Kennedy v

Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867, 1980 Ga. App. LEXIS 2569 (1980). 44-14-162 Junior lien holders and mortgagees are not entitled to any notice of sale except by publication under O.C.G.A. § 44-14162. Chattanooga Fed. Sav. & Loan Ass’n v. Northwest Recreational Activities, Inc., 4 B.R. 33, 1980 Bankr. LEXIS 5709 (Bankr. N.D. Ga. 1980). The fact that the advertisement did not state that the automatic stay provisions of the Bankruptcy Code had been lifted with respect to the debtor’s property did not tend to “chill” the sale of the property. Shingler v. Coastal Plain Prod. Credit Ass’n, 180 Ga. App. 539, 349 S.E.2d 785, 1986 Ga. App. LEXIS 2218 (1986). Failure to meet notice requirements. — 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). The alleged failure to advertise the four weeks immediately preceding the sale pursuant to O.C.G.A. § 9-13-141, would not render the sale absolutely void. Stripling v. F & M Bank, 175 Ga. App. 75, 332 S.E.2d 373, 1985 Ga. App. LEXIS 2022 (1985). Foreclosure sale was void where the required legal advertisement was not published during the week immediately preceding the sale. Foster v. F & M Bank, 108 B.R. 361, 1989 Bankr. LEXIS 2418 (Bankr. M.D. Ga. 1989). Advertisement which a bank published when the bank sold a bowling alley at a foreclosure sale, which provided a metes and bounds description of the property, was sufficient under O.C.G.A. §§ 9-13-40 and 44-14-162 to foreclose on and convey title only to the real property, and a trial was required to determine the amount of money the bank had to turn over to a Chapter 7 debtor’s bankruptcy estate under 11 U.S.C. § 542 because the bank improperly sold the debtor’s personal property. The court found that it could not determine on summary judgment whether bowling alley lanes and pin setters the bank sold were fixtures or per- 575 Notice (Cont’d) sonal property, and the court ordered the parties to present evidence on that issue at trial. Lubin v. Ga. Commerce Bank (In re Southern Bowling, Inc.), No. 05-86834WLH, No. 09-06045, 2010 Bankr. LEXIS 4007 (Bankr. N.D. Ga. Oct. 8, 2010). There remained a material question of fact as to plaintiff debtors’ claim to set aside a foreclosure sale based on the lack of proper statutory notice called for in O.C.G.A. § 44-14-162(a) because, under O.C.G.A. § 44-14-162.2(b), nonjudicial foreclosure procedure required that a “copy” of the notice submitted to the publisher be sent to the debtor. The notice sent to the debtors differed from the one published. Rainey v. FMF Capital, LLC, No. 1:11-CV-0364-CAP, 2012 U.S. Dist. LEXIS 117200 (N.D. Ga. Mar. 30, 2012). Trial court erred in dismissing a pro se borrower’s complaint for wrongful foreclosure and breach of contract against the borrower’s lender’s alleged assignee; the trial court could not consider documents attached to the motion to dismiss, and the complaint adequately alleged failure to give the borrower notice and improper advertising, contrary to O.C.G.A. §§ 4414-162(a) and 44-14-162.2. Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750, 751 S.E.2d 545, 2013 Ga. App. LEXIS 924 (2013). Failure to include a reinstatement balance. — Notice of foreclosure under a power of sale contained in a deed to secure debt was not defective because it failed to provide a reinstatement balance. Wright v. Barnett Mtg. Co., 226 Ga. App. 94, 485 S.E.2d 583, 1997 Ga. App. LEXIS 524 (1997). Notice of foreclosure sale held sufficient. — Bank gave proper statutory notification of a foreclosure sale to property owners pursuant to O.C.G.A. § 4414-162(a) when the bank sent to the property’s address and the property owners’ primary residence, by certified mail, a written notice of the foreclosure sale that specified the bank as the foreclosing party by name, address, and telephone number pursuant to O.C.G.A. § 44-14-162.2. Mortensen v. Bank of Am., N.A., No. 3:10CV-13, 2011 U.S. Dist. LEXIS 132637 (M.D. Ga. Nov. 17, 2011). 44-14-162 Foreclosure notice sent by a loan servicer or agent of a secured party was not defective under O.C.G.A. § 44-14-162. Howard v. Mortg. Elec. Registration Sys., No. 1:10-cv-1630-WSD, 2012 U.S. Dist. LEXIS 116366 (N.D. Ga. Aug. 17, 2012). Foreclosure advertisement sufficient. — Foreclosure sale advertisement of a condominium development was sufficient although the advertisement did not note that several units in the development had been sold prior to the foreclosure. The description of the property was correct in itself, and the excepted units were identified on the courthouse steps at the time of the sale. Dan Woodley Cmtys., Inc. v. Suntrust Bank, 310 Ga. App. 656, 714 S.E.2d 145, 2011 Ga. App. LEXIS 628 (2011). 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 the lender’s 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). 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). 