2020 Georgia Code
Title 44 - Property
Chapter 14 - Mortgages, Conveyances to Secure Debt, and Liens
Article 7 - Foreclosure
Part 1 - In General
§ 44-14-161. Sales Made on Foreclosure Under Power of Sale - When Deficiency Judgment Allowed; Confirmation and Approval; Notice and Hearing; Resale

1. When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.
2. The court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.
3. The court shall direct that a notice of the hearing shall be given to the debtor at least five days prior thereto; and at the hearing the court shall also pass upon the legality of the notice, advertisement, and regularity of the sale. The court may order a resale of the property for good cause shown.

(Ga. L. 1935, p. 381, § 1.)

- For article surveying Georgia cases dealing with commercial law from June 1977 through May 1978, see 30 Mercer L. Rev. 15 (1978). For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For article surveying Georgia cases in the area of real property from June 1979 through June 1980, see 32 Mercer L. Rev. 175 (1980). For article surveying commercial law, see 34 Mercer L. Rev. 31 (1982). For annual survey of commercial law, see 39 Mercer L. Rev. 83 (1987). For annual survey of commercial law, see 43 Mercer L. Rev. 119 (1991). For annual survey on law of real property, see 43 Mercer L. Rev. 353 (1991). For survey article on commercial law, see 44 Mercer L. Rev. 99 (1992). For annual survey article discussing nonjudicial foreclosure sales, see 46 Mercer L. Rev. 95 (1994). For annual survey article on real property law, see 50 Mercer L. Rev. 307 (1998). For annual survey article discussing real property law, see 51 Mercer L. Rev. 441 (1999). For annual survey of real property law, see 56 Mercer L. Rev. 395 (2004). For annual survey of real property law, see 57 Mercer L. Rev. 331 (2005). For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009). For article, "Enforcing Commercial Real Estate Loan Guaranties," see 15 (No. 2) Ga. St. B.J. 12 (2009). For annual survey of law on real property, see 62 Mercer L. Rev. 283 (2010). For article, "Georgia Foreclosure Confirmation Proceedings in Today's Recessionary Real Estate World: Back to the Future," see 16 (No. 4) Ga. St. B.J. 11 (2010). For annual survey on real property, see 66 Mercer L. Rev. 151 (2014). For annual survey of real property law, see 68 Mercer L. Rev. 231 (2016). For comment, "Eleventh Circuit Survey: January 1, 2013 - December 31, 2013: Comment: Confirming the Enforceability of the Guaranty Agreement After Non-Judicial Foreclosure in Georgia," see 65 Mercer L. Rev. 1167 (2014). For comment, "Are Fannie Mae and Freddie Mac State Actors? State Action, Due Process, and Nonjudicial Foreclosure," see 65 Emory L. J. 107 (2015). For comment, "Kicked While They're Down: Deficiency Judgments and the Great Recession," see 67 Emory L.J. 1273 (2018).

ANALYSIS

• General Consideration
• Sales Made on Foreclosure Under Power of Sale
• Confirmation and Approval of Sale
• Hearing
• A. Generally
• B. Notice to Debtor
• C. Advertisement
• Resale

Constitutionality discussed. Hinson v. First Nat'l Bank, 221 Ga. 408, 144 S.E.2d 765 (1965).

O.C.G.A. § 44-14-161, setting the venue for a confirmation hearing in the county where the land lies, is constitutional. Wall v. Federal Land Bank, 240 Ga. 236, 240 S.E.2d 76 (1977).

O.C.G.A. § 44-14-161 does not violate equal protection or due process because there is insufficient state action in the Georgia foreclosure procedure. Alliance Partners v. Harris Trust & Sav. Bank, 266 Ga. 514, 467 S.E.2d 531 (1996).

O.C.G.A. § 44-14-141 is in derogation of the common law and must be strictly construed. Dukes v. Ralston Purina Co., 127 Ga. App. 696, 194 S.E.2d 630 (1972); First Nat'l Bank & Trust Co. v. Kunes, 128 Ga. App. 565, 197 S.E.2d 446, aff'd, 230 Ga. 888, 199 S.E.2d 776 (1973); Southern Mut. Inv. Corp. v. Thornton, 131 Ga. App. 765, 206 S.E.2d 846 (1974); Calvert Fire Ins. Co. v. Environs Dev. Corp., 601 F.2d 851 (5th Cir. 1979); Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980); Taylor v. Thompson, 158 Ga. App. 671, 282 S.E.2d 157 (1981); Bentley v. North Ga. Prod. Credit Ass'n, 170 Ga. App. 361, 317 S.E.2d 339 (1984).

- O.C.G.A. § 44-14-161 was enacted during the depression when many mortgagors were forced into bankruptcy by the deficiency judgments which were sought and obtained against them after mortgagees had acquired the property at nonjudicial foreclosure sales for nominal or depressed prices. Taylor v. Thompson, 158 Ga. App. 671, 282 S.E.2d 157 (1981).

- The intent of the General Assembly in 1935, in adopting O.C.G.A. § 44-14-161, was to provide for debtor relief. First Nat'l Bank & Trust Co. v. Kunes, 230 Ga. 888, 199 S.E.2d 776 (1973); Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867 (1980).

The legislative intention was to have a speedy determination through a bench trial of the specific items stated in O.C.G.A. § 44-14-161. In this way there would be no lengthy litigation which would cloud the title to the property and delay a sale thereof; nor, would the borrower be deprived of the right to a jury trial on meritorious matters involved in the loan transaction. Jones v. Hamilton Mtg. Corp., 140 Ga. App. 490, 231 S.E.2d 491 (1976).

There is no indication of a legislative intent to incorporate, within the reporting provision of O.C.G.A. § 44-14-161, the time requirement of the Civil Practice Act, O.C.G.A. § 9-11-4(c), for service on the debtor within five days from the day the report of sale is presented to the judge. Oviedo v. Connecticut Nat'l Bank, 194 Ga. App. 626, 391 S.E.2d 417, cert. denied, 194 Ga. App. 912, 391 S.E.2d 417 (1990).

The purpose of O.C.G.A. § 44-14-161 is to protect debtors from deficiency judgments when the forced sale of their property brings less than fair market value. Goodman v. Nadler, 113 Ga. App. 493, 148 S.E.2d 480 (1966); United States v. Golf Club Co., 435 F.2d 9 (5th Cir. 1970); First Nat'l Bank & Trust Co. v. Kunes, 128 Ga. App. 565, 197 S.E.2d 446, aff'd, 230 Ga. 888, 199 S.E.2d 776 (1973); Adams v. Gwinnett Com. Bank, 140 Ga. App. 233, 230 S.E.2d 324 (1976), aff'd, 238 Ga. 722, 235 S.E.2d 476 (1977); Colodny v. Krause, 141 Ga. App. 134, 232 S.E.2d 597, cert. denied, 434 U.S. 892, 98 S. Ct. 267, 54 L. Ed. 2d 177 (1977); Calvert Fire Ins. Co. v. Environs Dev. Corp., 601 F.2d 851 (5th Cir. 1979); Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867 (1980); Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980); Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144 (N.D. Ga. 1981).

The Georgia confirmation proceeding is designed to protect a debtor from a deficiency judgment when the nonjudicial foreclosure sale brings less than the property's fair market value. It is a prerequisite to obtaining a deficiency judgment. Bank of Am. Nat'l Trust & Sav. Ass'n v. Virginia Hill Partners, 110 Bankr. 84 (Bankr. N.D. Ga. 1989).

The purpose of O.C.G.A. § 44-14-161 is to protect debtors from deficiency judgments when the forced sale of their property brings less than the fair market value. Commercial Exch. Bank v. Johnson, 197 Ga. App. 529, 398 S.E.2d 817 (1990).

§ 44-14-161 analogous to commercial reasonableness requirement. - The Georgia confirmation statute is analogous to the commercial reasonableness requirement in personal property situations. United States v. Yates, 774 F. Supp. 1368 (M.D. Ga. 1991).

O.C.G.A. § 44-14-161 is a debtor's relief Act to subject a land foreclosure sale under a power to the scrutiny of the court. Wall v. Federal Land Bank, 240 Ga. 236, 240 S.E.2d 76 (1977).

O.C.G.A. § 44-14-161 provides the debtor with protection against an unfair deficiency claim and not with a basis for seeking damages in the event the sale does not result in obtaining the fair market value of the property. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867 (1980).

- Although O.C.G.A. § 44-14-161 does not expressly provide to the contrary, the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, is not applicable to require service upon a debtor of a creditor's application for confirmation of a non-judicial foreclosure sale of real property, since such an application is not a "complaint" within the meaning of O.C.G.A. § 9-11-4(a). Vlass v. Security Pac. Nat'l Bank, 263 Ga. 296, 430 S.E.2d 732 (1993).

In the case of a loan secured by both real and personal property, the provision of O.C.G.A. § 11-9-504 for liquidation of the guarantor's personal property "in a commercially reasonable manner" did not apply where the lender chose to exercise its "rights and remedies in respect of the real property" as permitted under former O.C.G.A. § 11-9-501(4). Senske v. Harris Trust & Sav. Bank, 233 Ga. App. 407, 504 S.E.2d 272 (1998).

- O.C.G.A. § 44-14-161(a) governs actions between a defendant debtor and the Small Business Administration (SBA) in which the SBA seeks to recover the deficiency. United States v. Yates, 774 F. Supp. 1368 (M.D. Ga. 1991).

O.C.G.A. § 18-2-1 gives an expansive definition of "debtor" as the term should be understood in O.C.G.A. § 44-14-161. First Nat'l Bank & Trust Co. v. Kunes, 230 Ga. 888, 199 S.E.2d 776 (1973).

O.C.G.A. § 44-14-161, by using the word "debtor," included all who were presently subject to payment of the debt, or who might be subjected to payment thereof, if within the knowledge of the payee of the note. First Nat'l Bank & Trust Co. v. Kunes, 128 Ga. App. 565, 197 S.E.2d 446, aff'd, 230 Ga. 888, 199 S.E.2d 776 (1973).

The term "debtor" in O.C.G.A. § 44-14-161(c), appears to refer to the debtor on the underlying debt, i.e., the promissory note, as that is the only party against whom the deficiency may be enforced. Commercial Exch. Bank v. Johnson, 197 Ga. App. 529, 398 S.E.2d 817 (1990).

O.C.G.A. § 44-14-161(a) applies to both primary debtors and guarantors; an action for the balance remaining on a note following a foreclosure sale against a guarantor rather than the primary debtor is still an action for a deficiency judgment under that section and is barred if no confirmation was obtained. United States v. Yates, 774 F. Supp. 1368 (M.D. Ga. 1991).

The definition of "debtor" in O.C.G.A. § 44-14-162.1 does not apply to O.C.G.A. § 44-14-161. Hill v. Moye, 221 Ga. App. 411, 471 S.E.2d 910 (1996).

It would not matter for purposes of O.C.G.A. § 44-14-161 whether the debtors were primarily or secondarily liable on the debt. First Nat'l Bank & Trust Co. v. Kunes, 230 Ga. 888, 199 S.E.2d 776 (1973).

Signers of an indemnity agreement are "debtors" within the meaning of O.C.G.A. § 44-14-161 immediately upon the default on the promissory notes and as such should receive notice of confirmation proceedings and be given an opportunity to contest the approval of the sales before claims for the balance of the indebtedness can be prosecuted against them. First Nat'l Bank & Trust Co. v. Kunes, 230 Ga. 888, 199 S.E.2d 776 (1973).

The term "debtor" as used in O.C.G.A. § 44-14-161 includes a guarantor of the debt. Ricks v. United States, 434 F. Supp. 1262 (S.D. Ga. 1976).

- The term "debtor" in O.C.G.A. § 44-14-161(c) is inapplicable to guarantors and sureties in circumstances where the guarantor has limited liability as to the underlying debt. Commercial Exch. Bank v. Johnson, 197 Ga. App. 529, 398 S.E.2d 817 (1990).

O.C.G.A. § 44-14-161's purpose is to pass upon the notice, advertisement, and regularity of the sale and to reinsure that the property was sold for a fair value. It provides debtors with formidable protection against gross deficiency judgments. Wall v. Federal Land Bank, 240 Ga. 236, 240 S.E.2d 76 (1977).

O.C.G.A. § 44-14-161 does not purport to affect the validity of sales but just to prevent deficiency judgments in addition to unfair sales. It was intended to supplement the debtor's right to set aside the sale. FDIC v. Dye, 642 F.2d 837 (5th Cir. 1981).

The public policy behind confirmation proceedings is not to impose an affirmative duty upon the foreclosing party to obtain the true market value of the property. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867 (1980).

- The strongest ground of public policy for the enforcement of statutes requiring confirmation in foreclosure proceedings is to protect the debtor from being subjected to double payment in cases where the property was purchased for a sum less than its market value. Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144 (N.D. Ga. 1981).

Confirmation statutes are thought necessary to prevent inequities that arise when a creditor buys property on which it has foreclosed at a low price when property values are depressed and the economy is recessionary, and then proceeds to seek a personal judgment against the debtor for the difference between the low price the creditor has paid for the property at the foreclosure sale and the balance of the debt. Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144 (N.D. Ga. 1981); Stamps v. Ford Motor Co., 650 F. Supp. 390 (N.D. Ga. 1986).

The courts consistently strike down schemes aimed at avoiding the deficiency legislation by illusory changes in form; a flimsy avoidance device based upon an intermediate surety would have no chance of success. Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144 (N.D. Ga. 1981).

Guarantors and sureties are protected by O.C.G.A. § 44-14-161. Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144 (N.D. Ga. 1981).

O.C.G.A. § 44-14-161 does not operate to extinguish a debt; it just limits the creditor's remedies. Calvert Fire Ins. Co. v. Environs Dev. Corp., 601 F.2d 851 (5th Cir. 1979).

O.C.G.A. § 44-14-161 does not extinguish the deficiency debt; rather, it limits the creditor's remedies. Hence, a creditor retains the option of selling other security to recover the deficiency. Citizens Bank v. Wiggins, 167 Bankr. 992 (M.D. Ga. 1994).

O.C.G.A. § 44-14-161 is not applicable to a note and security deed executed prior to the passage of the Act. Atlantic Loan Co. v. Peterson, 181 Ga. 266, 182 S.E. 15 (1935); Guardian Life Ins. Co. of Am. v. Laird, 181 Ga. 416, 182 S.E. 617 (1935).

Creditor legally may seek, should a deficiency exist, to foreclose upon additional collateral, regardless of its compliance with O.C.G.A. § 44-14-161. A creditor does not, however, have an "unqualified right" to additional collateral when such collateral is under the exclusive, equitable jurisdiction of the bankruptcy court. Synovus Bank v. Brooks (In re Brooks), 479 Bankr. 917 (Bankr. N.D. Ga. 2012).

- Creditor's failure to seek confirmation of any sale of property pursuant to O.C.G.A. § 44-14-161 did not bar the creditor from seeking a deficiency judgment, where the property owner voluntarily conveyed the property to the creditor by warranty deed for the express purpose of avoiding non-judicial foreclosure, and that section was therefore inapplicable as a matter of law. Ashburn Bank v. Reinhardt, 183 Ga. App. 292, 358 S.E.2d 675 (1987).

- When two deeds secure the same property and are held by the same creditor, the deeds merge and confirmation of the sale is required. United States v. Yates, 774 F. Supp. 1368 (M.D. Ga. 1991).

