Gutherie v. Ford Equip. Leasing Co., 424 S.E.2d 889 (Ga. Ct. App. 1992). · Go Syfert
Gutherie v. Ford Equip. Leasing Co., 424 S.E.2d 889 (Ga. Ct. App. 1992). Cases Citing This Book View Copy Cite
“ocga 44-14-161 (b) must be read to require proof of true market value under the usual market conditions for sales of such property”
83 citation events (72 in the last 25 years) across 1 distinct court.
Strongest positive: GREENWOOD HOMES, INC. v. Regions Bank (gactapp, 2010-03-03)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 31 distinct citers. How cited ↗
examined Cited as authority (quoted) GREENWOOD HOMES, INC. v. Regions Bank (3×) also: Cited as authority (rule)
Ga. Ct. App. · 2010 · quote attribution · 1 verbatim quote · confidence low
ocga 44-14-161 (b) must be read to require proof of true market value under the usual market conditions for sales of such property
cited Cited as authority (rule) Suntrust Mortgage, Inc. v. Foxfire Acres, Inc.
Ga. Ct. App. · 2020 · confidence medium
Leasing Co., 206 Ga. App. 258, 261 (1) ( 424 SE2d 889 ) (1992).
cited Cited as authority (rule) W. D. Ballard v. Newton County Board of Tax Assessors
Ga. Ct. App. · 2015 · confidence medium
Leasing Co., 206 Ga. App. 258, 261 (1) ( 424 SE2d 889 ) (1992).
discussed Cited as authority (rule) David Sanusi v. Community & Southern Bank (2×)
Ga. Ct. App. · 2014 · confidence medium
Leasing Co., 206 Ga. App. 258, 261 (2) ( 424 SE2d 889 ) (1992) (trial court did not abuse its discretion in finding good cause for resale where creditor proved that it obtained an appraisal, albeit a “fatally flawed” one, before the sale and sold the property for an amount equal to that appraisal); cf. RES-GA LJY, LLC v. Y.
discussed Cited as authority (rule) Sanusi v. Community & Southern Bank (2×)
Ga. Ct. App. · 2014 · confidence medium
Leasing Co., 206 Ga. App. 258, 261 (2) ( 424 SE2d 889 ) (1992).
cited Cited as authority (rule) Lost Lake Development Corp. v. Community & Southern Bank
Ga. Ct. App. · 2014 · confidence medium
Leasing Co., 206 Ga. App. 258, 261 (1) ( 424 SE2d 889 ) (1992).
cited Cited as authority (rule) Lost Lake Development Corp, LLC v. Community & Southern Bank
Ga. Ct. App. · 2014 · confidence medium
Leasing Co., 206 Ga. App. 258, 261 (1) ( 424 SE2d 889 ) (1992).
discussed Cited as authority (rule) Georgia Limited Partners, LLC v. City National Bank (2×)
Ga. Ct. App. · 2013 · confidence medium
Leasing Co., 206 Ga. App. 258, 261 (1) ( 424 SE2d 889 ) (1992).
discussed Cited as authority (rule) Georgia Ltd. Partners v. City National Bank (2×)
Ga. Ct. App. · 2013 · confidence medium
Leasing Co., 206 Ga. App. 258, 261 (1) ( 424 SE2d 889 ) (1992).
discussed Cited as authority (rule) Res-Ga Ljy, LLC. v. Y. D. I., Inc. A/K/A Ydi, Inc.
Ga. Ct. App. · 2013 · confidence medium
Leasing Co., 206 Ga. App. 258, 261 (2) ( 424 SE2d 889 ) (1992) (resale “would be authorized” under OCGA § 44-14-161 (c) where creditor 6 “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”) (citations omitted); Damil, Inc. v. First Nat.
discussed Cited as authority (rule) RES-GALJY, LLC v. Y. D. I., Inc.
Ga. Ct. App. · 2013 · confidence medium
Leasing Co., 206 Ga. App. 258, 261 (2) ( 424 SE2d 889 ) (1992) (resale “would be authorized” under OCGA § 44-14-161 (c) where 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”) (citations omitted); Damil, Inc. v. First Nat.
discussed Cited as authority (rule) River Forest, Inc. v. United Bank
Ga. Ct. App. · 2013 · confidence medium
Leasing Co., 206 Ga. App. 258, 259 (1) ( 424 SE2d 889 ) (1992) (citation and punctuation omitted). 2 (Footnote omitted.) The Hudson Trio, LLC v. The Buckhead Community Bank, 304 Ga. App. 324, 325 ( 696 SE2d 372 ) (2010). 2 trial court, and not this Court on appeal.”3 For this reason, we will not disturb the trial court’s decision if there is any evidence to support it,4 and we view the evidence in the light most favorable to the trial court’s judgment.5 So viewed, the record shows that in 2009, River Forest and David Aldridge, as a personal guarantor, executed a promissory note (the “N…
