P. J., COOMER and MARKLE, JJ.
Wells appeals from the trial court's order
granting summary judgment to Regions Bank and denying her
motion for summary judgment in Regions Bank's breach of
contract suit for money due on a line of credit following
foreclosure of the property. On appeal, Wells argues that the
trial court erred because Regions Bank was required to seek
judicial confirmation of the foreclosure before filing the
breach of contract suit. After a thorough review of the
record, and for the reasons that follow, we affirm the trial
court's order denying Wells's motion for summary
judgment, vacate the trial court's order granting summary
judgment to Regions, and remand the case for further
appeal, we review the grant or denial of summary judgment de
novo, construing the evidence and all inferences in a light
most favorable to the nonmoving party." (Citation
omitted.) LeCroy v. Bragg, 319 Ga.App. 884, 885 (1)
(739 S.E.2d 1) (2013).
viewed, the record shows that in 1998, Susan and her
then-husband Gordon Wells (collectively "the
Wellses") purchased property in Gainesville, Georgia.
The following year, they obtained a construction loan in the
amount of $459, 750 to build a house on the property, and
they executed a security deed in favor of Regions using the
property as collateral. Later that year, they modified this
loan to increase the amount of funds to $479, 200.
2002, the Wellses opened a revolving line of credit in the
amount of $100, 000. They executed a second security deed in
favor of Regions, using the same property to secure the loan.
They used these funds to repair stucco and make other home
improvements. The following month, the Wellses purchased the
adjacent lakefront property.
2005, they opened a second line of credit ("the 2005
line of credit"), and Regions modified the May 2002
security deed to increase the amount of the loan to $240, 000
to reflect the new line of credit. This 2005 line of credit
was used to pay off the initial line of credit obtained in
2002 and build a dock on the adjacent property.
and Gordon divorced in 2008. Under the terms of the divorce
settlement, Gordon retained the marital property and was to
remove Susan's name from the mortgage and sell or
refinance the property.
the Wellses initially made all the payments on the 2005 line
of credit, Gordon experienced financial problems after the
divorce and ceased making payments, leaving a debt in excess
of $200, 000. In 2010, Regions entered into a forbearance
agreement with the Wellses regarding the outstanding debt on
the 2005 line of credit. In this agreement, the Wellses
promised to make monthly payments with a final balloon
payment due at the end of the term. Additionally, per the
terms of this agreement, any default would result in the
entire amount being due immediately in full. Gordon made the
payments under the forbearance agreement as required until
August 2012 when he defaulted.
this same time, Gordon also failed to make the required
payments on the construction loan. As a result of the default
on the construction loan, Regions foreclosed on the property,
selling it at public auction by deed under power of sale for
$335, 000. Regions then filed a breach of contract action
against the Wellses, seeking to collect on the outstanding
amount of the 2005 line of credit under the forbearance
Regions and Susan moved for summary judgment. Susan argued that
the failure to seek judicial confirmation of the foreclosure
waived any right to collect the debt under OCGA §
44-14-161 (a) and barred the instant breach of contract
claim. In response, Regions argued that the confirmation
requirement in OCGA § 44-14-161 (a) did not apply
because the instant suit was not a post-foreclosure
deficiency action, and the two loans at issue were not
inextricably intertwined such that confirmation would be
required. Thus, Regions argued that it was entitled to
summary judgment on its breach of contract claim.
a hearing, the trial court denied Susan's motion and
granted Regions's motion. The trial court found that
Regions's suit was not a deficiency action, and the
construction loan and 2005 line of credit were not
inextricably intertwined because they did not serve the same
purpose, and therefore confirmation was not required under
OCGA § 44-14-161 (a). Thus, the trial court concluded
that the Wellses breached the forbearance agreement and were
liable for the outstanding debt. This appeal followed.
series of inter-related arguments, Susan contends that the
trial court erred in denying her motion for summary judgment
and in granting Regions's motion because the loans were
inextricably intertwined, and thus the instant suit was
barred by the failure to seek judicial confirmation of the
foreclosure sale. We conclude that Susan has raised a
factual issue that precluded summary judgment.
deficiency judgment is the imposition of personal liability
on mortgagor for unpaid balance of mortgage debt after
foreclosure has failed to yield full amount of due
debt." (Citation omitted.) Iwan Renovations, Inc. v.
North Atlanta Nat. Bank, 296 Ga.App. 125, 127 (1) (673