CopyCited 26 times | Published | Supreme Court of Georgia | Jul 5, 2011 | 289 Ga. 488, 2011 Fulton County D. Rep. 2062
...Bliss, John Ross Bartholomew, IV, Decatur, amici curiae. HUNSTEIN, Chief Justice. Appellant JIG Real Estate, a limited liability company that speculates in real estate, brought this appeal to challenge the ruling of the trial court upholding the constitutionality of OCGA §
9-13-172.1 (authorizing the rescission of foreclosure sales under certain conditions) in its suit against appellee Countrywide Home Loans in which JIG asserted it was entitled as high bidder to delivery of the Deed Under Power to the home of appellees James and Tammi Garland....
...w firm on Countrywide's behalf on March 6th. Two days after the sale, before any deed or deed under power was delivered, JIG was notified that, because the default had been cured prior to the foreclosure sale, the sale was rescinded pursuant to OCGA §
9-13-172.1....
...at (d). JIG chose to reject the money and demanded delivery of the Deed Under Power; it subsequently filed suit against appellees. The trial court granted summary judgment to appellees on all of JIG's claims. The statute at the heart of this appeal, OCGA §
9-13-172.1, provides as follows: (a) As used in this Code section, "eligible sale" means a judicial or nonjudicial sale that was conducted in the usual manner of a sheriff's sale and that was rescinded by the seller within 30 days after the sale but before the deed or deed under power has been delivered to the purchaser....
...In recognition of the well-established rule that this Court will not consider a constitutional challenge to a statute if there exists a non-constitutional basis for resolving the case, e.g., Garden Club of Ga. v. Shackelford,
274 Ga. 653(2),
560 S.E.2d 522 (2002), JIG contends that, even assuming that OCGA §
9-13-172.1 is constitutional, the trial court erred by ruling that Countrywide had the right to rescind the foreclosure sale pursuant to OCGA §
9-13-172.1. JIG's argument in this regard is based on its claim that OCGA §
9-13-172.1 serves only to limit damages after rescission and does not itself provide any grounds for rescission of contracts. Hence, JIG asserts, in the absence of authority under OCGA §
9-13-172.1, there were no other legal grounds upon which Countrywide could have rescinded the sale. We find no merit in this argument. OCGA §
9-13-172.1 authorizes under clearly defined circumstances the rescission of an eligible sale "due to" an automatic stay pursuant to the filing of bankruptcy, id....
...to the sale; or (3) the lender and the borrower agreed prior to the sale to cancel the sale based upon an enforceable promise by the borrower to cure the default. JIG, in its contrary construction of the statute, ignores the "due to" phrase in OCGA §
9-13-172.1(c) and (d) and seeks, by an overly technical and strained focus on the verb tenses used in the *823 statute, [1] to reach an interpretation contrary to the statute's plain and unambiguous meaning....
...678, 681,
279 S.E.2d 430 (1981) (if the words of a statute are plain and susceptible of having only one natural and reasonable construction, and do not produce any absurd or wholly impracticable consequences, this Court must construe it according to its terms). 2. JIG contends the trial court erred by ruling that OCGA §
9-13-172.1 is not unconstitutionally void for vagueness....
...(Citations and punctuation omitted.) Catoosa County v. R.N. Talley Properties,
282 Ga. 373, 374,
651 S.E.2d 7 (2007). (a) JIG asserts that persons of reasonable intelligence [2] would have to make a guess regarding what law a lender is relying upon when rescinding a sale under OCGA §
9-13-172.1(d) and that such guessing would be "particularly justified" through the eyes of foreclosure sale purchasers due to such purchasers' knowledge of Georgia law that the high bid purchaser at a foreclosure sale has the right to a deed to th...
...Simmons,
207 Ga. 291(2),
61 S.E.2d 410 (1950); Ellis v. Ellis,
161 Ga. 360(1),
130 S.E. 681 (1925); Garrett v. Crawford,
128 Ga. 519(1),
57 S.E. 792 (1907). As an initial matter, we hold that this case law has been superseded by the enactment of OCGA §
9-13-172.1 to the extent a judicial or nonjudicial *824 sale comes within its statutory provisions. As to the merits of JIG's argument, it is based on the same strained construction of OCGA §
9-13-172.1 that we rejected in Division 1, supra. Persons of common intelligence would have no difficulty understanding that OCGA §
9-13-172.1 in and of itself authorizes rescission of an eligible sale due to the occurrence of the bankruptcy stay in subsection (c) or one of the three situations set forth in subsection (d). We find JIG's argument about the vagueness of the statute's definition of "eligible sale" is likewise based on this erroneous construction [3] and is equally meritless. (b) The trial court found that the Legislature intended with OCGA §
9-13-172.1 to "create a mechanism to give homeowners every opportunity to cure a default and avoid the harmful and disturbing effects of foreclosure." We agree with the trial court regarding this legislative intent behind the enactment of OCGA §
9-13-172.1. JIG, however, asserts that the trial court's finding is "the best evidence of the confusion" created by the statute because OCGA §
9-13-172.1 "says nothing about the homeowner." However, there is an unquestionable impact by the statute on homeowners of property in foreclosure who, prior to sale, cure the default or enter into agreements to cure the default. Rather than "evidencing confusion," the trial court's finding as to the Legislature's intent merely states the obvious. (c) JIG next asserts that OCGA §
9-13-172.1 is unconstitutionally vague due to the use in subsection (d)(3) of the terms "plaintiff in execution" and "defendant in execution." Asserting that these are not terms applicable to non-judicial foreclosures but are used to describe the parties under a sheriff's levy and sale under a judgment lien, JIG argues that it is "anybody's guess" whether OCGA §
9-13-172.1(d)(3) is applicable to a nonjudicial foreclosure sale....