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 576 44-14-162 MORTGAGES, SECURITY, LIENS 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). Conduct of Sale Manner of sales. — O.C.G.A. § 44-14162 requires that sales be advertised and conducted in the county in which the real estate is located and at the time, place and usual manner of sheriff’s sales, not that sales under power are required to be conducted at the usual time of sheriff’s sales in the particular county where the property is located. Butler v. Forsyth County Bank, 153 Ga. App. 122, 264 S.E.2d 502, 1980 Ga. App. LEXIS 1703 (1980). Given evidence that a security deed was delivered to the clerk’s office at 9:41 a.m. on the morning of the day of a foreclosure sale, and because the legal hours of sales were from 10:00 a.m. to 4:00 p.m., the assignment of the security deed to the assignee was filed prior to the sale as required by O.C.G.A. § 44-14-162(b). L & K Enters., LLC v. City National Bank, N.A., 326 Ga. App. 744, 755 S.E.2d 270, 2014 Ga. App. LEXIS 121 (2014). Crucial point of inquiry on confirmation. — Not every irregularity furnishes a basis for voiding a foreclosure sale. The crucial point of the inquiry on confirmation is to insure that the sale was not chilled and the price bid was in fact market value. Stripling v. F & M Bank, 175 Ga. App. 75, 332 S.E.2d 373, 1985 Ga. App. LEXIS 2022 (1985). Confirmation of sale. — 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 which the fairness of the technical procedures used may be examined, 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 44-14-162 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 (1978). 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). 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). Payment of surplus received from sale. — Grantee of deeds to secure debt had to pay to grantors the surplus from a foreclosure sale of two properties to the grantee’s agent and a subsequent transfer of the properties to third parties for profit. Tower Fin. Servs., Inc. v. Smith, 204 Ga. App. 910, 423 S.E.2d 257, 1992 Ga. App. LEXIS 1276 (1992), cert. denied, No. S92C1381, 1992 Ga. LEXIS 821 (Ga. Oct. 2, 1992). Upon the failure of a purchaser to comply with a high bid, a property sold at public auction may not be conveyed to the next highest bidder without complying with the terms of O.C.G.A. §§ 9-13-161 and 44-14-162. Little v. Fleet Fin., 224 Ga. App. 498, 481 S.E.2d 552, 1997 Ga. App. LEXIS 126 (1997). Credit sale not found. — If a sheriff’s sale was, in other respects, lawful, the mere fact that the sheriff gave a bidder to whom the property had been sold time within which to raise the money to pay for the property would not render it a credit sale. Dorsey v. North Am. Life Ins. Co., 217 Ga. 650, 123 S.E.2d 919, 1962 Ga. LEXIS 352 (1962). Sale not consummated prior to bankruptcy. — Because a creditor conducted a foreclosure sale of a bankruptcy 577 Conduct of Sale (Cont’d) debtor’s property shortly before the debtor filed a bankruptcy petition, the debtor retained a right of redemption which passed to the bankruptcy estate since the sale was not consummated by payment of the bid amount and execution of a deed prior to the debtor’s bankruptcy. Chase Home Fin. LLC v. Geiger, 340 B.R. 422, 2006 Bankr. LEXIS 897 (Bankr. M.D. Ga. 2006). No entitlement to relief. — Borrower who claimed that a mortgage company, a company (LLC) that serviced the borrower’s loan, the mortgage company’s nominee, and the LLC’s foreclosure counsel violated the borrower’s rights when they refused to rescind a mortgage and foreclosed on investment property failed to allege facts which showed that the LLC or the nominee violated state law, the Truth in Lending Act, 15 U.S.C. § 1601 et seq., or the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and the court denied the borrower’s request for a temporary restraining order or a preliminary 44-14-162.1 injunction prohibiting foreclosure. The borrower incorrectly cited O.C.G.A. § 4414-236 as the basis for the borrower’s claims under state law, and the borrower failed to allege facts that entitled the borrower to relief under O.C.G.A. § 4414-162 et seq., Georgia’s nonjudicial foreclosure statute. Hennington v. Greenpoint Mortg. Funding, Inc., No. 1:09-CV-00676RWS, No. 1:09-CV-00962-RWS, 2009 U.S. Dist. LEXIS 41343 (N.D. Ga. May 15, 2009). Wrongful foreclosure claim sufficiently pled. — Trial court erred by dismissing the mortgagors’ complaint for wrongful foreclosure because, construed in the light most favorable to the mortgagors, the complaint sufficiently alleged that the bank owed obligations to the mortgagors under the security deed and that the bank breached those contractual obligations by going forward with the foreclosure sale despite the error in the published foreclosure advertisements. Racette v. Bank of Am., N.A., 318 Ga. App. 171, 733 S.E.2d 457, 2012 Ga. App. LEXIS 873 (2012).