The purchaser at public outcry, whether a party to the debt, or a third person, bids at the sale with full knowledge of enactment of O.C.G.A. § 44-14-161, which clearly contains the language that "the court may, for good cause shown, order a resale of the property," and the purchaser is bound by this language in that section. Davie v. Sheffield, 123 Ga. App. 223, 180 S.E.2d 263 (1971).

- Grant of summary judgment to the creditors was reversed because questions of fact existed as to whether one creditor's failure to confirm the foreclosure sale barred the claims asserted by it and the other creditor as well as a question of fact existed as to whether all of the debts at issue, including the 2004 loan, were owed to a single creditor and were given for the same purpose. Bryant v. Optima Int'l, 339 Ga. App. 696, 792 S.E.2d 489 (2016).

- The crying of a sale on the courthouse steps is only a step toward finalizing a foreclosure sale and does not, without more, serve as evidence of a consummated foreclosure sale. Gooden v. Buffalo Sav. Bank, 21 Bankr. 456 (Bankr. N.D. Ga. 1982).

A foreclosure sale is not final until the deed is transferred. Gooden v. Buffalo Sav. Bank, 21 Bankr. 456 (Bankr. N.D. Ga. 1982).

- Trial court's decision granting summary judgment in favor of a creditor on the creditor's suit on a promissory note and guaranty executed by debtors was proper. The creditor was not required to foreclose on the property securing the note and obtain judicial confirmation under O.C.G.A. § 44-14-161(a) prior to seeking judgment on the note. Reese Developers, Inc. v. First State Bank, 306 Ga. App. 13, 701 S.E.2d 505 (2010).

O.C.G.A. § 44-14-161(a) did not bar a bank from first suing the guarantors on their guarantees and then, eleven months later, conducting a nonjudicial foreclosure sale of the collateral because, at the time the bank filed suit on the guarantees, the bank had no deficiency to recover because the bank had not conducted a nonjudicial sale of the property. State Bank of Tex. v. Patel, F.3d (11th Cir. Sept. 30, 2011)(Unpublished).

- Foreclosure sales were properly conducted and consummated under O.C.G.A. § 44-14-161 because a bank purchased the secured properties at the sale after the debtor defaulted on promissory notes to the bank, the requisite procedures for the sale were followed, and the fact that the bank conveyed the debtor's interest to the bank's wholly-owned subsidiary under a separate agreement did not undercut the underlying sales. Peachtree Homes, Inc. v. Bank of America, N.A., 315 Ga. App. 243, 726 S.E.2d 737 (2012).

- Good cause existed to believe that the property did not sell for true market value because the lender's bid at the foreclosure sale was based on an appraisal that did not include the entire land mass or full extent of the property at issue. Based on this clear omission in the appraisal, the trial court was authorized to find that the property did not sell for fair market value at the foreclosure sale. Ciuperca v. RES-GA Seven, LLC, 319 Ga. App. 61, 735 S.E.2d 107 (2012).

Cited in Skeffington v. Rowland, 52 Ga. App. 619, 184 S.E. 330 (1936); Smith v. Associated Mtg. Cos., 186 Ga. 121, 197 S.E. 222 (1938); Tingle v. Atlanta Fed. Sav. & Loan Ass'n, 211 Ga. 636, 87 S.E.2d 841 (1955); Sale City Peanut & Milling Co. v. Planters & Citizens Bank, 107 Ga. App. 463, 130 S.E.2d 518 (1963); In re Am. Ventures, Inc., 340 F. Supp. 279 (N.D. Ga. 1971); Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238 (1972); First Nat'l Bank & Trust Co. v. Kunes, 128 Ga. App. 565, 197 S.E.2d 446 (1973); First Nat'l Bank & Trust Co. v. Kunes, 230 Ga. 888, 199 S.E.2d 776 (1973); Murray v. Hasty, 132 Ga. App. 125, 207 S.E.2d 602 (1974); Jolly v. Egerton, 132 Ga. App. 243, 207 S.E.2d 634 (1974); Classic Enters., Inc. v. Continental Mtg. Investors, 135 Ga. App. 105, 217 S.E.2d 411 (1975); Collier v. Sinkoe, 135 Ga. App. 732, 218 S.E.2d 910 (1975); Kent v. Scott Hudgens Realty & Mtg., Inc., 138 Ga. App. 30, 225 S.E.2d 447 (1976); Kilgore v. Life Ins. Co., 138 Ga. App. 890, 227 S.E.2d 860 (1976); Jones v. Hamilton Mtg. Corp., 139 Ga. App. 239, 228 S.E.2d 170 (1976); Story v. Gwinnett Bank & Trust Co., 140 Ga. App. 533, 231 S.E.2d 525 (1976); Keever v. GECC, 141 Ga. App. 864, 234 S.E.2d 696 (1977); Adams v. Gwinnett Com. Bank, 238 Ga. 722, 235 S.E.2d 476 (1977); First Nat'l Bank v. Ferrell, 239 Ga. 8, 235 S.E.2d 507 (1977); Gilbert v. Arneson, 142 Ga. App. 205, 235 S.E.2d 647 (1977); Goodman v. Vinson, 142 Ga. App. 420, 236 S.E.2d 153 (1977); Shaw v. Cousins Mtg. & Equity Invs., 142 Ga. App. 773, 236 S.E.2d 919 (1977); Baker v. NEI Corp., 144 Ga. App. 165, 241 S.E.2d 4 (1977); Saul v. Vaughn & Co., 240 Ga. 301, 241 S.E.2d 180 (1977); FDIC v. Ivey-Matherly Constr. Co., 144 Ga. App. 313, 241 S.E.2d 264 (1977); Fleming v. Federal Land Bank, 144 Ga. App. 371, 241 S.E.2d 271 (1977); Oglethorpe Co. v. United States, 558 F.2d 590 (Ct. Cl. 1977); Stone v. Citizens & S. Nat'l Bank, 145 Ga. App. 601, 244 S.E.2d 135 (1978); Grizzle v. Federal Land Bank, 145 Ga. App. 385, 244 S.E.2d 362 (1978); Emerson v. Cousins Mtg. & Equity Invs., 145 Ga. App. 883, 244 S.E.2d 890 (1978); Boyce v. Hughes, 241 Ga. 357, 245 S.E.2d 308 (1978); Tally v. Atlanta Nat'l Real Estate Trust, 146 Ga. App. 585, 246 S.E.2d 700 (1978); Teri-Lu, Inc. v. Georgia R.R. Bank & Trust Co., 147 Ga. App. 860, 250 S.E.2d 548 (1978); Corbin v. Aetna Life & Cas. Co., 447 F. Supp. 646 (N.D. Ga. 1978); Five Dee Ranch Corp. v. Federal Land Bank, 148 Ga. App. 734, 252 S.E.2d 662 (1979); Mills v. Federal Land Bank, 149 Ga. App. 600, 255 S.E.2d 77 (1979); Mallett v. Fulford, 149 Ga. App. 773, 256 S.E.2d 49 (1979); Hoover & Morris Dev. Co. v. FDIC, 149 Ga. App. 855, 256 S.E.2d 140 (1979); Thomas v. Henry, 150 Ga. App. 792, 258 S.E.2d 710 (1979); Mansell v. Pappas, 156 Ga. App. 272, 274 S.E.2d 588 (1980); FDIC v. New London Enters., Ltd., 619 F.2d 1099 (5th Cir. 1980); Harris & Tilley, Inc. v. First Nat'l Bank, 157 Ga. App. 88, 276 S.E.2d 137 (1981); Farmers Bank v. Hubbard, 247 Ga. 431, 276 S.E.2d 622 (1981); Atlantic Bank & Trust Co. v. Fox, 157 Ga. App. 673, 278 S.E.2d 474 (1981); Dunn v. Sliauter, 158 Ga. App. 462, 280 S.E.2d 885 (1981); Sens v. Decatur Fed. Sav. & Loan Ass'n, 159 Ga. App. 767, 285 S.E.2d 226 (1981); Kennedy v. Trust Co. Bank, 160 Ga. App. 733, 288 S.E.2d 87 (1981); Huckabee v. First Nat'l Bank & Trust Co., 161 Ga. App. 140, 288 S.E.2d 252 (1982); Alaska S. Co. v. First Nat'l Bank, 161 Ga. App. 241, 288 S.E.2d 315 (1982); Weintraub v. Cobb Bank & Trust Co., 249 Ga. 148, 288 S.E.2d 553 (1982); Slaughter v. Ford Motor Credit Co., 164 Ga. App. 428, 296 S.E.2d 428 (1982); Gunnells v. Crump, 172 Ga. App. 607, 323 S.E.2d 903 (1984); Martin v. Federal Land Bank, 173 Ga. App. 142, 325 S.E.2d 787 (1984); Worth v. Douglas Prod. Credit Ass'n, 173 Ga. App. 808, 328 S.E.2d 421 (1985); Malak v. McGinnis, 257 Ga. 622, 361 S.E.2d 798 (1987); Robinson v. Kemp Motor Sales, Inc., 185 Ga. App. 492, 364 S.E.2d 623 (1988); Hall v. Bank S., 186 Ga. App. 860, 368 S.E.2d 810 (1988); HSL/LA Jolla Belvedere Enters. v. Federal Sav. & Loan Ins. Corp., 201 Ga. App. 447, 411 S.E.2d 329 (1991); Peterson v. First Nat'l Bank, 201 Ga. App. 762, 412 S.E.2d 579 (1991); Marett Properties v. Centerbank Mtg. Co., 204 Ga. App. 265, 419 S.E.2d 113 (1992); Phelan v. Wells Fargo Credit Corp., 207 Ga. App. 54, 427 S.E.2d 46 (1993); Spencer v. Southtrust Bank, 208 Ga. App. 538, 430 S.E.2d 853 (1993); Stewart Title Guar. Co. v. Coburn, 211 Ga. App. 357, 439 S.E.2d 69 (1993); Security Pac. Credit Corp. v. Savannah, Ltd., 162 Bankr. 912 (Bankr. S.D. Ga. 1993); Lund v. Commonwealth Mtg. Assurance Co., 216 Ga. App. 322, 454 S.E.2d 194 (1995); Fayette Promenade, LLC v. Branch Banking & Trust Co., 258 Ga. App. 323, 574 S.E.2d 319 (2002); Graham v. Casa Invs. Co., 274 Ga. App. 59, 616 S.E.2d 833 (2005); State v. Brown, 333 Ga. App. 643, 777 S.E.2d 27 (2015).

Court of Appeals would not construe O.C.G.A. § 44-14-161, which is operative only in the limited circumstance that the sale of the property does not satisfy the underlying debt and then solely in the discretion of the parties, so as to engraft judicially upon the power of sale a tacit requirement to seek and secure confirmation in every instance that the power is exercised or face the possibility of suit merely because the debtor is of the belief fair market value was not obtained. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867 (1980).

O.C.G.A. § 44-14-161 lays down a condition precedent to obtaining a deficiency judgment in cases where "any real estate is sold on foreclosure, without legal process, under powers contained in security deeds," and the sale does not cover the amount of the debt. On its face, that section refers only to the foreclosure procedure. Gentry v. Hibbler-Barnes Co., 113 Ga. App. 1, 147 S.E.2d 31 (1966).

In a foreclosure sale, issues which go to the heart of the underlying obligation itself should be raised within the confines of a subsequent action for a deficiency judgment. Alexander v. Weems, 157 Ga. App. 507, 277 S.E.2d 793 (1981).

- A note for a downpayment is not a part of the "debt secured" for the balance owing unless so described in the instruments themselves. Murray v. Hasty, 132 Ga. App. 125, 207 S.E.2d 602 (1974).

- That portion of mortgage containing the power of sale is to be construed so as to effectuate the intention of the parties, and the power must be exercised in accordance with the intention of the parties as indicated in the clause in the mortgage conferring the power. The power is conferred for the purpose of enabling the mortgagee to collect the debt. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867 (1980).

When a power of sale is exercised all that is required of the foreclosing party is to advertise and sell the property according to the terms of the instrument, and that the sale be conducted in good faith. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867 (1980).

The foreclosing party is not an insurer of the results of the exercise of the power of sale; that party's only obligation is to sell according to the terms of the deed, in good faith, and to obtain the amount produced by such a sale. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867 (1980).

The remedy by sale will be taken to have satisfied the primary obligation to pay the debt unless the creditor conforms to the law by making a proper showing that the security in fact brought in its true market value, which is then credited against the primary obligation. Gentry v. Hibbler-Barnes Co., 113 Ga. App. 1, 147 S.E.2d 31 (1966).

Where property sold under foreclosure brings the full amount of the debt secured by a deed to secure debt, O.C.G.A. § 44-14-161 is inapplicable since that section only applies where the sale brings less than the amount of the debt secured by the deed. Nationwide Fin. Corp. v. Banks, 147 Ga. App. 73, 248 S.E.2d 54 (1978).

A creditor with notes secured by a deed to secure a debt is not put to an election, but may pursue remedies under both instruments concurrently until the creditor obtains a satisfaction of the debt under either. Norwood Realty Co. v. First Fed. Sav. & Loan Ass'n, 99 Ga. App. 692, 109 S.E.2d 844 (1959); Brown v. Georgia State Bank, 141 Ga. App. 570, 234 S.E.2d 151 (1977); Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321, 254 S.E.2d 475 (1979).

A creditor who holds a promissory note secured by a deed is not put to an election of remedies as to whether the creditor shall sue upon the note or exercise a power of sale contained in the deed, but the creditor may do either, or pursue both remedies concurrently until the debt is satisfied. Taylor v. Thompson, 158 Ga. App. 671, 282 S.E.2d 157 (1981).

- There is nothing in O.C.G.A. § 44-14-161 which says that the creditor may not, if the creditor chooses, obtain satisfaction of the debt by reducing it to judgment and levying it on whatever property the creditor chooses, whether or not it has been pledged as security for the particular debt evidenced by the note. Gentry v. Hibbler-Barnes Co., 113 Ga. App. 1, 147 S.E.2d 31 (1966).

The holder of a note who is also the grantee in a deed to secure the indebtedness of the note is not forced to exercise the power of sale in the deed. The holder may sue on the note or exercise the power of sale. Trust Inv. & Dev. Co. v. First Ga. Bank, 238 Ga. 309, 232 S.E.2d 828 (1977); Stewart v. Diehl, 219 Ga. App. 821, 466 S.E.2d 913 (1996).

A holder of a note who is also the grantee of a deed to secure the indebtedness of the note is not forced to exercise the power of sale in the deed to secure the debt. On the contrary, the holder may at holder's option elect to sue on the note and to exercise rights pursuant to O.C.G.A. § 44-14-210 or to exercise the power of sale, to seek judicial confirmation of the sale and to sue for deficiency pursuant to O.C.G.A. § 44-14-161. Brown v. Rooks, 240 Ga. 674, 242 S.E.2d 128 (1978).

A secured creditor has an option of either proceeding to suit on the note, or of foreclosure by exercise of the power of sale, seeking confirmation and then suing for the deficiency. Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321, 254 S.E.2d 475 (1979).

- When defendant-assignee was assigned a note that was in default and a security deed by defendant-assignor, the assignee's judgment, not being a contractual obligation, did not tack on to the note and become one obligation; since the judgment does not tack, the failure to satisfy the judgment from the proceeds of a foreclosure sale of the security deed under a power of sale contained therein does not constitute a "deficiency" within the meaning of O.C.G.A. § 44-14-161. Cook v. F & M Bank, 247 Ga. 661, 279 S.E.2d 199 (1981).

