Richards v. Wells Fargo Bank, N.A.

754 S.E.2d 770, 325 Ga. App. 722, 2014 Fulton County D. Rep. 236, 2014 WL 503626, 2014 Ga. App. LEXIS 57
CourtCourt of Appeals of Georgia
DecidedFebruary 10, 2014
DocketA13A1678
StatusPublished
Cited by13 cases

This text of 754 S.E.2d 770 (Richards v. Wells Fargo Bank, N.A.) 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
Richards v. Wells Fargo Bank, N.A., 754 S.E.2d 770, 325 Ga. App. 722, 2014 Fulton County D. Rep. 236, 2014 WL 503626, 2014 Ga. App. LEXIS 57 (Ga. Ct. App. 2014).

Opinion

Phipps, Chief Judge.

Sammy Richards, acting pro se, appeals the trial court’s January 29, 2013 order granting summary judgment in favor of Wells Fargo Bank, N.A., Successor By Merger to Wells Fargo Home Mortgage, Inc., and finding his motion for leave to file counterclaims moot. For the following reasons, we affirm the grant of summary judgment in favor of Wells Fargo. However, we vacate the trial court’s ruling denying Richards’s motion for leave to file counterclaims and remand the case for the trial court to exercise its discretion and issue a ruling on the merits of the motion.

On December 19, 2003, Richards gave Wells Fargo a deed to secure a debt on property Richards had purchased. The security deed pertinently provided that Richards did “grant and convey to [Wells Fargo] .. ., with power of sale,” the property at issue. On March 24, 2011, Richards filed in county real property records a document entitled “AFFIDAVIT REVOCATION OF POWER OF ATTORNEY Revoking All Rights for Deed Under Power Pursuant to OCGA § 10-6-141,” purporting to “revoke[ ] any and all rights given at closing [723]*723to Wells Fargo,” on the basis that Wells Fargo had induced him to sign the security deed “under misrepresentation of the facts.” Then, on June 27, 2011, Richards filed a document entitled “Affidavit of Forgery Pursuant to OCGA [§] 44-2-23,” wherein he stated that the security deed was a forgery because the “document was altered to include the Notary’s witness at sometime unbeknownst to the Mortgagor/Borrower and prior to filing into Clayton County Records on 1/7/2004.”

On December 6,2011, Wells Fargo filed a Complaint for Declaratory Relief, asserting that

[i]n the Security Deed to [Wells Fargo], [Richards] specifically waived any right to judicial foreclosure, granting to [Wells Fargo]... the power to foreclose and sell the Property by non-judicial foreclosure upon [Richards’s] default as defined therein and appointing [Wells Fargo] ... as [Richards’s] agent and attorney-in-fact to exercise such power of sale.

Wells Fargo asserted, therefore, that the aforementioned affidavits Richards filed “call the validity of the Security Deed and power of sale into question and create a cloud upon [Wells Fargo’s] title to the Property.” Wells Fargo sought “a judgment declaring and confirming the validity of the Security Deed and the power of sale contained therein, which grants to [Wells Fargo] . .. the power to foreclose and sell the Property by non-judicial foreclosure upon [Richards’s] default and appointing [Wells Fargo] ... as [Richards’s] agent and attorney-in-fact to exercise such power of sale.” On September 10, 2012, Wells Fargo filed an amendment to its complaint, re-alleging therein all assertions of its original complaint, and additionally asserting a “Quiet Title” claim, seeking “an Order pursuant to OCGA § 23-3-40 et seq. removing” the affidavits Richards had recorded in the county real property records, “as clouds upon [Wells Fargo’s] title to the Property.”

On September 24, 2012, Wells Fargo moved for summary judgment. On December 5, 2012, Richards, citing OCGA § 9-11-13 (f),1 filed a motion for leave to file counterclaims, asserting that through oversight, inadvertence, and excusable neglect, he had failed to allege compulsory counterclaims in his answer; and that justice required [724]*724the trial court to grant him leave to file the counterclaims. In its order granting summary judgment in favor of Wells Fargo, the trial court ruled that “[bjased on this court’s ruling on the Motion for Summary Judgment which resolves all issues in the action, the defendant’s Motion for Leave to File Counterclaims is MOOT.”

1. Richards contends that the trial court erred in granting summary judgment in favor of Wells Fargo because “a genuine issue of material fact existed as to whether [he] executed a waiver of [his] rights entitling [Wells Fargo] to nonjudicial foreclosure.” He argues that “[t]he recorded Security Deed omits a waiver of borrower’s rights, which is the critical instrument that gives [Wells Fargo] the right to nonjudicially foreclose. This absence alone is sufficient to create an inference that a waiver of borrower’s rights was never executed by [him].”

A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. If no issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment is proper.2

Richards cites no authority for the proposition that the absence of a “waiver of borrower’s rights” instrument renders an otherwise valid power of sale in a security deed unenforceable. In this case, the security deed contained a power of sale provision which authorized Wells Fargo (which held the security deed), in the event of a default on the loan, to enforce satisfaction of the debt by foreclosure, without utilizing the judicial process.3 Accordingly, Wells Fargo was entitled to judgment as a matter of law, and the trial court did not err in granting summary judgment to Wells Fargo on this basis.

2. Richards contends that the trial court “erred by holding that a power coupled with an interest is not revocable at will rather than analyzing revocability in the context of fraud.” He asserts that “[a] question of material fact remains whether the Affidavit of Forgery voided the Power of Sale.”

[725]*725In Gurr v. Gurr,4 the Supreme Court of Georgia said that “a power of sale in a security deed is a power coupled with an interest____ A power coupled with an interest is not revocable by death. Nor is it revocable at will.”5 Therefore, Richards did not, by the mere filing of an affidavit, void the'power of sale he had given to Wells Fargo in the security deed. Furthermore, contrary to Richards’s contention, the trial court did “analyz[e] revocability in the context of fraud” based on allegations of fraud Richards had made.

3. Richards contends that the trial court “erred in granting summary judgment because a genuine issue of material fact existed whether [he] actually conveyed the power of sale to [Wells Fargo].” He asserts that “where there is no intent to pass a certain property interest, no conveyance occurs,” and that he “submitted sufficient evidence to raise a question of fact whether [he] intended to convey the Power of Sale specifically.”

Richards failed, in his brief opposing Wells Fargo’s motion for summary judgment (and in his appellate brief), to point to any evidence to support his claim;6 and the appellate record contains no hearing transcript. Richards executed an affidavit, which is included in the record, wherein he admitted that he had voluntarily signed the Security Deed. Richards also fails to show that he raised this issue below and that the trial court ruled on it. Absent a ruling from the trial court as to this issue, there is nothing for us to review.7

4.

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Bluebook (online)
754 S.E.2d 770, 325 Ga. App. 722, 2014 Fulton County D. Rep. 236, 2014 WL 503626, 2014 Ga. App. LEXIS 57, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richards-v-wells-fargo-bank-na-gactapp-2014.