S94C0237, 1994 Ga. LEXIS 164 (Ga. Jan. 21, 1994), cert. denied, No. S94C0253, 1994 Ga. LEXIS 583 (Ga. Feb. 21, 1994). Power to institute proceedings. — In a proceeding under the terms of O.C.G.A. § 44-14-161 providing for the conﬁrmation and approval of sales of realty, sold on foreclosures, without legal process, under power contained in a security deed, such power is exercised by the grantee, who is the purchaser at such sale. Dupree v. Turner, 99 Ga. App. 332, 108 S.E.2d 171, 1959 Ga. App. LEXIS 849 (1959). The words “person instituting the foreclosure” mean the entity given the right to institute the proceedings under the terms of the instrument. This entity continues to exist in its successors in estate who become so by operation of law. Darby & Assocs. v. FDIC, 141 Ga. App. 78, 232 S.E.2d 615, 1977 Ga. App. LEXIS 1772 (1977), overruled in part as stated in Cartersville Developers, LLC. v. Ga. Bank & Trust, 292 Ga. App. 375, 664 S.E.2d 783, 2008 Ga. App. LEXIS 780 (2008). Only the “person instituting the foreclosure proceedings” can seek conﬁrmation of a sale. Cheek v. Savannah Valley Prod. Credit Ass’n, 244 Ga. 768, 262 S.E.2d 90, 1979 Ga. LEXIS 1403 (1979). Issue in conﬁrmation proceeding. — The issue in a conﬁrmation proceeding is whether the property sold brought, at the time of the sale sought to be conﬁrmed, its true market value; what the 543 Nature of Proceeding (Cont’d) property may have brought or what it may have been regarded as being worth on the market at a time relative to the sale is not controlling. Kong v. Shearson Lehman Hutton Mtg. Corp., 211 Ga. App. 93, 438 S.E.2d 132, 1993 Ga. App. LEXIS 1441 (1993), cert. denied, No. S94C0383, 1994 Ga. LEXIS 377 (Ga. Feb. 3, 1994). Limitations on conﬁrmation proceedings. — Because a conﬁrmation proceeding is limited to whether a sale is properly advertised and brought the fair market value of the land, issues regarding whether a security deed executed by the executor of an estate could and did secure a personal debt with an undivided interest in estate property could not have been put in issue and determined in the proceeding. Dorsey v. Mancuso, 249 Ga. App. 259, 547 S.E.2d 787, 2001 Ga. App. LEXIS 476 (2001). A conﬁrmation judgment cannot be collaterally attacked in a subsequent deﬁciency action but is accorded the same respect as other judgments of a court of general jurisdiction. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). Statute does not mandate separate evidentiary hearing for each property foreclosed. — Trial court did not abuse the court’s discretion when the court consolidated the conﬁrmation hearings on three foreclosure sales because O.C.G.A. § 44-14-161 did not mandate a separate evidentiary hearing for each property foreclosed. Belans v. Bank of Am., N.A., 306 Ga. App. 252, 701 S.E.2d 889, 2010 Ga. App. LEXIS 910 (2010). Failure to show waiver of conﬁrmation process on part of guarantors. — As to foreclosure deﬁciency judgment, the trial court erred by denying the guarantors of the mortgage summary judgment because the loan documents failed to include an adequate waiver of the conﬁrmation process required by O.C.G.A. § 4414-161. Apex Bank v. Thompson, 349 Ga. App. 285, 826 S.E.2d 162, 2019 Ga. App. LEXIS 155 (2019). Trial court erred by failing to conﬁrm sale. — Trial court erred by denying a creditor’s petition to conﬁrm the foreclo- 44-14-161 sure sale of six townhouses because the sale satisﬁed applicable notice and advertisement requirements and the uncontradicted evidence showed that the townhouses did sell for at least fair market value. RBC Real Estate Fin., Inc. v. Winmark Homes, Inc., 318 Ga. App. 507, 736 S.E.2d 117, 2012 Ga. App. LEXIS 943 (2012). 2. Application in Out-of-State and Federal Courts O.C.G.A. § 44-14-161 is obviously drawn so as to apply only to foreclosure sales in Georgia. Goodman v. Nadler, 113 Ga. App. 493, 148 S.E.2d 480, 1966 Ga. App. LEXIS 1107 (1966); Colodny v. Krause, 141 Ga. App. 134, 232 S.E.2d 597, 1977 Ga. App. LEXIS 1797, cert. denied, 434 U.S. 892, 98 S. Ct. 267, 54 L. Ed. 2d 177, 1977 U.S. LEXIS 3559 (1977); Kelly v. American Fed. Sav. & Loan Ass’n, 178 Ga. App. 542, 343 S.E.2d 755, 1986 Ga. App. LEXIS 1697 (1986). Conﬁrmation is not required where the land is not in Georgia. FDIC v. Hoover-Morris Enters., 642 F.2d 785, 1981 U.S. App. LEXIS 14291 (5th Cir. 1981). Statute cannot operate so as to deprive federal courts of jurisdiction to conﬁrm a foreclosure sale in a case which is otherwise subject to federal jurisdiction. FDIC v. Windland Co., 245 Ga. 194, 264 S.E.2d 11, 1980 Ga. LEXIS 736 (1980). Trial court did not err in dismissing the bank’s petition for conﬁrmation of the foreclosure sale when, by ﬁling the application with the court rather than the superior court judge, the bank failed to comply with the requirements of O.C.G.A. § 44-14-161(a). Citizens Bank of Effingham v. Rocky Mt. Enterps., LLC, 308 Ga. App. 600, 708 S.E.2d 557, 2011 Ga. App. LEXIS 244 (2011). O.C.G.A. § 44-14-161 should be construed as allowing the conﬁrmation proceedings to be brought in any United States district court which would otherwise present an available forum. Windland Co. v. FDIC, 151 Ga. App. 742, 261 S.E.2d 407, 1979 Ga. App. LEXIS 2779 (1979), rev’d, 245 Ga. 194, 264 S.E.2d 11, 1980 Ga. LEXIS 736 (1980). Conﬁrmation proceedings conducted in federal district courts com- 544 44-14-161 MORTGAGES, SECURITY, LIENS ply with O.C.G.A. § 44-14-161 for the purposes of deﬁciency suits later brought in state courts. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). Courts of this state cannot refuse to entertain suit for a deﬁciency judgment where a federal court of proper jurisdiction has conﬁrmed a foreclosure sale because the sale was not reported to the judge of the superior court of the county in which the land lies for conﬁrmation and approval. FDIC v. Windland Co., 245 Ga. 194, 264 S.E.2d 11, 1980 Ga. LEXIS 736 (1980). When conﬁrmation proceedings are heard, in federal court, O.C.G.A. § 44-14-161, reasonably construed, requires only that the foreclosure sale be reported to the judge of the court in which proceedings are to be heard. FDIC v. M.C. Honea, Jr., Inc., 440 F. Supp. 1064, 1977 U.S. Dist. LEXIS 13148 (N.D. Ga. 1977). Although O.C.G.A. § 44-14-161 speaks in terms of conﬁrmation by a state court judge, it has been held that when that section is applicable to a federal proceeding, it is sufficient that the sale be reported to and conﬁrmed by the judge of the federal court in which conﬁrmation is sought. United States v. Smith, 479 F. Supp. 804, 1979 U.S. Dist. LEXIS 8616 (N.D. Ga. 1979). Proceeding is within contemplation of automatic stay provisions of bankruptcy law. — Judicial conﬁrmation is an action or proceeding in the nature of a civil suit to obtain a judicial determination of legal rights or remedies to enable the creditor to pursue recovery or collection of a claim for a deﬁciency against the debtor, and is an action or proceeding as contemplated by the automatic stay provisions of the federal bankruptcy law. Bank of Am. Nat’l Trust & Sav. Ass’n v. Virginia Hill Partners, 110 B.R. 84, 1989 Bankr. LEXIS 2352 (Bankr. N.D. Ga. 1989). Automatic stay, as it applied to the commencement of actions or proceedings against the debtor, terminated when the court entered the court’s order on February 17, 2011, granting the debtor a discharge in bankruptcy, 11 U.S.C. § 362(c)(2)(C); notice of the order of dis- 44-14-161 charge was served on the bank on February 19, 2011. Thus, when the bank foreclosed the following July or August of 2011, there was no stay in place; accordingly, 11 U.S.C. § 108(c)(1) controlled and the tolling under § 108(c) ended when the time within which the conﬁrmation had to be reported to the state superior court lapsed thirty days after the foreclosure. Mt. Valley Cmty. Bank v. Freeman (In re Freeman), No. 10-32105 JPS, No. 11-3019, 2012 Bankr. LEXIS 5887 (Bankr. M.D. Ga. Dec. 21, 2012), aff’d, 508 B.R. 247, 2014 U.S. Dist. LEXIS 39841 (M.D. Ga. 2014). O.C.G.A. § 44-14-161 is adopted as a part of the federal law governing the rights between a loan guarantor and the Small Business Administration. Since that section prohibits the entertaining of a suit for a deﬁciency judgment when there has been no compliance with the requirement for judicial conﬁrmation of the foreclosure sale, the Small Business Administration cannot recover a deﬁciency judgment against a guarantor without showing a judicial conﬁrmation. United States v. Dismuke, 616 F.2d 755, 1980 U.S. App. LEXIS 17854 (5th Cir. 1980). O.C.G.A. § 44-14-161 not applicable. — Where Small Business Administration was not attempting to collect on a deﬁciency judgment but rather was proceeding against the guarantor of corporate debt on the guarantor’s direct and primary obligation to pay the debt of the defaulting corporate debtor, fact that SBA had not obtained information of sale of corporate property within 30 days did not preclude SBA from maintaining action against guarantor. Ricks v. United States, 434 F. Supp. 1262, 1976 U.S. Dist. LEXIS 12889 (S.D. Ga. 1976). Stay under federal law lifted to allow proceeding under statute. — Automatic stay was lifted under 11 U.S.C. § 362(d)(1) to permit a creditor to proceed with the conﬁrmation of a foreclosure sale because, pursuant to O.C.G.A. § 44-14161, the creditor could not pursue the creditor’s deﬁciency claim unless the sale was conﬁrmed by the superior court within 30 days. In re McDaniel, No. 0850021-JDW, 2008 Bankr. LEXIS 4227 (Bankr. M.D. Ga. May 5, 2008). 545 Application in Out-of-State and Federal Courts (Cont’d) Running of 30-day period. — Because the language in the stay relief order in this case was sufficiently close to the language of the stay relief order in In re Virginia Hill Partners I, 110 B.R. 84 (Bankr. N.D. Ga. 1989), the stay was not lifted to permit the creditor to commence proceedings to conﬁrm the sale, including reporting the sale as required by Georgia law. The 30-day period under the Georgia conﬁrmation statute would not begin to run here until either the bankruptcy was dismissed or the court lifted the automatic stay. Haugen v. Multibank 2009-1 Cre Venture, LLC (In re LaPrade’s Marina, LLC), 566 B.R. 84, 2017 Bankr. LEXIS 783 (Bankr. N.D. Ga. 2017). 3. Report of Sale Requirement not jurisdictional. — The requirement that the report of the sale shall be made to the judge of the superior court of the county in which the land lies is not a jurisdictional requirement. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). Requirement may be waived. — The requirement that the report of the sale shall be made to the judge of the superior court of the county in which the land lies is a venue requirement which may be waived by the debtor. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). The word “report” is not a word of art, and its ordinary signiﬁcance, as deﬁned by Webster, is to give an account of, to relate, to tell. Dukes v. Ralston Purina Co., 127 Ga. App. 696, 194 S.E.2d 630, 1972 Ga. App. LEXIS 1001 (1972). The judge personally is the one to whose attention the sale and its particulars must be brought. Goodman v. Vinson, 142 Ga. App. 420, 236 S.E.2d 153, 1977 Ga. App. LEXIS 1642 (1977). Second reporting to judge of sale of property was not required of ﬁnancial institution after the setting aside, for failure to serve notice of hearing to all interested parties, of an earlier conﬁrmation of sale of property on foreclosure without 44-14-161 legal process, since the ﬁnancial institution had timely reported the sale before the conﬁrmation was set aside; the order setting aside the earlier conﬁrmation did not “erase the slate clean” of all previously ﬁled documents — it merely reinstated the case in the trial court and returned it to the posture it had occupied prior to judgment. Rogers v. Fidelity Fed. Sav. & Loan Ass’n, 180 Ga. App. 330, 349 S.E.2d 7, 1986 Ga. App. LEXIS 2178 (1986). Substantial compliance with report of sale by ﬁling with judge’s secretary. — Where plaintiff-appellant presented petition for conﬁrmation and approval of a foreclosure sale at the chambers of the superior court judge, the petition was accepted by the judge’s secretary and that the judge’s secretary had the delegated authority to accept petitions in any ministerial matter, this was sufficient compliance with O.C.G.A. § 44-14-161(a). Cornelia Bank v. Brown, 166 Ga. App. 68, 303 S.E.2d 171, 1983 Ga. App. LEXIS 2070 (1983). There is no authority for making the word “report” mean “ﬁle.” This is especially true inasmuch as O.C.G.A. § 44-14-161 makes no mention of reporting to or ﬁling with the clerk, but speciﬁcally provides that the report is to be made to the judge. Dukes v. Ralston Purina Co., 127 Ga. App. 696, 194 S.E.2d 630, 1972 Ga. App. LEXIS 1001 (1972). Report to clerk insufficient. — The presentation of the petition to the clerk will not suffice under O.C.G.A. § 44-14161 speciﬁcally requiring a report of the sale “to the judge of the superior court of the county in which the land lies” and making no mention of the court or the clerk. Goodman v. Vinson, 142 Ga. App. 420, 236 S.E.2d 153, 1977 Ga. App. LEXIS 1642 (1977); John Alden Life Ins. Co. v. Gwinnett Plantation, Ltd., 220 Ga. App. 846, 470 S.E.2d 482, 1996 Ga. App. LEXIS 357 (1996). Filing of a conﬁrmation petition with the clerk of court was insufficient to meet the mandates of O.C.G.A. § 44-14-161(a). Lanier Bank & Trust Co. v. Nix, 221 Ga. App. 323, 471 S.E.2d 229, 1996 Ga. App. LEXIS 396 (1996), cert. denied, No. S96C1381, 1996 Ga. LEXIS 757 (Ga. June 28, 1996). A mortgagor’s ﬁling of bankruptcy proceedings. — A mortgagor’s ﬁling of 546 44-14-161 MORTGAGES, SECURITY, LIENS bankruptcy proceedings tolled the running of periods of limitation which would have otherwise expired during the period of a stay in bankruptcy until 30 days after termination of the stay. Where a stay was in effect when a foreclosure sale was held, the 30-day period provided in O.C.G.A. § 44-14-161 did not begin until 30 days after the bankruptcy was dismissed and the sale was not invalid because it was not reported within 30 days. Breeze v. Columbus Bank & Trust Co., 214 Ga. App. 534, 448 S.E.2d 276, 1994 Ga. App. LEXIS 941 (1994). The act of reporting a foreclosure sale is not an end in and of itself and serves no purpose except in connection with conﬁrmation and approval. FDIC v. M.C. Honea, Jr., Inc., 440 F. Supp. 1064, 1977 U.S. Dist. LEXIS 13148 (N.D. Ga. 1977). The report requirement in O.C.G.A. § 44-14-161 is not intended to give notice to the debtor as such notice is also provided for. Goodman v. Vinson, 142 Ga. App. 420, 236 S.E.2d 153, 1977 Ga. App. LEXIS 1642 (1977). The trial court did not err in concluding that O.C.G.A. § 44-14-161 governing foreclosures under power of sale did not contain a requirement for service of the report of sale on the debtor within 30 days. The 30-day report to the judge is not intended to give notice to the debtor. The notice requirement for the debtor is that the debtor be given at least ﬁve days notice of the conﬁrmation hearing, which notice would include a copy of the report. Oviedo v. Connecticut Nat’l Bank, 194 Ga. App. 626, 391 S.E.2d 417, 1990 Ga. App. LEXIS 245 (1990), cert. denied, No. S90C0787, 1990 Ga. LEXIS 736 (Ga. Apr. 18, 1990). Report to federal judge. — O.C.G.A. § 44-14-161 contemplates that the report of a foreclosure sale be received by the same judge who is to conﬁrm and approve the sale. Thus, if the conﬁrmation action is brought in federal court, then the report must be made to the appropriate federal judge rather than to the judge of the superior court of the county in which the land lies. FDIC v. M.C. Honea, Jr., Inc., 440 F. Supp. 1064, 1977 U.S. Dist. LEXIS 13148 (N.D. Ga. 1977). 