Lindenberg v. First Federal Savings & Loan Ass'n

90 F.R.D. 255
CourtDistrict Court, N.D. Georgia
DecidedMay 26, 1981
DocketCiv. A. No. C80-983
StatusPublished
Cited by1 cases

This text of 90 F.R.D. 255 (Lindenberg v. First Federal Savings & Loan Ass'n) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lindenberg v. First Federal Savings & Loan Ass'n, 90 F.R.D. 255 (N.D. Ga. 1981).

Opinion

ORDER

ROBERT H. HALL, District Judge.

This case arises out of real estate transactions involving plaintiffs as home purchasers and defendants as mortgagees of the purchased properties. Counts II, III, and IV of the plaintiffs’ complaint state causes of action that arises under section 67-3002 of the Georgia Code Annotated. Were plaintiffs the proper parties to bring this action, the case would involve important questions of federal law and the viability of home purchasing in uncertain economic times. The case, however, can be easily resolved and should be so resolved.

The case is now pending before the court on the joint motion of defendants for summary judgment. The facts necessary to resolve that motion are quite simple and brief. On October 24, 1979, plaintiff Lin-denberg entered into a contract to purchase certain residential property from Charleen Ernst. Defendant First Federal Savings and Loan Association held a mortgage on that property that secured a loan made by First Federal to Mr. and Mrs. Perry Child-ers on March 30, 1977, and assumed by Ernst on September 23, 1977. The original loan instruments executed by the Childers and First Federal contained a due-on-sale clause and permitted the practices of which plaintiffs now complain. On December 31, 1979, First Federal, Ernst, and Lindenberg, entered into a Loan Modification and Assumption Agreement whereby First Federal released Ernst from any future liability on the loan and Lindenberg agreed to assume the balance on the loan at an escalated interest rate. Lindenberg also paid a loan transfer fee of $435.00.

In a similar transaction, plaintiffs David M. Green and Ouida S. Green entered into a Loan Modification and Assumption Agreement with defendant Fulton Federal Savings and Loan Association on May 13,1980. That agreement related to a loan originally made by Fulton Federal to Mr. and Mrs. Horace A. Smith on March 9, 1979, which provided for a due-on-sale clause as well. Under the loan modification agreement, the interest rate on the loan, the balance of which was assumed by the Greens, was escalated to 12 percent and the Greens paid a transfer fee of $599.00.

In both transactions, the key fact is the date on which the original loan instruments, which provided for the practices of which plaintiffs complain, were executed. In the case of the transaction between Lindenberg and First Federal, the original loan documents were executed on March 30,1977. In the case of the transaction between the Greens and Fulton Federal, the original loan documents were executed on March 9, 1979.

The Georgia statute upon which plaintiffs base their cause of action provides that lenders shall not enforce documents that allow the exercise of due-on-sale clauses, the escalation of interest rates on loan assumption, and the charging of loan transfer fees in certain circumstances if the relevant documents were executed on or after July 1,1979. By negative implication, since the documents sought to be enforced in this case were executed before July 1, 1979, defendants here did not breach the state statute in the transactions with Lindenberg and the Greens.

Based on the statute’s severability clause that provides that the entire statute should not be considered unconstitutional if a part of the statute is held to be unconstitutional, plaintiffs have argued that the court should construe the July 1 enforceability cutoff to be operative only if immediate effectiveness of the statute’s prohibitions were found to be constitutionally offensive. The statute, as enacted by the Georgia General Assembly, does not support plaintiffs’ argument. Rather, the statute plainly says that “any lender with a security interest in real estate shall not ... [ejnforce or attempt to enforce the provisions of any mortgage, deed of trust or other real estate security instrument executed on or after July 1, 1979, which provisions are contrary to this Chap[258]*258ter.” Ga.Code Ann. § 67-3002(a). The statute does not say that a lender shall not enforce such provisions as of March 1, 1979, the effective date of the act, unless doing so is found to be unconstitutional, in which case such provisions shall not be enforced in instruments executed on or after July 1, 1979. The severability clause that plaintiffs cite in support of their argument is merely boilerplate and is intended only to insure that the entire statute will not be unenforceable if some part of it is unenforceable. Furthermore, the fact that the effective date precedes the last day on which instruments with the prohibited provisions can be executed and later enforced, evidences that the Georgia General Assembly intended to give the financial community in the state notice of an abrupt change in the law.

Since plaintiffs’ argument on section 67-3002(a)(4) of the Georgia Code is faulty, the court finds that the instruments at issue in this case are not within the prohibitions of the Georgia statute and may be enforced by defendants. Consequently, the court need not reach defendants’ argument that the Georgia statute is preempted by federal law under the Supremacy Clause of the Constitution.

In conclusion, Defendants’ Joint Motion for Partial Summary Judgment is hereby GRANTED.

On Motions For Reconsideration and For Entry of Final Judgment

Plaintiffs’ now seek reconsideration of the court’s Order of February 2, 1981, in which the court granted a motion for partial summary judgment in favor of defendants. Defendants have also filed a motion for entry of final judgment pursuant to Rule 54(b) so as to allow immediate consideration of this case by the Court of Appeals. Both motions must now be denied.

I. Plaintiffs’ Motion For Reconsideration

Plaintiffs belatedly seek to rebut defendants’ argument that the Georgia Assumption Statute, Ga.Code Ann. § 67-3002,1 did not apply to the loan instruments in this [259]*259case. Their attempt, however, remains unpersuasive, and the court adheres to its interpretation of the assumption statute set forth in the Order of February 2.

The crux of the confusion regarding this statute is that although the statute became effective upon signing by the Governor in March, 1979, it prohibits a lender from enforcing provisions of real estate security instruments that conflict with the act only if the instruments were executed on or after July 1, 1979. The act appears to have been in effect for four months before the provisions it prohibits could no longer be inserted in security instruments and later enforced.

Plaintiffs interpret this oddity as being designed to give lenders until July 1 to change their security deed forms in order to comply with the assumption statute. Under their interpretation, the provision simply avoided rendering clauses of security instruments signed prior to July 1 “unenforceable per se” because they contained clauses offensive under the act. Aside from the facts that no authority supports plaintiffs’ interpretation and that there is no reason to suspect that a loan instrument containing a prohibited provision would be “unenforceable per se” after July 1, Ga. Code Ann. § 20-501, plaintiffs’ interpretation strikes the court as strained and manufactured.

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Related

Lindenberg v. First Federal Savings & Loan Ass'n
528 F. Supp. 440 (N.D. Georgia, 1981)

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Bluebook (online)
90 F.R.D. 255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lindenberg-v-first-federal-savings-loan-assn-gand-1981.