cited Cited as authority (rule) River Forest, Inc. v. United Bank
Ga. Ct. App. · 2013 · confidence medium
Leasing Co., 206 Ga. App. 258, 259 (1) ( 424 SE2d 889 ) (1992).
cited Cited as authority (rule) Eagle Ga I Spe, LLC v. Atreus Communities of Fairburn, Inc.
Ga. Ct. App. · 2013 · confidence medium
Leasing Co., 206 Ga. App. 258, 261 ( 424 SE2d 889 ) (1992) in support of this argument.
cited Cited as authority (rule) Eagle GA I SPE, LLC v. Atreus Communities of Fairburn, Inc.
Ga. Ct. App. · 2013 · confidence medium
Leasing Co., 206 Ga. App. 258, 261 ( 424 SE2d 889 ) (1992) in support of this argument.
discussed Cited as authority (rule) Gccfc 2007-Gg9 Abercorn Street v. Abercorn Common
Ga. Ct. App. · 2012 · confidence medium
Leasing Co., 206 Ga. App. 258, 259 (1) ( 424 SE2d 889 ) (1992). 6 Metro Land Holdings Investments, LLC v. Bank of America, N.A., 311 Ga. App. 498, 499 ( 716 SE2d 566 ) (2011); Hammock v. Issa, 310 Ga. App. 547, 550 ( 713 SE2d 717 ) (2011). . 4 conflicting evidence is analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.7 So viewed, the evidence was that the Lender’s appraiser, Joel Crisler, testified that the Tax Assessor’s Office estimates a market value for the fee simple interest.
cited Cited as authority (rule) GCCFC 2007-GGP Abercorn Street Ltd. Partnership v. Abercorn Common, LLLP
Ga. Ct. App. · 2012 · confidence medium
Leasing Co., 206 Ga. App. 258, 259 (1) ( 424 SE2d 889 ) (1992).
cited Cited as authority (rule) Nicholson Hills Development, LLC v. Branch Banking & Trust Co.
Ga. Ct. App. · 2012 · confidence medium
Leasing Co., 206 Ga. App. 258, 261-262 (2) ( 424 SE2d 889 ) (1992) (remanding case for consideration of resale after holding that creditor failed to prove property sold for true market value); Govt.
discussed Cited as authority (rule) Nicholson Hills Development, LLC v. Branch Banking
Ga. Ct. App. · 2012 · confidence medium
Leasing Co., 206 Ga. App. 258, 261-62 (2) ( 424 SE2d 889 ) (1992) (remanding case for consideration of resale after holding that creditor failed to prove property sold for true market value); Gov’t Nat’l Mortgage Ass’n v. Belue, 201 Ga. App. 661, 662 (2) ( 441 SE2d 894 ) (1991) (holding that trial court did not abuse its discretion in refusing to order a resale based upon evidence that the market value of other properties in the development had declined subsequent to the foreclosure sale). 11
cited Cited as authority (rule) Greg A. Becker Enterprises, Ltd. v. Summit Investment Management Acquisitions I, LLC
Ga. Ct. App. · 2012 · confidence medium
Leasing Co., 206 Ga. App. 258, 261-262 (2) ( 424 SE2d 889 ) (1992).
discussed Cited as authority (rule) Metro Land Holdings Investments, LLC v. Bank of America, N.A.
Ga. Ct. App. · 2011 · confidence medium
Leasing Co., 206 Ga. App. 258, 259 (1) ( 424 SE2d 889 ) (1992). 3 OCGA § 44-14-161 (b). 4 (Footnote omitted.) The Hudson Trio, LLC v. The Buckhead Community Bank, 304 Ga. App. 324, 325 ( 696 SE2d 372 ) (2010). 5 (Footnote omitted.) Atreus Communities of America v. KeyBank Nat.
discussed Cited as authority (rule) Ivy Road Properties, LLC v. First Citizens Bank & Trust Co.
Ga. Ct. App. · 2011 · confidence medium
Leasing Co., 206 Ga. App. 258, 259 (1) ( 424 SE2d 889 ) (1992). 2 OCGA § 44-14-161 (b). 3 (Citations omitted.) Boring v. State Bank & Trust Co., 307 Ga. App. 93, 94 ( 704 SE2d 207 ) (2010). 4 Oates v. Sea Island Bank, 172 Ga. App. 178 (1) ( 322 SE2d 291 ) (1984). 5 (Citation omitted.) McCain v. Galloway, 267 Ga. App. 505 ( 600 SE2d 449 ) (2004). 6 State v. Larocque, 268 Ga. 352, 353 ( 489 SE2d 806 ) (1997), citing Sharpe v. Dept. of Transp., 267 Ga. 267 (1) ( 476 SE2d 722 ) (1996). 7 (Citations and punctuation omitted.) Davis v. Rathel, 273 Ga. App. 183, 186 (2) ( 614 SE2d 823 ) (2005). 8 Sea…
