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Peters v. CertusBank Nat'l Ass'n

Court of Appeals of Georgia

September 8, 2014

PETERS et al.
v.
CERTUSBANK NATIONAL ASSOCIATION

Foreclosure. Greene Superior Court. Before Judge Brown.

Knight Johnson, James M. Johnson, Todd N. Robinson, for appellants.

Harrison & Horan, Victor J. Harrison, for appellee.

Ray, J., concurs. Andrews, P. J., concurs in judgment only.

OPINION

Page 499

McFadden, Judge.

Bruce and Judie Peters appeal from the trial court's order confirming a nonjudicial foreclosure sale conducted by CertusBank National Association. They argue that the confirmation was improper because CertusBank had not complied with OCGA § 44-14-162.2, which among other things requires lenders to notify borrowers of the initiation of foreclosure proceedings through written notice sent according to specified methods of mailing. Because CertusBank did not send the notice by the proper method, we reverse.

1. Facts and procedural background.

On appeal from the confirmation of a nonjudicial foreclosure sale, we " apply a de novo standard of review to questions of law decided by the trial court." Mackey v. Fed. Nat. Mtg. Assn., 294 Ga.App. 495, 496 (669 S.E.2d 397) (2008) (citation omitted). We will not overturn the trial court's decision regarding confirmation if there is any evidence to support the decision, and we review the evidence in the light most favorable to the trial court's judgment. Wilson v. Prudential Indus. Properties, 276 Ga.App. 180, 180-181 (1) (622 S.E.2d 890) (2005).

So viewed, the evidence shows that in 2008, the Peterses executed a security deed in connection with a loan encumbering a vacant lot. Among other things, the security deed required the lender to give the Peterses notice prior to accelerating the debt or exercising its right to power of sale. The security

Page 500

deed and other loan documents were assigned to CertusBank.

On June 21, 2012, CertusBank's attorney sent a letter to the Peterses via certified mail, notifying them that they had breached their loan agreement, that CertusBank demanded immediate payment of the debt, that they could cure the breach by payment of a particular sum by a particular date, that their failure to cure the breach " may result in the acceleration of the total sums secured ... and foreclosure and sale of your property," that they had a right to reinstate the loan or assert legal defenses in a court action, and that [329 Ga.App. 30] they might be liable for attorney fees. In the June 21 letter, CertusBank also expressly reserved its right to exercise any remedies available to it under the security deed and other loan documents.

On June 25, 2012, CertusBank's attorney sent the Peterses a letter titled " Notice of Foreclosure Sale for Property," this time via first-class mail. The June 25 letter enclosed a notice of sale informing the Peterses of the date, place, and time of a scheduled foreclosure sale of the encumbered property. The June 25 letter further provided, " [p]ursuant to OCGA ยง 44-14-162.2," the name, address, and telephone number of a CertusBank employee with full authority to negotiate, amend, or modify the terms of the security deed. Finally, the June 25 ...


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