44-14-161 The terms of O.C.G.A. § 44-14-161 were complied with where application to the superior court was made within 30 days, although judicial approval was rendered after 30 days. Dukes v. Ralston Purina Co., 127 Ga. App. 696, 194 S.E.2d 630, 1972 Ga. App. LEXIS 1001 (1972). Report of the sale to a judge sitting as presiding judge of the superior court was sufficient to comply with O.C.G.A. § 44-14-161; it is not necessary to make the report to the speciﬁc judge to whom the case is assigned. Hernandez v. Resolution Trust Corp., 210 Ga. App. 538, 436 S.E.2d 534, 1993 Ga. App. LEXIS 1244 (1993), cert. denied, No. S94C0159, 1994 Ga. LEXIS 148 (Ga. Jan. 21, 1994). Tender of report as evidence not required. — Nothing in the language of O.C.G.A. § 44-14-161(a) imposes an evidentiary or procedural requirement that the report to the superior court be formally tendered into evidence as an exhibit. Stepp v. Farm & Home Life Ins. Co., 222 Ga. App. 257, 474 S.E.2d 108, 1996 Ga. App. LEXIS 801 (1996). 4. Conﬁrmation Need to conﬁrm. — O.C.G.A. § 44-14161 provides that if a creditor fails to obtain judicial conﬁrmation of a foreclosure sale that the foreclosure purchase price of the property was the reasonable equivalent of the fair market value, the creditor may not pursue a deﬁciency claim against the debtor; however, a creditor need conﬁrm a foreclosure only in order to realize its claim from any property to which its security interest does not extend. Empire Fin. Servs. v. Gingold (In re Real Estate W. Ventures, L.P.), 170 B.R. 736, 1993 Bankr. LEXIS 2231 (Bankr. N.D. Ga. 1993). Following nonjudicial foreclosure, a creditor was barred from suing on a note without conﬁrmation where there was but one promissory note and one deed to secure debt, and the only obligation the debtor owed the creditor was the note secured by the foreclosed property. Southeast Timerlands, Inc. v. Haiseal Timber, Inc., 224 Ga. App. 98, 479 S.E.2d 443, 1996 Ga. App. LEXIS 1318 (1996), cert. denied, No. S97C0633, 1997 Ga. LEXIS 402 (Ga. Apr. 24, 1997). 547 Conﬁrmation (Cont’d) Grant of summary judgment to a bank in a mortgage foreclosure action because the bank was not required to comply with the conﬁrmation of a foreclosure sale requirements under O.C.G.A. § 44-14-161 since the guaranties signed by the guarantors clearly waived the condition precedent requirement of the conﬁrmation statute by virtue of the waiver clauses in the loan documents. Nine Twenty, LLC v. Bank of the Ozarks, 337 Ga. App. 180, 786 S.E.2d 555, 2016 Ga. App. LEXIS 288 (2016). Grant of summary judgment to bank in mortgage foreclosure action was reversed because the borrower created a genuine issue of fact with regard to whether the construction loan and second line of credit were for similar and related purposes, namely to improve secured property, so as to trigger the requirement of judicial conﬁrmation before the bank could ﬁle suit against the borrower for breach of contract. Wells v. Regions Bank, 350 Ga. App. 652, 829 S.E.2d 889, 2019 Ga. App. LEXIS 356 (2019). Sale must be advertised in every county where property located. — Trial court did not err in denying a mortgagee’s application for conﬁrmation of a nonjudicial foreclosure sale because the court properly ruled that the mortgagee’s advertisement failed to comport with the statutory requirements of O.C.G.A. § 4414-162(a); a sale of real property under a power of sale made pursuant to § 44-14162(a) must be advertised in every county where the property or any portion of the property is located. Nicholson Hills Dev. v. Branch Banking & Trust Co., 316 Ga. App. 857, 730 S.E.2d 572, 2012 Ga. App. LEXIS 682 (2012). Foreign limited liability company was not transacting business by petitioning for conﬁrmation. — Trial court did not err by denying a mortgagor’s motion to dismiss the foreclosure conﬁrmation proceeding based on the mortgagee being a foreign limited liability company impermissibly transacting business in Georgia because a limited liability company was not considered to be transacting business in Georgia merely because it 44-14-161 engaged in acquiring loan documents, conducting a foreclosure sale, purchasing the property at the sale, reporting the sale, and ﬁling the conﬁrmation petition. Powder Springs Holdings, LLC v. RL BB ACQ II-GA PSH, LLC, 325 Ga. App. 694, 754 S.E.2d 655, 2014 Ga. App. LEXIS 54 (2014). Sale properly conﬁrmed. — Trial court did not err in conﬁrming the November sale of certain real estate in a foreclosure action because the mortgagor failed to show that it was deprived of any protection afforded by O.C.G.A. § 44-16-161 as the conﬁrmation proceeding commenced in connection with the November sale comprised a new action after the July sale was invalidated, all of the advertisement requirements were met, and the property was sold for its true market value. Howser Mill Homes, LLC v. Branch Banking & Trust Co., 318 Ga. App. 148, 733 S.E.2d 441, 2012 Ga. App. LEXIS 869 (2012). Trial court did not err by conﬁrming a foreclosure sale because issues as to whether the foreclosing bank recorded an assignment of the deed to secure debt before the foreclosure sale and the validity of the assignment were irrelevant to the conﬁrmation proceeding. River Walk Farm, L.P. v. First Citizens Bank & Trust Co., 321 Ga. App. 173, 741 S.E.2d 165, 2013 Ga. App. LEXIS 192 (2013). Trial court properly conﬁrmed a foreclosure sale under O.C.G.A. § 44-14-161 because the borrower raised no issue to support reversal as the bank provided admissible testimony as to the advertisement, notice, and regularity of the actual sale, supporting documents, and no objection was made. Sugarloaf Plaza, LLC v. Touchmark National Bank, 319 Ga. App. 648, 738 S.E.2d 104, 2013 Ga. App. LEXIS 36 (2013). Trial court properly conﬁrmed the foreclosure of an apartment complex because, although the valuations of the property were not identical, there was no evidence that the property was worth more than the bank paid at auction. Ga. Ltd. Partners, LLC v. City Nat’l Bank, 323 Ga. App. 766, 748 S.E.2d 131, 2013 Ga. App. LEXIS 740 (2013). The trial judge’s conﬁrmation is a condition precedent to the creditor be- 548 44-14-161 MORTGAGES, SECURITY, LIENS ing permitted to sue debtor for any money deﬁciency resulting from the sale. United States v. Golf Club Co., 435 F.2d 9, 1970 U.S. App. LEXIS 6057 (5th Cir. 1970); Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238, 1972 Ga. App. LEXIS 1016 (1972); Windland Co. v. FDIC, 151 Ga. App. 742, 261 S.E.2d 407, 1979 Ga. App. LEXIS 2779 (1979), rev’d, 245 Ga. 194, 264 S.E.2d 11, 1980 Ga. LEXIS 736 (1980). O.C.G.A. § 44-14-161 requires a conﬁrmation as a condition precedent to an action for a deﬁciency judgment. Commercial Exch. Bank v. Johnson, 197 Ga. App. 529, 398 S.E.2d 817, 1990 Ga. App. LEXIS 1391 (1990). Where two notes were secured by the same deed and the same property, but the foreclosure advertisement only referenced one note, the action was nevertheless a suit for a deﬁciency judgment which was barred due to failure to obtain a conﬁrmation. C.K.C., Inc. v. Free, 196 Ga. App. 280, 395 S.E.2d 666, 1990 Ga. App. LEXIS 879 (1990); Ward v. Pembroke State Bank, 212 Ga. App. 322, 441 S.E.2d 691, 1994 Ga. App. LEXIS 221 (1994). Trial court did not abuse the court’s discretion by ordering the resale of the property in a foreclosure conﬁrmation proceeding because nothing in the record indicated that the trial court failed to exercise the court’s discretion out of a belief that the bank was entitled to a resale merely because the bank had relied on a ﬂawed appraisal; rather, the trial court found that the bank relied on a ﬂawed appraisal in good faith and that the bank had shown good cause for a resale. Sanusi v. Cmty. & S. Bank, 330 Ga. App. 198, 766 S.E.2d 815, 2014 Ga. App. LEXIS 821 (2014). Conﬁrmation is not a prerequisite to the ﬁnality of a foreclosure sale but only to seeking a deﬁciency in the case of a ﬁnal foreclosure sale. Gooden v. Buffalo Sav. Bank, 21 B.R. 456, 1982 Bankr. LEXIS 4389 (Bankr. N.D. Ga. 1982). Failure to obtain conﬁrmation does not prevent enforcement against additional security. — Trial court did not err in granting summary judgment to a note holder on the holder’s suit against a debtor as a personal guarantor of the note 44-14-161 because the failure to conﬁrm the nonjudicial foreclosure sale pursuant to the security deed did not prevent the holder from seeking to enforce the holder’s contractual right to recover against additional security on the debt. HWA Props., Inc. v. Cmty. & S. Bank, 322 Ga. App. 877, 746 S.E.2d 609, 2013 Ga. App. LEXIS 632 (2013), cert. denied, No. S13C1731, 2013 Ga. LEXIS 980 (Ga. Nov. 18, 2013). Because the record did not demonstrate that the promissory notes underlying a bank’s claims were inextricably intertwined with any debt on six of the foreclosure sales, the trial court was not authorized to conclude that the bank’s claims relating to those promissory notes were barred as impermissible attempts to obtain deﬁciency judgments. First Citizens Bank & Trust, Inc. v. Ruddell, 330 Ga. App. 82, 766 S.E.2d 538, 2014 Ga. App. LEXIS 816 (2014). In a bank’s appeal of summary judgments entered against the bank and in favor of various defendants, which precluded the bank from recovering monies from the defendants owed under various promissory notes, credit agreements, and/or guaranties, the court affirmed some of the judgments and reversed others because the fact that the bank did not seek to have the sales of the realty conﬁrmed was irrelevant to the defendant’s liability. First Citizens Bank & Trust, Inc. v. Ruddell, 330 Ga. App. 82, 766 S.E.2d 538, 2014 Ga. App. LEXIS 816 (2014). Issue of standing irrelevant to conﬁrmation proceeding. — Trial court did not err in conﬁrming and approving a foreclosure sale pursuant to O.C.G.A. § 44-14-161 because the issue of a bank’s standing to bring the conﬁrmation action against the guarantors was not relevant to the conﬁrmation proceeding which was commenced in accordance with O.C.G.A. § 44-14-161(a); standing issues are outside the scope of a conﬁrmation hearing. Boring v. State Bank & Trust Co., 307 Ga. App. 93, 704 S.E.2d 207, 2010 Ga. App. LEXIS 1110 (2010). Property owner’s claim that a bank was not a real party in interest was not relevant to a conﬁrmation proceeding pursuant to O.C.G.A. § 44-14-162, as the matter was commenced in accordance with 549 Conﬁrmation (Cont’d) O.C.G.A. § 44-14-161(a) by the person instituting the foreclosure proceedings; issues of standing and assignment were irrelevant to the conﬁrmation proceeding. White Oak Homes, Inc. v. Cmty. Bank & Trust, 314 Ga. App. 502, 724 S.E.2d 810, 2012 Ga. App. LEXIS 221 (2012), cert. denied, No. S12C1120, 2012 Ga. LEXIS 671 (Ga. July 2, 2012). Conﬁrmation properly denied. — Order denying a creditor’s application for conﬁrmation of a foreclosure sale was proper because the trial court, as the trier of fact, was authorized to weigh the evidence and judge the credibility of both experts to conclude that the creditor’s expert’s valuation under the discounted cash model was unreliable and the builder’s expert, who used the bulk sales comparison approach, was more credible and used a more appropriate method. Eagle GA I SPE, LLC v. Atreus Cmtys. of Fairburn, Inc., 319 Ga. App. 844, 738 S.E.2d 675, 2013 Ga. App. LEXIS 92 (2013), cert. denied, No. S13C0958, 2013 Ga. LEXIS 575 (Ga. June 17, 2013). Consummation. — Even where conﬁrmation is withheld, a foreclosure may still be ﬁnal if it is consummated. Gooden v. Buffalo Sav. Bank, 21 B.R. 456, 1982 Bankr. LEXIS 4389 (Bankr. N.D. Ga. 1982). There was evidence to support the trial court’s ﬁnding that a foreclosure sale was consummated because a bank presented the testimony of an attorney that the attorney witnessed the foreclosure sale at issue, that the foreclosure sale occurred outside the annex of the county courthouse, that the sale consisted of several lots, which the attorney identiﬁed by their lot numbers, that the foreclosure notice was read in the notice’s entirety and the sale was opened for bidding, that the bank submitted an opening bid, and that there were no other bidders. Winstar Dev., Inc. v. SunTrust Bank, 308 Ga. App. 655, 708 S.E.2d 604, 2011 Ga. App. LEXIS 255 (2011). Trial court properly declared that a bank’s ﬁrst nonjudicial foreclosure sale was not valid because the bank never consummated the bank’s successful bid at 44-14-161 the sale of the property securing the loan since the transfer of the borrower’s right of possession and the bank’s equity of redemption to the bank as the foreclosure sale purchaser never occurred; the bank did not transfer the borrower’s right of possession to itself as the ﬁrst foreclosure sale purchaser at the sale, and the bank did not apply sale proceeds to eliminate or reduce the borrower’s obligation under the secured promissory note. Building Block Enterprises, LLC v. State Bank & Trust Company, 314 Ga. App. 147, 723 S.E.2d 467, 2012 Ga. App. LEXIS 146 (2012), cert. denied, No. S12C1053, 2012 Ga. LEXIS 553 (Ga. May 29, 2012). Compliance with section required before bringing action for deﬁciency judgment. — When the creditor wishes to exercise a power of foreclosure prior to obtaining a judgment on the note and thereby save time and expense, the creditor will be required to comply with O.C.G.A. § 44-14-161 before bringing any action for a deﬁciency judgment. Taylor v. Thompson, 158 Ga. App. 671, 282 S.E.2d 157, 1981 Ga. App. LEXIS 2366 (1981). The fact that a creditor may choose not to seek foreclosure and pursue other remedies does not alter the fact that when the creditor does foreclose it must conﬁrm in order to recover a deﬁciency judgment. Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144, 1981 U.S. Dist. LEXIS 14425 (N.D. Ga. 1981). The law requires that if the lender chooses to foreclose on the collateral, it must obtain conﬁrmation of the sale in order to pursue an action for the deﬁciency. United States v. Yates, 774 F. Supp. 1368, 1991 U.S. Dist. LEXIS 13950 (M.D. Ga. 1991). Continuing to pursue a lawsuit on a promissory note after the foreclosure proceedings have been concluded constitutes an “action” on the part of the creditor to obtain a deﬁciency judgment against the debtor and would require compliance with O.C.G.A. § 44-14-161. Vaughan v. Moore, 202 Ga. App. 592, 415 S.E.2d 47, 1992 Ga. App. LEXIS 100 (1992). Trial court’s holding that a bank was not required to conﬁrm a second nonjudicial foreclosure sale under O.C.G.A. § 4414-161 before pursuing an action for a 550 44-14-161 MORTGAGES, SECURITY, LIENS deﬁciency judgment against a guarantor was an erroneous advisory opinion because the bank did ﬁle a conﬁrmation petition and, thus, the parties failed to show under O.C.G.A. § 9-4-2(a) that there was any justiciable controversy on the issue of whether it was required to do so. Building Block Enterprises, LLC v. State Bank & Trust Company, 314 Ga. App. 147, 723 S.E.2d 467, 2012 Ga. App. LEXIS 146 (2012), cert. denied, No. S12C1053, 2012 Ga. LEXIS 553 (Ga. May 29, 2012). Failure to comply with conﬁrmation requirements precludes deﬁciency judgment. — Trial court erred by granting a note holder a deﬁciency judgment because since the note holder did not obtain a judgment on the note against the debtor prior to the foreclosure sale, it was required to comply with the conﬁrmation requirements of O.C.G.A. § 44-14-161 in order to obtain a deﬁciency judgment on the note. HWA Props., Inc. v. Cmty. & S. Bank, 322 Ga. App. 877, 746 S.E.2d 609, 2013 Ga. App. LEXIS 632 (2013), cert. denied, No. S13C1731, 2013 Ga. LEXIS 980 (Ga. Nov. 18, 2013). Failure to obtain conﬁrmation does not invalidate the remaining obligation; it simply renders it impossible for the holder to sue on it, just as would a discharge in bankruptcy of the maker, properly pleaded. Turpin v. North Am. Acceptance Corp., 119 Ga. App. 212, 166 S.E.2d 588, 1969 Ga. App. LEXIS 1047 (1969); Marler v. Rockmart Bank, 146 Ga. App. 548, 246 S.E.2d 731, 1978 Ga. App. LEXIS 2451 (1978). Where the mortgagors’ possible liability to mortgage insurer, not the lender, arose from a completely independent source than the debt mortgagors owed the lender, mortgage insurer’s action to recover under a loan indemnity agreement was not barred by the lender’s failure to have the foreclosure sale conﬁrmed. Turner v. Commonwealth Mtg. Assurance Co., 207 Ga. App. 428, 428 S.E.2d 398, 1993 Ga. App. LEXIS 242 (1993). Not prevention of other remedies. — Failure to have a sale conﬁrmed does not prevent a creditor from pursuing other contractual security on the debt. Calvert Fire Ins. Co. v. Environs Dev. Corp., 601 F.2d 851, 1979 U.S. App. LEXIS 12152 44-14-161 (5th Cir. 1979); Surety Managers, Inc. v. Stanford, 633 F.2d 709, 1980 U.S. App. LEXIS 11044 (5th Cir. 1980), cert. denied, 454 U.S. 828, 102 S. Ct. 121, 70 L. Ed. 2d 104, 1981 U.S. LEXIS 3241 (1981). Failure to obtain conﬁrmation of a sale under O.C.G.A. § 44-14-161 did not preclude the lender from ﬁling a complaint against the individual debtor under 11 U.S.C. § 523(a)(4) or (a)(6) of the Bankruptcy Code, alleging a claim for conversion of accounts receivable which also secured the loan. Presidential Fin. Corp. v. Snead, 231 B.R. 823, 1999 Bankr. LEXIS 303 (Bankr. N.D. Ga. 1999). Recovery of rents and proﬁts not precluded by failure to obtain conﬁrmation. — Bankruptcy creditor’s failure to obtain judicial conﬁrmation following foreclosure did not preclude the creditor from recovering rents and proﬁts, where the property was sold for more than its fair market value and the rents and profits represented separate contractual security to which the creditor was entitled. In re Johnson, Wilson & Dillon, 123 B.R. 439, 1990 Bankr. LEXIS 2754 (Bankr. N.D. Ga. 1990). Simply limits remedies. — Failure to obtain conﬁrmation of sale does not extinguish the debt; it simply limits the creditor’s remedies. Surety Managers, Inc. v. Stanford, 633 F.2d 709, 1980 U.S. App. LEXIS 11044 (5th Cir. 1980), cert. denied, 454 U.S. 828, 102 S. Ct. 121, 70 L. Ed. 2d 104, 1981 U.S. LEXIS 3241 (1981). Suit on deﬁciency impossible. — Failure to obtain conﬁrmation of a sale under power simply renders it impossible for the holder to sue on the deﬁciency. Such failure does not operate to satisfy the debt or prevent the creditor from pursuing other available remedies. First Fed. Sav. & Loan Ass’n v. Fisher, 422 F. Supp. 1, 1976 U.S. Dist. LEXIS 15740 (N.D. Ga. 1976). Where the creditor bank did not have the foreclosure sale conﬁrmed by the superior court, it could not take action under the state law to assert a deﬁciency claim. In re Wiggins, 167 B.R. 990, 1993 Bankr. LEXIS 2179 (Bankr. M.D. Ga. 1993), aff’d, 167 B.R. 992, 1994 U.S. Dist. LEXIS 5539 (M.D. Ga. 1994). Nature of deﬁciency. — Where a sale under power was had but no conﬁrmation 551 Conﬁrmation (Cont’d) thereof was had under O.C.G.A. § 44-14161, no action could be brought for any deﬁciency under the terms of that section, even if the deﬁciency included attorney fees which had become a part of the principal at the time of the sale. Sockwell v. Pettus, 139 Ga. App. 311, 228 S.E.2d 343, 1976 Ga. App. LEXIS 1778 (1976). Right to conﬁrmation not waived. — Guaranty language was not sufficient to amount to a waiver of the guarantor’s rights under the conﬁrmation statute, where the guarantor gave the lender the power to conduct a foreclosure sale on the collateral, but the power was “to be exercised only to the extent permitted by law,” and no conﬁrmation was obtained. United States v. Yates, 774 F. Supp. 1368, 1991 U.S. Dist. LEXIS 13950 (M.D. Ga. 1991). If no conﬁrmation is sought or, if sought, is not obtained, the debtor has secured the full beneﬁt of the conﬁrmation statute because the debt is, in effect, extinguished. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867, 1980 Ga. App. LEXIS 2569 (1980). There is no requirement in O.C.G.A. § 44-14-161 or otherwise that the grantee exercising the power of sale announce that the sale is subject to conﬁrmation, or to delay transfer of the property until the conﬁrmation is obtained. Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321, 254 S.E.2d 475, 1979 Ga. App. LEXIS 1835 (1979). There is no conﬁrmation prerequisite for a suit based on legal malpractice, where the action is based on foreclosure on a security deed and for failure to provide a valid security deed. Kirby v. Chester, 174 Ga. App. 881, 331 S.E.2d 915, 1985 Ga. App. LEXIS 1988 (1985). Superior court is trier of fact. — In conﬁrmation proceedings, the superior court sits as a trier of fact, and its ﬁndings and conclusions have the effect of a jury verdict. What value is, or may have been, is a question of fact to be resolved as others are and in so doing the superior court is the judge of the credibility of the witnesses and of the weight to be given the evidence. La Ronde, Ltd. v. Amsouth 44-14-161 Bank, 203 Ga. App. 400, 416 S.E.2d 881, 1992 Ga. App. LEXIS 434 (1992). Conﬁrmation not required. — Where a bank does not seek a deﬁciency as to the debt secured by the realty, but seeks to recover on a separate note that defendant signed as the indorser thereof, the fact that the bank did not seek to have the sale of the realty conﬁrmed is irrelevant to defendant’s liability. Breitzman v. Heritage Bank, 180 Ga. App. 171, 348 S.E.2d 713, 1986 Ga. App. LEXIS 2097 (1986). Where the judgment obtained by the creditor was awarded only against borrower and not against the guarantors individually, since the guarantors were entitled only to the same rights as the borrower with regard to a creditor’s attempt to collect a deﬁciency after foreclosure, and since the borrower could not have insisted on conﬁrmation of the sale before the creditor attempted to collect the deﬁciency, it did not appear that the guarantors were entitled to any greater rights to do so before the deﬁciency was sought to be collected from them. Therefore, the creditor was not required to obtain judicial conﬁrmation of its foreclosure sale of the borrower’s property before attempting to collect the deﬁciency from the guarantors. Business Dev. Corp. v. Bickerstaff, 73 B.R. 421, 1987 Bankr. LEXIS 710 (Bankr. N.D. Ga. 1987). Where a personal note of a corporation president and a note of the corporation arose from bank loans for separate and distinct purposes, notwithstanding the existence of only one security deed and a dragnet clause in the personal note that could be construed as indirectly subjecting foreclosed property that was collateral for the personal loan to constitute additional collateral for the corporate loan, an action by the bank against the corporation to collect the balance due on its note was not barred by failure of the bank to conﬁrm foreclosure sale of the land. Baby Days, Inc. v. Bank of Adairsville, 218 Ga. App. 752, 463 S.E.2d 171, 1995 Ga. App. LEXIS 875 (1995), cert. denied, No. S96C0260, 1996 Ga. LEXIS 269 (Ga. Jan. 26, 1996). Bank that ceased efforts to foreclose on real estate securing borrowers’ and guar- 552 44-14-161 MORTGAGES, SECURITY, LIENS antors’ notes evidencing obligations to the bank and sued the borrowers and guarantors on the notes, brought a suit that was not an improper deﬁciency action, due to the bank’s failure to obtain conﬁrmation, because the bank was not required to obtain conﬁrmation since: (1) no sale was consummated; (2) the bank could both sue on the notes and foreclose until the debt was paid; and (3) the borrowers and the guarantors were not harmed, as the borrowers’ and the guarantors’ interests were the same before and after the attempted sale, and no negligence, fraud, collusion, or bad faith was shown. Tampa Inv. Group, Inc. v. Branch Banking & Trust Co., 290 Ga. 724, 723 S.E.2d 674, 2012 Ga. LEXIS 300 (2012). Dragnet clause contained in initial loans did not effectively merge debts into one debt requiring judicial conﬁrmation of the foreclosure sale because the loans made to debtors and a limited liability company (LLC) were separate; the debtors and a banks’ predecessor were the original parties to the loans made to the debtors, and the LLC and another bank were the original parties to the loan made to the LLC. 3 West Invs., LLC v. Hamilton State Bank, 316 Ga. App. 796, 728 S.E.2d 843, 2012 Ga. App. LEXIS 521 (2012), cert. denied, No. S12C1886, 2012 Ga. LEXIS 982 (Ga. Nov. 19, 2012). Because loans made to debtors were separate from a loan made to a limited liability company (LLC), conﬁrmation of the nonjudicial foreclosure sale under O.C.G.A. § 44-14-161(a) was not required in order for a bank to pursue collection under the loan to the LLC. 3 West Invs., LLC v. Hamilton State Bank, 316 Ga. App. 796, 728 S.E.2d 843, 2012 Ga. App. LEXIS 521 (2012), cert. denied, No. S12C1886, 2012 Ga. LEXIS 982 (Ga. Nov. 19, 2012). Because a lender was not seeking a deﬁciency judgment when the lender sued the guarantors of a mortgage loan, the denial of conﬁrmation did not preclude the lender from obtaining a judgment against the guarantors for the difference between what the lender paid in the foreclosure sale and the unpaid balance of the debt, including taxes, penalties, and interest. Inland Mortg. Capital Corp. v. Chivas Retail Partners, LLC, 740 F.3d 1146, 2014 44-14-161 U.S. App. LEXIS 1829 (7th Cir.), cert. denied, 574 U.S. 820, 135 S. Ct. 92, 190 L. Ed. 2d 39, 2014 U.S. LEXIS 5582 (2014). Defendants’ guaranties for a promissory note waived the defendants’ right to insist on judicial conﬁrmation of foreclosure sale as a prerequisite to seeking a deﬁciency judgment as required by Georgia law. Coastal Bank v. Martin, 717 Fed. Appx. 860, 2017 U.S. App. LEXIS 23328 (11th Cir. 2017). Conﬁrmation not required where sale follows judgment on note. — Where a creditor elects to resort to the courts and obtain a judgment on the note prior to exercising the power of sale, the creditor will not be required to have such sale conﬁrmed before attempting further enforcement of the judgment. Taylor v. Thompson, 158 Ga. App. 671, 282 S.E.2d 157, 1981 Ga. App. LEXIS 2366 (1981). Where a foreclosure sale has occurred after a default judgment has been entered, the failure to obtain conﬁrmation of the sale does not affect the validity or enforceability of the judgment with respect to any amounts which may remain due thereunder. Georgia R.R. Bank & Trust Co. v. Griffith, 176 Ga. App. 198, 335 S.E.2d 417, 1985 Ga. App. LEXIS 2205 (1985). Mortgage industrial revenue bonds were personal property and were not subject to the conﬁrmation procedure. Merrill v. First Union Nat’l Bank, 224 Ga. App. 773, 481 S.E.2d 890, 1997 Ga. App. LEXIS 235 (1997), cert. denied, No. S97C0922, 1997 Ga. LEXIS 561 (Ga. May 30, 1997). Failure to conﬁrm does not estop a creditor from pursuing other contractual security on the debt. Taylor v. Thompson, 158 Ga. App. 671, 282 S.E.2d 157, 1981 Ga. App. LEXIS 2366 (1981); Worth v. First Nat’l Bank, 175 Ga. App. 297, 333 S.E.2d 173, 1985 Ga. App. LEXIS 2084 (1985); Mobley v. Commonwealth Mtg. Ins. Co., 264 Ga. 652, 450 S.E.2d 205, 1994 Ga. LEXIS 905 (1994). A creditor may seek to enforce a contractual right to pursue other contractual security for its debt following a foreclosure sale of real property without obtaining conﬁrmation of the foreclosure, and guaranties and the deed to secure debt on 553 Conﬁrmation (Cont’d) guarantors’ residence are additional security which the creditor can pursue to satisfy the debt owed to it by the borrower without conﬁrming the foreclosure sale of the borrower’s real property. Business Dev. Corp. v. Bickerstaff, 73 B.R. 421, 1987 Bankr. LEXIS 710 (Bankr. N.D. Ga. 1987). Failure to obtain conﬁrmation of a sale does not operate to extinguish the remaining debt; rather, it simply precludes the person exercising the power of sale from bringing action to obtain a deﬁciency judgment. Taylor v. Thompson, 158 Ga. App. 671, 282 