Farris v. First Financial Bank

722 S.E.2d 89, 313 Ga. App. 460, 2012 Fulton County D. Rep. 111, 2011 Ga. App. LEXIS 1125
CourtCourt of Appeals of Georgia
DecidedDecember 28, 2011
DocketA11A1799
StatusPublished
Cited by5 cases

This text of 722 S.E.2d 89 (Farris v. First Financial Bank) 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
Farris v. First Financial Bank, 722 S.E.2d 89, 313 Ga. App. 460, 2012 Fulton County D. Rep. 111, 2011 Ga. App. LEXIS 1125 (Ga. Ct. App. 2011).

Opinion

Dillard, Judge.

In this civil action, Harold J. Farris sued First Financial Bank and the law firm of Campbell, Martin & Manley, LLP (collectively “defendants”), alleging that defendants wrongfully foreclosed on property that Farris obtained from his former wife via a divorce decree. Following a grant of summary judgment in favor of defendants as to all his claims, Farris appeals, arguing that the trial court erred in finding as a matter of law that defendants (1) complied with the notice provisions in the security deed related to the subject property, and (2) complied with the notice requirement in OCGA § 44-14-162.2 based on the fact that Farris was not a debtor, as defined by OCGA § 44-14-162.1, who was entitled to notice. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the nonmovant,1 the record shows that on December 21, 1982, Rosylind Stanton and Jimmie Norman purchased property at 1763 Sylvan Road, S.W, Atlanta, Georgia, and financed the purchase by executing a loan note and deed to secure debt as to the property in favor of the Federal National Mortgage Association (“FNMA”). On July 31, 1992, Stanton and Norman transferred their interest in the property by quitclaim deed to Farris’s then-wife, Pauline.

In September 1996, First Financial Bank (“FFB”), the successor in interest to FNMA, notified Pauline Farris that the loan was in default and that foreclosure proceedings would be initiated, pursuant to the power of sale contained in the security deed, if she did not cure the default. After receiving no response, on December 30, 1996, FFB had its attorneys notify Pauline Farris by letter that unless the default was cured within 30 days, the debt would be accelerated and foreclosure proceedings would ensue, pursuant to the terms of the security deed. The letter was sent by certified mail to both the property’s Sylvan Road address and to the home address for Pauline Farris. The very next day, FFB’s attorneys received a letter that was purportedly signed by Pauline Farris, stating that her husband, Harold, had authority to negotiate with FFB with regard to the property. Shortly thereafter, Harold Farris contacted FFB’s attorneys and informed them that he would cure the default on the note.

Despite Farris’s assurances, by January 31, 1997, the debt was still in default, and thus, FFB’s attorneys once again sent letters via certified mail to Pauline Farris at the property address and her home [461]*461address, notifying her that the debt had been accelerated and that a foreclosure sale was scheduled for March 4, 1997. However, on the date of the sale, Farris faxed FFB’s attorneys a copy of a Chapter 13 bankruptcy petition allegedly filed by Pauline Farris earlier that same day. Consequently, FFB’s attorneys cancelled the foreclosure sale. But less than one month later, FFB’s attorneys received a telephone call from Pauline Farris’s divorce attorney, who informed them that Harold Farris was not authorized to negotiate curing the default on the loan and that Pauline Farris had not signed or filed the petition that was pending in the bankruptcy court. Nevertheless, over the course of the next few months, Harold Farris continued to contact FFB’s attorneys to convey his intention to cure the default on the loan. And on September 30, 1997, Harold Farris sent another letter to FFB’s attorneys, which was purportedly signed by Pauline and which stated that she would be transferring the property to Farris via a quitclaim deed in November of that year. Enclosed with the letter was the purported deed, which was postdated November 24, 1997.

On October 8, 1997, the U. S. Bankruptcy Court for the Northern District of Georgia lifted the automatic stay pertaining to the Sylvan Road property. As a result, on October 20, 1997, FFB’s attorneys sent a second default notice, again via certified mail, to Pauline Farris at the property’s address and to her home address. Notably, the receipt for the letter sent to Pauline Farris’s home address was signed as received by “H J Farris.” Despite this notice, the default was not cured. Thus, on December 2, 1997, FFB’s attorneys sent certified letters to the property address and to Pauline Farris’s home address, notifying her that the debt had been accelerated and that a foreclosure sale was scheduled for January 6, 1998. In addition, beginning on December 9, 1997, and continuing for the next four weeks, a notice of the impending sale of the Sylvan Road property appeared in the Fulton County Daily Report.

Subsequently, Farris informed FFB’s attorneys that the property had been awarded to him via a divorce decree, and he again expressed his interest in bringing the debt current. However, the quitclaim deed transferring Pauline Farris’s interest in the property to her now-former husband was not recorded until January 5, 1998, and Farris made no attempt to cure the default. On January 6, 1998, FFB purchased the property at the foreclosure sale.

Shortly thereafter, Farris sued FFB and its attorneys, alleging that defendants wrongfully foreclosed on the Sylvan Road property, which he now owned. The case was delayed for nearly ten years due to Farris’s involvement in several unrelated bankruptcy proceedings, but in May 2010, defendants filed motions for summary judgment, arguing that the foreclosure complied with the notice provisions in [462]*462the security deed as well as the relevant statutes. After conducting a hearing on the matter, the trial court granted defendants’ motions for summary judgment as to all of Farris’s claims. This appeal follows.

At the outset, we note that summary judgment is appropriate when “the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.”2 This burden is met by a defendant when the court is shown “that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of [the] plaintiffs case.”3 And if the moving party meets this burden, “the nonmoving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue.”4 With these guiding principles in mind, we turn now to Farris’s enumerations of error.

1. Farris contends that the trial court erred in granting summary judgment because defendants failed to provide him with notice of the default, acceleration of the debt, and foreclosure, pursuant to the security deed. We disagree.

Our Supreme Court has held that
[i]n the absence of a specific provision to that effect, the holder of a mortgage or trust deed with power of sale, is not required to give notice of the exercise of the power to a subsequent purchaser or incumbrancer; and the validity of the sale is not affected by the fact that such notice is not given.5

Indeed, “[t]he law imposes no duty upon a person holding a prior mortgage or deed of trust to notify one holding a similar subsequent or junior lien or incumbrance upon the same property of his intention to sell the property under his mortgage or deed of trust.”6

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Cite This Page — Counsel Stack

Bluebook (online)
722 S.E.2d 89, 313 Ga. App. 460, 2012 Fulton County D. Rep. 111, 2011 Ga. App. LEXIS 1125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farris-v-first-financial-bank-gactapp-2011.