When a creditor who holds a promissory note secured by a deed to secure debt containing a power of sale sues on the note and obtains a money judgment and thereafter elects to exercise the power of sale in the deed to secure debt, and the proceeds of such sale are not sufficient to satisfy the judgment, the creditor is not required to comply with O.C.G.A. § 44-14-161 before attempting to enforce further the judgment. Taylor v. Thompson, 158 Ga. App. 671, 282 S.E.2d 157 (1981).

- Trial court erred in ruling that a bank's claims against borrowers and guarantors for breach of promissory notes were barred as improper deficiency actions under O.C.G.A. § 44-14-161(a) due to the bank's failure to seek confirmation after the foreclosure auctions because although the bank conducted and bid at foreclosure auctions of the real property that secured the notes, the transfer of a borrower's right of possession and the borrower's equity of redemption to the bank as the foreclosure sale purchaser never occurred; three days after the foreclosure auctions, the bank notified the borrowers that the bank rescinded any actions taken with respect to foreclosure and that the foreclosures were not and would not be consummated, and by definition, the confirmation procedure had no application when there had been no foreclosure sale. Legacy Cmtys. Group, Inc. v. Branch Banking & Trust Co., 310 Ga. App. 466, 713 S.E.2d 670 (2011), aff'd in part, rev'd in part, 290 Ga. 724, 723 S.E.2d 674, vacated in part, 316 Ga. App. 496, 729 S.E.2d 612 (2012).

- When a buyer of foreclosed properties bought the properties for less than the amounts owed, but the buyer's efforts at confirmation of the sales failed, the buyer was nevertheless entitled to pursue the guarantors of the notes on the properties for the deficiency because the guarantors had waived "any and all rights or defenses based on suretyship," and the confirmation defense under O.C.G.A. § 44-14-161(a) was based on suretyship. York v. RES-GA LJY, LLC, 336 Ga. App. 253, 784 S.E.2d 96 (2016).

Decision of the court of appeals that upheld deficiency judgments against the guarantors was affirmed as the guarantors waived any defense based on the failure of the creditor to confirm the relevant foreclosure sales because the contractual language of the commercial guaranties made it clear that the guarantors waived any defenses under an anti-deficiency law such as O.C.G.A. § 44-14-161; and such a waiver was permitted by law. York v. RES-GA LJY, LLC, 300 Ga. 869, 799 S.E.2d 235 (2017).

Where various forms of collateral, including two pieces of real estate, were provided as security for a single agreement, and both pieces of real estate were foreclosed but only one foreclosure was confirmed, all obligations under the agreement were discharged and any further actions under the agreement were barred. Surety Managers, Inc. v. Stanford, 633 F.2d 709 (5th Cir. 1980), cert. denied, 454 U.S. 828, 102 S. Ct. 121, 70 L. Ed. 2d 104 (1981).

- Where a deed to secure debt given to secure a specific note described therein, containing a dragnet or open-end clause making the property conveyed thereby security for all other debts and obligations either then or thereafter owed by the grantor to the grantee, if foreclosed by exercise of the power of sale in the security deed for which no confirmation of sale was sought, the grantee is not barred from maintaining an action to recover on another note between the same parties, subsequently made for another loan and secured by a security deed on a different property. Vaughn & Co. v. Saul, 143 Ga. App. 74, 237 S.E.2d 622 (1977).

Where there are separate debts arising from separate contractual obligations, failure to confirm the foreclosure arising from one of the obligations does not bar action on separate obligation, even if the obligations relate to same subject matter. Surety Managers, Inc. v. Stanford, 633 F.2d 709 (5th Cir. 1980), cert. denied, 454 U.S. 828, 102 S. Ct. 121, 70 L. Ed. 2d 104 (1981); Clements v. Fleet Fin., Inc., 206 Ga. App. 736, 426 S.E.2d 910 (1992).

O.C.G.A. § 44-14-161 did not bar an automobile credit corporation from pursuing a recovery under notes and security deeds relating to loans from business assets and inventory that were separate obligations from that securing a real estate loan sold at an unconfirmed foreclosure sale. GMAC v. Newton, 213 Ga. App. 405, 444 S.E.2d 805 (1994).

Trial court did not err by granting summary judgment to the lender in the lender's suit on a note because the mortgage loans were held by different entities when the other lender foreclosed on the lender's first-priority security deed, thus, the loans were not inextricably intertwined and the deficiency could be collected by the lender. Hildebrand v. Bank of America, N.A., 332 Ga. App. 175, 772 S.E.2d 790 (2015).

- A creditor's action against debtors to recover on a balloon note with a cross default clause after default on a separate purchase money note, after the creditor purchased the property personally under powers contained in the security deed and did not obtain judicial confirmation of the foreclosure sale, was a prohibited attempt to recover a deficiency judgment on a debt secured by a purchase money security deed, not an attempt to recover on an independent, separate unsecured obligation. Tufts v. Levin, 213 Ga. App. 35, 443 S.E.2d 681 (1994).

- The words "no action may be taken to obtain a deficiency judgment" do not inhibit subsequent sale under power of property other than the property which at a former sale under power had failed to "bring the amount of the debt." Salter v. Bank of Commerce, 189 Ga. 328, 6 S.E.2d 290 (1939).

- The trial court properly entered an order confirming the sale of real property foreclosed on by a bank, under a power of sale contained in a deed to secure debt given by a debtor, as that debtor failed to show that any rights under O.C.G.A. § 44-14-161 or O.C.G.A. § 9-11-58 were jeopardized, and a claim that the sale was irregular due to the status of the property's title on the date of the sale fell outside of the ambit of § 44-14-161. Friedman v. Regions Bank, 288 Ga. App. 57, 653 S.E.2d 507 (2007).

Where mortgagors executed two separate loans and gave as security an interest in two separate parcels of real property, and subsequently combined the debts, with the separate parcels remaining as security, the confirmation requirement did not bar the lender, who had foreclosed on one of the properties without confirming the sale, from foreclosing on the other property. Lawson v. Habersham Bank, 233 Ga. App. 88, 503 S.E.2d 341 (1998).

Confirmation and Approval of Sale

1. Nature of Proceeding

The confirmation required by O.C.G.A. § 44-14-161 is not a civil case within the meaning of Ga. Const. 1976, Art. VI, Sec. XIV, Para. VI (see, now, Ga. Const. 1983, Art. VI, Sec. II, Para. VI), requiring civil cases to be brought in the county where the defendant resides. Wall v. Federal Land Bank, 240 Ga. 236, 240 S.E.2d 76 (1977); Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

The confirmation required by O.C.G.A. § 44-14-161 is not an equitable proceeding. Taylor v. Thompson, 158 Ga. App. 671, 282 S.E.2d 157 (1981).

O.C.G.A. § 44-14-161 merely provides for a proceeding whereby the court is called upon to determine whether the duty to conduct the sale according to the terms of the deed and in good faith has been met and the debtor's concomitant right to have the property extinguish debtor's debt to the maximum extent possible is protected. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867 (1980).

A confirmation proceeding is summary in nature. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

A confirmation proceeding is not a suit in equity. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

- O.C.G.A. § 44-14-161 does not state that the confirmation provided therein is an equitable proceeding, and it is not. Cases under that section therefore are not within the jurisdiction of the Supreme Court, but within the jurisdiction of the Court of Appeals. Dockery v. Parks, 224 Ga. 369, 162 S.E.2d 332 (1968); Taylor v. Thompson, 158 Ga. App. 671, 282 S.E.2d 157 (1981).

The confirmation hearing is not an action in personam, because no personal judgment is recovered. It is not an action in rem, because it does not adjudicate title. Wall v. Federal Land Bank, 240 Ga. 236, 240 S.E.2d 76 (1977).

- Prior pending wrongful foreclosure action did not require the abatement and dismissal of a bank's application for confirmation under O.C.G.A. § 44-14-161 because the confirmation proceeding did not involve the same cause of action as the wrongful foreclosure suit, but was instead a special statutory proceeding and not a complaint which initiated a civil action or suit. BBC Land & Dev., Inc. v. Bank of N. Ga., 294 Ga. App. 759, 670 S.E.2d 210 (2008).

- Trial court properly granted summary judgment to the lender on the borrower's wrongful foreclosure counterclaim because the earlier confirmation of the foreclosure sale precluded the claim under either the doctrine of res judicata and collateral estoppel. Flint Timber, L.P. v. AgSouth Farm Credit, ACA, 347 Ga. App. 271, 819 S.E.2d 76 (2018).

- Except as to the confirmed amount of the sale, the confirmation judgment does not establish the liability of any party with regards to the indebtedness. Harris & Tilley, Inc. v. First Nat'l Bank, 157 Ga. App. 88, 276 S.E.2d 137 (1981).

- The confirmation judgment is not a personal judgment against any party and, strictly speaking, it does not adjudicate the title of the property sold. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980); Harris & Tilley, Inc. v. First Nat'l Bank, 157 Ga. App. 88, 276 S.E.2d 137 (1981).

The proceeding here is not a suit but an application to the judge of the superior. Jonesboro Inv. Trust Ass'n v. Donnelly, 141 Ga. App. 780, 234 S.E.2d 349 (1977); Wammock v. Smith, 143 Ga. App. 186, 237 S.E.2d 668 (1977); Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

- While a petition to set aside is a suit in equity, a confirmation proceeding is an "application" limited in scope and requiring specified procedures. Georgia law, by establishing different tests for confirmation and for voiding sales, indicates the two are not equivalent. FDIC v. Dye, 642 F.2d 837 (5th Cir. 1981).

- Where the confirmation of the sale is the only act taking place after bankruptcy of debtor, it is neither the assertion of a lien against the bankrupt or the bankrupt's property, nor a "proceeding" against the bankrupt. Jonesboro Inv. Trust Ass'n v. Donnelly, 141 Ga. App. 780, 234 S.E.2d 349 (1977).

This statutory framework does not authorize confirmation of sales of personalty. Gordon v. Weldon, 154 Ga. App. 531, 268 S.E.2d 796 (1980).

Since O.C.G.A. § 44-14-161 does not apply to sales of personalty, the confirmation court is without authority to address matters concerning sales of personalty, even if they are related to the sale of realty; consequently, the issue of whether various items of equipment were sold separately or were included in the sale of a tract of land is not an issue that the confirmation may address. Walton Motor Sales, Inc. v. Ross, 736 F.2d 1449 (11th Cir. 1984).

- While O.C.G.A. § 44-14-161 provides that no sale made under a power shall be confirmed unless the superior court is satisfied the property brought its true market value, there is no requirement that the foreclosing party initiate proceedings to have the sale confirmed. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867 (1980).

Where the lender was not seeking a deficiency judgment against the borrower, it was under no duty to pursue confirmation of a sale; thus, the borrower could not use the confirmation statute to force the resale of property after the lender voluntarily moved to dismiss the proceeding. Gutherie v. Ford Equip. Leasing Co., 210 Ga. App. 763, 437 S.E.2d 482 (1993).

- In a proceeding under the terms of O.C.G.A. § 44-14-161 providing for the confirmation and approval of sales of realty, sold on foreclosures, without legal process, under power contained in a security deed, such power is exercised by the grantee, who is the purchaser at such sale. Dupree v. Turner, 99 Ga. App. 332, 108 S.E.2d 171 (1959).

The words "person instituting the foreclosure" mean the entity given the right to institute the proceedings under the terms of the instrument. This entity continues to exist in its successors in estate who become so by operation of law. Darby & Assocs. v. FDIC, 141 Ga. App. 78, 232 S.E.2d 615 (1977), overruled on other grounds, Cartersville Developers, LLC v. Ga. Bank & Trust, 292 Ga. App. 399, 644 S.E.2d 812 (2008).

Only the "person instituting the foreclosure proceedings" can seek confirmation of a sale. Cheek v. Savannah Valley Prod. Credit Ass'n, 244 Ga. 768, 262 S.E.2d 90 (1979).

- The issue in a confirmation proceeding is whether the property sold brought, at the time of the sale sought to be confirmed, its true market value; what the property may have brought or what it may have been regarded as being worth on the market at a time relative to the sale is not controlling. Kong v. Shearson Lehman Hutton Mtg. Corp., 211 Ga. App. 93, 438 S.E.2d 132 (1993).

- Because a confirmation proceeding is limited to whether a sale is properly advertised and brought the fair market value of the land, issues regarding whether a security deed executed by the executor of an estate could and did secure a personal debt with an undivided interest in estate property could not have been put in issue and determined in the proceeding. Dorsey v. Mancuso, 249 Ga. App. 259, 547 S.E.2d 787 (2001).

A confirmation judgment cannot be collaterally attacked in a subsequent deficiency action but is accorded the same respect as other judgments of a court of general jurisdiction. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

- Trial court did not abuse the court's discretion when the court consolidated the confirmation hearings on three foreclosure sales because O.C.G.A. § 44-14-161 did not mandate a separate evidentiary hearing for each property foreclosed. Belans v. Bank of Am., N.A., 306 Ga. App. 252, 701 S.E.2d 889 (2010).

- As to foreclosure deficiency judgment, the trial court erred by denying the guarantors of the mortgage summary judgment because the loan documents failed to include an adequate waiver of the confirmation process required by O.C.G.A. § 44-14-161. Apex Bank v. Thompson, 349 Ga. App. 285, 826 S.E.2d 162 (2019).

- Trial court erred by denying a creditor's petition to confirm the foreclosure sale of six townhouses because the sale satisfied applicable notice and advertisement requirements and the uncontradicted evidence showed that the townhouses did sell for at least fair market value. RBC Real Estate Fin., Inc. v. Winmark Homes, Inc., 318 Ga. App. 507, 736 S.E.2d 117 (2012).

O.C.G.A. § 44-14-161 is obviously drawn so as to apply only to foreclosure sales in Georgia. Goodman v. Nadler, 113 Ga. App. 493, 148 S.E.2d 480 (1966); Colodny v. Krause, 141 Ga. App. 134, 232 S.E.2d 597, cert. denied, 434 U.S. 892, 98 S. Ct. 267, 54 L. Ed. 2d 177 (1977); Kelly v. American Fed. Sav. & Loan Ass'n, 178 Ga. App. 542, 343 S.E.2d 755 (1986).

Confirmation is not required where the land is not in Georgia. FDIC v. Hoover-Morris Enters., 642 F.2d 785 (5th Cir. 1981).

Statute cannot operate so as to deprive federal courts of jurisdiction to confirm a foreclosure sale in a case which is otherwise subject to federal jurisdiction. FDIC v. Windland Co., 245 Ga. 194, 264 S.E.2d 11 (1980).

Trial court did not err in dismissing the bank's petition for confirmation of the foreclosure sale when, by filing the application with the court rather than the superior court judge, the bank failed to comply with the requirements of O.C.G.A. § 44-14-161(a). Citizens Bank of Effingham v. Rocky Mt. Enterps., LLC, 308 Ga. App. 600, 708 S.E.2d 557 (2011).

O.C.G.A. § 44-14-161 should be construed as allowing the confirmation proceedings to be brought in any United States district court which would otherwise present an available forum. Windland Co. v. FDIC, 151 Ga. App. 742, 261 S.E.2d 407 (1979).

Confirmation proceedings conducted in federal district courts comply with O.C.G.A. § 44-14-161 for the purposes of deficiency suits later brought in state courts. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

Courts of this state cannot refuse to entertain suit for a deficiency judgment where a federal court of proper jurisdiction has confirmed a foreclosure sale because the sale was not reported to the judge of the superior court of the county in which the land lies for confirmation and approval. FDIC v. Windland Co., 245 Ga. 194, 264 S.E.2d 11 (1980).

