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Wells Fargo Bank, N.A. v. Molina-Salas

Court of Appeals of Georgia

June 29, 2015

WELLS FARGO BANK, N.A. et al.
v.
MOLINA-SALAS

Wrongful foreclosure. Gwinnett Superior Court. Before Judge Miles, pro hac vice.

Baker, Donelson, Bearman, Caldwell & Berkowitz, Joshua N. Tropper, Dylan W. Howard, Daniel P. Moore, for appellants.

Smith Law, William J. Smith; Locke Lord, Alexandra M. Dishun, John H. Williamson, for appellee.

DILLARD, Judge. Ellington, P. J., and McFadden, J., concur.

OPINION

Page 713

Dillard, Judge.

We granted an interlocutory appeal to Wells Fargo Bank, N.A. (" Wells Fargo" ) and Federal Home Loan Mortgage Corporation (" Freddie Mac" ) to consider whether the trial court erred in denying their motion for summary judgment on Maria M. Molina-Salas's claim for wrongful foreclosure. Because we conclude that Wells Fargo and Freddie Mac were entitled to summary judgment, we reverse.

The pertinent facts are undisputed. In April 2007, Molina-Salas obtained a loan and executed a promissory note in favor of Wells Fargo. She secured the note with a security deed to real property (the " Property" ) that granted Wells Fargo a power of sale. The security deed was recorded in the deed book of Gwinnett County and contained a complete and accurate legal description of the Property, including a reference that it was specifically located in the 6th District of Gwinnett County.

Molina-Salas defaulted on the loan and, after issuing several demands that she pay the deficiency and bring the loan current, Wells Fargo sent notice in January 2011 that it intended to foreclose on the Property. The notice included a copy of the advertisement to be published in the legal organ for Gwinnett County for four consecutive weeks. The advertisement noted that Molina-Salas was in default under the terms of the note and security deed (which it referenced by deed book and page number), and further contained the legal description, address, and recording data, including the plat book and page number, of the Property. But due to a typographical error, the advertisement wrongly identified the Property as lying in the 5th, as opposed to the 6th, District of Gwinnett County. The description, address, and recording data were otherwise correct. After running for two weeks, the error in the

Page 714

advertisement was discovered, at which time it was corrected and the last two weeks of the advertisement accurately identified the Property as lying in the 6th District.

In March 2011, the foreclosure sale was conducted and Wells Fargo was the successful bidder. Wells Fargo subsequently conveyed the property to Freddie Mac. Molina-Salas filed the instant wrongful foreclosure action arguing, inter alia, that the typographical error in the property description of the advertisement that ran for two of the four weeks it was published rendered the foreclosure sale void and, further, that Wells Fargo's failure to send her an amended copy of the advertisement once the error had been identified and corrected amounted to insufficient notice under the applicable notice statutes. The trial court denied Wells Fargo and Freddie Mac's motion for [332 Ga.App. 642] summary judgment as to these two issues, and we granted their application for interlocutory appeal to consider whether the trial court erred in doing so.

At the outset, we note that summary judgment is proper when " there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law," [1] and we review the grant or denial of a motion for summary judgment de novo.[2] With the foregoing in mind, we turn now to Wells Fargo and Freddie Mac's enumerations of error.

1. To assert a viable claim for wrongful foreclosure, a plaintiff must establish a " legal duty owed to it by the foreclosing party, a breach of that duty, a causal connection between the breach of that duty and the injury it sustained, and damages." [3] The legal duty imposed upon a foreclosing party under a power of sale is to exercise that power fairly and in good faith.[4]

Wells Fargo and Freddie Mac contend that the trial court erred in denying their motion for summary judgment on Molina-Salas's wrongful-foreclosure claim because they exercised the power of sale fairly and in good faith, and the published advertisement substantially complied with the statutory requirements. Specifically, they argue that the foreclosure sale is not void as a matter of law simply because the advertisement they ran prior to that sale incorrectly identified the district in which the Property resides for two of the four weeks that it was published, and that, in any event, Molina-Salas's claim otherwise fails because she did not present any evidence that bidding at the sale was chilled by the temporary error.

Molina-Salas argues, on the other hand, that Wells Fargo breached its duty to exercise the power of sale fairly and in good faith because the published advertisement twice identifying the Property as lying in the wrong district was defective as a matter of law. She maintains that this error (albeit temporary) renders the resulting foreclosure sale void and, in turn, all subsequent efforts to remove her from the Property unlawful. We disagree.

