Jones v. Hamilton Mortgage Corporation

Court of Appeals of Georgia

Jones v. Hamilton Mortgage Corporation

231 S.E.2d 491, 140 Ga. App. 490, 1976 Ga. App. LEXIS 1530

CourtCourt of Appeals of Georgia

DecidedNovember 18, 1976

Docket52870, 52871

StatusPublished

Cited by22 cases

This text of 231 S.E.2d 491 (Jones v. Hamilton Mortgage Corporation) 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

Jones v. Hamilton Mortgage Corporation, 231 S.E.2d 491, 140 Ga. App. 490, 1976 Ga. App. LEXIS 1530 (Ga. Ct. App. 1976).

Pincite

Opinion

Clark, Judge.

These two appeals involve a contest by appellant borrowers to applications of a lender for confirmation of two independent foreclosure sales on two adjacent tracts. Borrowers sought to raise defenses as to the merits of the claims. Specifically, they contended there were agreements made between them and Hamilton Mortgage Corporation which prevented the promissory notes from being due at the time of the foreclosures.

We have heretofore held that the statute (Ga. L. 1935, p. 381) contained in the Annotated Code Supplement as § 67-1503 et seq. does not entitle borrowers to present monetary claims between the parties having no relation to the "true market value.” Scroggins v. Harper, 138 Ga. App. 783 (227 SE2d 513). Similarly, in Aaron v. Life Ins. Co. of Ga., 138 Ga. App. 286 (226 SE2d 96) we ruled that the superior court judge did not err in excluding evidence regarding an escrow deposit. In both of these cases we noted that such claims between the parties are matters for determination in other lawsuits.

*491 Argued October 6, 1976 Decided November 18, 1976. Rolader, Barham, Davis, Graham & McEvoy, D. W. Rolader, for appellants.

Our confirmation statute outlines in detail the prerequisites placed upon a lender seeking to obtain the foundation for a subsequent suit for a deficiency. It requires that "the person instituting the foreclosure proceedings shall, within 30 days after such sale, report the sale to the judge of the superior court of the county in which the land lies for confirmation and approval” (Code Ann. § 67-1503). At the bench trial evidence must be presented "to show the true market value of the property” (Code Ann. § 67-1504). The duties incumbent upon the court are (1) to "direct notice of the hearing to be given the debtor at least 5 days prior thereto” (Code Ann. § 67-1505); (2) to pass "upon the legality of the notice, advertisement, and regularity of the sale” (Code Ann. § 67-1505); and (3) not to confirm the sale unless the judge "is satisfied the property so sold brought its true market value on such foreclosure sale” (Code Ann. § 67-1504). The court also "may, for good cause shown, order a resale of the property.” (Code Ann. § 67-1505; see Adams v. Gwinnett Commercial Bank, 140 Ga. App. 233).

It is therefore clear that the duty of the court is to test the fairness of the technical procedure of the actual sale and to insure that the sale has brought at least the true market value of the property. The statute does not contemplate that the court shall undertake to decide controversies between the parties as to the amount of the debt or side-agreements which could have been the basis of an injunction preventing the foreclosure sale.

The legislative intention was to have a speedy determination through a bench trial of the specific items stated in the statute. In this way there would be no lengthy litigation which would cloud the title to the property and delay a sale thereof. Nor would the borrower be deprived of his right to a jury trial on meritorious matters involved in the loan transaction.

Judgment affirmed.

Bell, C. J., and Stolz, J., concur. *492 Cofer, Beauchamp & Hawes, James H. Rollins, for appellee.

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

Clark, Judge.

These two appeals involve a contest by appellant borrowers to applications of a lender for confirmation of two independent foreclosure sales on two adjacent tracts. Borrowers sought to raise defenses as to the merits of the claims. Specifically, they contended there were agreements made between them and Hamilton Mortgage Corporation which prevented the promissory notes from being due at the time of the foreclosures.

