Ciuperca v. RES-GA Seven, LLC

735 S.E.2d 107, 319 Ga. App. 61, 2012 Fulton County D. Rep. 4019, 2012 Ga. App. LEXIS 1022
CourtCourt of Appeals of Georgia
DecidedNovember 29, 2012
DocketA12A1659
StatusPublished
Cited by5 cases

This text of 735 S.E.2d 107 (Ciuperca v. RES-GA Seven, LLC) 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
Ciuperca v. RES-GA Seven, LLC, 735 S.E.2d 107, 319 Ga. App. 61, 2012 Fulton County D. Rep. 4019, 2012 Ga. App. LEXIS 1022 (Ga. Ct. App. 2012).

Opinion

MILLER, Presiding Judge.

This case arises from an application for confirmation of a foreclosure sale filed by RES-GA Seven, LLC (“RES-GA”) against Romeo Ciuperca. Prior to the confirmation hearing RES-GA moved for an order providing for the resale of the property in accordance with OCGA § 44-14-161 (c). Following the confirmation hearing, the trial court ordered a resale of the property, finding good cause to believe that the property did not sell for fair market value. Ciuperca appeals, contending that the trial court (1) erred in finding that the notice provisions of OCGA § 44-14-162.2 did not apply, and (2) erred in allowing a resale without any showing of good cause. We discern no error and affirm.

The trial court is the trier of fact in a confirmation proceeding, and an appellate court will not disturb its findings if there is any evidence to support them. Furthermore, 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.

[62]*62(Citations and punctuation omitted.) Greg A. Becker Enterprises v. Summit Investment Mgmt. Acquisitions I, 314 Ga. App. 721 (725 SE2d 841) (2012).

So viewed, the evidence shows that on April 16, 2004, Ciuperca executed a promissory note (“Note”) and Security Deed for a revolving line of credit in the amount of $700,000. Pursuant to the Security Deed, The Community Bank (“TCB”) acquired a security interest in Ciuperca’s real property located at 2751 Ozora Church Road in Loganville, Georgia. The Note was renewed on April 27, 2005, and again on May 11, 2006. On June 8, 2006, Ciuperca executed a Note modification and renewal, increasing the principal balance to $800,000, and a modification of the Security Deed to reflect the increased principal amount. The Note was renewed again on June 10, 2008 for yet a fourth extension. On March 7, 2011, the Security Deed was assigned to RES-GA, a special-purpose entity formed to exercise foreclosure rights.

After Ciuperca defaulted on the Note, RES-GA initiated foreclosure proceedings on the secured property in accordance with the power of sale authorized in the Security Deed. RES-GA did not provide notice pursuant to OCGA § 44-14-162.2 (a), because the loan file indicated that the subject loan was for commercial property. Prior to foreclosure, RES-GA’s appraisal valued the property at $330,000.1 The appraisal included only 9.25 of the approximately 12 total acres. The appraisal failed to include the roughly 2.5-acre commercial parcel of the property. Upon receipt of the appraisal, RES-GA verified that the address on the appraisal was correct, but overlooked the fact that the appraisal did not cover the full acreage of the property. RES-GA conducted the foreclosure sale on May 3, 2011, and knocked the property back to itself as the sole bidder for $363,000. RES-GA subsequently recorded a Deed Under Power, and petitioned to confirm the foreclosure sale pursuant to OCGA § 44-14-161.

Prior to the scheduled confirmation hearing, RES-GA filed a motion for an order providing for the resale of the property in accordance with OCGA § 44-14-161. The trial court initially denied RES-GA’s motion based on Ciuperca’s proffer that he was living in the residence located on the foreclosed property at the time he applied for and received the commercial loan. At the confirmation hearing, RES-GA provided evidence that Ciuperca did not list the subject property as his residence and indicated that the primary purpose of [63]*63the loan was for business. RES-GA also presented evidence that it relied on a faulty appraisal in bidding on the property at the foreclosure sale.

Following the confirmation hearing, the trial court entered an order finding that the notice requirements of OCGA § 44-14-162.2 were not triggered in connection with the foreclosure proceedings, because RES-GA had good cause to believe that the defaulted upon loan was for commercial, rather than residential, property. The trial court further found that the appraisal RES-GArelied upon in bidding on the property failed to include the entire property at issue. Thus, the trial court found that there was good cause to believe that the property did not sell for fair market value, and ordered a resale pursuant to OCGA § 44-14-161 (c).

1. Ciuperca contends that the trial court erred in finding that the notice provisions of OCGA § 44-14-162.2 (2011) did not apply. We disagree.

OCGA § 44-14-162.2 (2011) provides in relevant part:

(a) Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. Such notice shall be in writing, shall include the name, address, and telephone number of the individual or entity who shall have full authority to.negotiate, amend, and modify all terms of the mortgage with the debtor, and shall be sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address or to such other address as the debtor may designate by written notice to the secured creditor. . . .

Prior to July 1, 2012, OCGA § 44-14-162.3 (a) (2011) provided that the notice requirement of OCGA § 44-14-162.2 (a) applied only “to the exercise of a power of sale of property all or part of which is to be used as a dwelling place by the debtor at the time the mortgage, security deed, or lien contract is entered into.”2 See Ga. L. 2009, p. 614, § 2. Consequently, since the sale occurred prior to July 1, 2012 under the former statute, “to establish [a] debtor’s right to notice, the debtor [had to] be one who used the property as a residence at the time [64]*64he acquired the status of debtor.” Ray v. Atkins, 205 Ga. App. 85, 88 (2) (421 SE2d 317) (1992).

Ciuperca acquired the status of debtor on April 16,2004, when he executed the Note and Security Deed, and the evidence supported the trial court’s finding that he was not using the subject property as his residence at that time. Notably, Ciuperca listed a different residential address, 6048 Grand Forest Court, Norcross, Georgia 30092, on his Commercial Loan Application, dated March 25, 2004.

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Bluebook (online)
735 S.E.2d 107, 319 Ga. App. 61, 2012 Fulton County D. Rep. 4019, 2012 Ga. App. LEXIS 1022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ciuperca-v-res-ga-seven-llc-gactapp-2012.