Resolution Trust Corp. v. Morrow Auto Center, Ltd.

454 S.E.2d 138, 216 Ga. App. 226, 95 Fulton County D. Rep. 351, 1995 Ga. App. LEXIS 82
CourtCourt of Appeals of Georgia
DecidedJanuary 6, 1995
DocketA94A2106
StatusPublished
Cited by15 cases

This text of 454 S.E.2d 138 (Resolution Trust Corp. v. Morrow Auto Center, Ltd.) 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
Resolution Trust Corp. v. Morrow Auto Center, Ltd., 454 S.E.2d 138, 216 Ga. App. 226, 95 Fulton County D. Rep. 351, 1995 Ga. App. LEXIS 82 (Ga. Ct. App. 1995).

Opinion

Birdsong, Presiding Judge.

This is a suit for confirmation of a foreclosure sale and deficiency. Appellant Resolution Trust Corporation (RTC) foreclosed on a development property in the Atlanta metropolitan area. The original loan amount was $725,000. The amount of default is not cited to us nor is it stated in RTC’s demand letter or its petition, but the default was more than the $425,000 for which RTC bought the property at its foreclosure sale. In its order denying confirmation of the sale, the trial court recited that the appraiser/witness for RTC testified that the market value for the property at the time of sale was $425,000, whereas two appraisers for Morrow Auto Center testified that the market value at the time of sale was $812,000 and $790,000.

The trial court also denied a resale. On appeal, RTC contends a resale is authorized as a matter of law by OCGA § 44-14-161 (c) if the property did not sell for its true market value and if, as in this case, the trial court made no finding of bad faith. Held:

[227]*2271. The trial court did not err in denying confirmation. See OCGA § 44-14-161.

2. OCGA § 44-14-161 (c) provides: “The court may order a resale of the property for good cause shown.” (Emphasis supplied.) This statute confers upon the trial court a legal discretion in determining whether to order a resale. Govt. Nat. Mtg. Assn. v. Belue, 201 Ga. App. 661 (411 SE2d 894).

RTC contends resale is authorized as a matter of law under Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 261 (424 SE2d 889), where we held: “Given that [the creditor] did not prove that it sold the property for true market value but did obtain an appraisal (albeit a fatally flawed one) before the sale and did sell the property for an amount equal to that appraisal, a resale would be authorized.” Gutherie cites Adams v. Gwinnett Commercial Bank, 140 Ga. App. 233 (230 SE2d 324), aff’d, 238 Ga. 722 (235 SE2d 476); Gutherie further cites Davie v. Sheffield, 123 Ga. App. 228 (180 SE2d 263).

According to Adams, this court in Davie held that “[a] failure to sell for the true market value constitutes good cause for ordering a resale.” Adams at 234 (2). According to Gutherie, the Davie case held that “resale may be had for mere inadequacy of price.” Gutherie at 262 (2). In fact, in Davie, confronted with a contention that the court could not order a resale for mere inadequacy of price, we held that under previous statutory law, mere inadequacy of price was not a sufficient reason to order a resale, but under present law the court “may order a re-sale” (id. at 230; emphasis supplied) for several reasons, “including failure to sell [at the property’s] true market value.” Id. The headnote in Davie states: “The court may . . . order its resale for good cause shown, which may be the inadequacy of the price received for the property.” (Emphasis supplied.) These are permissive statements only, and they are a far cry from the mandatory inference made by RTC from Gutherie’s and Adams’ later characterizations of Davie. The holding in Davie should not be taken out of its true context and is not to be converted to a holding that “good cause” for resale is shown and a resale is demanded whenever a foreclosure sede fails to bring true market value. This would obliterate the statute, would remove the trial court’s discretion, and would encourage creditors to engage in any unfair practice at foreclosure sale, with the only penalty being a possible resale.

The language of the confirmation statute places the burden of proof on the creditor not only to show that the sale brought true market value of the property (Wheeler v. Coastal Bank, 182 Ga. App. 112, 114 (354 SE2d 694)), but also to show good cause for a resale, and the statute vests “considerable discretion” in the trial court in this determination. Five Dee Ranch Corp. v. Fed. Land Bank of Co[228]*228lumbia, 148 Ga. App. 734 (2) (252 SE2d 662). The statute does not entitle the creditor to a resale, either for mere failure to show the sale brought true market value, for a mere “flawed” appraisal, or for any reason. The provision that resale “may [be granted] for good cause shown” (§ 44-14-161 (c)) means there is no presumption in favor of resale and there is no entitlement to a resale. The statutory language authorizing resale is entirely permissive and not mandatory.

Moreover, the statute does not define what constitutes “good cause,” does not require a finding by the trial court of bad faith or negligence in the appraisal or sale, and does not even require evidence of bad faith or negligence. We have declined to set restrictions on the trial court’s discretion in denying resale, for to set restrictions would be to require evidence of misfeasance, malfeasance, or defect in the sale before a resale can be denied, which would put the burden of proof on the debtor. To the contrary, we have held: “Where no ‘good cause’ has been shown which would demand a resale, there is no abuse of the exercise of the trial court’s discretion, as a matter of law” (Five Dee Ranch Corp., supra) and we have repeatedly held that the burden to show “good cause” which “may” authorize a resale is on the creditor. Wheeler, supra. We have held in particular cases that a resale was “authorized,” but this does not constitute a holding that a resale was demanded in those cases or that there would be any “entitlement” to resale in other cases with similar circumstances. Discretion to grant a resale is discretion to deny a resale. There are special reasons that the issues of “good cause” and resale are left to the “considerable discretion” (Five Dee Ranch Corp., supra) of the trial court, as this case proves.

RTC’s only witness to prove the sale brought true market value was the appraiser who determined value at the price RTC paid for the property at its own sale: $425,000. This appraiser did not use comparable sales from the proximate metropolitan Atlanta vicinity and apparently did not consider it significant that Morrow Auto Center is located in an area of upscale automotive businesses. Instead, she used sales of “similar” properties in other towns in Georgia with much lower traffic rates and sales rates. Morrow Auto Center is located next door to a property which sold to a Cadillac dealer for $42 per square foot with planned renovations of $1.4 million, but RTC’s appraiser did not consider this sale to be relevant. RTC’s appraiser claimed not to have known about the recent sale of a Ford dealership two sites away from Morrow Auto Center, at $63 per square foot. Instead, she used rental rates of $5.25 per square foot to value Morrow Auto Center, based on “similar” properties in other towns. Morrow Auto Center’s appraisers valued Morrow Auto Center in excess of $50 per square foot, similarly to the Cadillac and Ford dealership properties nearby.

[229]*229Further, the Clayton County tax assessment of the subject property was $812,000 from 1991 to 1994. The tax assessor valued the land at $272,000 and valued the building at $540,000.

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Cite This Page — Counsel Stack

Bluebook (online)
454 S.E.2d 138, 216 Ga. App. 226, 95 Fulton County D. Rep. 351, 1995 Ga. App. LEXIS 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/resolution-trust-corp-v-morrow-auto-center-ltd-gactapp-1995.