When confirmation proceedings are heard, in federal court, O.C.G.A. § 44-14-161, reasonably construed, requires only that the foreclosure sale be reported to the judge of the court in which proceedings are to be heard. FDIC v. M.C. Honea, Jr., Inc., 440 F. Supp. 1064 (N.D. Ga. 1977).

Although O.C.G.A. § 44-14-161 speaks in terms of confirmation by a state court judge, it has been held that when that section is applicable to a federal proceeding, it is sufficient that the sale be reported to and confirmed by the judge of the federal court in which confirmation is sought. United States v. Smith, 479 F. Supp. 804 (N.D. Ga. 1979).

- Judicial confirmation is an action or proceeding in the nature of a civil suit to obtain a judicial determination of legal rights or remedies to enable the creditor to pursue recovery or collection of a claim for a deficiency against the debtor, and is an action or proceeding as contemplated by the automatic stay provisions of the federal bankruptcy law. Bank of Am. Nat'l Trust & Sav. Ass'n v. Virginia Hill Partners, 110 Bankr. 84 (Bankr. N.D. Ga. 1989).

Automatic stay, as it applied to the commencement of actions or proceedings against the debtor, terminated when the court entered the court's order on February 17, 2011, granting the debtor a discharge in bankruptcy, 11 U.S.C. § 362(c)(2)(C); notice of the order of discharge was served on the bank on February 19, 2011. Thus, when the bank foreclosed the following July or August of 2011, there was no stay in place; accordingly, 11 U.S.C. § 108(c)(1) controlled and the tolling under § 108(c) ended when the time within which the confirmation had to be reported to the state superior court lapsed thirty days after the foreclosure. Mt. Valley Cmty. Bank v. Freeman (In re Freeman), Bankr. (Bankr. M.D. Ga. Dec. 21, 2012).

O.C.G.A. § 44-14-161 is adopted as a part of the federal law governing the rights between a loan guarantor and the Small Business Administration. Since that section prohibits the entertaining of a suit for a deficiency judgment when there has been no compliance with the requirement for judicial confirmation of the foreclosure sale, the Small Business Administration cannot recover a deficiency judgment against a guarantor without showing a judicial confirmation. United States v. Dismuke, 616 F.2d 755 (5th Cir. 1980).

§ 44-14-161 not applicable. - Where Small Business Administration was not attempting to collect on a deficiency judgment but rather was proceeding against the guarantor of corporate debt on the guarantor's direct and primary obligation to pay the debt of the defaulting corporate debtor, fact that SBA had not obtained information of sale of corporate property within 30 days did not preclude SBA from maintaining action against guarantor. Ricks v. United States, 434 F. Supp. 1262 (S.D. Ga. 1976).

- Automatic stay was lifted under 11 U.S.C. § 362(d)(1) to permit a creditor to proceed with the confirmation of a foreclosure sale because, pursuant to O.C.G.A. § 44-14-161, the creditor could not pursue the creditor's deficiency claim unless the sale was confirmed by the superior court within 30 days. In re McDaniel, Bankr. (Bankr. M.D. Ga. May 5, 2008).

- Because the language in the stay relief order in this case was sufficiently close to the language of the stay relief order in In re Virginia Hill Partners I, 110 Bankr. 84 (Bankr. N.D. Ga. 1989), the stay was not lifted to permit the creditor to commence proceedings to confirm the sale, including reporting the sale as required by Georgia law. The 30-day period under the Georgia confirmation statute would not begin to run here until either the bankruptcy was dismissed or the court lifted the automatic stay. Haugen v. Multibank 2009-1 Cre Venture, LLC (In re LaPrade's Marina, LLC), 566 Bankr. 84 (Bankr. N.D. Ga. 2017).

3. Report of Sale

Requirement not jurisdictional.

- The requirement that the report of the sale shall be made to the judge of the superior court of the county in which the land lies is not a jurisdictional requirement. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

- The requirement that the report of the sale shall be made to the judge of the superior court of the county in which the land lies is a venue requirement which may be waived by the debtor. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

The word "report" is not a word of art, and its ordinary significance, as defined by Webster, is to give an account of, to relate, to tell. Dukes v. Ralston Purina Co., 127 Ga. App. 696, 194 S.E.2d 630 (1972).

The judge personally is the one to whose attention the sale and its particulars must be brought. Goodman v. Vinson, 142 Ga. App. 420, 236 S.E.2d 153 (1977).

Second reporting to judge of sale of property was not required of financial institution after the setting aside, for failure to serve notice of hearing to all interested parties, of an earlier confirmation of sale of property on foreclosure without legal process, since the financial institution had timely reported the sale before the confirmation was set aside; the order setting aside the earlier confirmation did not "erase the slate clean" of all previously filed documents - it merely reinstated the case in the trial court and returned it to the posture it had occupied prior to judgment. Rogers v. Fidelity Fed. Sav. & Loan Ass'n, 180 Ga. App. 330, 349 S.E.2d 7 (1986).

- Where plaintiff-appellant presented petition for confirmation and approval of a foreclosure sale at the chambers of the superior court judge, the petition was accepted by the judge's secretary and that the judge's secretary had the delegated authority to accept petitions in any ministerial matter, this was sufficient compliance with O.C.G.A. § 44-14-161(a). Cornelia Bank v. Brown, 166 Ga. App. 68, 303 S.E.2d 171 (1983).

There is no authority for making the word "report" mean "file." This is especially true inasmuch as O.C.G.A. § 44-14-161 makes no mention of reporting to or filing with the clerk, but specifically provides that the report is to be made to the judge. Dukes v. Ralston Purina Co., 127 Ga. App. 696, 194 S.E.2d 630 (1972).

- The presentation of the petition to the clerk will not suffice under O.C.G.A. § 44-14-161 specifically requiring a report of the sale "to the judge of the superior court of the county in which the land lies" and making no mention of the court or the clerk. Goodman v. Vinson, 142 Ga. App. 420, 236 S.E.2d 153 (1977); John Alden Life Ins. Co. v. Gwinnett Plantation, Ltd., 220 Ga. App. 846, 470 S.E.2d 482 (1996).

Filing of a confirmation petition with the clerk of court was insufficient to meet the mandates of O.C.G.A. § 44-14-161(a). Lanier Bank & Trust Co. v. Nix, 221 Ga. App. 323, 471 S.E.2d 229 (1996).

- A mortgagor's filing of bankruptcy proceedings tolled the running of periods of limitation which would have otherwise expired during the period of a stay in bankruptcy until 30 days after termination of the stay. Where a stay was in effect when a foreclosure sale was held, the 30-day period provided in O.C.G.A. § 44-14-161 did not begin until 30 days after the bankruptcy was dismissed and the sale was not invalid because it was not reported within 30 days. Breeze v. Columbus Bank & Trust Co., 214 Ga. App. 534, 448 S.E.2d 276 (1994).

The act of reporting a foreclosure sale is not an end in and of itself and serves no purpose except in connection with confirmation and approval. FDIC v. M.C. Honea, Jr., Inc., 440 F. Supp. 1064 (N.D. Ga. 1977).

The report requirement in O.C.G.A. § 44-14-161 is not intended to give notice to the debtor as such notice is also provided for. Goodman v. Vinson, 142 Ga. App. 420, 236 S.E.2d 153 (1977).

The trial court did not err in concluding that O.C.G.A. § 44-14-161 governing foreclosures under power of sale did not contain a requirement for service of the report of sale on the debtor within 30 days. The 30-day report to the judge is not intended to give notice to the debtor. The notice requirement for the debtor is that the debtor be given at least five days notice of the confirmation hearing, which notice would include a copy of the report. Oviedo v. Connecticut Nat'l Bank, 194 Ga. App. 626, 391 S.E.2d 417, cert. denied, 194 Ga. App. 912, 391 S.E.2d 417 (1990).

- O.C.G.A. § 44-14-161 contemplates that the report of a foreclosure sale be received by the same judge who is to confirm and approve the sale. Thus, if the confirmation action is brought in federal court, then the report must be made to the appropriate federal judge rather than to the judge of the superior court of the county in which the land lies. FDIC v. M.C. Honea, Jr., Inc., 440 F. Supp. 1064 (N.D. Ga. 1977).

The terms of O.C.G.A. § 44-14-161 were complied with where application to the superior court was made within 30 days, although judicial approval was rendered after 30 days. Dukes v. Ralston Purina Co., 127 Ga. App. 696, 194 S.E.2d 630 (1972).

Report of the sale to a judge sitting as presiding judge of the superior court was sufficient to comply with O.C.G.A. § 44-14-161; it is not necessary to make the report to the specific judge to whom the case is assigned. Hernandez v. Resolution Trust Corp., 210 Ga. App. 538, 436 S.E.2d 534 (1993).

- Nothing in the language of O.C.G.A. § 44-14-161(a) imposes an evidentiary or procedural requirement that the report to the superior court be formally tendered into evidence as an exhibit. Stepp v. Farm & Home Life Ins. Co., 222 Ga. App. 257, 474 S.E.2d 108 (1996).

4. Confirmation

Need to confirm.

- O.C.G.A. § 44-14-161 provides that if a creditor fails to obtain judicial confirmation of a foreclosure sale that the foreclosure purchase price of the property was the reasonable equivalent of the fair market value, the creditor may not pursue a deficiency claim against the debtor; however, a creditor need confirm a foreclosure only in order to realize its claim from any property to which its security interest does not extend. Empire Fin. Servs. v. Gingold (In re Real Estate W. Ventures), 170 Bankr. 736 (Bankr. N.D. Ga. 1993).

Following nonjudicial foreclosure, a creditor was barred from suing on a note without confirmation where there was but one promissory note and one deed to secure debt, and the only obligation the debtor owed the creditor was the note secured by the foreclosed property. Southeast Timerlands, Inc. v. Haiseal Timber, Inc., 224 Ga. App. 98, 479 S.E.2d 443 (1996).

Grant of summary judgment to a bank in a mortgage foreclosure action because the bank was not required to comply with the confirmation of a foreclosure sale requirements under O.C.G.A. § 44-14-161 since the guaranties signed by the guarantors clearly waived the condition precedent requirement of the confirmation statute by virtue of the waiver clauses in the loan documents. Nine Twenty, LLC v. Bank of the Ozarks, 337 Ga. App. 180, 786 S.E.2d 555 (2016).

Grant of summary judgment to bank in mortgage foreclosure action was reversed because the borrower created a genuine issue of fact with regard to whether the construction loan and second line of credit were for similar and related purposes, namely to improve secured property, so as to trigger the requirement of judicial confirmation before the bank could file suit against the borrower for breach of contract. Wells v. Regions Bank, 350 Ga. App. 652, 829 S.E.2d 889 (2019).

- Trial court did not err in denying a mortgagee's application for confirmation of a nonjudicial foreclosure sale because the court properly ruled that the mortgagee's advertisement failed to comport with the statutory requirements of O.C.G.A. § 44-14-162(a); a sale of real property under a power of sale made pursuant to § 44-14-162(a) must be advertised in every county where the property or any portion of the property is located. Nicholson Hills Dev. v. Branch Banking & Trust Co., 316 Ga. App. 857, 730 S.E.2d 572 (2012).

- Trial court did not err by denying a mortgagor's motion to dismiss the foreclosure confirmation proceeding based on the mortgagee being a foreign limited liability company impermissibly transacting business in Georgia because a limited liability company was not considered to be transacting business in Georgia merely because it engaged in acquiring loan documents, conducting a foreclosure sale, purchasing the property at the sale, reporting the sale, and filing the confirmation petition. Powder Springs Holdings, LLC v. RL BB ACQ II-GA PSH, LLC, 325 Ga. App. 694, 754 S.E.2d 655 (2014).

- Trial court did not err in confirming the November sale of certain real estate in a foreclosure action because the mortgagor failed to show that it was deprived of any protection afforded by O.C.G.A. § 44-16-161 as the confirmation proceeding commenced in connection with the November sale comprised a new action after the July sale was invalidated, all of the advertisement requirements were met, and the property was sold for its true market value. Howser Mill Homes, LLC v. Branch Banking & Trust Co., 318 Ga. App. 148, 733 S.E.2d 441 (2012).

Trial court did not err by confirming a foreclosure sale because issues as to whether the foreclosing bank recorded an assignment of the deed to secure debt before the foreclosure sale and the validity of the assignment were irrelevant to the confirmation proceeding. River Walk Farm, L.P. v. First Citizens Bank & Trust Co., 321 Ga. App. 173, 741 S.E.2d 165 (2013).

Trial court properly confirmed a foreclosure sale under O.C.G.A. § 44-14-161 because the borrower raised no issue to support reversal as the bank provided admissible testimony as to the advertisement, notice, and regularity of the actual sale, supporting documents, and no objection was made. Sugarloaf Plaza, LLC v. Touchmark National Bank, 319 Ga. App. 648, 738 S.E.2d 104 (2013).

Trial court properly confirmed the foreclosure of an apartment complex because, although the valuations of the property were not identical, there was no evidence that the property was worth more than the bank paid at auction. Ga. Ltd. Partners, LLC v. City Nat'l Bank, 323 Ga. App. 766, 748 S.E.2d 131 (2013).

The trial judge's confirmation is a condition precedent to the creditor being permitted to sue debtor for any money deficiency resulting from the sale. United States v. Golf Club Co., 435 F.2d 9 (5th Cir. 1970); Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238 (1972); Windland Co. v. FDIC, 151 Ga. App. 742, 261 S.E.2d 407 (1979), rev'd on other grounds, 245 Ga. 194, 264 S.E.2d 11 (1980).

O.C.G.A. § 44-14-161 requires a confirmation as a condition precedent to an action for a deficiency judgment. Commercial Exch. Bank v. Johnson, 197 Ga. App. 529, 398 S.E.2d 817 (1990).

Where two notes were secured by the same deed and the same property, but the foreclosure advertisement only referenced one note, the action was nevertheless a suit for a deficiency judgment which was barred due to failure to obtain a confirmation. C.K.C., Inc. v. Free, 196 Ga. App. 280, 395 S.E.2d 666 (1990); Ward v. Pembroke State Bank, 212 Ga. App. 322, 441 S.E.2d 691 (1994).

Trial court did not abuse the court's discretion by ordering the resale of the property in a foreclosure confirmation proceeding because nothing in the record indicated that the trial court failed to exercise the court's discretion out of a belief that the bank was entitled to a resale merely because the bank had relied on a flawed appraisal; rather, the trial court found that the bank relied on a flawed appraisal in good faith and that the bank had shown good cause for a resale. Sanusi v. Cmty. & S. Bank, 330 Ga. App. 198, 766 S.E.2d 815 (2014).

Confirmation is not a prerequisite to the finality of a foreclosure sale but only to seeking a deficiency in the case of a final foreclosure sale. Gooden v. Buffalo Sav. Bank, 21 Bankr. 456 (Bankr. N.D. Ga. 1982).

- Trial court did not err in granting summary judgment to a note holder on the holder's suit against a debtor as a personal guarantor of the note because the failure to confirm the nonjudicial foreclosure sale pursuant to the security deed did not prevent the holder from seeking to enforce the holder's contractual right to recover against additional security on the debt. HWA Props., Inc. v. Cmty. & S. Bank, 322 Ga. App. 877, 746 S.E.2d 609 (2013).

Because the record did not demonstrate that the promissory notes underlying a bank's claims were inextricably intertwined with any debt on six of the foreclosure sales, the trial court was not authorized to conclude that the bank's claims relating to those promissory notes were barred as impermissible attempts to obtain deficiency judgments. First Citizens Bank & Trust, Inc. v. Ruddell, 330 Ga. App. 82, 766 S.E.2d 538 (2014).

