Bankston v

RES-GA Twelve, LLC, 334 Ga. App. 302, 779 S.E.2d 80, 2015 Ga. App. LEXIS 624 (2015). Lower court correctly determined that the debtors lacked standing to challenge the assignment of the security deed to a bank because the security deed afforded the debtors no right to dispute the assignment as the debtors were not third-party beneficiaries of the assignment as a whole and were not intended to directly benefit from the transfer of the power of sale. Ames v. JP Morgan Chase Bank, N.A., 298 Ga. 732, 783 S.E.2d 614, 2016 Ga. LEXIS 210 (2016). Notice of foreclosure sale held sufficient. — Because the debtor failed to send written notice of the correct address of the subject property to the bank or its agents, and could not assert an absent grantee’s priority to escape the consequences of his own failure to provide a correct property address to all future hold- 581 44-14-162.2 PROPERTY ers of the note and deed, the foreclosure sale was not set aside; thus, the trial court properly granted summary judgment to the bank and the assignees of the security interest on the ground that the bank provided sufficient notice of the foreclosure sale. Jackson v. Bank One, 287 Ga. App. 791, 652 S.E.2d 849, 2007 Ga. App. LEXIS 1099 (2007), cert. denied, No. S08C0335, 2008 Ga. LEXIS 169 (Ga. Feb. 11, 2008). Trial court did not err in confirming a nonjudicial sale of certain property because the mortgagee’s notice of foreclosure substantially complied with the requirements of O.C.G.A. § 44-14-162.2 and was legally sufficient for purposes of confirming the sale since the notice included the name, address, and telephone number of the mortgagee’s attorney; O.C.G.A. § 4414-162.2 does not require the individual or entity be expressly identified as having full authority to negotiate, amend, and modify all terms of the mortgage. TKW Partners, LLC v. Archer Capital Fund, L.P., 302 Ga. App. 443, 691 S.E.2d 300, 2010 Ga. App. LEXIS 156 (2010). Creditor’s notice of a foreclosure sale that was sent to the debtor’s original address listed in the loan documents complied with O.C.G.A. § 44-14-162.2, although the creditor was aware that the debtor had a new address. The debtor’s obligation to provide written notice of the address change was not satisfied by a phone call to the creditor, nor the debtor’s return address on the debtor’s payment envelopes, nor even the creditor’s actual notice of the new address. Colbert v. Branch Banking & Trust Co., 302 Ga. App. 687, 691 S.E.2d 598, 2010 Ga. App. LEXIS 210 (2010). Trial court did not err in granting a bank and a law firm summary judgment in a former husband’s action alleging that they wrongfully foreclosed on property that the husband obtained from the former wife via a divorce decree because the bank and law firm provided the wife with notice of the impending foreclosure sale as required under the terms of the security deed and O.C.G.A. § 44-14-162.2; because the husband did not obtain any legal interest in the property until the quitclaim deed from his wife was filed, the husband was not the owner of the property at the 44-14-162.2 time the bank and law firm were required to provide notice of the foreclosure sale. Farris v. First Fin. Bank, 313 Ga. App. 460, 722 S.E.2d 89, 2011 Ga. App. LEXIS 1125 (2011). Bank gave proper statutory notification of a foreclosure sale to property owners pursuant to O.C.G.A. § 44-14-162(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. 3:10-CV-13, 2011 U.S. Dist. LEXIS 132637 (M.D. Ga. Nov. 17, 2011). Former spouse did not demonstrate that a bank and law firm failed to comply with O.C.G.A. § 44-14-162.2(a) because following the former spouse’s alleged acquisition of the property, the former spouse provided no evidence that a written request was made that the bank and law firm send any notices regarding the property to a different address; thus, the bank and law firm complied with the statute by the certified mailing of the foreclosure notice to the property address. Farris v. First Fin. Bank, 313 Ga. App. 460, 722 S.E.2d 89, 2011 Ga. App. LEXIS 1125 (2011). Foreclosure Notice document — whose authenticity had not been challenged by plaintiff — clearly demonstrated that the Notice complied with all statutory requirements where the trustee was the proper secured creditor and was identified, the Notice was sent to the property address, which was authorized under the statute, and plaintiff had not alleged that plaintiff requested the Notice be sent to an alternate address. Bowman v. U.S. Bank Nat’l Ass’n, No. 1:12-cv-04263-JOF, 2013 U.S. Dist. LEXIS 149660 (N.D. Ga. Aug. 1, 2013). District court did not err in dismissing the debtor’s wrongful foreclosure claim against the bank and a law firm without leave to amend because the debtor could no longer amend as a matter of course, and amending the complaint would be futile as the debtor alleged no facts suggesting that the bank did not have legal 582 44-14-162.2 MORTGAGES, SECURITY, LIENS right to foreclose, and the record reflected that the bank, through the law firm, gave adequate notice, so the debtor would not