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Abernathy, LLC v. Smith

United States District Court, N.D. Georgia, Atlanta Division

September 30, 2014

ABERNATHY, LLC, Plaintiff,


RICHARD W. STORY, District Judge.

This case comes before the Court on Plaintiff's Motion for Summary Judgment Against Defendant Smith [17]. After a review of the record, the Court enters the following Order.


This case arises out of a mortgage loan transaction (the "Loan") between Plaintiff Abernathy, LLC, ("Abernathy") and Defendant Elizabeth Korwek Smith ("Smith"), securing property located at 540 Oakview Road, Decatur, DeKalb County, Georgia (the "Property"). (Am. Compl., Dkt. [16] at 1-4). In consideration for the Loan, on or about July 27, 2010, Smith executed a promissory note in the principal amount of $131, 931.67, (the "Note" (Ex. C to Am. Compl., Dkt. [16])) payable to Abernathy. (Id. ¶ 10). Smith also executed a Deed to Secure Debt (the "Security Deed" (Ex. D to Am. Compl., Dkt. [16])) that transferred legal title to Abernathy while allowing Smith to retain an equitable interest in the property. (Id. ¶ 11-12).

Smith defaulted on the Loan in or before January 2012, and has made no payment on the Loan since 2012. (Id. ¶ 13-14). Abernathy began foreclosure proceedings in January 2012, with foreclosure sale of the Property scheduled for September 4, 2012. (Id. ¶ 16). On September 2, 2012, Smith filed a voluntary Chapter 13 proceeding, Case. No. 12-72025, in the U.S. Bankruptcy Court for the Northern District of Georgia (the "first bankruptcy case"). (Id. ¶ 17). Pursuant to 11 U.S.C. § 362(a), the foreclosure proceedings were automatically stayed, and Abernathy ceased all foreclosure actions. (Id. ¶¶ 18-20). On December 7, 2012, the first bankruptcy case was dismissed, terminating the stay pursuant to 11 U.S.C. § 349; Abernathy recommenced foreclosure proceedings, noticing and scheduling the foreclosure sale for February 5, 2013. (Id. ¶ ¶ 22-24.)

On February 4, 2013, Smith again filed a voluntary Chapter 13 proceeding, Case No. 13-52415, in the U.S. Bankruptcy Court for the Northern District of Georgia (the "second bankruptcy case". (Id. ¶ 25). The foreclosure proceedings were again automatically stayed under 11 U.S.C. § 362(a), and Abernathy again ceased all foreclosure actions. (Id. ¶¶ 26-28).

Relying on its interpretation of 11 U.S.C. § 362(c)(3)(A), Abernathy recommenced foreclosure proceedings by sending a foreclosure letter to Smith on or about March 28, 2013. (Id. ¶ 33; Ex. A to Am. Compl., Dkt. [16].) On April 11, 2013, Abernathy's first notice of the foreclosure proceedings (Ex. B to Am. Compl., Dkt. [16]) was published in the daily newspaper of DeKalb County, The Champion Newspaper, followed by subsequent notices published on April 18, April 25, and May 2, 2013. (Am. Compl., Dkt. [16] ¶¶ 35, 40.) On April 12, 2013, the second bankruptcy case was dismissed. (Id. ¶ 36.) Abernathy conducted a foreclosure sale of the Property on May 7, 2013. (Id. ¶ 41). The Property was purchased at public outcry by Defendant Intown Consulting, LLC ("Intown"), for $228, 000.00. (Id. ¶ 42.)

The proceeds from the foreclosure sale were in excess of what Abernathy was owed under the Note; accordingly, Abernathy attempted to disburse the excess amount of $63, 456.52-calculated in accordance with Georgia law-to Smith. (Id. ¶¶ 44-46.) Smith refused the excess proceeds and claimed that the foreclosure was void; because the initial notices were issued in violation of the automatic stay under 11 U.S.C. § 362(a), Smith claimed the entire proceeding was void ab initio under McKeen v. FDIC , 274 Ga. 46 (2001. (Id. ¶ 47.)

Plaintiff commenced this action seeking a declaratory judgment on the question of whether its foreclosure actions were barred by 11 U.S.C. § 362(a) ("Count I"). (Dkt. [16] ¶¶ 55-56.) Plaintiff seeks this declaration for both the March 28, 2013 foreclosure letter sent to Defendant Smith and the April 11, 2013 notice published in The Champion Newspaper. Plaintiff also sought equitable interpleader for the excess proceeds of the foreclosure sale and a determination of who owns that money ("Count II"). (Id. ¶ 63.) Finally, in the alternative to Count I, Plaintiff seeks a money judgment on the defaulted Note ("Count III". (Id. ¶ 65.)

In its Answer, Defendant Intown states a crossclaim against Defendant Smith, seeking a money judgment for the "fair market rental value of the [P]roperty for each day that Defendant Smith has remained in possession of the property" after Intown obtained a writ of possession against Defendant Smith in DeKalb County court. (Answer, Cross-Cl., & Countercl. of Intown Consulting Grp., Inc. ("Def. Intown's Answer"), Dkt. [3] at 15.) Intown also counterclaims for money damages in the event that the foreclosure sale is found invalid. (Id. at 16-17.) Defendant Smith filed an Answer challenging the Court's subject matter jurisdiction and bringing counterclaims against Plaintiff for wrongful foreclosure, breach of contract, and breach of fiduciary duty. (Answer & Countercls. ("Def. Smith's Answer"), Dkt. [5] at 12-13.)

By Order dated January 15, 2014, the Court granted Plaintiff's Motion to Interplead Funds into the Registry of the Court [10] pursuant to Count II of the Amended Complaint. (Dkt. [11].) Now, Plaintiff moves for summary judgment on Count I of the Amended Complaint and on all of Defendant Smith's counterclaims. (Dkt. [17]. Plaintiff also seeks Summary Judgment on Count III, in the event that the Court holds that the foreclosure was void. (Pl.'s Br. in Supp. of its Mot. for Summ. J. ("Pl.'s MSJ Br."), Dkt. [18-1] at 15.) Discussion

I. Legal Standard

Federal Rule of Civil Procedure 56 requires that summary judgment be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "The moving party bears the initial responsibility of informing the... court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'" Hickson Corp. v. N. Crossarm Co. , 357 F.3d 1256, 1259 (11th Cir. 2004) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (internal quotations omitted)). Where the moving party makes such a showing, the burden shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 257 (1986).

The applicable substantive law identifies which facts are material. Id . at 248. A fact is not material if a dispute over that fact will not affect the outcome of the suit under the governing law. Id . An issue is genuine when the evidence is such that a reasonable ...

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