S.E.2d 157, 1981 Ga. App. LEXIS 2366 (1981). Failure to provide proof of conﬁrmation did not prevent IRS from recognizing debtor’s discharge-of- indebtedness income. — IRS was entitled to summary judgment on Chapter 7 debtors’ claim that it miscalculated the amount of income the debtors had in 2006 when it added $19,898 to their income because a mortgage company forgave $19,898 of a $189,898 debt the debtors owed after it foreclosed a mortgage and sold the debtors’ house for $170,000. The mortgage company’s failure to provide proof that the sale was conﬁrmed by a state court, pursuant to O.C.G.A. § 44-14161 et seq., did not prevent the IRS from recognizing the debtors’ discharge-of-indebtedness income. Godfrey v. IRS (In re Godfrey), No. 08-10409-WHD, No. 081032, 2009 Bankr. LEXIS 3581 (Bankr. N.D. Ga. Aug. 31, 2009). Foreclosure on separate security after failure to conﬁrm. — Lender’s failure to “conﬁrm” the foreclosure sale of property given as security for a 1984 loan did not prohibit the federal Small Business Administration (SBA) from foreclosing on separate security given for a 1983 SBA loan to the same borrower. Regan v. United States Small Bus. Admin., 729 F. Supp. 1339, 1990 U.S. Dist. LEXIS 903 (S.D. Ga. 1990), aff’d, 926 F.2d 1078, 1991 U.S. App. LEXIS 4091 (11th Cir. 1991). Generally, notes made at different times to different creditors and for different collateral purposes are not subject to conﬁrmation. Oakvale Rd. Assocs. v. Mortgage 44-14-161 Recovery, 231 Ga. App. 414, 499 S.E.2d 404, 1998 Ga. App. LEXIS 486 (1998), cert. denied, No. S98C1087, 1998 Ga. LEXIS 853 (Ga. Sept. 11, 1998). Assignee could pursue conﬁrmations. — Superior court correctly construed O.C.G.A. § 44-14-161 and properly allowed an assignee to pursue the conﬁrmations of foreclosure sales because to the extent deﬁciencies remained after the foreclosures with respect to the underlying indebtedness, claims therefore belonged to the assignee; the original creditor of the underlying notes and the entity that instituted the foreclosure proceedings transferred the notes to the assignee. Titshaw v. Northeast Ga. Bank, 304 Ga. App. 712, 697 S.E.2d 837, 2010 Ga. App. LEXIS 604 (2010). Separate security obligation actionable. — Failure to conﬁrm foreclosure under one security instrument did not bar lender from suing defendants on an independent, separate, unsecured obligation. Devin Lamplighter, Ltd. v. American Gen. Fin., Inc., 206 Ga. App. 747, 426 S.E.2d 645, 1992 Ga. App. LEXIS 1789 (1992). Conﬁrmation not required when debts are not inextricably intertwined. — Creditor, who foreclosed on three different tracts of land, each of which secured separate promissory notes, was able to seek a deﬁciency judgment on two notes, despite not having conﬁrmed the foreclosure sale pursuant to O.C.G.A. § 44-14-161(a), because the debts at issue were not “inextricably intertwined.” In re Cox, 456 B.R. 592, 2011 Bankr. LEXIS 3154 (Bankr. N.D. Ga. 2011). Conﬁrmation of intertwined debts. — Notes executed almost a year apart for different, although related, purposes in the same land were inextricably intertwined so that failure to obtain judicial conﬁrmation of the ﬁrst sale precluded a deﬁciency judgment after the second sale. Oakvale Rd. Assocs. v. Mortgage Recovery, 231 Ga. App. 414, 499 S.E.2d 404, 1998 Ga. App. LEXIS 486 (1998), cert. denied, No. S98C1087, 1998 Ga. LEXIS 853 (Ga. Sept. 11, 1998). As a maker’s two debts to a bank were incurred for the same purpose, were secured by the same property, and both 554 44-14-161 MORTGAGES, SECURITY, LIENS contained a cross-default clause, the two debts were inextricably intertwined. Thus, the bank’s suit on the second promissory note constituted a claim for a deﬁciency judgment requiring judicial conﬁrmation under O.C.G.A. § 44-14-161(a) of the foreclosure sale associated with the ﬁrst note, and any further action by the bank to recover against the maker on the second note was barred by the bank’s failure to comply with § 44-14-161(a). Iwan Renovations, Inc. v. N. Atlanta Nat’l Bank, 296 Ga. App. 125, 673 S.E.2d 632, 2009 Ga. App. LEXIS 159 (2009). Lender’s foreclosure sales and deﬁciency judgments were barred by O.C.G.A. § 44-14-161(a) because the lender failed to get judicial conﬁrmation of the debts, which were inextricably intertwined- in that they were incurred for the same purpose, secured by the same property, held by the same creditor, and owed by the same debtor. Bank of N. Ga. v. Windermere Dev., Inc., 316 Ga. App. 33, 728 S.E.2d 714, 2012 Ga. App. LEXIS 476 (2012). Erroneous hearsay ruling did not warrant reversal. — Superior court did not err in conﬁrming the nonjudicial foreclosure sale because the court’s erroneous hearsay ruling was not harmful and did not warrant reversal; the ruling did not deprive a construction company and guarantors of an evidentiary basis to support their challenge to the regularity of the sale, and the superior court had a sufficient record to consider their argument and ﬁnd that the sale was regular. Diplomat Constr., Inc. v. State Bank of Tex., 314 Ga. App. 889, 726 S.E.2d 140, 2012 Ga. App. LEXIS 297 (2012). Supersedeas does not apply to foreclosure conﬁrmation proceeding. — Trial court erred by dismissing an investment company’s request for conﬁrmation of a second foreclosure sale under O.C.G.A. § 44-14-161(c) by ﬁnding that a supersedeas arose from the mortgagor’s appeal because the supersedeas statute, O.C.G.A. § 5-6-46(a), expressly only applied to civil cases, and did not apply to a foreclosure conﬁrmation proceeding. Summit Inv. Mgmt. Acquisitions I, LLC v. Greg A. Becker Enters., Ltd., 317 Ga. App. 608, 732 S.E.2d 286, 2012 Ga. App. LEXIS 774 (2012). 44-14-161 5. True Market Value Market value deﬁned. — The market value is the price which it will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who wishes to buy, but is not under a necessity to do so. Wachovia Mtg. Co. v. Moore, 138 Ga. App. 101, 225 S.E.2d 460, 1976 Ga. App. LEXIS 2069 (1976). The focus of the deﬁnition of “market value” is the price that two parties agree will be paid for the property itself, without consideration of such collateral issues as the ﬁnancial responsibility for or the nature and amount of expenses and closing costs to be paid to others in connection with buying or selling it. Wheeler v. Coastal Bank, 182 Ga. App. 112, 354 S.E.2d 694, 1987 Ga. App. LEXIS 1614 (1987). “Fair market value” of real estate and “true market value” are used interchangeably by the appellate courts. Aaron v. Life Ins. Co. of Ga., 138 Ga. App. 286, 226 S.E.2d 96, 1976 Ga. App. LEXIS 2137 (1976). What market value is under the circumstances is a question of fact to be resolved as others are, and the weight to be given it was for the judge in the nonjury hearing. Kent v. Scott Hudgens Realty & Mtg., Inc., 138 Ga. App. 30, 225 S.E.2d 447, 1976 Ga. App. LEXIS 2043 (1976). Burden of proof is on the mortgagee to present evidence as to the fair market value of the property. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). O.C.G.A. § 44-14-161 requires that the trial judge make a determination as to whether the sale brought the property’s true market value, not whether the price was grossly inadequate. FDIC v. Ivey-Matherly Constr. Co., 144 Ga. App. 313, 241 S.E.2d 264, 1977 Ga. App. LEXIS 2687 (1977); FDIC v. M.C. Honea, Jr., Inc., 440 F. Supp. 1064, 1977 U.S. Dist. LEXIS 13148 (N.D. Ga. 1977); United States v. Smith, 479 F. Supp. 804, 1979 U.S. Dist. LEXIS 8616 (N.D. Ga. 1979). Appellate review of “market value.” — On appellate review, the test is whether the record contains any evidence to support the ﬁndings of the trial court that the 555 True Market Value (Cont’d) property brought its true market value at the foreclosure sale. Tarleton v. Griffin Fed. Savs. Bank, 202 Ga. App. 454, 415 S.E.2d 4, 1992 Ga. App. LEXIS 24 (1992). Because a bank’s appraiser correctly deducted the cost to complete the homes on the owners’ properties from the “subject to” market value of the properties, and because the basis for the appraiser’s opinion amounted to more than sheer speculation, the trial court’s foreclosure conﬁrmation order complied with O.C.G.A. § 44-14-161(b) by including ﬁndings of fact that supported the conclusion that each of the properties sold for the property’s true market value. McBryar v. Branch Banking & Trust Co., 305 Ga. App. 857, 700 S.E.2d 731, 2010 Ga. App. LEXIS 830 (2010). Appellate court’s review of the trial court’s determination that a lender failed to produce evidence of the true market value is whether the record contains any evidence to support the ﬁndings of the trial court, and whether the appellate court views the evidence in the light most favorable to the trial court’s judgment because O.C.G.A. § 44-14-161 speciﬁcally refers to “real estate” and “land” as the subject of the conﬁrmation of sale procedure, not leased estates. GCCFC 2007GGP Abercorn St. Ltd. P’ship v. Abercorn Common, LLLP, 316 Ga. App. 879, 730 S.E.2d 589, 2012 Ga. App. LEXIS 673 (2012). In reviewing the trial court’s decision, the test is not whether the appellate court would have accepted a particular appraisal as the most reliable and accurate, but whether the record contains any evidence to support the ﬁndings of the trial court that the property brought the property’s true market value at the foreclosure sale. Ga. Ltd. Partners, LLC v. City Nat’l Bank, 323 Ga. App. 766, 748 S.E.2d 131, 2013 Ga. App. LEXIS 740 (2013). Appellate court will not disturb methodology. — Where a bidder for property provided the court with the basis for the bidder’s opinions regarding the fair market value of the property, and it appeared that the bidder’s opinion was not based on sheer speculation, the appellate 44-14-161 court could not second guess the methodology utilized to reach the opinion. La Ronde, Ltd. v. Amsouth Bank, 203 Ga. App. 400, 416 S.E.2d 881, 1992 Ga. App. LEXIS 434 (1992). Trial court’s order conﬁrming a foreclosure sale of property for $14,800,000.00 was proper as a lienholder’s appraiser testiﬁed that the property’s value was $13,290,000.00; because the appraiser’s opinions were not based on sheer speculation, the appellate court did not secondguess the methodology. Wilson v. Prudential Indus. Props., LLC, 276 Ga. App. 180, 622 S.E.2d 890, 2005 Ga. App. LEXIS 1197 (2005). In a foreclosure action, because the appeals court could not second guess the methodology used by an expert in appraising the market value of the property at issue, and the trial court had sufficient data to derive its own opinion as to the market value of the property at the time of the sale, it properly conﬁrmed the foreclosure sale. Chamblee Hotels, LLC v. Chesterﬁeld Mortg. Investors, Inc., 287 Ga. App. 342, 651 S.E.2d 447, 2007 Ga. App. LEXIS 887 (2007), cert. denied, No. S08C0072, 2008 Ga. LEXIS 75 (Ga. Jan. 28, 2008). Dollar amount need not be established. — O.C.G.A. § 44-14-161 requires the trial court to call for sufficient evidence to satisfy the court as to what is the true market value of the property. It does not demand the court establish as a matter of fact and law what is the actual dollar amount of the true market value. American Century Mtg. Investors v. Strickland, 138 Ga. App. 657, 227 S.E.2d 460, 1976 Ga. App. LEXIS 2275 (1976); Echols v. Edwards, 185 Ga. App. 688, 365 S.E.2d 844, 1988 Ga. App. LEXIS 222 (1988). Must be accurate reﬂection. — Whether in bankruptcy or not, before a deﬁciency action may be brought by a creditor who forecloses on Georgia real estate, it must have the price at which the property sold judicially conﬁrmed to be an accurate reﬂection of the property’s fair market value. United States v. Oakland City Apts., Inc., 1 B.R. 123, 1979 Bankr. LEXIS 822 (Bankr. N.D. Ga. 1979). The price brought at a public sale, after proper and lawful advertise- 556 44-14-161 MORTGAGES, SECURITY, LIENS ment is prima facie the market value of the property sold as a general rule, absent anything to indicate that there was chilling of the bidding, fraud, or the like adversely affecting the sale. But under the terms of O.C.G.A. § 44-14-161 the applicant may not rely solely on such a prima facie showing; the applicant must introduce evidence showing the value of the property at the time of sale. Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238, 1972 Ga. App. LEXIS 1016 (1972); Peachtree Mtg. Corp. v. First Nat’l Bank, 143 Ga. App. 17, 237 S.E.2d 416, 1977 Ga. App. LEXIS 2173 (1977). Market value on date of sale. — Where initial foreclosure sales were set aside and properties ordered to be resold, sellers were required to show the true market value of the properties on the date of the resales, not on the date of the initial foreclosure sales. Kong v. Shearson Lehman Hutton Mtg. Corp., 211 Ga. App. 93, 438 S.E.2d 132, 1993 Ga. App. LEXIS 1441 (1993), cert. denied, No. S94C0383, 1994 Ga. LEXIS 377 (Ga. Feb. 3, 1994). Testimony of the selling price of an identical piece of property does not establish precise market value as a matter of law. Smith v. Fidelity Fed. Sav. & Loan Ass’n, 149 Ga. App. 730, 256 S.E.2d 43, 1979 Ga. App. LEXIS 2005 (1979). Appraisal that occurred ﬁve weeks before sale sufficient. — Because there was evidence of the parcels’ value about ﬁve weeks before the foreclosure sales occurred, the appraisal date was relatively close to the date of the foreclosure sales, which was sufficient for the trial court to conﬁrm the sales as required under O.C.G.A. § 44-14-161. LRD, LLC v. State Bank & Trust Co., 326 Ga. App. 644, 757 S.E.2d 251, 2014 Ga. App. LEXIS 259 (2014). Expert testimony. — Assuming that the superior court erred by concluding that, under O.C.G.A. § 44-14-161(b), the parties were limited to introducing evidence of the properties’ value on only the date of the foreclosure sale, the borrowers induced the error and could not complain because the borrowers speciﬁcally argued to the superior court that the lender’s evidence had to be excluded since the condition of the property after the foreclo- 44-14-161 sure sale was not relevant to the true market value at the time of the sale; the borrowers did not show that the superior court disregarded their expert’s testimony for valuing the property. Eayrs v. Wells Fargo Bank, N.A., 311 Ga. App. 504, 716 S.E.2d 561, 2011 Ga. App. LEXIS 764 (2011). Superior court did not err in conﬁrming a foreclosure sale because the lender’s expert explained the basis for the expert’s methodology and testiﬁed about the sources upon which the expert relied, and as it appeared that