In a bank's appeal of summary judgments entered against the bank and in favor of various defendants, which precluded the bank from recovering monies from the defendants owed under various promissory notes, credit agreements, and/or guaranties, the court affirmed some of the judgments and reversed others because the fact that the bank did not seek to have the sales of the realty confirmed was irrelevant to the defendant's liability. First Citizens Bank & Trust, Inc. v. Ruddell, 330 Ga. App. 82, 766 S.E.2d 538 (2014).

- Trial court did not err in confirming and approving a foreclosure sale pursuant to O.C.G.A. § 44-14-161 because the issue of a bank's standing to bring the confirmation action against the guarantors was not relevant to the confirmation proceeding which was commenced in accordance with O.C.G.A. § 44-14-161(a); standing issues are outside the scope of a confirmation hearing. Boring v. State Bank & Trust Co., 307 Ga. App. 93, 704 S.E.2d 207 (2010).

Property owner's claim that a bank was not a real party in interest was not relevant to a confirmation proceeding pursuant to O.C.G.A. § 44-14-162, as the matter was commenced in accordance with O.C.G.A. § 44-14-161(a) by the person instituting the foreclosure proceedings; issues of standing and assignment were irrelevant to the confirmation proceeding. White Oak Homes, Inc. v. Cmty. Bank & Trust, 314 Ga. App. 502, 724 S.E.2d 810 (2012), cert. denied, No. S12C1120, 2012 Ga. LEXIS 671 (Ga. 2012).

- Order denying a creditor's application for confirmation of a foreclosure sale was proper because the trial court, as the trier of fact, was authorized to weigh the evidence and judge the credibility of both experts to conclude that the creditor's expert's valuation under the discounted cash model was unreliable and the builder's expert, who used the bulk sales comparison approach, was more credible and used a more appropriate method. Eagle GA I SPE, LLC v. Atreus Cmtys. of Fairburn, Inc., 319 Ga. App. 844, 738 S.E.2d 675 (2013).

- Even where confirmation is withheld, a foreclosure may still be final if it is consummated. Gooden v. Buffalo Sav. Bank, 21 Bankr. 456 (Bankr. N.D. Ga. 1982).

There was evidence to support the trial court's finding that a foreclosure sale was consummated because a bank presented the testimony of an attorney that the attorney witnessed the foreclosure sale at issue, that the foreclosure sale occurred outside the annex of the county courthouse, that the sale consisted of several lots, which the attorney identified by their lot numbers, that the foreclosure notice was read in the notice's entirety and the sale was opened for bidding, that the bank submitted an opening bid, and that there were no other bidders. Winstar Dev., Inc. v. SunTrust Bank, 308 Ga. App. 655, 708 S.E.2d 604 (2011).

Trial court properly declared that a bank's first nonjudicial foreclosure sale was not valid because the bank never consummated the bank's successful bid at the sale of the property securing the loan since the transfer of the borrower's right of possession and the bank's equity of redemption to the bank as the foreclosure sale purchaser never occurred; the bank did not transfer the borrower's right of possession to itself as the first foreclosure sale purchaser at the sale, and the bank did not apply sale proceeds to eliminate or reduce the borrower's obligation under the secured promissory note. Building Block Enterprises, LLC v. State Bank & Trust Company, 314 Ga. App. 147, 723 S.E.2d 467 (2012), cert. denied, No. S12C1053, 2012 Ga. LEXIS 553 (Ga. 2012).

- When the creditor wishes to exercise a power of foreclosure prior to obtaining a judgment on the note and thereby save time and expense, the creditor will be required to comply with O.C.G.A. § 44-14-161 before bringing any action for a deficiency judgment. Taylor v. Thompson, 158 Ga. App. 671, 282 S.E.2d 157 (1981).

The fact that a creditor may choose not to seek foreclosure and pursue other remedies does not alter the fact that when the creditor does foreclose it must confirm in order to recover a deficiency judgment. Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144 (N.D. Ga. 1981).

The law requires that if the lender chooses to foreclose on the collateral, it must obtain confirmation of the sale in order to pursue an action for the deficiency. United States v. Yates, 774 F. Supp. 1368 (M.D. Ga. 1991).

Continuing to pursue a lawsuit on a promissory note after the foreclosure proceedings have been concluded constitutes an "action" on the part of the creditor to obtain a deficiency judgment against the debtor and would require compliance with O.C.G.A. § 44-14-161. Vaughan v. Moore, 202 Ga. App. 592, 415 S.E.2d 47 (1992).

Trial court's holding that a bank was not required to confirm a second nonjudicial foreclosure sale under O.C.G.A. § 44-14-161 before pursuing an action for a deficiency judgment against a guarantor was an erroneous advisory opinion because the bank did file a confirmation petition and, thus, the parties failed to show under O.C.G.A. § 9-4-2(a) that there was any justiciable controversy on the issue of whether it was required to do so. Building Block Enterprises, LLC v. State Bank & Trust Company, 314 Ga. App. 147, 723 S.E.2d 467 (2012), cert. denied, No. S12C1053, 2012 Ga. LEXIS 553 (Ga. 2012).

- Trial court erred by granting a note holder a deficiency judgment because since the note holder did not obtain a judgment on the note against the debtor prior to the foreclosure sale, it was required to comply with the confirmation requirements of O.C.G.A. § 44-14-161 in order to obtain a deficiency judgment on the note. HWA Props., Inc. v. Cmty. & S. Bank, 322 Ga. App. 877, 746 S.E.2d 609 (2013).

Failure to obtain confirmation does not invalidate the remaining obligation; it simply renders it impossible for the holder to sue on it, just as would a discharge in bankruptcy of the maker, properly pleaded. Turpin v. North Am. Acceptance Corp., 119 Ga. App. 212, 166 S.E.2d 588 (1969); Marler v. Rockmart Bank, 146 Ga. App. 548, 246 S.E.2d 731 (1978).

Where the mortgagors' possible liability to mortgage insurer, not the lender, arose from a completely independent source than the debt mortgagors owed the lender, mortgage insurer's action to recover under a loan indemnity agreement was not barred by the lender's failure to have the foreclosure sale confirmed. Turner v. Commonwealth Mtg. Assurance Co., 207 Ga. App. 428, 428 S.E.2d 398 (1993).

- Failure to have a sale confirmed does not prevent a creditor from pursuing other contractual security on the debt. Calvert Fire Ins. Co. v. Environs Dev. Corp., 601 F.2d 851 (5th Cir. 1979); Surety Managers, Inc. v. Stanford, 633 F.2d 709 (5th Cir. 1980), cert. denied, 454 U.S. 828, 102 S. Ct. 120, 70 L. Ed. 2d 104 (1981).

Failure to obtain confirmation of a sale under O.C.G.A. § 44-14-161 did not preclude the lender from filing a complaint against the individual debtor under 11 U.S.C.S. § 523(a)(4) or (a)(6) of the Bankruptcy Code, alleging a claim for conversion of accounts receivable which also secured the loan. Presidential Fin. Corp. v. Snead, 231 Bankr. 823 (Bankr. N.D. Ga. 1999).

- Bankruptcy creditor's failure to obtain judicial confirmation following foreclosure did not preclude the creditor from recovering rents and profits, where the property was sold for more than its fair market value and the rents and profits represented separate contractual security to which the creditor was entitled. In re Johnson, Wilson & Dillon, 123 Bankr. 439 (Bankr. N.D. Ga. 1990).

- Failure to obtain confirmation of sale does not extinguish the debt; it simply limits the creditor's remedies. Surety Managers, Inc. v. Stanford, 633 F.2d 709 (5th Cir. 1980), cert. denied, 454 U.S. 828, 102 S. Ct. 121, 70 L. Ed. 2d 104 (1981).

- Failure to obtain confirmation of a sale under power simply renders it impossible for the holder to sue on the deficiency. Such failure does not operate to satisfy the debt or prevent the creditor from pursuing other available remedies. First Fed. Sav. & Loan Ass'n v. Fisher, 422 F. Supp. 1 (N.D. Ga. 1976), aff'd, 544 F.2d 902 (5th Cir. 1977).

Where the creditor bank did not have the foreclosure sale confirmed by the superior court, it could not take action under the state law to assert a deficiency claim. In re Wiggins, 167 Bankr. 990 (Bankr. M.D. Ga. 1993), aff'd, 167 Bankr. 992 (M.D. Ga. 1994).

- Where a sale under power was had but no confirmation thereof was had under O.C.G.A. § 44-14-161, no action could be brought for any deficiency under the terms of that section, even if the deficiency included attorney fees which had become a part of the principal at the time of the sale. Sockwell v. Pettus, 139 Ga. App. 311, 228 S.E.2d 343 (1976).

- Guaranty language was not sufficient to amount to a waiver of the guarantor's rights under the confirmation statute, where the guarantor gave the lender the power to conduct a foreclosure sale on the collateral, but the power was "to be exercised only to the extent permitted by law," and no confirmation was obtained. United States v. Yates, 774 F. Supp. 1368 (M.D. Ga. 1991).

If no confirmation is sought or, if sought, is not obtained, the debtor has secured the full benefit of the confirmation statute because the debt is, in effect, extinguished. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867 (1980).

There is no requirement in O.C.G.A. § 44-14-161 or otherwise that the grantee exercising the power of sale announce that the sale is subject to confirmation, or to delay transfer of the property until the confirmation is obtained. Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321, 254 S.E.2d 475 (1979).

There is no confirmation prerequisite for a suit based on legal malpractice, where the action is based on foreclosure on a security deed and for failure to provide a valid security deed. Kirby v. Chester, 174 Ga. App. 881, 331 S.E.2d 915 (1985).

- In confirmation proceedings, the superior court sits as a trier of fact, and its findings and conclusions have the effect of a jury verdict. What value is, or may have been, is a question of fact to be resolved as others are and in so doing the superior court is the judge of the credibility of the witnesses and of the weight to be given the evidence. La Ronde, Ltd. v. Amsouth Bank, 203 Ga. App. 400, 416 S.E.2d 881 (1992).

- Where a bank does not seek a deficiency as to the debt secured by the realty, but seeks to recover on a separate note that defendant signed as the indorser thereof, the fact that the bank did not seek to have the sale of the realty confirmed is irrelevant to defendant's liability. Breitzman v. Heritage Bank, 180 Ga. App. 171, 348 S.E.2d 713 (1986).

Where the judgment obtained by the creditor was awarded only against borrower and not against the guarantors individually, since the guarantors were entitled only to the same rights as the borrower with regard to a creditor's attempt to collect a deficiency after foreclosure, and since the borrower could not have insisted on confirmation of the sale before the creditor attempted to collect the deficiency, it did not appear that the guarantors were entitled to any greater rights to do so before the deficiency was sought to be collected from them. Therefore, the creditor was not required to obtain judicial confirmation of its foreclosure sale of the borrower's property before attempting to collect the deficiency from the guarantors. Business Dev. Corp. v. Bickerstaff, 73 Bankr. 421 (Bankr. N.D. Ga. 1987).

Where a personal note of a corporation president and a note of the corporation arose from bank loans for separate and distinct purposes, notwithstanding the existence of only one security deed and a dragnet clause in the personal note that could be construed as indirectly subjecting foreclosed property that was collateral for the personal loan to constitute additional collateral for the corporate loan, an action by the bank against the corporation to collect the balance due on its note was not barred by failure of the bank to confirm foreclosure sale of the land. Baby Days, Inc. v. Bank of Adairsville, 218 Ga. App. 752, 463 S.E.2d 171 (1995).

Bank that ceased efforts to foreclose on real estate securing borrowers' and guarantors' notes evidencing obligations to the bank and sued the borrowers and guarantors on the notes, brought a suit that was not an improper deficiency action, due to the bank's failure to obtain confirmation, because the bank was not required to obtain confirmation since: (1) no sale was consummated; (2) the bank could both sue on the notes and foreclose until the debt was paid; and (3) the borrowers and the guarantors were not harmed, as the borrowers' and the guarantors' interests were the same before and after the attempted sale, and no negligence, fraud, collusion, or bad faith was shown. Tampa Inv. Group, Inc. v. Branch Banking & Trust Co., 290 Ga. 724, 723 S.E.2d 674 (2012).

Dragnet clause contained in initial loans did not effectively merge debts into one debt requiring judicial confirmation of the foreclosure sale because the loans made to debtors and a limited liability company (LLC) were separate; the debtors and a banks' predecessor were the original parties to the loans made to the debtors, and the LLC and another bank were the original parties to the loan made to the LLC. 3 West Invs., LLC v. Hamilton State Bank, 316 Ga. App. 796, 728 S.E.2d 843 (2012), cert. denied, No. S12C1886, 2012 Ga. LEXIS 982 (Ga. 2012).

Because loans made to debtors were separate from a loan made to a limited liability company (LLC), confirmation of the nonjudicial foreclosure sale under O.C.G.A. § 44-14-161(a) was not required in order for a bank to pursue collection under the loan to the LLC. 3 West Invs., LLC v. Hamilton State Bank, 316 Ga. App. 796, 728 S.E.2d 843 (2012), cert. denied, No. S12C1886, 2012 Ga. LEXIS 982 (Ga. 2012).

Because a lender was not seeking a deficiency judgment when the lender sued the guarantors of a mortgage loan, the denial of confirmation did not preclude the lender from obtaining a judgment against the guarantors for the difference between what the lender paid in the foreclosure sale and the unpaid balance of the debt, including taxes, penalties, and interest. Inland Mortg. Capital Corp. v. Chivas Retail Partners, LLC, 740 F.3d 1146 (7th Cir. 2014).

Defendants' guaranties for a promissory note waived the defendants' right to insist on judicial confirmation of foreclosure sale as a prerequisite to seeking a deficiency judgment as required by Georgia law. Coastal Bank v. Martin, F.3d (11th Cir. Nov. 20, 2017)(Unpublished).

- Where a creditor elects to resort to the courts and obtain a judgment on the note prior to exercising the power of sale, the creditor will not be required to have such sale confirmed before attempting further enforcement of the judgment. Taylor v. Thompson, 158 Ga. App. 671, 282 S.E.2d 157 (1981).

Where a foreclosure sale has occurred after a default judgment has been entered, the failure to obtain confirmation of the sale does not affect the validity or enforceability of the judgment with respect to any amounts which may remain due thereunder. Georgia R.R. Bank & Trust Co. v. Griffith, 176 Ga. App. 198, 335 S.E.2d 417 (1985).

Mortgage industrial revenue bonds were personal property and were not subject to the confirmation procedure. Merrill v. First Union Nat'l Bank, 224 Ga. App. 773, 481 S.E.2d 890 (1997).

Failure to confirm does not estop a creditor from pursuing other contractual security on the debt. Taylor v. Thompson, 158 Ga. App. 671, 282 S.E.2d 157 (1981); Worth v. First Nat'l Bank, 175 Ga. App. 297, 333 S.E.2d 173 (1985); Mobley v. Commonwealth Mtg. Ins. Co., 264 Ga. 652, 450 S.E.2d 205 (1994).

A creditor may seek to enforce a contractual right to pursue other contractual security for its debt following a foreclosure sale of real property without obtaining confirmation of the foreclosure, and guaranties and the deed to secure debt on guarantors' residence are additional security which the creditor can pursue to satisfy the debt owed to it by the borrower without confirming the foreclosure sale of the borrower's real property. Business Dev. Corp. v. Bickerstaff, 73 Bankr. 421 (Bankr. N.D. Ga. 1987).

