At page 491 Court's duty to confirm foreclosure sale's fairness and value16 citing cases“the duty of the court is to test the fairness of the technical procedure of the actual sale and to insure that the sale has brought at least the true market value of the property.”
- Nicholson Hills Dev., LLC v. Branch Banking & Trust Co., 730 S.E.2d 572 (Ga. Ct. App. 2012).publishedCorp., 140 Ga. App. 490, 491 (231 SE2d491) (1976) (“[T]he duty of the court is to test the fairness of the technical procedure of the actual sale and to insure that the sale has brought at least the true market value of the property.”).
- Rooster Youngblood Constr., Inc. v. Bank of Hiawassee, 739 S.E.2d 788 (Ga. Ct. App. 2013).published Corp., 140 Ga.App. 490, 491 ( 231 SE2d 491 ) (1976).
- TKW Partners, LLC v. Archer Capital Fund, L.P., 691 S.E.2d 300 (Ga. Ct. App. 2010).publishedCorp., 140 Ga. App. 490, 491 ( 231 SE2d 491 ) (1976). 7 Shantha v. West Ga. Nat.
- All. Partners v. Harris Trust & Sav. Bank, 467 S.E.2d 531 (Ga. 1996).publishedCorp., 140 Ga. App. 490, 491 ( 231 SE2d 491 ) (1976); see also OCGA § 44-14-161 (directing that debtor receive five days notice of hearing). 9 See Hardin Constr., 265 at 772 (limiting discovery to affirmative defenses to confirmation of th…
- Guthrie v. Bank South, 393 S.E.2d 60 (Ga. Ct. App. 1990).published Corp., 140 Ga. App. 490, 491 ( 231 SE2d 491 ); Scroggins v. Harper, [ 138 Ga. App. 783, 785 ( 227 SE2d 513 ) (1976)]." Shingler v. Coastal Plain &c.
- Prestley Mill Prof'l Ctr., Ltd. v. Nat'l Bank of Georgia, 358 S.E.2d 307 (Ga. Ct. App. 1987).publishedCorp., 140 Ga. App. 490, 491 ( 231 SE2d 491 ).
- Shingler v. Coastal Plain Prod. Credit Ass'n, 349 S.E.2d 785 (Ga. Ct. App. 1986).publishedCorp., 140 Ga. App. 490, 491 ( 231 SE2d 491 ); Scroggins v. Harper, supra. Appellants initiated the so-called novation and after its demise consented to the sale of the properties involved.
- Alexander v. Weems, 277 S.E.2d 793 (Ga. Ct. App. 1981).publishedCorp., 140 Ga. App. 490, 491 ( 231 SE2d 491 ).
- Harris & Tilley, Inc. v. First Nat'l Bank, 276 S.E.2d 137 (Ga. Ct. App. 1981).publishedCorp., 140 Ga. App. 490, 491 ( 231 SE2d 491 ); Scroggins, supra; Weems v. McCloud, 619 F2d 1081, 1086.
- Grizzle v. Fed. Land Bank, 244 S.E.2d 362 (Ga. Ct. App. 1978).published Corp., 140 Ga. App. 490, 491 ( 231 SE2d 491 ).
Show 4 more citing cases
- Sw. Georgia Land Dev. Co. v. Hillas, 242 S.E.2d 267 (Ga. Ct. App. 1978).publishedCorp., 140 Ga. App. 490, 491 ( 231 SE2d 491 ); Hamilton Mtg.
- Hamilton Mortg. Corp. v. Bowles, 237 S.E.2d 198 (Ga. Ct. App. 1977).publishedCorp., 140 Ga. App. 490, 491 ( 231 SE2d 491 ).
- Kyle R. Weems, Tr. in Bankr. for Hamilton Mortg. Corp., & the Fed. Deposit Ins. Corp., Liquidator for the Hamilton Nat'l Bank of Chattanooga v. Walter J. McCloud Ii, Walter J. McCloud Ii, & Charles S. Wilder, Jr., Kyle R. Weems, Tr. in Bankr. for Hamilton Mortg. Corp., & the Fed. Deposit Ins. Corp., Liquidator for the Hamilton Nat'l Bank of Chattanooga, Cross-Appellants v. Walter J. McCloud Ii, Walter J. McCloud Ii, & Charles S. Wilder, Jr., Cross-Appellees, 619 F.2d 1081 (5th Cir. 1980).published
- Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).published
v.
Hamilton Mortgage Corporation (Two Cases)
These two appeals involve a contest by appellant borrowers to applications of a lender for confirmation of two independent foreclosure sales on two adjacent tracts. Borrowers sought to raise defenses as to the merits of the claims. Specifically, they contended there were agreements made between them and Hamilton Mortgage Corporation which prevented the promissory notes from being due at the time of the foreclosures.
We have heretofore held that the statute (Ga. L. 1935, p. 381) contained in the Annotated Code Supplement as § 67-1503 et seq. does not entitle borrowers to present monetary claims between the parties having no relation to the "true market value.” Scroggins v. Harper, 138 Ga. App. 783 (227 SE2d 513). Similarly, in Aaron v. Life Ins. Co. of Ga., 138 Ga. App. 286 (226 SE2d 96) we ruled that the superior court judge did not err in excluding evidence regarding an escrow deposit. In both of these cases we noted that such claims between the parties are matters for determination in other lawsuits.
[*491] Argued October 6, 1976 Decided November 18, 1976. Rolader, Barham, Davis, Graham & McEvoy, D. W. Rolader, for appellants.Our confirmation statute outlines in detail the prerequisites placed upon a lender seeking to obtain the foundation for a subsequent suit for a deficiency. It requires that "the person instituting the foreclosure proceedings shall, within 30 days after such sale, report the sale to the judge of the superior court of the county in which the land lies for confirmation and approval” (Code Ann. § 67-1503). At the bench trial evidence must be presented "to show the true market value of the property” (Code Ann. § 67-1504). The duties incumbent upon the court are (1) to "direct notice of the hearing to be given the debtor at least 5 days prior thereto” (Code Ann. § 67-1505); (2) to pass "upon the legality of the notice, advertisement, and regularity of the sale” (Code Ann. § 67-1505); and (3) not to confirm the sale unless the judge "is satisfied the property so sold brought its true market value on such foreclosure sale” (Code Ann. § 67-1504). The court also "may, for good cause shown, order a resale of the property.” (Code Ann. § 67-1505; see Adams v. Gwinnett Commercial Bank, 140 Ga. App. 233).
It is therefore clear that the duty of the court is to test the fairness of the technical procedure of the actual sale and to insure that the sale has brought at least the true market value of the property. The statute does not contemplate that the court shall undertake to decide controversies between the parties as to the amount of the debt or side-agreements which could have been the basis of an injunction preventing the foreclosure sale.
The legislative intention was to have a speedy determination through a bench trial of the specific items stated in the statute. In this way there would be no lengthy litigation which would cloud the title to the property and delay a sale thereof. Nor would the borrower be deprived of his right to a jury trial on meritorious matters involved in the loan transaction.
Judgment affirmed.
Bell, C. J., and Stolz, J., concur. [*492] Cofer, Beauchamp & Hawes, James H. Rollins, for appellee.