Bankruptcy Attorney | Marietta & Roswell Georgia

GA Order confirming foreclosure sale, affirmed, as creditor properly commenced confirmation proceeding.

Cynthia J. Remboldt, Esq. — Mon, 20 Feb 2012 15:20:48 +0000

Order confirming foreclosure sale, affirmed, as creditor properly commenced confirmation proceeding; noteholder received sufficient notice of confirmation hearing, and foreclosure proceedings were valid; noteholder pointed to no evidence showing violation of foreclosure statutes; since Court affirmed confirmation of foreclosure sale, noteholder’s claim that trial court erred in setting supersedeas bond for appeal of confirmation order was rendered moot, so appeal dismissed in A11A1443.

Muhammad v. Power Landing LLC, A11A1204, A11A1443

Fulton County Daily Report, August 5, 2011

GA Foreclosure sale, reversed, as questions of fact remained regarding fairness and validity of sale.

Cynthia J. Remboldt, Esq. — Wed, 15 Feb 2012 15:14:24 +0000

Decision to set aside foreclosure sale, reversed, as questions of fact remained regarding fairness and validity of sale; final money judgment entered in another case based on order setting aside foreclosure, vacated; during advertisement for sale of property, bank sold indebtedness to secured creditor; trial court said sale had to be set aside due to advertising irregularities, however, evidence showed interested bidders had notice of secured creditor’s involvement and had at least constructive notice of proper party prior to sale; secured creditor not entitled to summary judgment regarding validity of sale, as it did not file assignment until four days prior to sale, and it presented no evidence that misinformation in advertisement did not impact bidding; debtor had right to amend complaint to cure defects in fraud claim.

Amirfazli v. Vatacs Group Inc., A11A1166 (07/18/11)

Fulton County Daily Report, August 5, 2011

GA Judgment partially reversed, as bank failed to seek confirmation after foreclosing on some properties.

Cynthia J. Remboldt, Esq. — Fri, 10 Feb 2012 15:07:37 +0000

Judgment partially reversed in suit based on alleged breaches of series of guaranteed promissory notes; trial court erred in ruling that bank’s claims as to notes were barred as improper deficiency actions based on bank’s failure to seek confirmation after foreclosing on some properties; bank asserted claims for breach of series of promissory notes against borrowers and against parties that guaranteed notes, all of whom were related corporate entities, borrowers defaulted on notes, and bank provided notice of foreclosure as to nine of them; at foreclosure auction, bank was sole bidder, and three days afterwards, bank notified borrowers that it rescinded actions with respect to foreclosures and that foreclosures would not be consummated; since bank rescinded its action, there was no “transfer of the borrower’s right of possession and its equity of redemption to the bank” and, thus, no non-judicial foreclosure, so confirmation procedure did not apply; trial court did not err in granting bank’s motion for partial summary judgment on issue of whether certain guaranties executed in 2008 were effective under statute of frauds, even though guaranties failed to identify pre-2008 promissory notes with required specificity, since bank performed act essential to contract that resulted in detriment to bank and in benefit to guarantors, thus, guarantors were estopped from asserting statute of frauds defense to enforcement of guaranties.

Legacy Communities Group Inc. v. Branch Banking & Trust Co., A11A0696; A11A0697 (07/01/11)

Fulton County Daily Report, July 22, 2011

GA Denial of creditors’ application for confirmation of foreclosure sale under power, affirmed, as property in question had not sold for its fair market value.

Cynthia J. Remboldt, Esq. — Sun, 05 Feb 2012 15:04:04 +0000

Denial of creditors’ application for confirmation of foreclosure sale under power, affirmed, as evidence supported trial court’s determination that property in question had not sold for its fair market value; creditors sold their house to debtor for $319.5K, debtor installed granite throughout house, glass cook top, new sinks and two new pool pumps, then eventually defaulted on note, creditors published foreclosure notice and offered property for auction at which they were sole bidders, creditors purchased property for $230K and then filed their petition for confirmation of sale; creditors’ expert appraiser testified, but in arriving at his estimation of value, appraiser did not enter house and did not see upgrades that debtor had made.

Hammock v. Issa, A11A0470 (07/06/11)

Fulton County Daily Report, July 22, 2011

GA Compensation for receiver appointed over corporate defendants, affirmed.

Cynthia J. Remboldt, Esq. — Tue, 31 Jan 2012 15:00:26 +0000

Order setting compensation for receiver appointed over corporate defendants, affirmed; defendant’s contention that receiver’s failure to provide documentation and invoices to parties prior to hearings prejudiced its ability to cross-examine receiver, rejected, because receiver was neither party nor witness, and whether defendant was allowed to cross-examine receiver fell entirely within trial court’s discretion, particularly since defendant provided no legal authority supporting its contentions; trial court did not abuse its discretion in awarding receiver’s fees in amount less than requested but more than amount of zero advocated by defendant because defendant cited no legal authority for its argument and thus failed to rebut presumption that court and receiver faithfully discharged their duties.

DC Micro Dev. Inc. v. Briley, A11A0448 (06/28/11)

Fulton County Daily Report, July 15, 2011

GA Judgment reversed, as creditor substantially complied with notice requirements.

