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Wilson v. Mountain Valley Community Bank

Court of Appeals of Georgia, Second Division

July 10, 2014

WILSON
v.
MOUNTAIN VALLEY COMMUNITY BANK

Editorial Note:

This opinion is uncorrected and subject to revision by the court.

McFADDEN, Judge. Andrews, P. J., and Ray, J., concur.

OPINION

McFadden, Judge.

Daniel Wilson filed a complaint against Mountain Valley Community Bank, setting forth counts for tortious interference with business relations, intentional infliction of emotional distress, wrongful foreclosure, civil conspiracy to impair property rights, punitive damages and attorney fees. The trial court granted summary judgment to the bank on all counts. Wilson appeals, conceding that the trial court correctly granted summary judgment on the tortious interference and emotional distress counts, but claiming that the court erred in granting summary judgment on the other counts, that there was spoliation of evidence and that there should have been further discovery. Because there exist no genuine issues of material fact, Wilson has not shown prejudice from the purported spoliation, and he has not shown an abuse of discretion by the trial court in refusing further discovery, we affirm.

1. Summary judgment .

" On appeal from the grant of summary judgment this [c]ourt conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." Campbell v. Landings Assn., 289 Ga. 617, 618 (713 S.E.2d 860) (2011) (citations omitted).

So viewed, the evidence shows that on March 2, 2007, Wilson borrowed $303,689 from the bank, executing a note in that principal amount in favor of the bank and a deed to secure debt, which pledged certain real property in Jefferson, Georgia as security. The note was renewed multiple times, with the last renewal set to mature on April 28, 2009. Wilson defaulted on the note, and in July 2009, the bank commenced foreclosure proceedings against the property. Thereafter, the bank agreed to halt the foreclosure proceedings in exchange for a $25,000 payment. The parties entered into a debt modification agreement, which provided that the note had to be paid in full by October 30, 2009, or the bank would commence foreclosure proceedings.

After Wilson again defaulted on the note, the bank notified him of the default and of its commencement of foreclosure proceedings. The foreclosure sale was held on December 1, 2009, and the bank purchased the property for the note balance of $258,846. After the foreclosure sale, the bank received similar offers to purchase the property from real estate developer Mark Linkesh, and from Chris Worley, a friend of Wilson. The bank ultimately accepted Linkesh's offer and sold the property to him for $270,000, plus payment of unpaid property taxes, for a total sales price of $275,085.

a. Wrongful foreclosure .

A " security deed which includes a power of sale is a contract and its provisions are controlling as to the rights of the parties thereto and their privies. In exercising a power of sale, the foreclosing party is required only to advertise and sell the property in accordance with the terms of the instrument and to conduct the sale in good faith." Rapps v. Cooke, 246 Ga.App. 251, 253 (1) (540 S.E.2d 241) (2000) (citations and punctuation omitted).

Here, Wilson suggests that the bank did not conduct the sale in good faith because it prevented Linkesh from bidding on the property, causing a reduced sale price below the fair market value of the property. However, the suggestion is baseless as Wilson has pointed to no evidence showing that the bank somehow prevented Linkesh from bidding at the foreclosure sale. Rather, the sale was a matter of public record that Linkesh, like any other member of the public, could have attended.

Moreover, " inadequacy of the price paid upon the sale of property under power of sale contained in a deed to secure debt will not of itself and standing alone be sufficient reason for setting aside the sale." Gordon v. S. Central Farm Credit, 213 Ga.App. 816, 818 (446 S.E.2d 514) (1994) (citation and punctuation omitted).

[T]he duty to sell the property according to the terms of the deed and to conduct the sale in good faith does not include a requirement that a specific amount such as the fair market value of the property be obtained. ... The foreclosing party is not an insurer of the results of his exercise of the power of sale; his only obligation is to sell according to the terms of the deed and in good faith and to obtain the amount produced by such a sale. If the manner in which the sale was conducted is otherwise unobjectionable, the mere fact ...

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