the expert’s opinion was not based on sheer speculation, the appellate court could not second-guess any methodology utilized to reach the opinion; the superior court expressly invited the borrowers to cross-examine the expert about the basis of the expert’s opinions to verify that the opinions were not based on an inspector’s condition report. Eayrs v. Wells Fargo Bank, N.A., 311 Ga. App. 504, 716 S.E.2d 561, 2011 Ga. App. LEXIS 764 (2011). Superior court did not err in conﬁrming the nonjudicial foreclosure sale of a hotel leasehold interest held by a lender under a deed securing a promissory note a construction company executed because there was competent evidence supporting the superior court’s ﬁnding that the auction brought the true market value for the property; the superior court found the lender’s expert credible and the valuation methodology sound. Diplomat Constr., Inc. v. State Bank of Tex., 314 Ga. App. 889, 726 S.E.2d 140, 2012 Ga. App. LEXIS 297 (2012). Trial court did not abuse the court’s discretion by admitting the expert testimony proffered by the mortgagee because the testimony was sufficient, competent evidence supporting the ﬁnding that the foreclosure sale should be conﬁrmed and provided proof of the true market value as of the date of the foreclosure sale. Powder Springs Holdings, LLC v. RL BB ACQ II-GA PSH, LLC, 325 Ga. App. 694, 754 S.E.2d 655, 2014 Ga. App. LEXIS 54 (2014). Hearsay evidence insufficient to support ﬁnding of true market value. — At a foreclosure conﬁrmation hearing held under O.C.G.A. § 44-14-161, a trial 557 True Market Value (Cont’d) court erred in relying on three appraisal reports to ﬁnd that the foreclosed properties were sold at fair market value because the reports were hearsay: although the appraiser was present, the appraiser did not testify, and the bank’s attorney merely stated in the appraiser’s place that the sales were made at fair market value. Belans v. Bank of Am., 303 Ga. App. 35, 692 S.E.2d 694, 2010 Ga. App. LEXIS 289 (2010). Bulk sales analysis upheld. — Trial court did not err in conﬁrming a foreclosure sale under O.C.G.A. § 44-14-161(b) even though expenses and carrying costs were deducted in determining true market value of the subdivision property and even when a bulk sales analysis resulted in a lower true market value than an analysis of each individual lot contained on the property. Trefren v. Freedom Bank, 300 Ga. App. 112, 684 S.E.2d 144, 2009 Ga. App. LEXIS 1095 (2009). Trial court did not err in conﬁrming foreclosure sales pursuant to O.C.G.A. § 44-14-161 because there was evidence to support the court’s ﬁnding that the two properties sold for their true market value at foreclosure sale; although the appraisal of the bank’s expert did not speciﬁcally provide the separate true market value for each parcel of lots, the expert’s testimony and appraisal provided the methodology by which the separate value of each parcel could be obtained, i.e., multiplying the true market value of each lot by the number of lots in each parcel, and it was clear from the appraisal reports and testimony of the bank’s expert and the expert of the debtor and guarantor that the valuation of each parcel would not change if the properties were sold separately or together as a bulk transaction. Battle Props. v. Branch Banking & Trust Co., 310 Ga. App. 217, 712 S.E.2d 625, 2011 Ga. App. LEXIS 528 (2011). What property may have brought or what it may have been regarded as being worth on the market at times relatively close to the date of sale may be considered as aids in arriving at market value at the time of sale. Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238, 1972 Ga. App. LEXIS 1016 (1972). 44-14-161 It is no defense in Georgia if market values are depressed by general economic factors. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). If the trial judge is not satisﬁed that the foreclosure sale brought what in the judge’s opinion approximates the true market value of the property, the judge is required to deny conﬁrmation of the sale and, if necessary, to order a resale. American Century Mtg. Investors v. Strickland, 138 Ga. App. 657, 227 S.E.2d 460, 1976 Ga. App. LEXIS 2275 (1976). Where realty and personalty are sold for a lump sum and it is impossible to tell what amount the realty sold for, the evidence does not show that the real property brought its true market value as required by O.C.G.A. § 44-14161 and the trial judge errs if the sale is conﬁrmed. Hinson v. First Nat’l Bank, 221 Ga. 408, 144 S.E.2d 765, 1965 Ga. LEXIS 479 (1965); United States v. Golf Club Co., 435 F.2d 9, 1970 U.S. App. LEXIS 6057 (5th Cir. 1970). Evidence sufficient to show the fair market value. — Creditor’s testimony regarding assignment of note and deed of trust from a bank to the creditor established that the assignments were made, although the issue of whether the creditor, as the person instituting the foreclosure action, was the real party in interest was irrelevant to a conﬁrmation proceeding; the creditor’s testimony about the creditor’s experience with the property, how much the creditor had invested in it, how much the creditor’s borrowed against it, its condition at the time of the foreclosure sale, and the creditor’s opinion that he bid the fair market value for the property, along with the testimony of one of the buyers and the tax appraisal, was sufficient to show the fair market value of the property at the time of the sale. McCain v. Galloway, 267 Ga. App. 505, 600 S.E.2d 449, 2004 Ga. App. LEXIS 706 (2004). Mortgagee was entitled to conﬁrmation of a foreclosure sale because the mortgagee showed that the property at issue sold for true market value as required under O.C.G.A. § 44-14-161 because a deduction by the mortgagee’s expert for loss of rental income due to the incompletion of 558 44-14-161 MORTGAGES, SECURITY, LIENS buildings on the property was proper as the property was worth more fully rented. Nash v. Compass Bank, 296 Ga. App. 874, 676 S.E.2d 28, 2009 Ga. App. LEXIS 340 (2009). Lender’s appraiser’s opinion as to foreclosed property’s true market value at the time of foreclosure was properly admitted under former O.C.G.A. § 24-9-67.1(b) (see now O.C.G.A. § 24-7-702). The lender’s expert’s appraisal was based upon extensive facts and careful analysis taking into account the potential for future recovery of a down real estate market by the discounted ﬂow method, which the borrower conceded was reliable. Blue Marlin Dev., LLC v. Branch Banking & Trust Co., 302 Ga. App. 120, 690 S.E.2d 252, 2010 Ga. App. LEXIS 52 (2010). Trial court did not err in conﬁrming a nonjudicial sale of certain property since the trial court was not required to disregard the valuation opinion of the mortgagee’s appraiser merely because it was based on the existing one-unit conﬁguration of the property, and the evidence was sufficient to show that the appraiser’s opinion was not based on sheer speculation; nothing in O.C.G.A. § 44-14-161 or prior case law requires a trial court in every instance to adopt the highest and best use as the basis for determining true market value and to reject any appraisal which was not explicitly based on the property’s highest and best use. TKW Partners, LLC v. Archer Capital Fund, L.P., 302 Ga. App. 443, 691 S.E.2d 300, 2010 Ga. App. LEXIS 156 (2010). Trial court did not err in ﬁnding ﬁnd that a property’s “as-is” value, rather than a value based on its “highest and best use,” was the true market value for purposes of O.C.G.A. § 44-14-161(b), because two appraisers agreed on the value of the property as a single unit, and the trial court’s ﬁnding that there was no variance between the experts as to the “true market value” of the property was construed to reﬂect that fact and not a misunderstanding as to the nature of the evidence; the trial court acknowledged that there was a dispute as to what the true value was and then ruled that the highest and best use of the property was not its proper value. TKW Partners, LLC v. Archer Capi- 44-14-161 tal Fund, L.P., 302 Ga. App. 443, 691 S.E.2d 300, 2010 Ga. App. LEXIS 156 (2010). Sufficient evidence supported conﬁrmation of a lender’s application for a foreclosure sale under O.C.G.A. 44-14-161(b) because the appraiser used a valid valuation method, and the appraisal was supported by competent evidence showing that the property’s true market value was equivalent to the price the lender paid at a nonjudicial foreclosure sale. Greenwood Homes, Inc. v. Regions Bank, 302 Ga. App. 591, 692 S.E.2d 42, 2010 Ga. App. LEXIS 189 (2010). Evidence supported a trial court’s conclusion that properties were sold for their true fair market values because there was no testimony as to the value of any personal property, and the record showed that the foreclosure sale involved only the sale of real property; a bank’s expert appraiser testiﬁed as to the methodology the appraiser used to determine the value of each property sold, and the appraiser testiﬁed that the properties in the ﬁrst sales had no appliances therein and that some in the third had no ﬂooring, carpet, or appliances. Belans v. Bank of Am., N.A., 306 Ga. App. 252, 701 S.E.2d 889, 2010 Ga. App. LEXIS 910 (2010). Sufficient evidence supported the trial court’s conﬁrmation of a foreclosure sale pursuant to O.C.G.A. § 44-14-161 because the appraiser relied on the factual data collected by the appraiser’s staff for the appraiser’s valuation of the property, not on the staff’s opinions as to the value of the property, and there was no evidence that the appraiser’s valuation was based on sheer speculation; O.C.G.A. § 44-14161(b) does not preclude any speciﬁc method of property appraisal. Boring v. State Bank & Trust Co., 307 Ga. App. 93, 704 S.E.2d 207, 2010 Ga. App. LEXIS 1110 (2010). Trial court did not err in conﬁrming a non-judicial foreclosure sale of property to a bank because the record contained sufﬁcient evidence to permit the trial court to determine that the foreclosure sale brought at least the true market value of the property as required by O.C.G.A. § 44-14-161(b) when the scope of an appraisal addendum included a re-inspec- 559 True Market Value (Cont’d) tion of the property and a review of changes in market conditions since the ﬁrst appraisal and through the date of the foreclosure sale; even if the appraiser’s recurring valuation for the property and cost-to-complete calculations strained credulity, the trial court was presented with additional, uncontested evidence to support the court’s ﬁnding that the property sold for at least the property’s true market value because the appraiser testiﬁed that the appraiser received no direction from the bank about the total to return when the appraiser reached $480,000 for the second time, and there was evidence that the true market value of the property could have actually been less than what the bank paid for the property. Atreus Cmtys. of Am., LLC v. KeyBank Nat’l Ass’n, 307 Ga. App. 716, 706 S.E.2d 107, 2011 Ga. App. LEXIS 56 (2011). Trial court did not err in conﬁrming a foreclosure sale by a bank because the trial court was authorized to ﬁnd that the bank’s winning bid at the sale represented the true market value of the property; the trial court was entitled to rely upon the valuation of the property by the bank’s expert, including the expert’s utilization of a 15 percent discount for builder/buyer risk in valuing the uncompleted house on the property, because the expert testiﬁed that the calculation was arrived at based on the expert’s consultation with two separate homebuilders, and the expert arrived at the ultimate valuation after inspecting the uncompleted, vandalized home and assessing the condition of the surrounding subdivision. Jimmy Britt Builders, Inc. v. Suntrust Bank, 307 Ga. App. 663, 706 S.E.2d 665, 2011 Ga. App. LEXIS 39 (2011). Because a foreclosure sale reﬂected the price that would be obtained in a sale under usual market conditions, and because deductions such as carrying costs and entrepreneurial proﬁt factored directly into the price a willing buyer would pay for the properties, the trial court properly determined the properties’ true market value under O.C.G.A. § 44-14-161(b). Henderson Prop. Holdings, LLC v. Sea Island Bank, 310 Ga. App. 795, 714 S.E.2d 44-14-161 382, 2011 Ga. App. LEXIS 657 (2011), cert. denied, No. S11C1787, 2011 Ga. LEXIS 991 (Ga. Nov. 30, 2011). Trial court did not err in conﬁrming a nonjudicial foreclosure sale because the borrowers did not object to the testimony or the reports of the lender’s appraiser as to the fair market value of the property, and there was no evidence that the appraiser’s opinion was based on sheer speculation. O.C.G.A. § 44-14-161(b) did not preclude any speciﬁc method of property appraisal. Ivy Rd. Props., LLC v. First Citizens Bank & Trust Co., 311 Ga. App. 409, 715 S.E.2d 809, 2011 Ga. App. LEXIS 750 (2011). Superior court did not err in conﬁrming a foreclosure sale because the borrowers did not show that the lender’s scheduling and cancelling the foreclosure sale caused the properties to bring in less than the properties fair market value on the date of the sale. Eayrs v. Wells Fargo Bank, N.A., 311 Ga. App. 504, 716 S.E.2d 561, 2011 Ga. App. LEXIS 764 (2011). Because the mortgage guarantors did not rebut an appraiser’s revised opinion of the true market value of a property, and because the revised value was less than the amount a bank bid in the bank’s foreclosure sale, the trial court properly determined that the bank’s bid, which brought at least the true market value of the property, complied with O.C.G.A. § 44-14-161(b). Metro Land Holdings Invs., LLC v. Bank of Am., N.A., 311 Ga. App. 498, 716 S.E.2d 566, 2011 Ga. App. LEXIS 769 (2011). Order conﬁrming a non-judicial foreclosure sale was not erroneous because there was evidence supporting the trial court’s ﬁnding that the subject properties sold for at least the properties’ true market value; the bank introduced the written appraisal reports and expert testimony from the bank’s appraiser, which showed that the ﬁrst property sold for $1,500 less than the property’s value, which was within the range of the property’s true market value, and the trial court’s decision to adopt the determination of the bank’s expert that the highest and best use of the property would be residential, and the expert’s valuation method of calculating the retail value of the property by utilizing the sales 560 44-14-161 MORTGAGES, SECURITY, LIENS comparison approach and then discounting that value to achieve the property’s true market value, was not in error. River Forest, Inc. v. United Bank, 320 Ga. App. 115, 739 S.E.2d 403, 2013 Ga. App. LEXIS 132 (2013). Conﬁrmation of a foreclosure sale of subdivided property for $530,000 was proper because there was some evidence that the fair market value of the lots was $5,500 to $6,600, which was considerably less than the actual sales price of $10,000 per lot, and the borrower’s expert’s opinion that the per lot value was $12,000 was not supported by any comparable sales. Lost Lake Dev. Corp. v. Cmty. & S. Bank, 325 Ga. App. 527, 754 S.E.2d 114, 2014 Ga. App. LEXIS 9 (2014), cert. denied, No. S14C0742, 2014 Ga. LEXIS 609 (Ga. Sept. 8, 2014). Evidence in the record, including the testimony of the demolition company owner regarding the cost of demolition, supported the trial court’s determination that the price paid by the buyer represented the true market value of the property. Conyers 138, LLC v. ONH1, LLC, 341 Ga. App. 521, 801 S.E.2d 318, 2017 Ga. App. LEXIS 234 (2017). Evidence insufficient. — A party who explains arrival at a total price ﬁgure by adding component values, but provides no adequate explanation of how that party arrived at the value of the components, does not provide sufficient evidence to accurately ascertain the true market value so as to make a determination under O.C.G.A. § 44-14-161. Mallett v. Fulford, 142 Ga. App. 200, 235 S.E.2d 650, 1977 Ga. App. LEXIS 1541 (1977). Refusal to conﬁrm a foreclosure sale was proper where the only evidence presented to the trial court as to the fair market value of the subject property was an appraisal submitted by an expert who failed to consider comparable properties close to the subject property which had much higher values than the more distant properties used by the assignees’ expert, and which indicated that the true market value was much higher than the foreclosure sale price; the trial court found that the expert and the expert’s appraisal were simply not believable. Foster v. Tycor, Inc., 267 Ga. App. 767, 601 S.E.2d 172, 2004 Ga. App. LEXIS 783 (2004). 