Cynthia J. Remboldt, Esq. — Thu, 26 Jan 2012 14:56:32 +0000

Judgment reversed in Cook v. NC Two, L.P., 303 Ga. App. 797 (2010), in which Court of Appeals held that creditor substantially complied with notice requirements of O.C.G.A. § 18-4-64 (a) when it sent written notice by mail of garnishment to judgment debtor eight business days after service of summons on garnishee/bank; Court of Appeals erred in finding that creditor’s untimely notification to judgment debtor substantially complied with requirements of § 18-4-64 (a), which plainly and unambiguously requires notice to judgment debtor within three business days when creditor decided against serving judgement debtor pursuant to Civil Procedure Act.

Cook v. NC Two LP, S10G1374 (07/05/11)

Fulton County Daily Report, July 15, 2011

GA Judgment to electric company on land owners’ claims for trespass, conversion and declaratory judgment, partially reversed.

Cynthia J. Remboldt, Esq. — Sat, 21 Jan 2012 14:51:08 +0000

Grant of summary judgment to electric company on land owners’ claims for trespass, conversion and declaratory judgment, filed after electric company entered and cleared part of their land in 2007 and 2008, partially reversed; electric company’s contention that trial court and this Court lacked jurisdiction to decide plaintiffs’ constitutional challenge to O.C.G.A. § 46-3-204, rejected, because despite fact that case was in part declaratory judgment action and plaintiffs failed to timely serve Attorney General pursuant to O.C.G.A. § 9-4-7, plaintiffs did not file declaratory judgment action to have O.C.G.A. § 46-3-204 declared unconstitutional and thus, O.C.G.A § 9-4-7 did not apply, but even if it did apply, it was not violated because Attorney General had notice of plaintiffs’ constitutional challenge to O.C.G.A. § 46-3-204 five months before trial court ruled and made no attempt to be heard on matter; trial court did not err in rejecting plaintiffs’ equal protection claims to O.C.G.A. § 46-3-204′s one-year statute of limitation because statute of limitations was rationally related to legitimate government interest of encouraging widespread growth of public utility service in Georgia; trial court did not err in rejecting plaintiffs’ vagueness claim against O.C.G.A. § 46-3-204 because statute of limitations need not restate law on accrual of causes of action to be comprehensible, and phrase legal steps, sufficiently informed property owners that if they wanted to obtain remedy other than damages, they must use law to prevent utility company from actually occupying their land; trial court did not err in applying O.C.G.A. § 46-3-204′s one-year statute of limitation to evaluate electric company’s easement claim because electric company clearly asserted easement by prescription, not private right of way; trial court did not err in determining that one-year statute of limitation bared plaintiffs’ trespass and conversion claims as to 2007 incident, but trial court erred in granting summary judgment to electric company as to plaintiffs’ 2008 claims because plaintiffs sued promptly to challenge entry, and given fact that electric company representative disclaimed any easement or right to enter property again after 2007, 2008 entry could not be deemed to be part of continuing trespass.

Daniel v. Amicolola Elec. Membership Corp., S11A0019 (06/27/11)

Fulton County Daily Report, July 8, 2011

GA Action to remove liens appellant filed on their respective properties and to quiet title, affirmed.

Cynthia J. Remboldt, Esq. — Mon, 16 Jan 2012 14:46:59 +0000

Grant of summary judgment to appellees in their action to remove liens appellant filed on their respective properties and to quiet title, affirmed, as appellant failed to comply with statutory requirements for filing such liens; liens filed by appellant contained notice that differed from O.C.G.A § 44-14-367′s required language, and, even though appellant may have altered notice language inadvertently, statute requires strict compliance.

Handy Andy of Eastman Inc. v. Evans, A11A0523 (06/20/11)

Fulton County Daily Report, July 8, 2011

GA No record evidence supported trial court’s determination as to regularity of sales.

Cynthia J. Remboldt, Esq. — Wed, 11 Jan 2012 14:41:13 +0000

Order confirming three foreclosure sales, reverse, as no competent record evidence supported trial court’s determination as to regularity of sales; although report to judge contained allegations of fact concerning sales, report was neither verified nor supported by testimony or other evidence at hearing, and bank’s attorney’s statement that properties sold for $170K, $48K, and $300K was not competent evidence.

Franklin v. First Ga Banking Co., A11A0216 (06/23/11)

Fulton County Daily Report, July 8, 2011

GA Guarantor had no real or meaningful opportunity to be heard.

Cynthia J. Remboldt, Esq. — Fri, 06 Jan 2012 14:37:09 +0000

Order finding that guarantor of retail lease in Georgia was bound by previous judgment entered against tenant, reversed, but trial court’s determination that personal jurisdiction existed over guarantor, resident of Texas, affirmed, as three-part test governing jurisdiction was met based on guarantor’s business transactions in Georgia; trial court did not err in re-allocating amount of discovery sanctions against guarantor and another party trial court determined that it lacked jurisdiction over other party; trial court erred in precluding guarantor from presenting evidence in underlying action that resulted in default judgment leading to guaranty suit because guarantor had no real or meaningful opportunity to be heard.

Noorani v. Sugarloaf Mills Ltd Partnership of Ga., A10A2098 (03/29/11)

Fulton County Daily Report, April 15, 2011