CONYERS 138, LLC et al.
MCFADDEN, P. J., BRANCH and BETHEL, JJ.
138, LLC, Glenn E. Murer, Thomas Kostensky, and Bradley
Taratoot (the "Appellants") appeal from the trial
court's order confirming the purchase of a certain
property by ONH1, LLC, in a foreclosure sale under OCGA
§ 44-14-161. The Appellants argue on appeal that the
trial court erred in confirming the foreclosure sale because,
contrary to the trial court's conclusion that the
property sold for its true market value, the evidence
established instead that the foreclosed property sold for
less than its true market value. However, because we find
evidence in the record to support the trial court's
ruling, we affirm.
§ 44-14-161 (a) requires a creditor who purchases
property in a foreclosure sale to obtain a court order
confirming the sale of real property as a condition of
pursuing a deficiency judgment against the debtor. In order
to confirm the sale, the court must hold a hearing and
determine through the evidence presented that the property
sold for its "true market value" and that the sale
conformed to other procedural and notice requirements. OCGA
§ 44-14-161 (b), (c).
trial court is the trier of fact in a confirmation
proceeding, and an appellate court will not disturb its
findings if there is any evidence to support them."
Nash v. Compass Bank, 296 Ga.App. 874, 875 (676
S.E.2d 28) (2009) (citation omitted). "[W]e do not
determine witness credibility or weigh the evidence and we
view the evidence in the light most favorable to the trial
court's judgment." Chamblee Hotels, LLC v.
Chesterfield Mtg. Investors, Inc., 287 Ga.App. 342, 343
(651 S.E.2d 447) (2007) (footnote omitted).
viewed, the record reveals that Conyers 138, LLC, executed
and delivered to ONH1 a deed to secure debt and security
agreement dated September 28, 2012 (the
"Agreement") for a certain property which included
a former retail space and a parking lot (the
"Property"). Pursuant to the power of sale
provision in the Agreement, ONH1 foreclosed on the Property
in July 2015, selling the Property in a public auction for
the sum of $1, 745, 000. ONH1 was the sole bidder for the
filed a petition for confirmation of the foreclosure sale
soon after. The trial court held a hearing on the petition,
at which it received testimony from the appraiser that had
been hired by ONH1 to value the Property prior to the
foreclosure sale. The appraiser testified that he had
determined that the highest and best use of the Property was
as raw, vacant land and that, in order to determine the value
of the Property with that use, he had to consider the fair
market value of the property, less the expected cost of
demolishing the building on the Property. He testified that
he determined the value of the land (as vacant) to be $2,
510, 000, with $765, 000 deducted for demolition costs, for a
total value of $1, 745, 000. This was the precise amount for
which ONH1 purchased the Property at the foreclosure sale.
appraiser testified that in order to determine the demolition
costs for his appraisal, he requested a cost estimate from a
local demolition company. The owner of the demolition company
testified regarding the demolition estimate his company
provided to the appraiser, noting that he calculated the
estimate using the square footage of the building and parking
lot from Google Earth. From the Google Earth images, he
calculated the square footage of the building on the Property
to be 160, 000 square feet,  which included loading docks,
overhangs, covered walkways, and covered loading docks in the
curtilage of the building. He stated that he then considered
additional factors such as costs for disposal, milling,
equipment, trucking, labor overhead, and profit in providing
a final estimate of the demolition costs. He testified that
the estimate he provided was a fair bid for a demolition job
of that size and character. He also noted that the figure he
provided was a "rough" estimate which was expected
to be within 10 percent above or below the actual cost of
performing the demolition job.
court issued a final order confirming the foreclosure sale of
the Property. This appeal followed.
appeal, the Appellants do not suggest that the
appraiser's estimate of the Property's fair market
value (before demolition costs) of $2, 510, 000 was without
support. Rather, their appeal turns on whether evidence in
the record supports the trial court's underlying
determination that $765, 000 is a fair estimate of the
demolition costs for the Property, such that the price paid
at the foreclosure sale by ONH1, $1, 745, 000, is the true
market value of the Property, as required by OCGA §
44-14-161 (b). We find such evidence in the record before us.
Appellants argue that several statements made by the owner of
the demolition company show his estimate of the demolition
costs to be too high. However, these arguments are
essentially attacks as to his credibility and the credibility
of the appraiser who relied on the estimate. We note that
"what value is, or may have been, is a question of fact
to be resolved as others are. In so doing, the [trial judge]
is the judge of the credibility of the witnesses and of the
weight to be given to the evidence." Fleming v. Fed.
Land Bank of Columbia, 148 Ga.App. 765, 766 (2) (252
S.E.2d 653) (1979). Thus, even though the Appellants question
the demolition company's methodology for determining the
square footage of the building and rely heavily on the
owner's "admission" that the estimate he
provided may deviate by as much as 10 percent from the actual
cost of the demolition job, each of these points raised by
the Appellants give rise to questions of fact that were
properly before the trial court to consider and resolve.
See Chamblee Hotels, 287 Ga.App. at 343-45.
Therefore, as we find evidence in the record supporting the
trial court's determination that the price paid by ONH1
represented the true market value of the Property, we affirm
the trial court's order confirming the foreclosure sale.
McFadden, P J, and ...