Collateral estoppel. Fulton Superior Court. Before Judge Baxter.
C. Samuel Rael, for appellant.
McCalla Raymer, Steven J. Flynn, Jimmy T. Howell, Jr., Baker, Donelson, Bearman, Caldwell & Berkowitz, Joshua N. Tropper, for appellees.
Doyle, P. J., and
Dillard, J., concur in judgment only.
Nathaniel Garner sued U.S. National Bank Association, Wells Fargo Home Mortgage, Inc., and McCalla Raymer, LLC (collectively " the Defendants" ) for wrongful foreclosure, fraud, intentional infliction of emotional distress, trespass to real property, and defamation of title for actions arising out of foreclosure proceedings and an ensuing dispossessory action. The Defendants moved to dismiss Garner's complaint, arguing, inter alia, that Garner's claims were barred by collateral estoppel because a prior federal lawsuit dismissed similar claims on the ground that Garner lacked standing. Following a hearing, the trial court granted the Defendants' motion, and this appeal ensued. On appeal, Garner contends that the trial court erred in granting the Defendants' motion because it conducted a hearing on the motion without providing prior notice, and the underlying issues were not previously adjudicated on the merits. For the reasons that follow, we reverse.
As an initial matter, we consider the procedural posture of this case and the applicable standard of review. OCGA § 9-11-12 (b) provides in pertinent part that " [i]f, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in [OCGA § ] 9-11-56[.]" As explained below, the trial court considered matters outside the pleadings in this case. [329 Ga.App. 87] Therefore, we will treat the appealed order as one granting summary judgment to the Defendants. Fernandez v. WebSingularity, Inc., 299 Ga.App. 11, 13 (1) (681 S.E.2d 717) (2009). We review a trial court's grant of summary judgment de novo, construing the evidence and all reasonable inferences in the light most favorable to the nonmoving party. Id.
So viewed, the record shows that on or about August 31, 2004, nonparty Marsha W. Meade executed a promissory note in the amount of $246,881 and a security deed (the " Security Deed" ) in favor of Secursource Mortgage, LLC, for the purchase of a condominium located at 3338 Peachtree Road, N.E., #2804, in Atlanta (the " Property" ). In August 2007, Secursource assigned the Security Deed to Wells Fargo Home Mortgage, Inc. (" Wells Fargo" ).
In December 2008, Meade sold the Property to Garner and executed a warranty deed. However, the warranty deed stated on its face that the transfer of the Property was still subject to the Security Deed.
On February 5, 2010, after Meade defaulted on the promissory note, McCalla Raymer caused a notice of foreclosure under power of sale to be advertised by publication, and the notice indicated that the foreclosure sale of the Property was to occur on March 2, 2010. McCalla Raymer also mailed a letter to Garner notifying him of the foreclosure sale. Prior to the foreclosure sale, Wells Fargo assigned the Security Deed to U.S. Bank National Association (" U.S. Bank" ).
One day before the foreclosure sale, Garner filed suit against Wells Fargo in Fulton County Superior Court, alleging that Wells Fargo could not conduct the foreclosure sale because it did not own the promissory note or Security Deed (the " Wells Fargo suit" ). In his complaint, as amended, Garner asserted claims for wrongful foreclosure, breach of a duty to act in good faith, and fraud. On March 2, 2010, U.S. Bank foreclosed on and bought the Property at the foreclosure sale.
The Wells Fargo suit was removed to the federal district court and dismissed on the ground that Garner lacked standing to challenge the foreclosure process. See Garner v. Wells Fargo Home Mtg., 505 F.Appx. 837 (11th Cir. 2013). In affirming the dismissal of Garner's suit against Wells Fargo, the United States Court of Appeals [329 Ga.App. 88] for the Eleventh Circuit held that Garner lacked standing to complain of defects in the foreclosure sale of the Property because Meade was the sole mortgagor of the Property and the only person who might have been injured ...