Failure to obtain confirmation of a sale does not operate to extinguish the remaining debt; rather, it simply precludes the person exercising the power of sale from bringing action to obtain a deficiency judgment. Taylor v. Thompson, 158 Ga. App. 671, 282 S.E.2d 157 (1981).

- IRS was entitled to summary judgment on Chapter 7 debtors' claim that it miscalculated the amount of income the debtors had in 2006 when it added $19,898 to their income because a mortgage company forgave $19,898 of a $189,898 debt the debtors owed after it foreclosed a mortgage and sold the debtors' house for $170,000. The mortgage company's failure to provide proof that the sale was confirmed by a state court, pursuant to O.C.G.A. § 44-14-161 et seq., did not prevent the IRS from recognizing the debtors' discharge-of-indebtedness income. Godfrey v. IRS (In re Godfrey), Bankr. (Bankr. N.D. Ga. Aug. 31, 2009).

- Lender's failure to "confirm" the foreclosure sale of property given as security for a 1984 loan did not prohibit the federal Small Business Administration (SBA) from foreclosing on separate security given for a 1983 SBA loan to the same borrower. Regan v. United States Small Bus. Admin., 729 F. Supp. 1339 (S.D. Ga. 1990), aff'd, 926 F.2d 1078 (11th Cir. 1991).

Generally, notes made at different times to different creditors and for different collateral purposes are not subject to confirmation. Oakvale Rd. Assocs. v. Mortgage Recovery, 231 Ga. App. 414, 499 S.E.2d 404 (1998).

- Superior court correctly construed O.C.G.A. § 44-14-161 and properly allowed an assignee to pursue the confirmations of foreclosure sales because to the extent deficiencies remained after the foreclosures with respect to the underlying indebtedness, claims therefore belonged to the assignee; the original creditor of the underlying notes and the entity that instituted the foreclosure proceedings transferred the notes to the assignee. Titshaw v. Northeast Ga. Bank, 304 Ga. App. 712, 697 S.E.2d 837 (2010).

- Failure to confirm foreclosure under one security instrument did not bar lender from suing defendants on an independent, separate, unsecured obligation. Devin Lamplighter, Ltd. v. American Gen. Fin., Inc., 206 Ga. App. 747, 426 S.E.2d 645 (1992).

- Creditor, who foreclosed on three different tracts of land, each of which secured separate promissory notes, was able to seek a deficiency judgment on two notes, despite not having confirmed the foreclosure sale pursuant to O.C.G.A. § 44-14-161(a), because the debts at issue were not "inextricably intertwined." In re Cox, 456 Bankr. 592 (Bankr. N.D. Ga. 2011).

- Notes executed almost a year apart for different, although related, purposes in the same land were inextricably intertwined so that failure to obtain judicial confirmation of the first sale precluded a deficiency judgment after the second sale. Oakvale Rd. Assocs. v. Mortgage Recovery, 231 Ga. App. 414, 499 S.E.2d 404 (1998).

As a maker's two debts to a bank were incurred for the same purpose, were secured by the same property, and both contained a cross-default clause, the two debts were inextricably intertwined. Thus, the bank's suit on the second promissory note constituted a claim for a deficiency judgment requiring judicial confirmation under O.C.G.A. § 44-14-161(a) of the foreclosure sale associated with the first note, and any further action by the bank to recover against the maker on the second note was barred by the bank's failure to comply with § 44-14-161(a). Iwan Renovations, Inc. v. N. Atlanta Nat'l Bank, 296 Ga. App. 125, 673 S.E.2d 632 (2009).

Lender's foreclosure sales and deficiency judgments were barred by O.C.G.A. § 44-14-161(a) because the lender failed to get judicial confirmation of the debts, which were inextricably intertwined- in that they were incurred for the same purpose, secured by the same property, held by the same creditor, and owed by the same debtor. Bank of N. Ga. v. Windermere Dev., Inc., 316 Ga. App. 33, 728 S.E.2d 714 (2012).

- Superior court did not err in confirming the nonjudicial foreclosure sale because the court's erroneous hearsay ruling was not harmful and did not warrant reversal; the ruling did not deprive a construction company and guarantors of an evidentiary basis to support their challenge to the regularity of the sale, and the superior court had a sufficient record to consider their argument and find that the sale was regular. Diplomat Constr., Inc. v. State Bank of Tex., 314 Ga. App. 889, 726 S.E.2d 140 (2012).

- Trial court erred by dismissing an investment company's request for confirmation of a second foreclosure sale under O.C.G.A. § 44-14-161(c) by finding that a supersedeas arose from the mortgagor's appeal because the supersedeas statute, O.C.G.A. § 5-6-46(a), expressly only applied to civil cases, and did not apply to a foreclosure confirmation proceeding. Summit Inv. Mgmt. Acquisitions I, LLC v. Greg A. Becker Enters., Ltd., 317 Ga. App. 608, 732 S.E.2d 286 (2012).

5. True Market Value

Market value defined.

- The market value is the price which it will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who wishes to buy, but is not under a necessity to do so. Wachovia Mtg. Co. v. Moore, 138 Ga. App. 101, 225 S.E.2d 460 (1976), overruled on other grounds, FDIC v. Ivey-Matherly Constr. Co., 144 Ga. App. 313, 241 S.E.2d 264 (1977).

The focus of the definition of "market value" is the price that two parties agree will be paid for the property itself, without consideration of such collateral issues as the financial responsibility for or the nature and amount of expenses and closing costs to be paid to others in connection with buying or selling it. Wheeler v. Coastal Bank, 182 Ga. App. 112, 354 S.E.2d 694 (1987).

"Fair market value" of real estate and "true market value" are used interchangeably by the appellate courts. Aaron v. Life Ins. Co. of Ga., 138 Ga. App. 286, 226 S.E.2d 96 (1976).

What market value is under the circumstances is a question of fact to be resolved as others are, and the weight to be given it was for the judge in the nonjury hearing. Kent v. Scott Hudgens Realty & Mtg., Inc., 138 Ga. App. 30, 225 S.E.2d 447 (1976).

Burden of proof is on the mortgagee to present evidence as to the fair market value of the property. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

O.C.G.A. § 44-14-161 requires that the trial judge make a determination as to whether the sale brought the property's true market value, not whether the price was grossly inadequate. FDIC v. Ivey-Matherly Constr. Co., 144 Ga. App. 313, 241 S.E.2d 264 (1977); FDIC v. M.C. Honea, Jr., Inc., 440 F. Supp. 1064 (N.D. Ga. 1977); United States v. Smith, 479 F. Supp. 804 (N.D. Ga. 1979).

- On appellate review, the test is whether the record contains any evidence to support the findings of the trial court that the property brought its true market value at the foreclosure sale. Tarleton v. Griffin Fed. Savs. Bank, 202 Ga. App. 454, 415 S.E.2d 4 (1992).

Because a bank's appraiser correctly deducted the cost to complete the homes on the owners' properties from the "subject to" market value of the properties, and because the basis for the appraiser's opinion amounted to more than sheer speculation, the trial court's foreclosure confirmation order complied with O.C.G.A. § 44-14-161(b) by including findings of fact that supported the conclusion that each of the properties sold for the property's true market value. McBryar v. Branch Banking & Trust Co., 305 Ga. App. 857, 700 S.E.2d 731 (2010).

Appellate court's review of the trial court's determination that a lender failed to produce evidence of the true market value is whether the record contains any evidence to support the findings of the trial court, and whether the appellate court views the evidence in the light most favorable to the trial court's judgment because O.C.G.A. § 44-14-161 specifically refers to "real estate" and "land" as the subject of the confirmation of sale procedure, not leased estates. GCCFC 2007-GGP Abercorn St. Ltd. P'ship v. Abercorn Common, LLLP, 316 Ga. App. 879, 730 S.E.2d 589 (2012).

In reviewing the trial court's decision, the test is not whether the appellate court would have accepted a particular appraisal as the most reliable and accurate, but whether the record contains any evidence to support the findings of the trial court that the property brought the property's true market value at the foreclosure sale. Ga. Ltd. Partners, LLC v. City Nat'l Bank, 323 Ga. App. 766, 748 S.E.2d 131 (2013).

- Where a bidder for property provided the court with the basis for the bidder's opinions regarding the fair market value of the property, and it appeared that the bidder's opinion was not based on sheer speculation, the appellate court could not second guess the methodology utilized to reach the opinion. La Ronde, Ltd. v. Amsouth Bank, 203 Ga. App. 400, 416 S.E.2d 881 (1992).

Trial court's order confirming a foreclosure sale of property for $14,800,000.00 was proper as a lienholder's appraiser testified that the property's value was $13,290,000.00; because the appraiser's opinions were not based on sheer speculation, the appellate court did not second-guess the methodology. Wilson v. Prudential Indus. Props., LLC, 276 Ga. App. 180, 622 S.E.2d 890 (2005).

In a foreclosure action, because the appeals court could not second guess the methodology used by an expert in appraising the market value of the property at issue, and the trial court had sufficient data to derive its own opinion as to the market value of the property at the time of the sale, it properly confirmed the foreclosure sale. Chamblee Hotels, LLC v. Chesterfield Mortg. Investors, Inc., 287 Ga. App. 342, 651 S.E.2d 447 (2007), cert. denied, No. S08C0072, 2008 Ga. LEXIS 75 (Ga. 2008).

- O.C.G.A. § 44-14-161 requires the trial court to call for sufficient evidence to satisfy the court as to what is the true market value of the property. It does not demand the court establish as a matter of fact and law what is the actual dollar amount of the true market value. American Century Mtg. Investors v. Strickland, 138 Ga. App. 657, 227 S.E.2d 460 (1976); Echols v. Edwards, 185 Ga. App. 688, 365 S.E.2d 844 (1988).

- Whether in bankruptcy or not, before a deficiency action may be brought by a creditor who forecloses on Georgia real estate, it must have the price at which the property sold judicially confirmed to be an accurate reflection of the property's fair market value. United States v. Oakland City Apts., Inc., 1 Bankr. 123 (Bankr. N.D. Ga. 1979).

The price brought at a public sale, after proper and lawful advertisement is prima facie the market value of the property sold as a general rule, absent anything to indicate that there was chilling of the bidding, fraud, or the like adversely affecting the sale. But under the terms of O.C.G.A. § 44-14-161 the applicant may not rely solely on such a prima facie showing; the applicant must introduce evidence showing the value of the property at the time of sale. Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238 (1972); Peachtree Mtg. Corp. v. First Nat'l Bank, 143 Ga. App. 17, 237 S.E.2d 416 (1977).

- Where initial foreclosure sales were set aside and properties ordered to be resold, sellers were required to show the true market value of the properties on the date of the resales, not on the date of the initial foreclosure sales. Kong v. Shearson Lehman Hutton Mtg. Corp., 211 Ga. App. 93, 438 S.E.2d 132 (1993).

Testimony of the selling price of an identical piece of property does not establish precise market value as a matter of law. Smith v. Fidelity Fed. Sav. & Loan Ass'n, 149 Ga. App. 730, 256 S.E.2d 43 (1979).

- Because there was evidence of the parcels' value about five weeks before the foreclosure sales occurred, the appraisal date was relatively close to the date of the foreclosure sales, which was sufficient for the trial court to confirm the sales as required under O.C.G.A. § 44-14-161. LRD, LLC v. State Bank & Trust Co., 326 Ga. App. 644, 757 S.E.2d 251 (2014).

- Assuming that the superior court erred by concluding that, under O.C.G.A. § 44-14-161(b), the parties were limited to introducing evidence of the properties' value on only the date of the foreclosure sale, the borrowers induced the error and could not complain because the borrowers specifically argued to the superior court that the lender's evidence had to be excluded since the condition of the property after the foreclosure sale was not relevant to the true market value at the time of the sale; the borrowers did not show that the superior court disregarded their expert's testimony for valuing the property. Eayrs v. Wells Fargo Bank, N.A., 311 Ga. App. 504, 716 S.E.2d 561 (2011).

Superior court did not err in confirming a foreclosure sale because the lender's expert explained the basis for the expert's methodology and testified about the sources upon which the expert relied, and as it appeared that the expert's opinion was not based on sheer speculation, the appellate court could not second-guess any methodology utilized to reach the opinion; the superior court expressly invited the borrowers to cross-examine the expert about the basis of the expert's opinions to verify that the opinions were not based on an inspector's condition report. Eayrs v. Wells Fargo Bank, N.A., 311 Ga. App. 504, 716 S.E.2d 561 (2011).

Superior court did not err in confirming the nonjudicial foreclosure sale of a hotel leasehold interest held by a lender under a deed securing a promissory note a construction company executed because there was competent evidence supporting the superior court's finding that the auction brought the true market value for the property; the superior court found the lender's expert credible and the valuation methodology sound. Diplomat Constr., Inc. v. State Bank of Tex., 314 Ga. App. 889, 726 S.E.2d 140 (2012).

Trial court did not abuse the court's discretion by admitting the expert testimony proffered by the mortgagee because the testimony was sufficient, competent evidence supporting the finding that the foreclosure sale should be confirmed and provided proof of the true market value as of the date of the foreclosure sale. Powder Springs Holdings, LLC v. RL BB ACQ II-GA PSH, LLC, 325 Ga. App. 694, 754 S.E.2d 655 (2014).

- At a foreclosure confirmation hearing held under O.C.G.A. § 44-14-161, a trial court erred in relying on three appraisal reports to find that the foreclosed properties were sold at fair market value because the reports were hearsay: although the appraiser was present, the appraiser did not testify, and the bank's attorney merely stated in the appraiser's place that the sales were made at fair market value. Belans v. Bank of Am., 303 Ga. App. 35, 692 S.E.2d 694 (2010).

- Trial court did not err in confirming a foreclosure sale under O.C.G.A. § 44-14-161(b) even though expenses and carrying costs were deducted in determining true market value of the subdivision property and even when a bulk sales analysis resulted in a lower true market value than an analysis of each individual lot contained on the property. Trefren v. Freedom Bank, 300 Ga. App. 112, 684 S.E.2d 144 (2009).

Trial court did not err in confirming foreclosure sales pursuant to O.C.G.A. § 44-14-161 because there was evidence to support the court's finding that the two properties sold for their true market value at foreclosure sale; although the appraisal of the bank's expert did not specifically provide the separate true market value for each parcel of lots, the expert's testimony and appraisal provided the methodology by which the separate value of each parcel could be obtained, i.e., multiplying the true market value of each lot by the number of lots in each parcel, and it was clear from the appraisal reports and testimony of the bank's expert and the expert of the debtor and guarantor that the valuation of each parcel would not change if the properties were sold separately or together as a bulk transaction. Battle Props. v. Branch Banking & Trust Co., 310 Ga. App. 217, 712 S.E.2d 625 (2011).

What property may have brought or what it may have been regarded as being worth on the market at times relatively close to the date of sale may be considered as aids in arriving at market value at the time of sale. Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238 (1972).

It is no defense in Georgia if market values are depressed by general economic factors. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

If the trial judge is not satisfied that the foreclosure sale brought what in the judge's opinion approximates the true market value of the property, the judge is required to deny confirmation of the sale and, if necessary, to order a resale. American Century Mtg. Investors v. Strickland, 138 Ga. App. 657, 227 S.E.2d 460 (1976).

Where realty and personalty are sold for a lump sum and it is impossible to tell what amount the realty sold for, the evidence does not show that the real property brought its true market value as required by O.C.G.A. § 44-14-161 and the trial judge errs if the sale is confirmed. Hinson v. First Nat'l Bank, 221 Ga. 408, 144 S.E.2d 765 (1965); United States v. Golf Club Co., 435 F.2d 9 (5th Cir. 1970).