have been able to state a claim under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692k, wrongful foreclosure claim, or trespass claim as each of those claims would have been predicated on improper foreclosure proceedings. Muhammad v. JPMorgan Chase Bank, NA, 567 Fed. Appx. 851, 2014 U.S. App. LEXIS 9901 (11th Cir. 2014). Foreclosure notice substantially complied with Georgia’s statutory notice requirements, even though the notice incorrectly identified the loan servicer as the entity with full authority to modify the borrowers’ loan because the servicer directed the borrowers to Fannie Mae, the entity with full authority to modify their loan. Haynes v. McCalla Raymer LLC, 793 F.3d 1246, 2015 U.S. App. LEXIS 12025 (11th Cir. 2015). In an action by a decedent’s estate administrator, seeking to enjoin, inter alia, the non-judicial foreclosure sale of certain real property, the district court had subject matter jurisdiction because a foreclosure law firm had been fraudulently joined due to the lack of a possible claim against it as the notice of sale identified the proper entity with full authority to negotiate, amend, and modify all terms of the mortgage. Shannon v. Albertelli Firm, P.C., 610 Fed. Appx. 866, 2015 U.S. App. LEXIS 7552 (11th Cir. 2015). In an action by a decedent’s estate administrator, seeking to enjoin, inter alia, the non-judicial foreclosure sale of certain real property, notice was appropriate because it identified the entity with full authority to negotiate, amend, and modify all terms of the mortgage, although another entity held the note. Shannon v. Albertelli Firm, P.C., 610 Fed. Appx. 866, 2015 U.S. App. LEXIS 7552 (11th Cir. 2015). When a homeowner appealed a district court’s Fed. R. Civ. P. 12(b)(6) dismissal of a case arising from an attempted nonjudicial foreclosure, the homeowner’s claim that the notice of foreclosure was deficient because the notice omitted the words full and all was rejected. Kurtzman v. Nationstar Mortg. LLC, 709 Fed. Appx. 44-14-162.2 655, 2017 U.S. App. LEXIS 19750 (11th Cir. 2017). Notice of foreclosure proceedings sufficient. — Trial court did not err in granting summary judgment in favor of the mortgagee in a wrongful foreclosure action because the mortgagee submitted evidence that the mortgagee’s attorney mailed written notice of the initiation of foreclosure proceedings on the mortgagor by certified mail and by regular mail to the property address and to the mortgagor’s post office box and, although there is no evidence that the mortgagor received any of the notices, the evidence of the proof of mailing was sufficient. Thompson-El v. Bank of Am., N.A., 327 Ga. App. 309, 759 S.E.2d 49, 2014 Ga. App. LEXIS 325 (2014). Trial court did not err in finding that the foreclosure notice satisfied the requirements of O.C.G.A. § 44-14-162.2 because the loan servicing corporation complied with the statute by sending the mortgagor a notice of foreclosure more than 30 days before the non-judicial foreclosure sale and the notice specifically informed the mortgagor that the loan servicing corporation had authority to negotiate, amend, and modify all terms of their note and security deed. Reese v. Provident Funding Assocs., LLP, 327 Ga. App. 266, 758 S.E.2d 329, 2014 Ga. App. LEXIS 314 (2014). Requirement that a notice of foreclosure must be sent by the secured party means by the foreclosing party, i.e., the name of the party with the authority to negotiate, amend, and modify the terms of the loan, and the required notice need not expressly identify the foreclosing party as a secured creditor. Sheely v. Bank of Am., N.A., 36 F. Supp. 3d 1364, 2014 U.S. Dist. LEXIS 110173 (N.D. Ga. 2014). Unpublished decision: Lender directed the homeowners to Fannie Mae to modify their loan and the notice the homeowners received substantially complied with the statutory notice requirements. Haynes v. McCalla Raymer, LLC, No. 14-14036, 2015 U.S. App. LEXIS 11924 (11th Cir. July 10, 2015). District court did not err in granting summary judgment to a mortgage company on the pro se plaintiffs’ wrongful 583 44-14-162.2 PROPERTY foreclosure claim as there were no genuine issues of material fact; as a matter of contract, the mortgage company complied with all the terms of the security deed’s power of sale provision, and the notice of default also showed that it substantially complied with the statutory requirements of O.C.G.A. § 44-14-162.2(a). Aning v. Fannie Mae, 633 Fed. Appx. 773, 2016 U.S. App. LEXIS 17634 (11th Cir. 2016). Material question of fact regarding sufficiency of notice. — 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 because, under O.C.G.A. § 44-14162.2(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-0364CAP, 2012 U.S. Dist. LEXIS 117200 (N.D. Ga. Mar. 30, 2012). Trial court erred in granting summary judgment to a loan servicer on a borrower’s claim for wrongful foreclosure because there was evidence that the servicer failed to provide notice of the foreclosure to the borrower’s attorney as the borrower had requested in compliance with O.C.G.A. § 44-14-162.2. Zhong v.