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PNC Bank, N.A. v. Tidwell

Court of Appeals of Georgia

July 16, 2014

PNC BANK, N.A.
v.
TIDWELL et al

Foreclosure. Fulton Superior Court. Before Judge Johnson.

Ballard Spahr, Christopher J. Willis , Stefanie H. Jackman , Charley F. Brown, for appellant.

Pamela L. Coleman , Sell & Melton, Edward S. Sell III, for appellees.

MCFADDEN, Judge. Barnes, P. J., and McMillian, J., concur.

OPINION

Page 120

McFadden, Judge.

In Nat. City Mtg. Co. v. Tidwell, 293 Ga. 697 (749 S.E.2d 730) (2013), the Supreme Court of Georgia reversed our decision in PNC Bank, N.A. v. Tidwell, 317 Ga.App. 275 (728 S.E.2d 786) (2012), in which we dismissed this appeal for lack of standing. The Supreme Court remanded the case for this court to consider the merits of the appeal.

The merits involve the interplay between a contractual provision in a security deed, which requires notice containing certain specified information before foreclosure, and OCGA § 44-14-85, which provides that, when foreclosure proceedings are withdrawn after acceleration, the debt is reinstated on pre-acceleration terms. We hold that the trial court erred by finding that, as a matter of law, there was no distinction between the bank's cancellation of advertised foreclosure sales and the " withdrawal" contemplated by the statute. Consequently, the trial court erred by granting summary judgment to the plaintiffs on their breach of contract claim against the bank, and we reverse.

[328 Ga.App. 355] A trial court may grant summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). " We review the grant or denial of a motion for summary judgment de novo, and we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant." Woodcraft by MacDonald v. Ga. Cas. & Surety Co., 293 Ga. 9, 10 (743 S.E.2d 373) (2013) (citation and punctuation omitted).

Viewed in this light, the evidence shows that on April 1, 2003, Jennifer and Truman Littleton refinanced the loan on their home with First Southern Guarantee Financial Corporation, which assigned the loan and security deed to the bank.

At some point, the bank stopped crediting the Littletons' monthly payments to their account because, it contends, the amount of the payments was insufficient, due to a need for an increase in the amount of escrow account funds in order to pay increased taxes. In fact, the bank began returning the Littletons' checks, stating that it was " unable to accept" them because they were " not [the Littletons'] total monthly payment." The plaintiffs,[1] on the other hand, contend that the Littletons had made overpayments and even had made an extra mortgage payment in advance of and in anticipation of the increased taxes and corresponding need for an increase in the amount in the escrow account.

According to the bank, the Littletons' deficit continued to grow. On April 2, 2004, the bank wrote the Littletons that they were in breach of the security deed for nonpayment; that should they fail to cure the breach with a payment of more than $11,000, the maturity date of the note would be accelerated; and that they could face foreclosure. The bank

Page 121

scheduled a foreclosure sale of the property for ...


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