- Creditor's testimony regarding assignment of note and deed of trust from a bank to the creditor established that the assignments were made, although the issue of whether the creditor, as the person instituting the foreclosure action, was the real party in interest was irrelevant to a confirmation proceeding; the creditor's testimony about the creditor's experience with the property, how much the creditor had invested in it, how much the creditor's borrowed against it, its condition at the time of the foreclosure sale, and the creditor's opinion that he bid the fair market value for the property, along with the testimony of one of the buyers and the tax appraisal, was sufficient to show the fair market value of the property at the time of the sale. McCain v. Galloway, 267 Ga. App. 505, 600 S.E.2d 449 (2004).

Mortgagee was entitled to confirmation of a foreclosure sale because the mortgagee showed that the property at issue sold for true market value as required under O.C.G.A. § 44-14-161 because a deduction by the mortgagee's expert for loss of rental income due to the incompletion of buildings on the property was proper as the property was worth more fully rented. Nash v. Compass Bank, 296 Ga. App. 874, 676 S.E.2d 28 (2009).

Lender's appraiser's opinion as to foreclosed property's true market value at the time of foreclosure was properly admitted under former O.C.G.A. § 24-9-67.1(b) (see now O.C.G.A. § 24-7-702). The lender's expert's appraisal was based upon extensive facts and careful analysis taking into account the potential for future recovery of a down real estate market by the discounted flow method, which the borrower conceded was reliable. Blue Marlin Dev., LLC v. Branch Banking & Trust Co., 302 Ga. App. 120, 690 S.E.2d 252 (2010).

Trial court did not err in confirming a nonjudicial sale of certain property since the trial court was not required to disregard the valuation opinion of the mortgagee's appraiser merely because it was based on the existing one-unit configuration of the property, and the evidence was sufficient to show that the appraiser's opinion was not based on sheer speculation; nothing in O.C.G.A. § 44-14-161 or prior case law requires a trial court in every instance to adopt the highest and best use as the basis for determining true market value and to reject any appraisal which was not explicitly based on the property's highest and best use. TKW Partners, LLC v. Archer Capital Fund, L.P., 302 Ga. App. 443, 691 S.E.2d 300 (2010).

Trial court did not err in finding find that a property's "as-is" value, rather than a value based on its "highest and best use," was the true market value for purposes of O.C.G.A. § 44-14-161(b), because two appraisers agreed on the value of the property as a single unit, and the trial court's finding that there was no variance between the experts as to the "true market value" of the property was construed to reflect that fact and not a misunderstanding as to the nature of the evidence; the trial court acknowledged that there was a dispute as to what the true value was and then ruled that the highest and best use of the property was not its proper value. TKW Partners, LLC v. Archer Capital Fund, L.P., 302 Ga. App. 443, 691 S.E.2d 300 (2010).

Sufficient evidence supported confirmation of a lender's application for a foreclosure sale under O.C.G.A.44-14-161(b) because the appraiser used a valid valuation method, and the appraisal was supported by competent evidence showing that the property's true market value was equivalent to the price the lender paid at a nonjudicial foreclosure sale. Greenwood Homes, Inc. v. Regions Bank, 302 Ga. App. 591, 692 S.E.2d 42 (2010).

Evidence supported a trial court's conclusion that properties were sold for their true fair market values because there was no testimony as to the value of any personal property, and the record showed that the foreclosure sale involved only the sale of real property; a bank's expert appraiser testified as to the methodology the appraiser used to determine the value of each property sold, and the appraiser testified that the properties in the first sales had no appliances therein and that some in the third had no flooring, carpet, or appliances. Belans v. Bank of Am., N.A., 306 Ga. App. 252, 701 S.E.2d 889 (2010).

Sufficient evidence supported the trial court's confirmation of a foreclosure sale pursuant to O.C.G.A. § 44-14-161 because the appraiser relied on the factual data collected by the appraiser's staff for the appraiser's valuation of the property, not on the staff's opinions as to the value of the property, and there was no evidence that the appraiser's valuation was based on sheer speculation; O.C.G.A. § 44-14-161(b) does not preclude any specific method of property appraisal. Boring v. State Bank & Trust Co., 307 Ga. App. 93, 704 S.E.2d 207 (2010).

Trial court did not err in confirming a non-judicial foreclosure sale of property to a bank because the record contained sufficient evidence to permit the trial court to determine that the foreclosure sale brought at least the true market value of the property as required by O.C.G.A. § 44-14-161(b) when the scope of an appraisal addendum included a re-inspection of the property and a review of changes in market conditions since the first appraisal and through the date of the foreclosure sale; even if the appraiser's recurring valuation for the property and cost-to-complete calculations strained credulity, the trial court was presented with additional, uncontested evidence to support the court's finding that the property sold for at least the property's true market value because the appraiser testified that the appraiser received no direction from the bank about the total to return when the appraiser reached $480,000 for the second time, and there was evidence that the true market value of the property could have actually been less than what the bank paid for the property. Atreus Cmtys. of Am., LLC v. KeyBank Nat'l Ass'n, 307 Ga. App. 716, 706 S.E.2d 107 (2011).

Trial court did not err in confirming a foreclosure sale by a bank because the trial court was authorized to find that the bank's winning bid at the sale represented the true market value of the property; the trial court was entitled to rely upon the valuation of the property by the bank's expert, including the expert's utilization of a 15 percent discount for builder/buyer risk in valuing the uncompleted house on the property, because the expert testified that the calculation was arrived at based on the expert's consultation with two separate homebuilders, and the expert arrived at the ultimate valuation after inspecting the uncompleted, vandalized home and assessing the condition of the surrounding subdivision. Jimmy Britt Builders, Inc. v. Suntrust Bank, 307 Ga. App. 663, 706 S.E.2d 665 (2011).

Because a foreclosure sale reflected the price that would be obtained in a sale under usual market conditions, and because deductions such as carrying costs and entrepreneurial profit factored directly into the price a willing buyer would pay for the properties, the trial court properly determined the properties' true market value under O.C.G.A. § 44-14-161(b). Henderson Prop. Holdings, LLC v. Sea Island Bank, 310 Ga. App. 795, 714 S.E.2d 382 (2011), cert. denied, No. S11C1787, 2011 Ga. LEXIS 991 (Ga. 2011).

Trial court did not err in confirming a nonjudicial foreclosure sale because the borrowers did not object to the testimony or the reports of the lender's appraiser as to the fair market value of the property, and there was no evidence that the appraiser's opinion was based on sheer speculation. O.C.G.A. § 44-14-161(b) did not preclude any specific method of property appraisal. Ivy Rd. Props., LLC v. First Citizens Bank & Trust Co., 311 Ga. App. 409, 715 S.E.2d 809 (2011).

Superior court did not err in confirming a foreclosure sale because the borrowers did not show that the lender's scheduling and cancelling the foreclosure sale caused the properties to bring in less than the properties fair market value on the date of the sale. Eayrs v. Wells Fargo Bank, N.A., 311 Ga. App. 504, 716 S.E.2d 561 (2011).

Because the mortgage guarantors did not rebut an appraiser's revised opinion of the true market value of a property, and because the revised value was less than the amount a bank bid in the bank's foreclosure sale, the trial court properly determined that the bank's bid, which brought at least the true market value of the property, complied with O.C.G.A. § 44-14-161(b). Metro Land Holdings Invs., LLC v. Bank of Am., N.A., 311 Ga. App. 498, 716 S.E.2d 566 (2011).

Order confirming a non-judicial foreclosure sale was not erroneous because there was evidence supporting the trial court's finding that the subject properties sold for at least the properties' true market value; the bank introduced the written appraisal reports and expert testimony from the bank's appraiser, which showed that the first property sold for $1,500 less than the property's value, which was within the range of the property's true market value, and the trial court's decision to adopt the determination of the bank's expert that the highest and best use of the property would be residential, and the expert's valuation method of calculating the retail value of the property by utilizing the sales comparison approach and then discounting that value to achieve the property's true market value, was not in error. River Forest, Inc. v. United Bank, 320 Ga. App. 115, 739 S.E.2d 403 (2013).

Confirmation of a foreclosure sale of subdivided property for $530,000 was proper because there was some evidence that the fair market value of the lots was $5,500 to $6,600, which was considerably less than the actual sales price of $10,000 per lot, and the borrower's expert's opinion that the per lot value was $12,000 was not supported by any comparable sales. Lost Lake Dev. Corp. v. Cmty. & S. Bank, 325 Ga. App. 527, 754 S.E.2d 114 (2014).

Evidence in the record, including the testimony of the demolition company owner regarding the cost of demolition, supported the trial court's determination that the price paid by the buyer represented the true market value of the property. Conyers 138, LLC v. ONH1, LLC, 341 Ga. App. 521, 801 S.E.2d 318 (2017).

- A party who explains arrival at a total price figure by adding component values, but provides no adequate explanation of how that party arrived at the value of the components, does not provide sufficient evidence to accurately ascertain the true market value so as to make a determination under O.C.G.A. § 44-14-161. Mallett v. Fulford, 142 Ga. App. 200, 235 S.E.2d 650 (1977).

Refusal to confirm a foreclosure sale was proper where the only evidence presented to the trial court as to the fair market value of the subject property was an appraisal submitted by an expert who failed to consider comparable properties close to the subject property which had much higher values than the more distant properties used by the assignees' expert, and which indicated that the true market value was much higher than the foreclosure sale price; the trial court found that the expert and the expert's appraisal were simply not believable. Foster v. Tycor, Inc., 267 Ga. App. 767, 601 S.E.2d 172 (2004).

Confirmation of nonjudicial foreclosure sales of certain properties did not comply with O.C.G.A. § 44-14-161 because the only evidence at the confirmation hearing regarding the properties' true market value was the testimony of the creditor's counsel, which was insufficient. Belans v. Bank of Am., N. A., 303 Ga. App. 654, 694 S.E.2d 725 (2010).

Superior court erred by confirming a foreclosure sale because no construction of the record would have authorized a finding that the sale price was at least the true market value of the property; the foreclosure sale amount was a matter of fact, and neither evidence nor stipulation of such amount was presented to the trial judge. Titshaw v. Northeast Ga. Bank, 304 Ga. App. 712, 697 S.E.2d 837 (2010).

Because the sellers' appraiser failed to account for substantial improvements to the interior of the residence in developing the appraiser's opinion of the property's market value, the trial court properly denied the sellers' application for confirmation under O.C.G.A. § 44-14-161(b). Hammock v. Issa, 310 Ga. App. 547, 713 S.E.2d 717 (2011).

Superior court did not err in denying a lender's petition to confirm the foreclosure of a shopping center because the lender failed to convince the superior court, by a preponderance of the evidence, that the property sold for the property's true market value pursuant to O.C.G.A. § 44-14-161; the lender's expert appraised the leased fee interest in the property and not the fee simple interest. GCCFC 2007-GGP Abercorn St. Ltd. P'ship v. Abercorn Common, LLLP, 316 Ga. App. 879, 730 S.E.2d 589 (2012).

In confirming foreclosure sale of property upon which was situated a condominium complex consisting of 30 partially constructed units, the court could calculate the true market value of the real estate as a single investment opportunity rather than by adding together the true market values of each of the separate residential units, where the security deed merely described the property as two tracts and contained no express requirement that the property be sold in individual units. Marion G. Davis, Inc. v. Cameron-Brown Co., 177 Ga. App. 646, 340 S.E.2d 216 (1986).

- Trial court erred in basing the court's holding that the appellees were not liable for the deficiency on the court's finding that the appellant suffered no damages as a result of the recording of the materialman's liens because the appellant obtained an order confirming the foreclosure sale and, thus, met the court's burden of proof of showing the amount of loss in a manner in which the trial judge could calculate the amount of the loss with a reasonable degree of certainty. Fannie Mae v. Las Colinas Apartments, LLC, 346 Ga. App. 867, 815 S.E.2d 334 (2018), cert. denied, No. S18C1616, 2019 Ga. LEXIS 177 (Ga. 2019).

- Trial court did not err in denying confirmation petition, where appraisals offered by both parties supported the court's conclusion that the market value of the condominium units involved had exceeded the amount bid for them at the foreclosure sales. First Nat'l Bank v. Childress-Ross Properties, Inc., 189 Ga. App. 765, 377 S.E.2d 533 (1989).

A "quick sale value" does not constitute competent evidence of the "true market value" of real property within the meaning of O.C.G.A. § 44-14-161. Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 424 S.E.2d 889 (1992).

Trial court erred by confirming a foreclosure sale under O.C.G.A. § 44-14-161(b) based on an appraisal that discounted the value of each town home by $10,000 because the homes were in foreclosure because evidence of the "quick sale" value of the properties did not reflect the price that would have been obtained in a sale under the usual market conditions. Cartersville Developers, LLC. v. Ga. Bank & Trust, 292 Ga. App. 375, 664 S.E.2d 783 (2008).

Although a foreclosure sale price was the same as the quick sale value, and the experts were not informed about two higher offers for a portion of the property before their appraisals, reversal of a decision confirming the foreclosure sale was not required because the expert's opinion was not based solely on the quick sale value but on other factors. Mundy Mill Dev., LLC v. ACR Prop. Servs., LP, 306 Ga. App. 730, 703 S.E.2d 137 (2010).

Hearing

1. Powers and Duties of Court

O.C.G.A. § 44-14-161 does not violate Ga. Const. 1976, Art. VI, Sec. XV, Para. I (see now Ga. Const. 1983, Art. I, Sec. I, Para. XI) by failing to provide for the trial of issues of fact by jury. Harwell v. First Fed. Sav. & Loan Ass'n, 245 Ga. 757, 267 S.E.2d 229 (1980).

No jury trial is required under O.C.G.A. § 44-14-161. Kilgore v. Life Ins. Co., 138 Ga. App. 890, 227 S.E.2d 860 (1976).

A right to a jury trial does not exist in confirmation proceedings brought in the state courts of Georgia. FDIC v. New London Enters., Ltd., 619 F.2d 1099 (5th Cir. 1980).

The duty of the court is to test the fairness of the technical procedure of the actual sale and to insure that the sale has brought at least the true market value of the property. Jones v. Hamilton Mtg. Corp., 140 Ga. App. 490, 231 S.E.2d 491 (1976); Hamilton Mtg. Corp. v. Bowles, 142 Ga. App. 882, 237 S.E.2d 198 (1977); Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980); Harris & Tilley, Inc. v. First Nat'l Bank, 157 Ga. App. 88, 276 S.E.2d 137 (1981); Alexander v. Weems, 157 Ga. App. 507, 277 S.E.2d 793 (1981).

The judge sits as a trier of fact and the judge's findings and conclusions have the effect of a jury verdict. Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238 (1972); Alexander v. Weems, 157 Ga. App. 507, 277 S.E.2d 793 (1981).

- What value is, or may have been, is a question of fact to be resolved as others are. In so doing the trier of fact is the judge of the credibility of the witnesses and of the weight to be given the evidence. Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238 (1972); Alexander v. Weems, 157 Ga. App. 507, 277 S.E.2d 793 (1981).

- A judge hearing a confirmation of a nonjudicial sale of property is required to render a judgment with findings of fact. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

A judgment in an action to confirm a foreclosure sale is inadequate if it contains no specific finding concerning the sufficiency of the price brought at sale. Lanier v. Citizens State Bank, 186 Ga. App. 395, 367 S.E.2d 585 (1988).

