Bankruptcy Attorney | Marietta & Roswell Georgia

Williams filed his notice of appeal prior to the trial court’s ruling on his motion, divesting the trial court of jurisdiction to consider the argument set forth therein.

Cynthia J. Remboldt, Esq. — Tue, 15 May 2012 18:05:43 +0000

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

A publisher’s affidavit showed that the bank met the advertising requirement for nonjudicial foreclosure sales.

Cynthia J. Remboldt, Esq. — Thu, 10 May 2012 17:44:46 +0000

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

GA Court of Appeals affirmed the grant of summary judgment to the defendants in wrongful foreclosure suit.

Cynthia J. Remboldt, Esq. — Sat, 05 May 2012 17:23:24 +0000

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

GA Supreme Court affirmed the denial of DRST Holdings’ claims for money rule, mandamus and other relief arising from Sheriff’s refusal to comply with its demand for disbursement of excess funds from a tax sale.

Cynthia J. Remboldt, Esq. — Mon, 30 Apr 2012 17:06:21 +0000

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.

Cynthia J. Remboldt, Esq. — Wed, 25 Apr 2012 16:35:05 +0000

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

GA courts determine rule of indivisibility of judgments applies here.

Cynthia J. Remboldt, Esq. — Fri, 20 Apr 2012 20:17:11 +0000

The Court of Appeals reversed the denial of Finley Merry’s second motion to set aside a default judgment for Suzanne Robinson in excess of $1M, arising after Merry failed to timely answer Robinson’s complaint alleging faulty design and construction of her home, holding that the trial court erred in refusing to set aside the judgment as to Merry after it set aside the judgment as to his co-defendant, James Crosby. In so holding, the Court noted that the trial court entered a single judgment against both defendants jointly and without apportioning the damages awarded between them, and the trial court set aside the judgment as to Crosby for reasons other than the merits, i.e., because he filed a bankruptcy petition. The Court rejected Merry’s contention that the trial court lacked jurisdiction over his person for Robinson’s failure to properly serve him, since Merry waived this objection when he appeared and filed an untimely responsive pleading and motion without raising it. Adams, J., concurred in the judgment and in Division 1.

Merry v. Robinson, A11A1099, (11/29/11)

Fulton County Daily Reports, December 16, 2011

GA Court held that lien did not comply with statute because it involved property that client did not recover in custody proceedings.

Cynthia J. Remboldt, Esq. — Sun, 15 Apr 2012 20:40:25 +0000

Dismissal of attorney’s foreclosure petition filed under OCGA § 15-19-14 after client failed to pay legal fees for representation of client in custody dispute with ex-wife, affirmed; court held that lien did not comply with statute because it involved property that client did not recover in custody proceedings in which attorney represented him, and statute clearly and unambiguously allows lawyer to assert statutory lien only against property recovered by lawyer for client; here, it was undisputed that attorney represented client in custody dispute, not divorce, and thus half interest in property that client secured in settlement of divorce cannot be attributed to labor and skill of attorney; statute cannot be amended by contract between private parties, because it would confer power on court that statute itself does not confer.

Outlaw v. Rye, A11A1419 (11/15/11)

Fulton County Daily Report, December 9, 2011

GA Claims against buyers of her chiropractic practice.

Cynthia J. Remboldt, Esq. — Tue, 10 Apr 2012 22:30:17 +0000

Denial of plaintiff’s motion for partial summary judgment on her claims against buyers of her chiropractic practice, reversed, as plaintiff established prima facie case for enforcement of parties’ $50K promissory note and buyers’ defense of lack of consideration was meritless; despite any quarrels that arose after parties signed purchase agreement, adequate consideration supported note at time of its execution because buyers took immediate possession of business and began operating it as their own; trial court also erred in concluding that buyers were entitled to summary judgment on plaintiff’s claim under note based on her failure to deliver stock in professional corporation, as parties’ purchase agreement constituted asset sale, not sale of stock; trial court erred in granting partial summary judgment to buyers on plaintiff’s claim for $10K shortfall in cash tendered by buyers, as plaintiff’s conveyance of DRX unit to third party prior to execution of agreement did not breach her obligations thereunder; similarly, trial court erred in granting summary judgment to buyers on their counterclaim against plaintiff concerning DRX; trial court erred in failing to enter judgment sua sponte in favor of plaintiff on buyers’ claim that plaintiff breached agreement to create smooth transition, as purchase agreement only contained plaintiff’s promise to assist in orderly transition; grant of summary judgment to buyers on plaintiff’s fraud claims regarding use of tax identification numbers and approved provider status associated with business, affirmed; denial of partial summary judgment to buyers on their counterclaims against plaintiff for defamation and tortious interference with business relations, affirmed; because trial court erred in part in its rulings on parties’ motions for partial summary judgment, jury instructions and verdict form at trial also constituted legal error.

West v. Diduro, A11A1059 (10/18/11)

Fulton County Daily Report, November 4, 2011

GA Summary judgment to bank in its action to collect on promissory note.

Cynthia J. Remboldt, Esq. — Thu, 05 Apr 2012 22:22:32 +0000

Denial of summary judgment to plaintiff bank in its action to collect on promissory note, reversed, as defendants’ admissions that they entered into note and guaranty at issue and failed to pay their respective financial obligations established plaintiff’s prima facie right to repayment; plaintiff loaned approximately $250K to individual defendant to finance purchase of stock in bank where she served as member of Board of Directors, and she refinanced loan in name of her company; when bank closed, plaintiff accelerated debt after determining that stock collateral was worthless and thus default had occurred pursuant to terms of note; defendants asserted estoppel defense based on alleged misrepresentation of bank consultant that bank would be sold, but integration clauses in note and guaranty barred defendants from claiming reliance on any misrepresentations not contained in agreements, plaintiff had no duty to advise defendants regarding viability of business venture financed by loan, defendants failed to show that plaintiff intended to deceive them in making loan, plaintiff honored terms of note, and any purported promise to continue to renew note was inactionable because it was vague and indefinite; evidence did not support defense of breach of implied duty of good faith and fair dealing, as express terms of note authorized plaintiff to accelerate note upon occurrence of default, which included devaluation of collateral; grant of summary judgment to plaintiff on defendants’ counterclaim for fraudulent inducement and securities fraud, affirmed, as, even if consultant’s alleged misrepresentation about sale of bank could be attributed to plaintiff, it was inactionable because it related to future event and was not made with knowledge that it was false, it did not constitute false representation as to bank’s financial condition, and defendants did not show justifiable reliance on representation, especially given that individual defendant was member of bank’s Board of Directors with access to all information necessary to make stock investment decision.

Griffin v. State Bank of Cochran, A11A1466; A11A1467 (10/17/11)

Fulton County Daily Report, November 4, 2011

GA Unenforceable personal guaranty.

Cynthia J. Remboldt, Esq. — Sat, 31 Mar 2012 22:19:20 +0000

Order finding unenforceable personal guaranty, which defendant signed agreeing to pay Landlord rent in event that Tenant defaulted on Lease without further identifying Landlord, Tenant or Lease, reversed; trial court erred in ruling personal guaranty unenforceable for failing to identify principal debtor or to sufficiently identify party whose debt was being guaranteed, since same notary witnessed both guaranty and lease, which defendant signed only one day prior, listing plaintiff as landlord and defendant’s restaurant as tenant; though neither lease nor guaranty made reference to other, evidence showed that they were sufficiently contemporaneously made within course of same transaction.

Hong Investments LLC v. Sarsfield, A11A1460 (10/14/11)

Fulton County Daily Report, November 4, 2011