discussed Cited as authority (rule) Henderson Property Holdings, LLC v. Sea Island Bank
Ga. Ct. App. · 2011 · confidence medium
Leasing Co., 206 Ga. App. 258, 261 ( 424 SE2d 889 ) (1992). 5 Compare with id. at 259 (explaining that the appraiser’s discount of over 50 percent based on a “quick sale value” was excessive and did not constitute a true market value). 6 See Mundy Mill Dev., 306 Ga. App. at 733-734 . 7 See Wheeler v. Coastal Bank, 182 Ga. App. 112, 114 (1) ( 354 SE2d 694 ) (1987); First Nat.
discussed Cited as authority (rule) Atreus Communities of America, LLC v. Keybank National Ass'n
Ga. Ct. App. · 2011 · confidence medium
Leasing Co., 206 Ga. App. 258, 259 (1) ( 424 SE2d 889 ) (1992) (punctuation omitted). 6 OCGA § 44-14-161 (b). 7 See, e.g., Greenwood Homes, Inc. v. Regions Bank, 302 Ga. App. 591, 592 ( 692 SE2d 42 ) (2010) (“Value on the date of sale is a factual question to be resolved by the trier of fact.” (punctuation omitted)); Fed.
discussed Cited as authority (rule) Mundy Mill Development, LLC v. ACR Property Services, LP
Ga. Ct. App. · 2010 · confidence medium
Mundy Mill’s expert reduced the 2008 comparables by 15 percent, while ACR’s expert reduced them by 25 percent. 6 Mundy Mill had listed the property for sale with a broker. 7 206 Ga. App. 258, 261 (1) ( 424 SE2d 889 ) (1992). 8 Id. at 261 (1). 9 292 Ga. App. 375 ( 664 SE2d 783 ) (2008). 10 Poole testified that the land residual approach involves making a determination regarding true market value based on an amount that a developer would be willing to pay for undeveloped property, taking into consideration the development costs of the final completed project, that would allow the developer t…
discussed Cited as authority (rule) Pollman v. Swan
Ga. Ct. App. · 2010 · confidence medium
Leasing Co., 206 Ga. App. 258, 260 (1) ( 424 SE2d 889 ) (1992) (adopting IRS estate tax definition of “fair market value” in foreclosure confirmation). 3 The Pollmans originally asserted a claim for rescission, but they later amended their complaint to remove it, and they do not assort it on appeal. 4 The Pollmans’ contention that defendants also concealed the absence of a certificate of occupancy is without merit.
cited Cited as authority (rule) Belans v. Bank of America, N.A.
Ga. Ct. App. · 2010 · confidence medium
Leasing Co., 206 Ga. App. 258, 261 (1) ( 424 SE2d 889 ) (1992).
discussed Cited as authority (rule) Cartersville Developers, LLC v. Georgia Bank & Trust (2×)
Ga. Ct. App. · 2008 · confidence medium
Leasing Co., 206 Ga. App. 258, 261 (1) ( 424 SE2d 889 ) (1992).
cited Cited as authority (rule) Gutherie v. Ford Equipment Leasing Co.
Ga. Ct. App. · 1998 · confidence medium
Leasing Co., 206 Ga. App. 258, 259 (1), 261 ( 424 SE2d 889 ) (Gutherie I) because FELC offered no proof that Thomas Gutherie’s farm sold for its true market value.
discussed Cited as authority (rule) Resolution Trust Corp. v. Morrow Auto Center, Ltd.
Ga. Ct. App. · 1995 · confidence medium
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 ).
discussed Cited as authority (rule) Gutherie v. Ford Equipment Leasing Co. (2×) also: Cited "see"
Ga. Ct. App. · 1993 · confidence medium
Leasing Co., 206 Ga. App. 258, 261 (1) ( 424 SE2d 889 ) (1992), this court reversed that confirmation, finding that the trial court improperly considered the “quick sale” value of the property and that there was no other evidence that the property was sold for at least its true market value.
Retrieving the full opinion text from the archive…
GUTHERIE Et Al.
v.
FORD EQUIPMENT LEASING COMPANY
A92A1074.
Court of Appeals of Georgia.
Nov 13, 1992.
424 S.E.2d 889
William F. Lozier, Lightmas & Delk, Frank A. Lightmas, Jr., for appellants., W. Dan Greer, for appellee.
Sognier, McMurray, Cooper.
Cited by 32 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 86%
Citer courts: Court of Appeals of Georgia (1)
Sognier, Chief Judge.

