Brack v. Owens

254 S.E.2d 847, 243 Ga. 466, 1979 Ga. LEXIS 939

• Court: Supreme Court of Georgia
• Decided: April 5, 1979
• Docket: 34563
• Status: Published

Opinion

Bowles, Justice.

Appellants filed suit against appellees to enjoin foreclosure on appellants’ home, alleging that the security deed and note held by appellees was made in violation of the Industrial Loan Act. The trial court, after hearing evidence, ordered that appellees be allowed to foreclose the security deed and note, and barred appellants from seeking injunctive relief or hindering the foreclosure.

On appeal, appellees concede that the acceleration clauses contained in their note and security deed were void and unenforceable. They have since marked the note and security deed satisfied, and canceled the deed to secure debt of record in the Clerk’s office of Bulloch County.

Argued February 21, 1979 Decided April 5, 1979. Robert L. Goldstucker, Philip L. Merkel, for appellants. Johnston & Brannen, Sam Brannen, for appellees.

The question of whether or not appellees can legally foreclose on the property is moot because the documents have now been canceled. Appellees’ action in conceding to appellants’ claims after appeal was filed in this court amounts to a substantial modification of the trial court’s order. Thus, costs in this court and the lower court must be assessed against the appellees.

Case dismissed with direction that costs be assessed accordingly.

All the Justices concur.