Cornelia Bank v. Brown

303 S.E.2d 171, 166 Ga. App. 68, 1983 Ga. App. LEXIS 2070

• Court: Court of Appeals of Georgia
• Decided: March 17, 1983
• Docket: 65854
• Status: Published

Opinions

Deen, Presiding Judge.

Franklin Brown and Mitchell Black executed and delivered to appellant two deeds to secure debt conveying property in Habersham County, Georgia. When the notes became in default, and after proper notice to Brown and Black and legal advertisement, appellant publicly sold the property on August 3, 1982. Because the property brought less than the amount of the indebtedness, on September 1, 1982, appellant presented a petition for confirmation of the sale at the chambers of the superior court judge in Habersham County. The judge was not present at the time, but his secretary, acting upon authority previously given to her by the judge, affixed the judge’s signature stamp to the order scheduling a hearing on the petition.

The judge confirmed the sale of the property, but prohibited appellant from seeking a deficiency judgment because the confirmation petition had not been presented to the judge personally. On appeal from that order, appellant contends that it sufficiently complied with the statutory requirement of presenting the petition to the judge. Held:

OCGA § 44-14-161(a) (Code Ann. § 67-1503) provides, in part, that when any real estate is sold on foreclosure under a power of sale “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.” The purpose of this statute is to protect debtors from deficiency judgments when the property was sold for less than its true market value. Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. 327 (270 SE2d 867) (1980); First Nat. Bank &c. Co v. Kunes, 128 Ga. App. 565 (197 SE2d 446) (1973).

Decided March 17, 1983 Rehearing denied March 29, 1983 Stephen D. Frankum, for appellant. John O. Bouwsma, for appellees.

In this case, the judge noted that he previously had provided his secretary with his signature stamp and authorized her to accept petitions and issue a rule nisi in any matter that did not require the exercise of judicial discretion, but nevertheless concluded that that procedure did not comply with the requirement of reporting the foreclosure sale to the judge. We disagree.

In previously ruling that presentation of a confirmation petition to the clerk of the superior court does not meet the reporting requirement, this court emphasized the literal language of the statute, “report the sale to the judge.” Goodman v. Vinson, 142 Ga. App. 420 (236 SE2d 153) (1977). See also Dukes v. Ralston Purina Co., 127 Ga. App. 696 (194 SE2d 630) (1972). Here it was undisputed that appellant presented the petition at the chambers of the superior court judge and that the judge’s secretary had the delegated authority to accept petitions in any ministerial matter. We adhere to the rule that it is the judge to whose attention the foreclosure sale must be brought, but we find that appellant technically did report the matter to the judge, for the purposes of OCGA § 44-14-161(a) (Code Ann. § 67-1503). Appellant obviously presented its confirmation petition to the office of the superior court judge in the manner authorized by the judge, and it was error to deny appellant’s right to pursue a deficiency judgment.

Judgment reversed.

Banke, J., concurs. Carley, J., concurs specially.