We have heretofore held that the statute (Ga. L. 1935, p. 381) contained in the Annotated Code Supplement as § 67-1503 et seq. does not entitle borrowers to present monetary claims between the parties having no relation to the "true market value.” Scroggins v. Harper, 138 Ga. App. 783 (227 SE2d 513). Similarly, in Aaron v. Life Ins. Co. of Ga., 138 Ga. App. 286 (226 SE2d 96) we ruled that the superior court judge did not err in excluding evidence regarding an escrow deposit. In both of these cases we noted that such claims between the parties are matters for determination in other lawsuits.

*491 Argued October 6, 1976 Decided November 18, 1976. Rolader, Barham, Davis, Graham & McEvoy, D. W. Rolader, for appellants.

Our confirmation statute outlines in detail the prerequisites placed upon a lender seeking to obtain the foundation for a subsequent suit for a deficiency. It requires that "the person instituting the foreclosure proceedings shall, within 30 days after such sale, report the sale to the judge of the superior court of the county in which the land lies for confirmation and approval” (Code Ann. § 67-1503). At the bench trial evidence must be presented "to show the true market value of the property” (Code Ann. § 67-1504). The duties incumbent upon the court are (1) to "direct notice of the hearing to be given the debtor at least 5 days prior thereto” (Code Ann. § 67-1505); (2) to pass "upon the legality of the notice, advertisement, and regularity of the sale” (Code Ann. § 67-1505); and (3) not to confirm the sale unless the judge "is satisfied the property so sold brought its true market value on such foreclosure sale” (Code Ann. § 67-1504). The court also "may, for good cause shown, order a resale of the property.” (Code Ann. § 67-1505; see Adams v. Gwinnett Commercial Bank, 140 Ga. App. 233).

It is therefore clear that the duty of the court is to test the fairness of the technical procedure of the actual sale and to insure that the sale has brought at least the true market value of the property. The statute does not contemplate that the court shall undertake to decide controversies between the parties as to the amount of the debt or side-agreements which could have been the basis of an injunction preventing the foreclosure sale.

The legislative intention was to have a speedy determination through a bench trial of the specific items stated in the statute. In this way there would be no lengthy litigation which would cloud the title to the property and delay a sale thereof. Nor would the borrower be deprived of his right to a jury trial on meritorious matters involved in the loan transaction.

Judgment affirmed.

Bell, C. J., and Stolz, J., concur. *492 Cofer, Beauchamp & Hawes, James H. Rollins, for appellee.

Kyle R. Weems, Trustee in Bankruptcy for Hamilton Mortgage Corporation, and the Federal Deposit Insurance Corporation, Liquidator for the Hamilton National Bank of Chattanooga v. Walter J. McCloud Ii, Walter J. McCloud Ii, and Charles S. Wilder, Jr., Kyle R. Weems, Trustee in Bankruptcy for Hamilton Mortgage Corporation, and the Federal Deposit Insurance Corporation, Liquidator for the Hamilton National Bank of Chattanooga, Cross-Appellants v. Walter J. McCloud Ii, Walter J. McCloud Ii, and Charles S. Wilder, Jr., Cross-Appellees

619 F.2d 1081 (Fifth Circuit, 1980)

Grizzle v. Federal Land Bank

244 S.E.2d 362 (Court of Appeals of Georgia, 1978)

SOUTHWEST GEORGIA LAND DEVELOPMENT COMPANY INC. v. Hillas

242 S.E.2d 267 (Court of Appeals of Georgia, 1978)

Peachtree Mortgage Corp. v. First National Bank

237 S.E.2d 416 (Court of Appeals of Georgia, 1977)

Hamilton Mortgage Corp. v. Bowles

237 S.E.2d 198 (Court of Appeals of Georgia, 1977)

Cite This Page — Counsel Stack

Bluebook (online)

231 S.E.2d 491, 140 Ga. App. 490, 1976 Ga. App. LEXIS 1530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-hamilton-mortgage-corporation-gactapp-1976.

Opinion

Related

Cite This Page — Counsel Stack