Ford Equipment Leasing Company conducted a nonjudicial foreclosure under a power of sale contained in a deed to secure debt executed by Thomas Gutherie to secure a loan made by Ford to Greensboro Lumber Company (GLC). Ford then instituted this confirmation proceeding. After a hearing, the superior court entered an order confirming the sale. Gutherie and GLC appeal.

The property at issue comprised a 300-acre farm and the resi[*259] denee and outbuildings of appellant Gutherie. At the time of the foreclosure sale, appellants were indebted to appellee in the amount of $1,078,587. Darryl Gossett was the high bidder at the December 1991 sale, acquiring the property for his bid of $200,000. The sale was made subject to other nondischarged debts and delinquent taxes totalling $261,297.

At the confirmation hearing, appellants did not challenge the validity of the notices and advertisements made by appellee, but instead contended that the sale did not bring the true market value of the property as required for confirmation under OCGA § 44-14-161 (b). Appellee’s appraiser opined that the market value of the property was $919,450 if given two or more years to sell; however, he testified that he discounted this market value to $460,000 because he was instructed by appellee to calculate a “quick sale” value rather than a “market time sale” value. Appellants’ two appraisers arrived at valuations of $950,000 and $985,000. While they agreed with appellee that a sale of such a property ordinarily would take six months to three years, they disagreed with the “quick sale” approach. One appraiser opined that while the rapid timing of the foreclosure sale might justify some discounting of the valuation, a 50 percent reduction was excessive, while the other appraiser stated that a quick sale value was not the same as true market value. The trial court found the total value bid at auction, $461,297, equalled the true market value and confirmed the sale.

1. OCGA § 44-14-161 (b) provides that “[t]he court shall require evidence to show the true market value of the property sold under the powers [of sale contained in the deed to secure debt] and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.” “True market value,” which is used interchangeably with “fair market value,” Aaron v. Life Ins. Co. of Ga., 138 Ga. App. 286 (1) (226 SE2d 96) (1976), is “the price which (the property) will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who wishes to buy, but is not under a necessity to do so.” (Citations, punctuation, and emphasis omitted.) Wheeler v. Coastal Bank, 182 Ga. App. 112, 114 (354 SE2d 694) (1987). Although as a general rule the price brought at a public sale is prima facie evidence of the market value (absent chilling of the bidding, fraud, or any other element adversely affecting the sale), id. at 113 (1), this general rule does not apply to confirmation of foreclosures under power of sale, for the confirmation statute requires separate analysis of the value independent of the sum bid at the public sale. Id. The lender bears the burden of proving that the foreclosure sale brought at least the true market value of the property. Id. at 114.

The question presented in the case sub judice is whether a “quick[*260] sale value” may constitute competent evidence of the “true market value” of real property within the meaning of OCGA § 44-14-161 (b). Our courts have held that in determining true market value, a trial court may consider market conditions in general at the time of the sale under power and the effect of depressed market conditions on the value of a subject property. Gunnells v. Crump, 172 Ga. App. 607, 608 (323 SE2d 903) (1984); see Wall v. Federal Land Bdnk, 240 Ga. 236, 238 (3) (240 SE2d 76) (1977). However, the parties have not cited, and our extensive research has not uncovered, any case that has condoned discounting the value of a foreclosed property on the basis that the sale was conducted in a shortened time frame. Accordingly, we will consider the view taken by our courts of the use of “quick sale” valuations in other contexts as well as authority in other jurisdictions.