44-14-161 Conﬁrmation of nonjudicial foreclosure sales of certain properties did not comply with O.C.G.A. § 44-14-161 because the only evidence at the conﬁrmation hearing regarding the properties’ true market value was the testimony of the creditor’s counsel, which was insufficient. Belans v. Bank of Am., N. A., 303 Ga. App. 654, 694 S.E.2d 725, 2010 Ga. App. LEXIS 384 (2010). Superior court erred by conﬁrming a foreclosure sale because no construction of the record would have authorized a ﬁnding that the sale price was at least the true market value of the property; the foreclosure sale amount was a matter of fact, and neither evidence nor stipulation of such amount was presented to the trial judge. Titshaw v. Northeast Ga. Bank, 304 Ga. App. 712, 697 S.E.2d 837, 2010 Ga. App. LEXIS 604 (2010). Because the sellers’ appraiser failed to account for substantial improvements to the interior of the residence in developing the appraiser’s opinion of the property’s market value, the trial court properly denied the sellers’ application for conﬁrmation under O.C.G.A. § 44-14-161(b). Hammock v. Issa, 310 Ga. App. 547, 713 S.E.2d 717, 2011 Ga. App. LEXIS 599 (2011). Superior court did not err in denying a lender’s petition to conﬁrm the foreclosure of a shopping center because the lender failed to convince the superior court, by a preponderance of the evidence, that the property sold for the property’s true market value pursuant to O.C.G.A. § 44-14161; the lender’s expert appraised the leased fee interest in the property and not the fee simple interest. GCCFC 2007-GGP Abercorn St. Ltd. P’ship v. Abercorn Common, LLLP, 316 Ga. App. 879, 730 S.E.2d 589, 2012 Ga. App. LEXIS 673 (2012). In conﬁrming foreclosure sale of property upon which was situated a condominium complex consisting of 30 partially constructed units, the court could calculate the true market value of the real estate as a single investment opportunity rather than by adding together the true market values of each of the separate residential units, where the security deed merely described the property as two tracts and contained no express requirement that the property be 561 44-14-161 True Market Value (Cont’d) sold in individual units. Marion G. Davis, Inc. v. Cameron-Brown Co., 177 Ga. App. 646, 340 S.E.2d 216, 1986 Ga. App. LEXIS 1507 (1986). Calculation of amount of loss with reasonable degree of certainity. — Trial court erred in basing the court’s holding that the appellees were not liable for the deﬁciency on the court’s ﬁnding that the appellant suffered no damages as a result of the recording of the materialman’s liens because the appellant obtained an order conﬁrming the foreclosure sale and, thus, met the court’s burden of proof of showing the amount of loss in a manner in which the trial judge could calculate the amount of the loss with a reasonable degree of certainty. Fannie Mae v. Las Colinas Apartments, LLC, 346 Ga. App. 867, 815 S.E.2d 334, 2018 Ga. App. LEXIS 434 (2018), cert. denied, No. S18C1616, 2019 Ga. LEXIS 177 (Ga. Mar. 4, 2019). Market value exceeding bid amount. — Trial court did not err in denying conﬁrmation petition, where appraisals offered by both parties supported the court’s conclusion that the market value of the condominium units involved had exceeded the amount bid for them at the foreclosure sales. First Nat’l Bank v. Childress-Ross Properties, Inc., 189 Ga. App. 765, 377 S.E.2d 533, 1989 Ga. App. LEXIS 19 (1989). A “quick sale value” does not constitute competent evidence of the “true market value” of real property within the meaning of O.C.G.A. § 44-14-161. Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 424 S.E.2d 889, 1992 Ga. App. LEXIS 1609 (1992). Trial court erred by conﬁrming a foreclosure sale under O.C.G.A. § 44-14161(b) based on an appraisal that discounted the value of each town home by $10,000 because the homes were in foreclosure because evidence of the “quick sale” value of the properties did not reﬂect the price that would have been obtained in a sale under the usual market conditions. Cartersville Developers, LLC. v. Ga. Bank & Trust, 292 Ga. App. 375, 664 S.E.2d 783, 2008 Ga. App. LEXIS 780 (2008). Although a foreclosure sale price was the same as the quick sale value, and the experts were not informed about two higher offers for a portion of the property before their appraisals, reversal of a decision conﬁrming the foreclosure sale was not required because the expert’s opinion was not based solely on the quick sale value but on other factors. Mundy Mill Dev., LLC v. ACR Prop. Servs., LP, 306 Ga. App. 730, 703 S.E.2d 137, 2010 Ga. App. LEXIS 1036 (2010). Hearing 1. Powers and Duties of Court O.C.G.A. § 44-14-161 does not violate Ga. Const. 1976, Art. VI, Sec. XV, Para. I (see now Ga. Const. 1983, Art. I, Sec. I, Para. XI) by failing to provide for the trial of issues of fact by jury. Harwell v. First Fed. Sav. & Loan Ass’n, 245 Ga. 757, 267 S.E.2d 229, 1980 Ga. LEXIS 926 (1980). No jury trial is required under O.C.G.A. § 44-14-161. Kilgore v. Life Ins. Co., 138 Ga. App. 890, 227 S.E.2d 860, 1976 Ga. App. LEXIS 2357 (1976). A right to a jury trial does not exist in conﬁrmation proceedings brought in the state courts of Georgia. FDIC v. New London Enters., Ltd., 619 F.2d 1099, 1980 U.S. App. LEXIS 16300 (5th Cir. 1980). The duty of the court is to test the fairness of the technical procedure of the actual sale and to insure that the sale has brought at least the true market value of the property. Jones v. Hamilton Mtg. Corp., 140 Ga. App. 490, 231 S.E.2d 491, 1976 Ga. App. LEXIS 1530 (1976); Hamilton Mtg. Corp. v. Bowles, 142 Ga. App. 882, 237 S.E.2d 198, 1977 Ga. App. LEXIS 2163 (1977); Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980); Harris & Tilley, Inc. v. First Nat’l Bank, 157 Ga. App. 88, 276 S.E.2d 137, 1981 Ga. App. LEXIS 1674 (1981); Alexander v. Weems, 157 Ga. App. 507, 277 S.E.2d 793, 1981 Ga. App. LEXIS 1882 (1981). The judge sits as a trier of fact and the judge’s ﬁndings and conclusions have the effect of a jury verdict. Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238, 562 44-14-161 MORTGAGES, SECURITY, LIENS 1972 Ga. App. LEXIS 1016 (1972); Alexander v. Weems, 157 Ga. App. 507, 277 S.E.2d 793, 1981 Ga. App. LEXIS 1882 (1981). Judge’s weight and credibility of evidence. — What value is, or may have been, is a question of fact to be resolved as others are. In so doing the trier of fact is the judge of the credibility of the witnesses and of the weight to be given the evidence. Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238, 1972 Ga. App. LEXIS 1016 (1972); Alexander v. Weems, 157 Ga. App. 507, 277 S.E.2d 793, 1981 Ga. App. LEXIS 1882 (1981). Findings required. — A judge hearing a conﬁrmation of a nonjudicial sale of property is required to render a judgment with ﬁndings of fact. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). A judgment in an action to conﬁrm a foreclosure sale is inadequate if it contains no speciﬁc ﬁnding concerning the sufficiency of the price brought at sale. Lanier v. Citizens State Bank, 186 Ga. App. 395, 367 S.E.2d 585, 1988 Ga. App. LEXIS 361 (1988). Sale may be declared void. — O.C.G.A. § 44-14-161 gives the judge authority to declare a sale of real estate on foreclosure to be absolutely void rather than merely to order another sale because of an irregularity. Tingle v. Atlanta Fed. Sav. & Loan Ass’n, 93 Ga. App. 393, 91 S.E.2d 804, 1956 Ga. App. LEXIS 748 (1956). A trial judge has the authority to rule upon a motion for revision during the same term. Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238, 1972 Ga. App. LEXIS 1016 (1972). Collateral estoppel and res judicata. — Conﬁrmation court’s holding that the land brought its true market value did not have either collateral estoppel or res judicata effect on the district court’s consideration of the proceeds issue since the conﬁrmation court is without authority to address matters concerning sales of personalty. Walton Motor Sales, Inc. v. Ross, 736 F.2d 1449, 1984 U.S. App. LEXIS 20368 (11th Cir. 1984). 44-14-161 2. Issues A. Generally The conﬁrmation proceeding is a statutory proceeding which by law determines only that the sale was properly advertised and brought the fair market value of the land. It originated as a means of protecting the debtor from being subject to double payment in cases where the property was purchased for a sum less than its fair market value and it provides an opportunity for debtors, including endorsers of the obligation, to contest the approval of the sales before claims for the balance of the indebtedness can be prosecuted against them. Harris & Tilley, Inc. v. First Nat’l Bank, 157 Ga. App. 88, 276 S.E.2d 137, 1981 Ga. App. LEXIS 1674 (1981). A conﬁrmation proceeding held in accordance with O.C.G.A. § 44-14-161 is extremely narrow in scope, the issues in such proceedings being the evaluation of real estate sold under power as to the date of its sale and the regularity of that sale. Alexander v. Weems, 157 Ga. App. 507, 277 S.E.2d 793, 1981 Ga. App. LEXIS 1882 (1981). Requirements must be substantially met. — At a hearing for conﬁrmation of a foreclosure sale, if either the notice or the advertisement does not substantially meet legal requirements, the sale should be set aside. But not every irregularity or deﬁciency at this point will void the sale. Walker v. Northeast Prod. Credit Ass’n, 148 Ga. App. 121, 251 S.E.2d 92, 1978 Ga. App. LEXIS 3042 (1978). Court’s inquiry should be limited. — The court’s inquiry in a conﬁrmation of a foreclosure sale should go only to the value of the real estate on the date of sale, in the course of the examination to determine the fairness of the technical procedures used, but only for the purpose of making sure that the sale was not chilled and the price bid was in fact market value. Shantha v. West Ga. Nat’l Bank, 145 Ga. App. 712, 244 S.E.2d 643, 1978 Ga. App. LEXIS 2099 (1978); Walker v. Northeast Prod. Credit Ass’n, 148 Ga. App. 121, 251 S.E.2d 92, 1978 Ga. App. LEXIS 3042 563 Generally (Cont’d) (1978); Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). The sole issue in the conﬁrmation procedure under O.C.G.A. § 44-14-161 is the evaluation of the real estate as of the date of the sale. Hamilton Mtg. Corp. v. Bowles, 142 Ga. App. 882, 237 S.E.2d 198, 1977 Ga. App. LEXIS 2163 (1977). O.C.G.A. § 44-14-161 does not contemplate that the court shall undertake to decide controversies between the parties as to the amount of debt or side agreements which could have been the basis of an injunction preventing the foreclosure sale. Jones v. Hamilton Mtg. Corp., 140 Ga. App. 490, 231 S.E.2d 491, 1976 Ga. App. LEXIS 1530 (1976); Hamilton Mtg. Corp. v. Bowles, 142 Ga. App. 882, 237 S.E.2d 198, 1977 Ga. App. LEXIS 2163 (1977); Harris & Tilley, Inc. v. First Nat’l Bank, 157 Ga. App. 88, 276 S.E.2d 137, 1981 Ga. App. LEXIS 1674 (1981). In an action to conﬁrm a sale under O.C.G.A. § 44-14-161, the debtors were not permitted to raise the defense that intangible taxes had not been paid as required by O.C.G.A. § 48-6-77; alleged defenses to the original debt are not relevant to the conﬁrmation proceeding. Guthrie v. Bank S., 195 Ga. App. 123, 393 S.E.2d 60, 1990 Ga. App. LEXIS 424 (1990), cert. denied, No. S90C0984, 1990 Ga. LEXIS 850 (Ga. May 9, 1990). In every conﬁrmation of sale case, the issue of a resale is always raised regardless of whether it has been affirmatively pleaded in creditor’s complaint, if the debtor is afforded the opportunity to defend against conﬁrmation as well as against a resale. Adams v. Gwinnett Com. Bank, 140 Ga. App. 233, 230 S.E.2d 324, 1976 Ga. App. LEXIS 1421 (1976), aff’d, 238 Ga. 722, 235 S.E.2d 476, 1977 Ga. LEXIS 1180 (1977); Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321, 254 S.E.2d 475, 1979 Ga. App. LEXIS 1835 (1979). Default is not an issue in conﬁrmation proceedings. Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321, 254 S.E.2d 475, 1979 Ga. App. LEXIS 1835 (1979). Real parties in interest. — The issue of whether an assignee of the Federal 44-14-161 Deposit Insurance Corporation was a real party in interest was not relevant to a conﬁrmation proceeding which was commenced in accordance with O.C.G.A. § 4414-161 by the person instituting the foreclosure proceedings. Sparti v. Joslin, 230 Ga. App. 346, 496 S.E.2d 490, 1998 Ga. App. LEXIS 139 (1998). The fact that a sale may have been conducted unfairly has no relevance in a conﬁrmation of sale proceeding under O.C.G.A. § 44-14-161, unless the unfairness relates to the requirements of notice, advertisement, and regularity. Keever v. GECC, 141 Ga. App. 864, 234 S.E.2d 696, 1977 Ga. App. LEXIS 2099 (1977). B. Notice to Debtor Any debtor not given timely notice may not be held liable in any subsequent deﬁciency action. