MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
the second appearance before us of this case, which arises
from Fei Zhong's action for breach of contract,
negligence, and wrongful foreclosure against Wells Fargo
Bank, N. A. and PNC Bank, N. A. In Zhong v. PNC Bank, N.
A., 334 Ga.App. 653 (780 S.E.2d 92) (2015) (Zhong
I), we reversed the trial court's grant of summary
judgment to Wells Fargo and PNC on the ground that the trial
court based his ruling on an erroneous legal theory - that
Zhong could seek as damages only her equity in the property
at issue - and we remanded the case to the trial court for
further proceedings. On remand, and after further evidence
and a hearing, the trial court again granted summary judgment
to Wells Fargo and PNC, and Zhong appeals.
detailed below, Wells Fargo is not entitled to summary
judgment because the well-pled allegations of Zhong's
complaint - as to which Wells Fargo defaulted - have
established its liability and there exist genuine issues of
material fact on the amount of damages, which is the only
question remaining for resolution. PNC, on the other hand, is
entitled to summary judgment on Zhong's claims for breach
of her security deed and negligence based on a breach of its
duties under the Real Estate Settlement Procedures Act
(RESPA), but it is not entitled to summary judgment on
Zhong's claim for wrongful foreclosure. And although
Zhong's oral agreement with PNC regarding her monthly
payment is not enforceable, she has pointed to facts allowing
her to pursue a claim for breach of that agreement under the
theory of promissory estoppel.
therefore affirm in part and reverse in part the trial
Facts and procedural posture.
review a grant of summary judgment de novo and the evidence,
and all reasonable conclusions and inferences drawn from it,
in the light most favorable to the nonmovant." Zhong
I, 334 Ga.App. at 653 (1) (citation omitted). So viewed,
the evidence at the time of Zhong I showed:
Zhong purchased the property, a house, in 2004 for $600, 000.
She first lived in the house and then leased it to tenants.
In 2005, PNC bought the loan Zhong used to purchase the
For more than six years, Zhong paid her mortgage without
incident. On March 31, 2010, PNC paid Zhong's delinquent
2009 property taxes, more than $11, 000. Months later, PNC
informed Zhong that she had an escrow shortage of $23, 310.98
that had to be paid over 12 months. It established an escrow
account and informed her that her monthly payment would be
increased to $5, 527.06. Zhong's payment had been $2,
731.11. Zhong immediately called PNC to ask for an
explanation and was told that PNC would investigate the
matter but she should keep making the current payment.
In November 2010, Zhong paid $2, 731.11, which PNC applied to
principal and interest, but asked Zhong to pay the difference
of $2, 795.97. In December 2010 and January 2011, Zhong paid
$2, 838.92, which PNC applied to the negative escrow balance.
PNC wrote Zhong, notifying her of the insufficiency of the
payments, in letters mailed to the property address. Zhong
again contacted PNC, not having received an explanation from
the investigation that PNC earlier had promised, to ask how
PNC determined the amount owed and for an explanation of the
Eventually PNC told Zhong that the increase reflected an
increase in her escrow payment but it did not explain why the
increase was necessary. In January 2011, PNC and Zhong agreed
that Zhong would make payments of $3, 891.98 for the next
five years, retroactive to December 2010, and PNC sent Zhong
a coupon book reflecting payments due in that amount, with
the first coupon due February 2011.
The day after reaching that agreement, on January 28, 2011,
Zhong made a payment of $3, 891.98. PNC returned the check,
with a letter stating that the payment did not "meet
current acceptance guidelines." Zhong mailed payments of
$3, 891.98 in February and March 2011 through an overnight
delivery service and using her online banking account, but
PNC returned the payments. Zhong again contacted PNC for an
explanation, but received none. She hired counsel and
instructed PNC to direct all communication to him.
In the meantime, on January 20, 2011, PNC sent a letter to
Zhong at the property address that she was in breach and that
if she failed to pay a $16, 990.96 deficiency by February 19,
2011, it would accelerate the loan. In March 2011, PNC wrote
Zhong that she owed $560, 000, that Wells Fargo was the
creditor, and that PNC was the servicer. Zhong called the
number listed on the letter, but received no explanation. Her
attorney contacted PNC, and eventually PNC said that it would
forebear foreclosure. Per PNC's request, Zhong repeatedly
submitted a hardship application and related documents.
In 2012, Wells Fargo foreclosed on the property. Neither
Zhong nor her counsel received notice of the foreclosure
sale, which was sent to the vacant property address even
though Zhong had instructed PNC to direct all communications
to counsel. As a result, Zhong lost the property, her credit
was damaged, and she was "devastat[ed] and
Zhong I, 334 Ga.App. at 653-654 (1). We also
described in our prior opinion the procedural posture of
Zhong's first appeal:
Zhong filed this action against PNC and Wells Fargo, claiming
breach of contract, wrongful foreclosure, and negligence, and
seeking damages, punitive damages, and attorney fees. Wells
Fargo did not timely answer the complaint, and the trial
court entered default against it.
Wells Fargo and PNC filed separate motions for summary
judgment. The trial court conducted a hearing, received
supplemental briefing, and granted the defendants summary
judgment. The court ruled that, in the face of the evidence
of Zhong's lack of equity, her failure to point to
specific evidence that she had equity in the property
entitled the defendants to summary judgment. Although the
order did not specifically address the negligence or breach
of contract claims, the trial court directed the clerk to
close the case.
Zhong I, 334 Ga.App. at 654-655 (1).
appeal in Zhong I, we reversed the grant of summary
judgment to Wells Fargo and PNC, holding that "[t]he
trial court erred by adopting the argument that Zhong's
damages were limited to equity in the property and that
because she had no equity, the defendants were entitled to
summary judgment." Zhong I, 334 Ga.App. at 655
(2). Because the trial court did not address other arguments
Wells Fargo and PNC had raised in their summary judgment
motions, we remanded the case for further proceedings not
inconsistent with our opinion. Id. at 656 (2).
remand, the trial court reopened discovery, which explored
the nature of Zhong's claimed damages, among other
things. Zhong stated in response to interrogatories that she
was damaged by the wrongful foreclosure in several respects,
including: "losing her custom-built dream house . . .,
the money she put into the house and its value, damage to her
credit, . . . damage to her overal[l] well-being, and damage
from having to go through the entire ordeal." As to her
credit, she gave deposition testimony that there is a
"negative thing on [her] credit report" from the
foreclosure and that the limits on several of her credit
cards were severely curtailed, other credit cards were
closed, and her current credit status prevents her from
renting an apartment or obtaining a car loan. But she could
not testify to a specific calculation of the damage she
sustained from the damaged credit. Zhong also testified that
the experience of losing her house in the foreclosure caused
her physical and emotional pain and suffering.
Summary judgment to Wells Fargo.
Enumeration of errors.
enumerates as error the trial court's grant of summary
judgment to Wells Fargo. As an initial matter, we reject
Wells Fargo's assertions that "[t]his enumeration
failed to identify any specific error of law or fact" by
the trial court and that Zhong "did not appeal"
certain aspects of the trial court's summary judgment
order. "An error of law has as its basis a specific
ruling made by the trial court." Felix v.
State, 271 Ga. 534, 539 (523 S.E.2d 1) (1999). The trial
court's grant of summary judgment to Wells Fargo is a
specific ruling made by the trial court, and Zhong's
enumeration of that ruling as error is sufficient to place