The Court of Appeals affirmed the grant of summary judgment to United Community Bank in its action against Kevin A. Williams and others to enforce a promissory note, holding that Williams’ appeal presented nothing for its review. Williams filed his notice of appeal prior to the trial court’s ruling on his motion to set aside the summary judgment order, divesting the trial court of jurisdiction to consider the argument set forth therein. Thus, the trial court did not consider the argument, and the Court could not consider it for the first time on appeal.
Williams v. United Community Bank, A11A2096 (01/26/12)
Fulton County Daily Report, February 3, 2012
The Court of Appeals affirmed the trial court’s order confirming a foreclosure sale, holding that the trial court did not err in admitting a publisher’s affidavit and other evidence at the confirmation hearing showing that State Bank and Trust Co. met the advertising requirement for nonjudicial foreclosure sales, and the evidence supported the trial court’s finding that the required foreclosure notice was published once a week for four consecutive weeks. At the confirmation hearing, the bank tendered a publisher’s affidavit showing that a notice of publication regarding the pending foreclosure sale was published four times on four consecutive weeks in July 2010 in the Forsyth County News; the paralegal who conducted the foreclosure sale testified at the hearing, identified the publisher’s affidavit, stated that she caused the foreclosure notices to be advertised in the county legal organ and affirmed that the advertisement ran four times during the month preceding the August 3, 2010 foreclosure; and discrepancies regarding one specific publication date went to the weight of the evidence, not the affidavit’s admissibility.
Nexgen Cumming LLC v. State Bank and Trust Co., A11A2170 (01/26/12)
Fulton County Daily Report, February 3, 2012
The Court of Appeals affirmed the grant of summary judgment to the defendants in Harold J. Farris’ wrongful foreclosure suit, holding that the defendants complied with the requirements of the applicable law and the security deed on the property in question when they sent notice of default and acceleration of the debt via certified mail to both the property address and the debtor, Farris’ ex-wife. The law does not require a mortgage holder to notify a subsequent purchaser or junior lien holder, and Farris was never a party to the security deed or the owner of the property at the time the notices were sent, so any failure to comply with notice provisions in the security deed would have been inconsequential, in any event. Furthermore, Farris’ contention that the defendants failed to comply with notice of foreclosure requirements set forth in OCGA § § 44-14-162.1 and 44-14-162.2, failed for the same reason. Pursuant to OCGA § 44-14-160 et seq., only the debtor is entitled to notice of foreclosure other than by advertisement, and the undisputed evidence showed that the defendants complied with the statutory notice requirements by sending certified letters to the property address and Farris’ ex-wife’s home address. Finally, pretermitting whether Farris became the legal owner of the property prior to foreclosure as part of his divorce decree award, he still failed to show that the defendants did not comply with § 44-14-162.2 (a), because that section requires the secured creditor to send notice to the property address unless the debtor designates another address in writing and Farris failed to show that he made a written request that defendants send notices to a different address.
Farris v. First Financial Bank, A11A1799 (12/28/11)
Fulton County Daily Report, January 13, 2012
The Supreme Court affirmed the denial of DRST Holdings’ claims for money rule, mandamus and other relief arising from Sheriff Thomas Brown’s refusal to comply with its demand for disbursement of excess funds from a tax sale, holding that DRST’s redemption of the real property was void and Brown properly paid the excess funds to the authorized representative of the estate of the defendant in fi. fa. who owned the property at the time of the sale. The Court rejected DRST’s claim that it qualified as a redeemer due to the purported assignment of a homeowners’ association lien against the property and the underlying indebtedness, as no written, signed agreement to that effect existed at the time of the alleged redemption. The Court declined to extend Leathers v. McClain, 255 Ga. 378 (1986), which allows a party to redeem even if the assignment agreement creating the party’s interest in the property is not finalized until after the tax sale, to the situation here, where DRST’s assignment agreement was finalized not only after the tax sale but also after the date of redemption. Finally, the Court held that the trial court did not err in denying DRST’s motion to strike Brown’s unverified answer, as such is an amendable defect and Brown ultimately submitted verification of the answer.
DRST Holdings Ltd. v. Brown, S11A1401 (01/09/12)
Fulton County Daily Report, January 13, 2012
Grant of summary judgment to financing company, reversed, in its suit seeking deficiency judgment after repossession and sale of vehicle purchased by defendants, holding that issue of fact remained as to whether plaintiff complied with notice provision of O.C.G.A. § 10-1-36 (a); plaintiff sent required notice via certified mail to address listed on defendants’ contract, but defendant had moved and notified plaintiff of her change of address in writing and by telephone; although plaintiff’s notice may have complied with statute as to one defendant, such did not negate its obligation to comply with statute as to other.
Kight v. Ford Motor Credit Co. LLC, A11A1954 (12/8/11)
Fulton County Daily Report, December 29, 2011
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