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). Actual notice or knowledge will not cure the failure to comply with the notice provision of O.C.G.A. § 44-14-161. First Nat’l Bank & Trust Co. v. Kunes, 128 Ga. App. 565, 197 S.E.2d 446, 1973 Ga. App. LEXIS 1547, aff’d, 230 Ga. 888, 199 S.E.2d 776, 1973 Ga. LEXIS 1098 (1973); Chastain Place, Inc. v. Bank S., 185 Ga. App. 178, 363 S.E.2d 616, 1987 Ga. App. LEXIS 2455 (1987). The fact that the guarantor of a mortgage had actual notice of the hearing on a conﬁrmation application did not change the requirement for valid personal service. Ameribank v. Quattlebaum, 220 Ga. App. 345, 469 S.E.2d 462, 1996 Ga. App. LEXIS 129 (1996). Where the guarantor of a mortgage was not named a party in a conﬁrmation petition and was not given notice of the conﬁrmation hearing as required by O.C.G.A. § 44-14-161, the hearing should have been dismissed; notice given to the guarantor by the mortgagee’s counsel did not satisfy the statutory requirement. Quattlebaum v. Ameribank, 227 Ga. App. 517, 489 S.E.2d 319, 1997 Ga. App. LEXIS 775 (1997), aff’d, 269 Ga. 857, 505 S.E.2d 476, 1998 Ga. LEXIS 932 (1998). Personal service generally is required in order to give legal notice where no proceedings are pending between the 564 44-14-161 MORTGAGES, SECURITY, LIENS parties at the time a notice is to be given. Henry v. Hiwassee Land Co., 246 Ga. 87, 269 S.E.2d 2, 1980 Ga. LEXIS 976 (1980). Purchasers who were responsible on the underlying debt were “debtors” within the meaning of O.C.G.A. § 44-14-161 and were entitled to notice by personal service. Hill v. Moye, 221 Ga. App. 411, 471 S.E.2d 910, 1996 Ga. App. LEXIS 511 (1996). Notice by mail. — The mailing of copies of the petition to the defendant and defendant’s counsel within ﬁve days of the hearing, in the absence of a contention of nonreceipt thereof, constituted “notice” of the hearing as required by O.C.G.A. § 4414-161. Boardman v. Georgia R.R. Bank & Trust Co., 127 Ga. App. 63, 192 S.E.2d 390, 1972 Ga. App. LEXIS 782 (1972). Service by publication. — Service of a debtor by publication was found to be necessary by the trial court, and there was evidence to support this ﬁnding. One process server had attempted unsuccessfully to serve the guarantor at least 12 times, at four different addresses, and another attempted service at four different locations, including seven visits and hours of surveillance of what the server believed was the debtor’s residence. Belans v. Bank of Am., 303 Ga. App. 35, 692 S.E.2d 694, 2010 Ga. App. LEXIS 289 (2010). Trial court erred when the court found that a debtor was served properly because there was no evidence that the requirements of publication under O.C.G.A. § 911-4(f)(1) were met, and a bank offered no evidence to show that the notice requirements of O.C.G.A. § 44-14-161(c) were met; the published advertisement for service on the debtor provided no speciﬁcs as to the date or time of the conﬁrmation hearing as was required under the conﬁrmation statute, O.C.G.A. § 44-14-161. Winstar Dev., Inc. v. SunTrust Bank, 308 Ga. App. 655, 708 S.E.2d 604, 2011 Ga. App. LEXIS 255 (2011). The grantee in security deed was not required to give notice to the grantor of the grantee’s intention to exercise the power of sale ten days before the running of the ﬁrst advertisement for such sale, where plaintiff did not proceed with the ﬁrst foreclosure proceeding for the reason that the defendant procured a restraining order against the foreclosure, 44-14-161 and when that was dissolved plaintiff had every right, in the absence of an appeal, to exercise its rights under the power of sale by immediately recommencing the proceeding. Norwood Realty Co. v. First Fed. Sav. & Loan Ass’n, 99 Ga. App. 692, 109 S.E.2d 844, 1959 Ga. App. LEXIS 935 (1959). Notice to guarantors required unless waived. — Lender’s compliance with the requirements contained in O.C.G.A. § 44-14-161 was a condition precedent to the lender’s ability to pursue a guarantor for a deﬁciency after a foreclosure had been conducted but the guarantors had the contractual ability to waive the condition precedent requirement. PNC Bank, Nat’l Ass’n v. Smith, 298 Ga. 818, 785 S.E.2d 505, 2016 Ga. LEXIS 169 (2016). Notice held sufficient. — Where the defaulting property owners’ attorney acknowledged at the conﬁrmation hearing that proper notice was received of the conﬁrmation hearing “two weeks ago or something like that” the bank was not barred from prosecuting the conﬁrmation applications. Phillips v. Connecticut Nat’l Bank, 196 Ga. App. 477, 396 S.E.2d 538, 1990 Ga. App. LEXIS 983 (1990), cert. denied, No. S90C1488, 1990 Ga. LEXIS 584 (Ga. Sept. 4, 1990). Notice publication of a conﬁrmation hearing for nonjudicial foreclosure sales of certain properties was sufficient because two process servers had unsuccessfully tried to personally serve a guarantor, including 12 attempts at four different locations. Belans v. Bank of Am., N. A., 303 Ga. App. 654, 694 S.E.2d 725, 2010 Ga. App. LEXIS 384 (2010). Trial court did not err in concluding that the debtors had been properly served pursuant to O.C.G.A. §§ 9-11-4 and 4414-161(c) because there was undisputed evidence from which the trial court could have concluded that the debtors were attempting to evade service; a private process server, who had a description of a vehicle that had been parked at the address of one of the debtors, saw the vehicle and followed the vehicle, but the driver noticed the server, drove past the address of the house, and when the server pulled into the driveway after the driver and approached the garage door, which was 565 44-14-161 C. Advertisement Notice to Debtor (Cont’d) not yet closed, and announced that the server had papers, no one responded. Winstar Dev., Inc. v. SunTrust Bank, 308 Ga. App. 655, 708 S.E.2d 604, 2011 Ga. App. LEXIS 255 (2011). Notice of a non-judicial foreclosure sale conﬁrmation hearing was given to two debtors more than ﬁve days prior to the conﬁrmation hearing, when a deputy left copies of the pleadings, including a rule nisi, at the debtors’ home with the debtors’ father, a person of suitable age and discretion then residing therein; this method of service complied with O.C.G.A. §§ 9-114(e)(7) and 44-14-161 to initiate a valid conﬁrmation proceeding. Gulia v. North Atlanta Bank, 334 Ga. App. 701, 780 S.E.2d 74, 2015 Ga. App. LEXIS 696 (2015), cert. denied, No. S16C0481, 2016 Ga. LEXIS 178 (Ga. Feb. 22, 2016). Notice held insufficient. — The fact that the debtor actually received a notice of hearing prepared by the lender was insufficient where the debtor was not named as a party on the application for conﬁrmation and where the notice of hearing had not been directed by the court as required by O.C.G.A. § 44-14-161. Ameribank v. Quattlebaum, 269 Ga. 857, 505 S.E.2d 476, 1998 Ga. LEXIS 932 (1998). Petitioners’ motion to set aside an order conﬁrming a non-judicial foreclosure sale was improperly denied as the evidence did not show that the bank provided the petitioners with the required notice of the rescheduled conﬁrmation hearing because the drafts of the cover letters by the bank to be sent to the petitioners notifying the petitioners of the reset hearing date were addressed to only one petitioner, contained the wrong address, and did not include a letter to the second petitioner; the proper service addresses for the petitioners had been made part of the record; and no other evidence showed that the notices were written, properly addressed and duly mailed to the petitioners; thus, a non-amendable defect appeared on the face of the record. Nadel v. Branch Banking & Trust Company, 340 Ga. App. 213, 797 S.E.2d 140, 2017 Ga. App. LEXIS 41 (2017). The advertisement must meet the requirements of O.C.G.A. § 9-13-140 requiring a full and complete description of the property. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). Reference to outstanding security deeds omitted. — When an advertisement states that the sale will be of the whole fee simple interest and for cash and does not mention outstanding security deeds, Georgia conﬁrmation proceedings have addressed the issue of whether bidding was thereby chilled. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). Advertisement sufficient. — Where the property description in the advertisement is the same as that in the loan deed, with the exception of certain lots expressly excepted because the plaintiff had previously released them to the defendant, and all of the property held by the plaintiff under the deed to secure debt which had not been previously released to the defendant was advertised, and no property not so held was included, the advertisement was sufficient as to the property, since it stated the amount owing it was also sufficient as to the debt. Norwood Realty Co. v. First Fed. Sav. & Loan Ass’n, 99 Ga. App. 692, 109 S.E.2d 844, 1959 Ga. App. LEXIS 935 (1959). The advertisement of sale showing the property was being sold as the property of the grantor in the deed to secure debt containing the power of sale under which the property was being advertised does not void the sale merely because the grantor in the deed to secure debt had, prior thereto, sold its equity of redemption to another subject to the deed to secure debt; nor is such sale void because the name of the party or parties in possession was not stated in the advertisement. Five Dee Ranch Corp. v. Federal Land Bank, 148 Ga. App. 734, 252 S.E.2d 662, 1979 Ga. App. LEXIS 1635 (1979). Trial court’s conclusion that the advertisement of foreclosure sales conformed to O.C.G.A. § 44-14-161 was supported by competent evidence because a bank’s at- 566 44-14-161 MORTGAGES, SECURITY, LIENS torney testiﬁed that the attorney caused the advertisements to be run and provided the four dates upon which the advertisements were published during the month preceding the sale; the attorney also testiﬁed that the legal descriptions in the newspaper matched that contained in the security deeds and the deeds under power of sale. Belans v. Bank of Am., N.A., 306 Ga. App. 252, 701 S.E.2d 889, 2010 Ga. App. LEXIS 910 (2010). Superior court did not err in ﬁnding that a lender’s advertisement of a nonjudicial foreclosure sale properly included a description of the property in accordance with O.C.G.A. § 9-13-140(a) because the legal description in the advertisement was identical to the description in the security deed by which the lender took its interest from a construction company and guarantors; thus, there was no discrepancy between the two, and the advertisement properly reﬂected the interest taken under the deed and available at the foreclosure sale. Diplomat Constr., Inc. v. State Bank of Tex., 314 Ga. App. 889, 726 S.E.2d 140, 2012 Ga. App. LEXIS 297 (2012). Admission of publisher’s affidavit and tear sheet from newspaper indicating advertisement of foreclosure sale was published held proper. — In a foreclosure matter under O.C.G.A. § 4414-161, a trial court’s admission of the publisher’s affidavit and the tear sheet from the newspaper which indicated that the advertisement of the foreclosure sale was published on each of four listed dates, was proper, as those documents were not hearsay. White Oak Homes, Inc. v. Cmty. Bank & Trust, 314 Ga. App. 502, 724 S.E.2d 810, 2012 Ga. App. LEXIS 221 (2012), cert. denied, No. S12C1120, 2012 Ga. LEXIS 671 (Ga. July 2, 2012). 3. Debtor’s Rights A debtor has the right to cross-examine witnesses and to present own evidence. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). Objections may be raised. — While a debtor is not required to ﬁle an answer to the mortgagee’s report, the debtor is permitted to raise objections. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). 44-14-161 Raising defenses. — A debtor may raise defenses which relate to the true market value or the speciﬁed issues of fairness in the technical procedures. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). Counterclaims. — A debtor may not raise counterclaims or ask for any alleged excess resulting from the sale. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). Grounds for injunction. — A debtor may not raise the issue of the existence of a default, the amount of the debt, or the existence of any side agreement which could have been the basis of an injunction preventing the foreclosure sale. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). Affirmative relief for debtor. — If conﬁrmation is sought and obtained, the debtor is likewise afforded the full measure to which the debtor is entitled, and extinguishment of the debt to the extent of the true market value of the property securing it; the debtor is entitled to no other form of affirmative relief under the conﬁrmation statute. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867, 1980 Ga. App. LEXIS 2569 (1980). Addition of parties. — The Civil Practice Act, O.C.G.A. Ch. 9, T. 11, controls in an application to conﬁrm a foreclosure sale and permits the adding of parties to the proceedings. An application should not be dismissed because additional parties are necessary for adjudication but additional parties may be added. Small Bus. Admin. v. Desai, 193 Ga. App. 852, 389 S.E.2d 372, 1989 Ga. App. LEXIS 1670 (1989). Pursuant to the Civil Practice Act, O.C.G.A. Ch. 9, T. 11, the addition of parties to an application for conﬁrmation relates back to the date of the original ﬁling. Small Bus. Admin. v. Desai, 193 Ga. App. 852, 389 S.E.2d 372, 1989 Ga. App. LEXIS 1670 (1989). An amendment to add the mortgagee as copetitioner to an application to conﬁrm a foreclosure sale would be effective under the relation back rule even though the thirty-day period imposed by O.C.G.A. § 44-14-161 for reporting the sale and 567 44-14-161 Debtor’s Rights (Cont’d) obtaining conﬁrmation on it had expired by the time the mortgagee moved to be added as a party. Small Bus. Admin. v. Desai, 193 Ga. App. 852, 389 S.E.2d 372, 1989 Ga. App. LEXIS 1670 (1989). Damages. — Even though power of sale in mortgage is conferred upon the grantee for the purpose of facilitating the grantee’s collection of the amount of the underlying debt which is secured by the property, the power must be exercised fairly; breach of this duty to conduct the sale “fairly” gives rise to a claim for damages to the injured holder of the equity of redemption. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867, 1980 Ga. App. LEXIS 2569 (1980). No right to jury trial. — There is no right to a jury trial on an application for conﬁrmation under O.C.G.A. § 44-14-161. BBC Land & Dev., Inc. v. Bank of N. Ga., 294 Ga. App. 759, 670 S.E.2d 210, 2008 Ga. App. LEXIS 1304 (2008). 4. Evidence O.C.G.A. § 44-14-161 requires that evidence satisfactory to the court of the true market value of the property is a condition precedent to the conﬁrmation. Goodman v. Nadler, 113 Ga. App. 493, 148 S.E.2d 480, 1966 Ga. App. LEXIS 1107 (1966). Discovery procedures of the Civil Practice Act, O.C.G.A. Ch. 9, T. 11 are permitted in a conﬁrmation proceeding because it is a special statutory proceeding and no statute establishes a contrary rule of discovery. Alliance Partners v. Harris Trust & Sav. Bank, 266 Ga. 514, 467 S.E.2d 531, 1996 Ga. LEXIS 96 (1996). Discovery is limited to the issues considered at the conﬁrmation hearing and, thus, a debtor is permitted discovery only on the regularity of the sale and the market value of the property. Alliance Partners v. Harris Trust & Sav. Bank, 266 Ga. 514, 467 S.E.2d 531, 1996 Ga. LEXIS 96 (1996). The applicant for conﬁrmation must introduce evidence sufficient to show that the price equaled the property’s value. FDIC v. Dye, 642 F.2d 837, 1981 U.S. App. LEXIS 14190 (5th Cir. 1981). Inasmuch as the statute does not speciﬁcally require the taking of evidence by oral testimony nor is a jury trial mandated, the failure to proceed in such a fashion does not raise itself to the sort of inherently personal and fundamental right which may not be waived. Lewis v. First Nat’l Bank, 141 Ga. App. 338, 233 S.E.2d 465, 1977 Ga. App. LEXIS 1901 (1977). Use of affidavits. — The better practice is to conduct a conﬁrmation hearing by way of testimony, but affidavit evidence, by agreement will satisfy the requirements of O.C.G.A. § 44-14-161. Lewis v. First Nat’l Bank, 141 Ga. App. 338, 233 S.E.2d 465, 1977 Ga. App. LEXIS 1901 (1977). Ex parte affidavits should not be allowed in evidence in any trial when the evidence was ﬁnally adjudicated because admission denied the privilege of crossexamination as allowed by former O.C.G.A. § 24-9-64 (see now O.C.G.A. § 24-6-611). Lewis v. First Nat’l Bank, 141 Ga. App. 338, 233 S.E.2d 465, 1977 Ga. App. LEXIS 1901 (1977). Allegations in motion to dismiss. — As against general demurrer (now motion to dismiss), there is no requirement that the one asking for conﬁrmation must afﬁrmatively allege what the true market value is. Hinson v. First Nat’l Bank, 221 Ga. 408, 144 S.E.2d 765, 1965 Ga. LEXIS 479 (1965). Evidence supported approval of a bank’s foreclosure sale because the bank’s expert testiﬁed that: (1) the value of the property did not exceed the amount paid by the bank; (2) the expert used both a cost and a market approach to determine the property’s value; (3) the expert considered the percentage of the property that consisted of wetlands; and (4) the expert veriﬁed the comparable sales used to form the expert’s opinion. Statesboro Blues Dev., LLC v. Farmers & Merchants. Bank, 301 Ga. App. 851, 690 S.E.2d 205, 2010 Ga. App. LEXIS 5 (2010). 5. Review Standard of review. — Where the trial judge, sitting as the trier of the facts, hears the evidence, the judge’s ﬁnding based upon conﬂicting evidence is analo- 568 44-14-161 44-14-161 MORTGAGES, SECURITY, LIENS gous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238, 1972 Ga. App. LEXIS 1016 (1972); Thomas v. Henry, 150 Ga. App. 792, 258 S.E.2d 710, 1979 Ga. App. LEXIS 2378 (1979). The trial court has considerable discretion in the conduct of a conﬁrmation hearing and in determining the relief to be afforded but the ﬁnding of the trial court, as the trier of fact, must be supported by some evidence. Wheeler v. Coastal Bank, 182 Ga. App. 112, 354 S.E.2d 694, 1987 Ga. App. LEXIS 1614 (1987). Assumption that trial court is correct. — No evidence having been produced showing a sale under the power contained in a deed to secure debt, the appellate court assumed the order of the court conﬁrming the sale was correct. Worth v. Alma Exch. Bank & Trust, 171 Ga. App. 748, 320 S.E.2d 816, 1984 Ga. App. LEXIS 2330 (1984). The trial court’s determination that the sale reﬂects “true market value” will be affirmed, where there is no evidence that the sale was chilled or any fraud exerted. Smith v. Fidelity Fed. Sav. & Loan Ass’n, 149 Ga. App. 730, 256 S.E.2d 43, 1979 Ga. App. LEXIS 2005 (1979). Change in value. — A reviewing court should not disturb the trial judge’s ﬁndings merely because there is in the record evidence that at a time three months after the sale it may have acquired a different value. If that were true a conﬁrmation could always be attacked because of a subsequent change in value. Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238, 1972 Ga. App. LEXIS 1016 (1972). Lack of special ﬁnding. — Evidence was sufficient to support a judgment of conﬁrmation of sale under the exercise of the power contained in the security deed on the theory that the property brought its fair market value at such sale, and the judgment rendered was not subject to exception on the ground that the court did not make a special ﬁnding therein to this effect. Norwood Realty Co. v. First Fed. Sav. & Loan Ass’n, 99 Ga. App. 692, 109 S.E.2d 844, 1959 Ga. App. LEXIS 935 (1959). Objection too late. — Guarantor did not preserve for review the assertion that the report of the third sale was untimely because the objection to the timeliness of the report of the third sale did not come until the appeal following entry of the ﬁrst conﬁrmation order. Belans v. Bank of Am., N.A., 309 Ga. App. 208, 709 S.E.2d 853, 2011 Ga. App. LEXIS 259 (2011), cert. denied, No. S11C1273, 2011 Ga. LEXIS 749 (Ga. Oct. 3, 2011). Genuine issues of fact remained as to amount of damages. — In a mortgage foreclosure action, the grant of summary judgment to the bank as to the amount of damages owed on the note and guarantees was reversed because the discrepancies were material to the amount of unpaid principal, interest, and contractual attorney fees owed by the mortgagors; thus, material issues of fact existed as to the amount of damages. Mashburn Constr., L.P. v. CharterBank, 340 Ga. App. 580, 798 S.E.2d 251, 2017 Ga. App. LEXIS 105 (2017), cert. denied, No. S17C1331, 2017 Ga. LEXIS 642 (Ga. Aug. 14, 2017). Resale 1. Discretion of Court Resale provision permissive, not mandatory. — The provision that resale “may be granted for good cause shown” in O.C.G.A. § 44-14-161(c) is entirely permissive, and not mandatory. It means there is no presumption in favor of resale and there is no entitlement to a resale. Resolution Trust Corp. v. Morrow Auto Ctr., Ltd., 216 Ga. App. 226, 454 S.E.2d 138, 1995 Ga. App. LEXIS 82 (1995). No presumption in favor of resale. — No presumption exists in favor of resale and there is no entitlement to a resale, either for mere failure to show the sale brought true market value, for a mere ﬂawed appraisal, or for any reason. Sanusi v. Cmty. & S. Bank, 330 Ga. App. 198, 766 S.E.2d 815, 2014 Ga. App. LEXIS 821 (2014). The authority of the trial judge in O.C.G.A. § 44-14-161 to order a resale may be equated with the right to exercise legal discretion. Adams v. Gwinnett Com. Bank, 238 Ga. 722, 235 S.E.2d 476, 1977 Ga. LEXIS 1180 (1977). 569 Discretion of Court (Cont’d) O.C.G.A. § 44-14-161 plainly grants a trial court the discretionary power to order a resale. Adams v. Gwinnett Com. Bank, 140 Ga. App. 233, 230 S.E.2d 324, 1976 Ga. App. LEXIS 1421 (1976), aff’d, 238 Ga. 722, 235 S.E.2d 476, 1977 Ga. LEXIS 1180 (1977). O.C.G.A. § 44-14-161(c) confers upon the trial court legal discretion in determining whether to order a resale. Government Nat’l Mtg. Ass’n v. Belue, 201 Ga. App. 661, 411 S.E.2d 894, 1991 Ga. App. LEXIS 1568 (1991). The language of O.C.G.A. § 44-14161 vests considerable discretion in the judge. Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238, 1972 Ga. App. LEXIS 1016 (1972). There is no requirement that the deed to secure debt itself must authorize a resale. Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321, 254 S.E.2d 475, 1979 Ga. App. LEXIS 1835 (1979). Decision is the court’s. — O.C.G.A. § 44-14-161 leaves the decision whether to order a resale of property sold pursuant to a power of sale, where the property fails to bring its fair market value, to the sound discretion of the trial court. United States v. Golf Club Co., 435 F.2d 9, 1970 U.S. App. LEXIS 6057 (5th Cir. 1970). O.C.G.A. § 44-14-161 imposes no duty on the court to order resales when property sold at a foreclosure sale brings less than its fair market value, but rather leaves the ordering of resales to the discretion of the trial court. United States v. Golf Club Co., 435 F.2d 9, 1970 U.S. App. LEXIS 6057 (5th Cir. 1970). Denial of resale not an abuse of discretion. — Trial court did not abuse the court’s discretion in denying a resale because the creditor failed to show that either the trial court’s ruling was unsupported by any evidence or that the court’s ruling misstated or misapplied the relevant law. The creditor should have detected the ﬂaws in the appraisal upon which the creditor relied as the creditor’s decision-maker had the experience, sophistication, and resources to detect the ﬂaws. RES-GA LJY, LLC v. Y. D. I., Inc., 44-14-161 322 Ga. App. 607, 745 S.E.2d 820, 2013 Ga. App. LEXIS 571 (2013). Resale order has the effect of setting aside prior sale. — Following conﬁrmation of a foreclosure sale, the debtor argued that the lender did not have title to the property because the trial court had not rescinded an earlier foreclosure sale; however, the trial court’s resale order had the effect of setting aside the ﬁrst sale. Further, a challenge to title fell outside the ambit of a conﬁrmation proceeding. Yellow Creek Invs., LLC v. Multibank 2009-1 CRE Venture, LLC, 329 Ga. App. 577, 765 S.E.2d 728, 2014 Ga. App. LEXIS 747 (2014), cert. denied, No. S15C0514, 2015 Ga. LEXIS 217 (Ga. Mar. 30, 2015). There is no abuse of the exercise of the trial court’s discretion, as a matter of law, where no “good cause” has been shown which would demand a foreclosure resale. Five Dee Ranch Corp. v. Federal Land Bank, 148 Ga. App. 734, 252 S.E.2d 662, 1979 Ga. App. LEXIS 1635 (1979). There is no abuse of discretion by the trial court in ordering a resale where there is evidence that the property did not bring its true market value, but the creditor’s failure in this regard was not brought about by any failure to sell and buy the property intentionally at a price less than the true market value. Adams v. Gwinnett Com. Bank, 140 Ga. App. 233, 230 S.E.2d 324, 1976 Ga. App. LEXIS 1421 (1976), aff’d, 238 Ga. 722, 235 S.E.2d 476, 1977 Ga. LEXIS 1180 (1977). Trial court did not err by ordering a resale of property after the court declined to conﬁrm a nonjudicial foreclosure sale, as there was nothing to show that the court did not base the court’s order on the court’s own discretion or that the court acted under any belief in a mandate to order a resale simply because the property failed to sell for fair market value pursuant to O.C.G.A. § 44-14-161(c). Vill. at Lake Lanier, LLC v. State Bank & Trust Co., 314 Ga. App. 498, 724 S.E.2d 806, 2012 Ga. App. LEXIS 220 (2012). The court does not err in ordering a resale where there is evidence supporting the court’s ﬁnding that the price received at the sale was inadequate, and O.C.G.A. 570 44-14-161 MORTGAGES, SECURITY, LIENS § 44-14-161 authorizes such resale. Davie v. Sheffield, 123 Ga. App. 228, 180 S.E.2d 263, 1971 Ga. App. LEXIS 1174 (1971). 2. Good Cause A failure to sell for the true market value constitutes good cause for ordering a resale. Adams v. Gwinnett Com. Bank, 140 Ga. App. 233, 230 S.E.2d 324, 1976 Ga. App. LEXIS 1421 (1976), aff’d, 238 Ga. 722, 235 S.E.2d 476, 1977 Ga. LEXIS 1180 (1977); Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321, 254 S.E.2d 475, 1979 Ga. App. LEXIS 1835 (1979); Damil, Inc. v. First Nat’l Bank, 165 Ga. App. 678, 302 S.E.2d 600, 1983 Ga. App. LEXIS 1985 (1983). A resale may be had for mere inadequacy of price. Davie v. Sheffield, 123 Ga. App. 228, 180 S.E.2d 263, 1971 Ga. App. LEXIS 1174 (1971). Good faith. — Georgia courts have granted resales only when they ﬁnd that a mortgagee has in good faith bid a price less than the true market value. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). An order to resell under O.C.G.A. § 4414-161, which is technically an order to set aside a sale and also an order to resell, may be appropriate where the court denies conﬁrmation of a sale for an inadequate price, but ﬁnds that the creditor acted in good faith in conducting the sale. FDIC v. Dye, 642 F.2d 837, 1981 U.S. App. LEXIS 14190 (5th Cir. 1981). Trial court did not err by ordering a resale of property after the court declined 44-14-161 to conﬁrm a nonjudicial foreclosure sale as, pursuant to O.C.G.A. § 44-14-161(c), the court focused on the appropriate “good cause” standard rather than a standard based on “good faith”; the resale was properly ordered when the bank acted in good faith and when the property failed to sell for the property’s true market value. Vill. at Lake Lanier, LLC v. State Bank & Trust Co., 314 Ga. App. 498, 724 S.E.2d 806, 2012 Ga. App. LEXIS 220 (2012). A defense to a resale order must bear upon the question of the good faith of the mortgagee in the conduct of the sale and bid, and must be a defense otherwise relevant to the issue of conﬁrmation vel non. Weems v. McCloud, 619 F.2d 1081, 1980 U.S. App. LEXIS 16299 (5th Cir. 1980). Failure to prove good cause. — Trial court erred in ordering property to be resold under O.C.G.A. § 44-14-161(c) because the mortgagee did not meet the mortgagee’s burden of proving good cause for the resale, and the mortgagor did not have the opportunity to defend against the same; by agreement of the parties and with the express consent of the trial court, the remaining issues relevant to the conﬁrmation proceeding had been reserved for a later hearing, and thus, when the trial court ordered the resale, it had neither heard argument nor received any evidence related to the other aspects of the foreclosure sale or the desired outcome of the conﬁrmation proceeding. Nicholson Hills Dev. v. Branch Banking & Trust Co., 316 Ga. App. 857, 730 S.E.2d 572, 2012 Ga. App. LEXIS 682 (2012).