A nonjudicial foreclosure sale must be advertised in the same manner as that of a judicial foreclosure sale.[5] OCGA § 9-13-140 (a) [332 Ga.App. 643] requires, in part, that the advertisement give a " full and complete [legal] description of the property to be sold." But Georgia's appellate courts have repeatedly

Page 715

emphasized that not every irregularity or deficiency in a foreclosure advertisement will void a sale.[6] Rather, only if an advertisement fails to properly encompass those items required by OCGA § 9-13-140 (a) will it be deemed defective as a matter of law.[7] And if the advertisement is not defective as a matter of law, " the errors in the advertisement will support a wrongful foreclosure claim [only] if the debtor can come forward with evidence that the defects chilled the bidding at the foreclosure sale, causing a grossly inadequate sale price." [8]

The relevant statutes do not otherwise define what constitutes a " legal description" under OCGA § 9-13-140 (a). The trial court nonetheless analogized the statutory requirements imposed when filing maps or plats with the county clerk, which require by way of description " [t]he county, city, town, or village, land district and land lot, and subdivision, if the property lies within a particular subdivision." [9] For purposes of this appeal, it is unnecessary for us to either approve or disapprove of the foregoing jurisprudential analogy or, for that matter, to outline the full spectrum of what will or will not constitute an adequate legal description under OCGA § 9-13-140 (a). In this case, we do nothing more than decline to hold that a published advertisement that mistakenly describes the subject property as lying in the 5th rather than the 6th District for two of the four weeks in which it [332 Ga.App. 644] ran fails as a matter of law to satisfy the " legal description" requirement of that statute.[10] Not only did the advertisement accurately reflect the Property's district for two of the four weeks it ran, but each published advertisement also contained an otherwise accurate description of the Property, its correct physical address, its recording data by plat book and page number, and the recording data of the security deed that contained in its text an accurate legal description of the Property.[11] And it is

Page 716

well established that " reference in a foreclosure advertisement to extrinsic evidence such as official records constitutes 'a sufficient key' to correct a typographical error and show the precise location of the property." [12] Under these particular circumstances, to hold that the error rendered the advertisement defective as a matter of law would " substitute shadow for substance." [13] This, we will not do.

Likewise, Molina-Salas has neither argued nor presented any evidence that the error in the first two advertisements had any chilling effect on the bidding process or caused an inadequate selling price. And in the absence of evidence to the contrary, we will adhere to the principle that " [e]rrors that would not confuse the bidding [332 Ga.App. 645] intentions of any potential bidder of sufficient mental capacity to enter a binding contract for the sale of the real property do not show a chilling of the sale so that a fair market value bid was not obtained." [14] Thus, because there are no facts discernible from the record which can " possibly lead to any other result than payment of the loan or sale of the land for the purpose of paying the debt," [15] we conclude that Wells Fargo and Freddie Mac were entitled to summary judgment on this ground.

2. Wells Fargo and Freddie Mac further assert that they were entitled to summary judgment on Molina-Salas's claim that they failed to provide her adequate notice of the foreclosure sale. Molina-Salas contends that the failure to alert her to the error in the original advertisement and provide her with a second notice containing the corrected advertisement renders both the notice and the ensuing sale void as a matter of law. Again, we agree with Wells Fargo and Freddie Mac.

Molina-Salas's argument is in furtherance of, and appears dependent upon, her contention that the advertisement itself was deficient as a matter of law. And as set forth in Division 1, we flatly reject that position.

Regardless, OCGA § 44-14-162.2 sets forth the necessary items that must be included in a debtor's notice regarding the initiation of proceedings to exercise a power of sale in a security deed,[16] and [332 Ga.App. 646] includes a

Page 717

requirement that the debtor be given a copy of the advertisement to be submitted to the publisher.[17] But other than the inclusion of an advertisement containing a nonfatal typographical error, Molina-Salas makes no assertion that the notice lacked any of the required information mandated by OCGA § 44-14-162.2. Nor has she pointed to any authority or other evidence to support a finding that the description of the Property as lying in the incorrect district--one that she was not aware of until after the foreclosure sale had already been completed--harmed or otherwise impacted her in any way. Her claim, therefore, fails as a matter of law.[18]

For all of the foregoing reasons, we reverse the trial court's order denying summary judgment to Wells Fargo and Freddie Mac on Molina-Salas's claim for wrongful foreclosure.[19]

Judgment reversed.

Ellington, P. J., and McFadden, J., concur.


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