In Parks v. Assoc. Commercial Corp., 181 Ga. App. 235-236, 237 (1) (351 SE2d 661) (1986), this court addressed the use of a “quick sale value” in the context of repossession and disposal of secured collateral under the UCC. The record in Parks established that the price paid for the collateral at the public sale was equal to its “quick sale value” but substantially less than the price at which the collateral subsequently was resold. Considering this discrepancy together with evidence that the creditor had known prior to the sale that other prospective buyers were willing to pay more for the collateral than the bid-in price, we held that “these facts raise a serious question concerning whether the sale of the collateral was conducted in a commercially reasonable manner as required by OCGA § 11-9-504 (3),” and accordingly found the debtors had properly raised that ground as a defense. Id. at 237 (1).

The definition of “fair market value” established by the Internal Revenue Service for use in valuation of real property for estate taxes is also instructive. “Fair market value” is defined as “the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts. The fair market value of a particular item of property ... is not to be determined by a forced sale price. Nor is the fair market value ... to be determined by the sale price of the item in a market other than that in which such item is most commonly sold to the public. . . .” Treas. Reg. § 20.2031-1 (b). The first sentence of this definition is consistent with the willing buyer, willing seller definition used in Georgia. See Wheeler, supra; see also Wright v. MARTA, 248 Ga. 372, 375 (283 SE2d 466) (1981). Upon reviewing Georgia law on the computation of fair market value and considering the language and purpose of the confirmation statute, we are persuaded that the entirety of the IRS definition of fair market value is consistent with Georgia law and should be used to resolve the issue sub judice.

[*261] First, Georgia law recognizes that the sale price obtained at a foreclosure sale is not a sufficient indicator of true market value. In Hubbard v. Farmers Bank, 155 Ga. App. 720 (272 SE2d 510) (1980), this court rejected a secured party’s argument that proof of the price obtained at a personal property foreclosure sale was sufficient to establish market value, reasoning that “ [foreclosure sales are forced sales and notoriously fail to bring the true market price of the [property].” Second, the confirmation statute, as interpreted by our courts, embodies the principle set forth in the IRS definition by requiring evidence of value other than the public sale price, see Wheeler, supra at 113 (1), thereby implicitly acknowledging that the conditions under which a foreclosure sale is conducted differ from the ordinary market for the property in question and that the price obtained in foreclosure does not necessarily equal true market value. Third, the General Assembly enacted OCGA § 44-14-161 for the purpose of providing debtor relief by limiting and abating deficiency judgments. First Nat. Bank v. Kunes, 230 Ga. 888, 890 (199 SE2d 776) (1973). Accordingly, we hold that OCGA § 44-14-161 (b) must be read to require proof of true market value under the usual market conditions for sales of such property. Otherwise, the legislative purpose of OCGA § 44-14-161 would be defeated. See OCGA § 1-3-1 (a) (in interpreting statutes, “courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy”).

Applying this interpretation of OCGA § 44-14-161 (b) to the facts of the instant case, we conclude the trial court improperly considered evidence of the “quick sale” value of the subject property because such a valuation does not reflect the price that would be obtained in a sale under the usual market conditions. Accord Parks, supra. Use of the “quick sale” valuation in confirmation proceedings is inconsistent with the legislative purpose of OCGA § 44-14-161 (b) because it presumes that “true market value” may be construed to mean “market value under quick sale conditions.” When the “quick sale” valuation is eliminated from the record, there remains no evidence to support the trial court’s determination that the sale under power brought at least the true market value of the property. Consequently, the trial court erred by confirming the sale. See Wheeler, supra at 114-115.

2. Appellants have contended below and on appeal that the trial court should have denied confirmation and ordered a resale of the property pursuant to OCGA § 44-14-161 (c), which authorizes the court to order a resale “for good cause shown.” Given that appellee 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. Adams v. Gwinnett Commercial Bank, 140 Ga.[*262] App. 233 (230 SE2d 324) (1976), aff’d, 238 Ga. 722 (235 SE2d 476) (1977); see Davie v. Sheffield, 123 Ga. App. 228 (180 SE2d 263) (1971) (resale may be had for mere inadequacy of price). Accordingly, we reverse the order of confirmation and remand this proceeding to the trial court for further proceedings consistent with this opinion.

Decided November 13, 1992. William F. Lozier, Lightmas & Delk, Frank A. Lightmas, Jr., for appellants. W. Dan Greer, for appellee.

3. As a result of our rulings in Divisions 1 and 2, we need not consider appellants’ other enumerations of error.

Judgment reversed and remanded.

McMurray, P. J., and Cooper, J., concur.