Young v. Federal National Mortgage Ass'n

229 S.E.2d 22, 139 Ga. App. 506, 1976 Ga. App. LEXIS 1865

• Court: Court of Appeals of Georgia
• Decided: September 9, 1976
• Docket: 52332
• Status: Published

Opinion

Quillian, Judge.

This action was brought seeking recovery for the amount due under a note and foreclosure for default under the terms of a note and a deed to secure debt. The plaintiffs motion for summary judgment was granted and appeal followed. The defendant contends that she has an equitable defense based on the plaintiffs failure to comply with certain requirements set forth in a "HUD Handbook.” Held:

1. "An action not otherwise equitable is not made so by a plea setting up purely defensive matter of an equitable nature, in the absence of prayers for some affirmative equitable remedy. This is true even though such answer might call for the application of equitable principles.” Regents of The University System of Ga. v. Carroll, 203 Ga. 292 (1b) (46 SE2d 496). Based on this authority, we therefore consider the instant appeal.

Argued May 24, 1976 Decided September 9, 1976. Carolyn S. Weeks, Richard D. Ellenberg, for appellant. Hansell, Post, Brandon & Dorsey, G. Lee Garrett, Jr., for appellee. William J. Cobb, David F. Walbert, amicus curiae.

2. The proof offered on motion for summary judgment established the plaintiffs right to recover. Upon careful examination of the record and the "HUD Handbook,” we find no equitable grounds to defeat the proceedings.

Judgment affirmed.

Deen, P. J., and Webb, J., concur.