Boring v. STATE BANK AND TRUST CO.

704 S.E.2d 207, 307 Ga. App. 93, 2010 Fulton County D. Rep. 3930, 2010 Ga. App. LEXIS 1110
CourtCourt of Appeals of Georgia
DecidedNovember 24, 2010
DocketA10A1106
StatusPublished
Cited by12 cases

This text of 704 S.E.2d 207 (Boring v. STATE BANK AND TRUST CO.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boring v. STATE BANK AND TRUST CO., 704 S.E.2d 207, 307 Ga. App. 93, 2010 Fulton County D. Rep. 3930, 2010 Ga. App. LEXIS 1110 (Ga. Ct. App. 2010).

Opinions

BARNES, Presiding Judge.

Richard M. Boring and Mechanical Equipment and Supply, Inc. (hereinafter collectively “Boring”), appeal from the trial court’s order confirming the foreclosure sale of certain properties that State Bank and Trust Company held as security for commercial loans Boring guaranteed. Upon our review, we affirm.

In confirming a nonjudicial foreclosure sale under OCGA § 44-14-161, the trial court “shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.” OCGA § [94]*9444-14-161 (b). In such proceedings, the trial court sits as the trier of fact, and its findings and conclusions have the effect of a jury verdict. See Wilson v. Prudential Indus. Properties, 276 Ga. App. 180 (1) (622 SE2d 890) (2005), citing McCain v. Galloway, 267 Ga. App. 505 (600 SE2d 449) (2004). Thus, we will not disturb the trial court’s decision if there is any evidence to support it. Oates v. Sea Island Bank, 172 Ga. App. 178 (1) (322 SE2d 291) (1984). Additionally, “we do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court’s judgment.” (Citation omitted.) McCain v. Galloway, supra.

So viewed, the evidence shows that in March 2005, SouthBank gave Sierra Vista of Habersham, LLC, a commercial loan in the amount of $1,420,000 to purchase certain real property in Habersham County, and the company gave SouthBank a deed to secure debt on the property. Contemporaneously with the execution of the promissory note, Richard Boring, Sierra Vista’s registered agent and managing member, executed a guaranty in favor of SouthBank, personally guaranteeing the debt. In June 2005, SouthBank changed its name to Security Bank of North Metro. The note and Boring’s guaranty were renewed several times during 2006 and 2007. In September 2007, Richard Boring and Mechanical Equipment and Supply, Inc., each executed a guaranty of the Sierra Vista loan renewal.

In July 2009, Security Bank was closed and the FDIC was appointed as Receiver for the bank, and became the successor-in-interest to the Note, security deed, guaranty, and renewals. In September 2009, the FDIC assigned its interest in the Sierra Vista note, Boring’s guaranty, the security deed, and the renewals to State Bank. Sierra Vista defaulted on the loan, and in August 2009, State Bank accelerated the loan, declaring the principal balance due immediately.

State Bank foreclosed on the property, and in October 2009, purchased the approximately ten acres of land secured by the note for $600,000 as the highest bidder for cash. State Bank, thereafter, filed a petition to have the sale confirmed and approved for the purposes of pursuing a deficiency judgment against Boring. Boring filed its answer and a motion to dismiss, challenging the standing of State Bank to seek confirmation.

The parties stipulated as to the legality of the notice and the foreclosure sale itself. At the confirmation hearing, State Bank presented evidence on the true market value of the property through the testimony of its witness George Galphin, a certified general appraiser. Galphin testified that he had arrived at his valuation of the property through the use of the “sales comparison approach,” comparing the property to five similar, recently sold properties. Galphin also testified that, of the five comparable properties, only [95]*95one of them had been a “distressed sale,” which required him to make adjustments to the property’s sale value in order to use it as a comparison to the property at issue.

The trial court admitted Galphin’s testimony and appraisal into evidence and found that State Bank had made out its prima facie case that the foreclosure sale price represented the true market value of the property, entering an order confirming and approving the sale pursuant to OCGA § 44-14-161.

1. Boring first contends that the trial court erred in holding that State Bank had the requisite “legal standing” to bring its confirmation action against the guarantors, and in holding that the issue of standing was irrelevant to a confirmation proceeding under OCGA § 44-14-161. We do not agree.

OCGA § 44-14-161 (a) provides:

When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, ... no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.

(Emphasis supplied.) At the confirmation hearing, Boring challenged State Bank’s standing to bring the confirmation action because State Bank did not show that it had been properly assigned the guarantees. The trial court found that such standing issues were “outside the scope of a confirmation hearing,” citing this court’s opinion in Sparti v. Joslin, 230 Ga. App. 346 (496 SE2d 490) (1998). We agree.

Regarding the narrow applicability of the confirmation statute, our Supreme Court has explained:

The only purpose of the confirmation statute is to subject the creditor’s potential deficiency claim to the condition that the foreclosure sale under power be given judicial approval. The confirmation proceeding does not result in a personal judgment and it does not adjudicate the title of the property sold. Except as to the confirmed amount of the sale, it does not establish the liability of any party with regards to the indebtedness.

(Citation and punctuation omitted; emphasis supplied.) Vlass v. Security Pacific Nat. Bank, 263 Ga. 296, 297 (1) (430 SE2d 732) (1993).

[96]*96In McCain v. Galloway, supra, 267 Ga. App. at 505, McCain argued that Galloway failed to prove that Bartow County Bank had assigned the note and security deed to him before he foreclosed on the property, and thus Galloway lacked standing to bring the confirmation action. Citing Sparti, this court reaffirmed that the confirmation proceeding is a limited statutory proceeding, in which an assignment issue was not relevant to the confirmation proceeding.

Similarly here, “[t]he issue [of] whether [State Bank] was a real party in interest is not relevant to this confirmation proceeding, which was commenced in accordance with OCGA § 44-14-161 (a) by the person instituting the foreclosure proceedings.” Sparti v. Joslin, supra, 230 Ga. App. at 346 (1).

Accordingly, the trial court did not err in finding that the issue of standing was not relevant to the confirmation proceeding.

2. Although Boring also challenges the valuation evidence, we find no error.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

River Walk Farm, L.P. v. First Citizens Bank & Trust Co.
741 S.E.2d 165 (Court of Appeals of Georgia, 2013)
Peoples Bank v. Harp
948 F. Supp. 2d 1335 (N.D. Georgia, 2013)
White Oak Homes, Inc. v. Community Bank & Trust
724 S.E.2d 810 (Court of Appeals of Georgia, 2012)
Ivy Road Properties, LLC v. First Citizens Bank & Trust Co.
715 S.E.2d 809 (Court of Appeals of Georgia, 2011)
Atreus Communities of America, LLC v. Keybank National Ass'n
706 S.E.2d 107 (Court of Appeals of Georgia, 2011)
Jimmy Britt Builder, Inc. v. Suntrust Bank
706 S.E.2d 665 (Court of Appeals of Georgia, 2011)
Boring v. STATE BANK AND TRUST CO.
704 S.E.2d 207 (Court of Appeals of Georgia, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
704 S.E.2d 207, 307 Ga. App. 93, 2010 Fulton County D. Rep. 3930, 2010 Ga. App. LEXIS 1110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boring-v-state-bank-and-trust-co-gactapp-2010.