...ning, this Court will not deem a statute unconstitutionally vague merely because it "could be more artfully drafted." Davenport v. Davenport,
243 Ga. 613, 615(2),
255 S.E.2d 695 (1979). (d) There is no question that the Legislature, by enacting OCGA §
9-13-172.1, intended to address the limitation of damages in civil actions by purchasers for property sold in certain judicial and certain nonjudicial sales that are later rescinded....
...ich clearly establishes the error of JIG's assertion that the statute's "only purpose and intent" is damages limitation. JIG has failed to show how any person of common intelligence would need to guess at the meaning of the damages provision in OCGA §
9-13-172.1 or would differ as to its application. Although JIG asserts that there are no damages in a legally rescinded contract that are in need of limitation, the Legislature decided otherwise in regard to those contracts legally rescinded pursuant to OCGA §
9-13-172.1....
...State of Ga.,
232 Ga. 547, 554(3),
208 S.E.2d 93 (1974) ("[t]he legislature is absolutely unrestricted in its power to legislate, so long as it does not undertake to enact measures prohibited by the State or Federal Constitution. [Cits.]"), and nothing in OCGA §
9-13-172.1 is rendered unconstitutionally vague by the Legislature's exercise of its discretion....
...Thus, even assuming, arguendo, that JIG's arguments in this regard properly pertain to a vagueness challenge, we find them to be without merit. (e) JIG asserts in its final argument that the statute is void for vagueness because a person must guess if OCGA §
9-13-172.1(d)(3) *825 ever applies, in that it authorizes rescission based upon "an enforceable promise by the defendant to cure the default" yet case law holds that agreements to forbear foreclosure are unenforceable unless supported by new consideration from the borrower....
...639(2),
4 S.E.2d 561 (1939) (agreement on part of one to do what he is already legally bound to do is not a sufficient consideration for the promise of another); All Fleet Refinishing v. West Georgia Nat. Bank,
280 Ga. App. 676(9),
634 S.E.2d 802 (2006). However, in situations where a lender is utilizing OCGA §
9-13-172.1(d)(3) to rescind a sale of the borrower's property based upon the borrower's promise to cure the default, any person of common intelligence would understand that the lender and borrower have entered into an enforceable agreement. Accordingly, because JIG has completely failed to carry its burden of showing that OCGA §
9-13-172.1 is unconstitutionally vague in any of its applications, see Catoosa County v....
...at 374,
651 S.E.2d 7; Jekyll Island-State Park Auth. v. Jekyll Island Citizens Assn., supra,
266 Ga. at 153(2),
464 S.E.2d 808, the trial court did not err by upholding the constitutionality of the statute. 3. JIG contends that the trial court erred by failing to find OCGA §
9-13-172.1 could not be applied retroactively [4] so as to add its provisions to the powers granted Countrywide in the June 2003 mortgage transaction between appellees because the statute was not effective until July 1, 2003. See Ga. L.2003, p. 413; OCGA §
1-3-4(a)(1). However, it is uncontroverted that JIG was not a party to the transaction between appellees and the sale in this case did not occur until March 6, 2007, well after the effective date of OCGA §
9-13-172.1. This enumeration is without merit. 4. Given our holdings above that the trial court properly upheld the constitutionality of OCGA §
9-13-172.1 and correctly found that Countrywide was authorized to and properly did rescind the sale to JIG, we need not address JIG's remaining arguments. [5] Judgment affirmed. All the Justices concur, except NAHMIAS, J., who concurs in judgment only as to Division 2(b). NOTES [1] E.g., JIG argues that, because of the past tense use of "was" in the language in OCGA §
9-13-172.1(d), i.e., that the eligible sale "was rescinded due to ......
...[t]he default leading to the sale being cured prior to the sale," the statute cannot be read as meaning that curing of the default is a ground for rescission because the rescission (past tense) had already occurred. [2] Although JIG asserts that, in assessing the clarity of OCGA §
9-13-172.1, this Court must view the statute from the perspective of foreclosure sale purchasers because they are the persons to whom the statute is directed, see Bryan v....