- O.C.G.A. § 44-14-161 gives the judge authority to declare a sale of real estate on foreclosure to be absolutely void rather than merely to order another sale because of an irregularity. Tingle v. Atlanta Fed. Sav. & Loan Ass'n, 93 Ga. App. 393, 91 S.E.2d 804 (1956).

A trial judge has the authority to rule upon a motion for revision during the same term. Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238 (1972).

- Confirmation court's holding that the land brought its true market value did not have either collateral estoppel or res judicata effect on the district court's consideration of the proceeds issue since the confirmation court is without authority to address matters concerning sales of personalty. Walton Motor Sales, Inc. v. Ross, 736 F.2d 1449 (11th Cir. 1984).

2. Issues

A. Generally

The confirmation proceeding is a statutory proceeding which by law determines only that the sale was properly advertised and brought the fair market value of the land. It originated as a means of protecting the debtor from being subject to double payment in cases where the property was purchased for a sum less than its fair market value and it provides an opportunity for debtors, including endorsers of the obligation, to contest the approval of the sales before claims for the balance of the indebtedness can be prosecuted against them. Harris & Tilley, Inc. v. First Nat'l Bank, 157 Ga. App. 88, 276 S.E.2d 137 (1981).

A confirmation proceeding held in accordance with O.C.G.A. § 44-14-161 is extremely narrow in scope, the issues in such proceedings being the evaluation of real estate sold under power as to the date of its sale and the regularity of that sale. Alexander v. Weems, 157 Ga. App. 507, 277 S.E.2d 793 (1981).

- At a hearing for confirmation of a foreclosure sale, if either the notice or the advertisement does not substantially meet legal requirements, the sale should be set aside. But not every irregularity or deficiency at this point will void the sale. Walker v. Northeast Prod. Credit Ass'n, 148 Ga. App. 121, 251 S.E.2d 92 (1978).

- The court's inquiry in a confirmation of a foreclosure sale should go only to the value of the real estate on the date of sale, in the course of the examination to determine the fairness of the technical procedures used, but only for the purpose of making sure that the sale was not chilled and the price bid was in fact market value. Shantha v. West Ga. Nat'l Bank, 145 Ga. App. 712, 244 S.E.2d 643 (1978); Walker v. Northeast Prod. Credit Ass'n, 148 Ga. App. 121, 251 S.E.2d 92 (1978); Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

The sole issue in the confirmation procedure under O.C.G.A. § 44-14-161 is the evaluation of the real estate as of the date of the sale. Hamilton Mtg. Corp. v. Bowles, 142 Ga. App. 882, 237 S.E.2d 198 (1977).

O.C.G.A. § 44-14-161 does not contemplate that the court shall undertake to decide controversies between the parties as to the amount of debt or side agreements which could have been the basis of an injunction preventing the foreclosure sale. Jones v. Hamilton Mtg. Corp., 140 Ga. App. 490, 231 S.E.2d 491 (1976); Hamilton Mtg. Corp. v. Bowles, 142 Ga. App. 882, 237 S.E.2d 198 (1977); Harris & Tilley, Inc. v. First Nat'l Bank, 157 Ga. App. 88, 276 S.E.2d 137 (1981).

In an action to confirm a sale under O.C.G.A. § 44-14-161, the debtors were not permitted to raise the defense that intangible taxes had not been paid as required by O.C.G.A. § 48-6-77; alleged defenses to the original debt are not relevant to the confirmation proceeding. Guthrie v. Bank S., 195 Ga. App. 123, 393 S.E.2d 60 (1990).

In every confirmation of sale case, the issue of a resale is always raised regardless of whether it has been affirmatively pleaded in creditor's complaint, if the debtor is afforded the opportunity to defend against confirmation as well as against a resale. Adams v. Gwinnett Com. Bank, 140 Ga. App. 233, 230 S.E.2d 324 (1976), aff'd, 238 Ga. 722, 235 S.E.2d 476 (1977); Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321, 254 S.E.2d 475 (1979).

Default is not an issue in confirmation proceedings. Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321, 254 S.E.2d 475 (1979).

- The issue of whether an assignee of the Federal Deposit Insurance Corporation was a real party in interest was not relevant to a confirmation proceeding which was commenced in accordance with O.C.G.A. § 44-14-161 by the person instituting the foreclosure proceedings. Sparti v. Joslin, 230 Ga. App. 346, 496 S.E.2d 490 (1998).

The fact that a sale may have been conducted unfairly has no relevance in a confirmation of sale proceeding under O.C.G.A. § 44-14-161, unless the unfairness relates to the requirements of notice, advertisement, and regularity. Keever v. GECC, 141 Ga. App. 864, 234 S.E.2d 696 (1977).

Any debtor not given timely notice may not be held liable in any subsequent deficiency action. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

Actual notice or knowledge will not cure the failure to comply with the notice provision of O.C.G.A. § 44-14-161. First Nat'l Bank & Trust Co. v. Kunes, 128 Ga. App. 565, 197 S.E.2d 446, aff'd, 230 Ga. 888, 199 S.E.2d 776 (1973); Chastain Place, Inc. v. Bank S., 185 Ga. App. 178, 363 S.E.2d 616 (1987).

The fact that the guarantor of a mortgage had actual notice of the hearing on a confirmation application did not change the requirement for valid personal service. Ameribank v. Quattlebaum, 220 Ga. App. 345, 469 S.E.2d 462 (1996).

Where the guarantor of a mortgage was not named a party in a confirmation petition and was not given notice of the confirmation hearing as required by O.C.G.A. § 44-14-161, the hearing should have been dismissed; notice given to the guarantor by the mortgagee's counsel did not satisfy the statutory requirement. Quattlebaum v. Ameribank, 227 Ga. App. 517, 489 S.E.2d 319 (1997), aff'd, 269 Ga. 857, 505 S.E.2d 476 (1998).

Personal service generally is required in order to give legal notice where no proceedings are pending between the parties at the time a notice is to be given. Henry v. Hiwassee Land Co., 246 Ga. 87, 269 S.E.2d 2 (1980).

Purchasers who were responsible on the underlying debt were "debtors" within the meaning of O.C.G.A. § 44-14-161 and were entitled to notice by personal service. Hill v. Moye, 221 Ga. App. 411, 471 S.E.2d 910 (1996).

- The mailing of copies of the petition to the defendant and defendant's counsel within five days of the hearing, in the absence of a contention of nonreceipt thereof, constituted "notice" of the hearing as required by O.C.G.A. § 44-14-161. Boardman v. Georgia R.R. Bank & Trust Co., 127 Ga. App. 63, 192 S.E.2d 390 (1972), disapproved in Henry v. Hiwassee Land Co., 246 Ga. 87, 269 S.E.2d 2 (1980).

- Service of a debtor by publication was found to be necessary by the trial court, and there was evidence to support this finding. One process server had attempted unsuccessfully to serve the guarantor at least 12 times, at four different addresses, and another attempted service at four different locations, including seven visits and hours of surveillance of what the server believed was the debtor's residence. Belans v. Bank of Am., 303 Ga. App. 35, 692 S.E.2d 694 (2010).

Trial court erred when the court found that a debtor was served properly because there was no evidence that the requirements of publication under O.C.G.A. § 9-11-4(f)(1) were met, and a bank offered no evidence to show that the notice requirements of O.C.G.A. § 44-14-161(c) were met; the published advertisement for service on the debtor provided no specifics as to the date or time of the confirmation hearing as was required under the confirmation statute, O.C.G.A. § 44-14-161. Winstar Dev., Inc. v. SunTrust Bank, 308 Ga. App. 655, 708 S.E.2d 604 (2011).

The grantee in security deed was not required to give notice to the grantor of the grantee's intention to exercise the power of sale ten days before the running of the first advertisement for such sale, where plaintiff did not proceed with the first foreclosure proceeding for the reason that the defendant procured a restraining order against the foreclosure, and when that was dissolved plaintiff had every right, in the absence of an appeal, to exercise its rights under the power of sale by immediately recommencing the proceeding. Norwood Realty Co. v. First Fed. Sav. & Loan Ass'n, 99 Ga. App. 692, 109 S.E.2d 844 (1959).

- Lender's compliance with the requirements contained in O.C.G.A. § 44-14-161 was a condition precedent to the lender's ability to pursue a guarantor for a deficiency after a foreclosure had been conducted but the guarantors had the contractual ability to waive the condition precedent requirement. PNC Bank, Nat'l Ass'n v. Smith, 298 Ga. 818, 785 S.E.2d 505 (2016).

- Where the defaulting property owners' attorney acknowledged at the confirmation hearing that proper notice was received of the confirmation hearing "two weeks ago or something like that" the bank was not barred from prosecuting the confirmation applications. Phillips v. Connecticut Nat'l Bank, 196 Ga. App. 477, 396 S.E.2d 538 (1990).

Notice publication of a confirmation hearing for nonjudicial foreclosure sales of certain properties was sufficient because two process servers had unsuccessfully tried to personally serve a guarantor, including 12 attempts at four different locations. Belans v. Bank of Am., N. A., 303 Ga. App. 654, 694 S.E.2d 725 (2010).

Trial court did not err in concluding that the debtors had been properly served pursuant to O.C.G.A. §§ 9-11-4 and44-14-161(c) because there was undisputed evidence from which the trial court could have concluded that the debtors were attempting to evade service; a private process server, who had a description of a vehicle that had been parked at the address of one of the debtors, saw the vehicle and followed the vehicle, but the driver noticed the server, drove past the address of the house, and when the server pulled into the driveway after the driver and approached the garage door, which was not yet closed, and announced that the server had papers, no one responded. Winstar Dev., Inc. v. SunTrust Bank, 308 Ga. App. 655, 708 S.E.2d 604 (2011).

Notice of a non-judicial foreclosure sale confirmation hearing was given to two debtors more than five days prior to the confirmation hearing, when a deputy left copies of the pleadings, including a rule nisi, at the debtors' home with the debtors' father, a person of suitable age and discretion then residing therein; this method of service complied with O.C.G.A. §§ 9-11-4(e)(7) and44-14-161 to initiate a valid confirmation proceeding. Gulia v. North Atlanta Bank, 334 Ga. App. 701, 780 S.E.2d 74 (2015), cert. denied, No. S16C0481, 2016 Ga. LEXIS 178 (Ga. 2016).

- The fact that the debtor actually received a notice of hearing prepared by the lender was insufficient where the debtor was not named as a party on the application for confirmation and where the notice of hearing had not been directed by the court as required by O.C.G.A. § 44-14-161. Ameribank v. Quattlebaum, 269 Ga. 857, 505 S.E.2d 476 (1998).

Petitioners' motion to set aside an order confirming a non-judicial foreclosure sale was improperly denied as the evidence did not show that the bank provided the petitioners with the required notice of the rescheduled confirmation hearing because the drafts of the cover letters by the bank to be sent to the petitioners notifying the petitioners of the reset hearing date were addressed to only one petitioner, contained the wrong address, and did not include a letter to the second petitioner; the proper service addresses for the petitioners had been made part of the record; and no other evidence showed that the notices were written, properly addressed and duly mailed to the petitioners; thus, a non-amendable defect appeared on the face of the record. Nadel v. Branch Banking & Trust Company, 340 Ga. App. 213, 797 S.E.2d 140 (2017).

The advertisement must meet the requirements of O.C.G.A. § 9-13-140 requiring a full and complete description of the property. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

- When an advertisement states that the sale will be of the whole fee simple interest and for cash and does not mention outstanding security deeds, Georgia confirmation proceedings have addressed the issue of whether bidding was thereby chilled. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

- Where the property description in the advertisement is the same as that in the loan deed, with the exception of certain lots expressly excepted because the plaintiff had previously released them to the defendant, and all of the property held by the plaintiff under the deed to secure debt which had not been previously released to the defendant was advertised, and no property not so held was included, the advertisement was sufficient as to the property, since it stated the amount owing it was also sufficient as to the debt. Norwood Realty Co. v. First Fed. Sav. & Loan Ass'n, 99 Ga. App. 692, 109 S.E.2d 844 (1959).

The advertisement of sale showing the property was being sold as the property of the grantor in the deed to secure debt containing the power of sale under which the property was being advertised does not void the sale merely because the grantor in the deed to secure debt had, prior thereto, sold its equity of redemption to another subject to the deed to secure debt; nor is such sale void because the name of the party or parties in possession was not stated in the advertisement. Five Dee Ranch Corp. v. Federal Land Bank, 148 Ga. App. 734, 252 S.E.2d 662 (1979).

Trial court's conclusion that the advertisement of foreclosure sales conformed to O.C.G.A. § 44-14-161 was supported by competent evidence because a bank's attorney testified that the attorney caused the advertisements to be run and provided the four dates upon which the advertisements were published during the month preceding the sale; the attorney also testified that the legal descriptions in the newspaper matched that contained in the security deeds and the deeds under power of sale. Belans v. Bank of Am., N.A., 306 Ga. App. 252, 701 S.E.2d 889 (2010).

Superior court did not err in finding that a lender's advertisement of a nonjudicial foreclosure sale properly included a description of the property in accordance with O.C.G.A. § 9-13-140(a) because the legal description in the advertisement was identical to the description in the security deed by which the lender took its interest from a construction company and guarantors; thus, there was no discrepancy between the two, and the advertisement properly reflected the interest taken under the deed and available at the foreclosure sale. Diplomat Constr., Inc. v. State Bank of Tex., 314 Ga. App. 889, 726 S.E.2d 140 (2012).

- In a foreclosure matter under O.C.G.A. § 44-14-161, a trial court's admission of the publisher's affidavit and the tear sheet from the newspaper which indicated that the advertisement of the foreclosure sale was published on each of four listed dates, was proper, as those documents were not hearsay. White Oak Homes, Inc. v. Cmty. Bank & Trust, 314 Ga. App. 502, 724 S.E.2d 810 (2012), cert. denied, No. S12C1120, 2012 Ga. LEXIS 671 (Ga. 2012).

A debtor has the right to cross-examine witnesses and to present own evidence. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

- While a debtor is not required to file an answer to the mortgagee's report, the debtor is permitted to raise objections. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

- A debtor may raise defenses which relate to the true market value or the specified issues of fairness in the technical procedures. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

- A debtor may not raise counterclaims or ask for any alleged excess resulting from the sale. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

- A debtor may not raise the issue of the existence of a default, the amount of the debt, or the existence of any side agreement which could have been the basis of an injunction preventing the foreclosure sale. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

- If confirmation is sought and obtained, the debtor is likewise afforded the full measure to which the debtor is entitled, and extinguishment of the debt to the extent of the true market value of the property securing it; the debtor is entitled to no other form of affirmative relief under the confirmation statute. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867 (1980).

- The Civil Practice Act, O.C.G.A. Ch. 9, T. 11, controls in an application to confirm a foreclosure sale and permits the adding of parties to the proceedings. An application should not be dismissed because additional parties are necessary for adjudication but additional parties may be added. Small Bus. Admin. v. Desai, 193 Ga. App. 852, 389 S.E.2d 372, cert. denied, 193 Ga. App. 911, 389 S.E.2d 372 (1989).

Pursuant to the Civil Practice Act, O.C.G.A. Ch. 9, T. 11, the addition of parties to an application for confirmation relates back to the date of the original filing. Small Bus. Admin. v. Desai, 193 Ga. App. 852, 389 S.E.2d 372, cert. denied, 193 Ga. App. 911, 389 S.E.2d 372 (1989).

An amendment to add the mortgagee as copetitioner to an application to confirm a foreclosure sale would be effective under the relation back rule even though the thirty-day period imposed by O.C.G.A. § 44-14-161 for reporting the sale and obtaining confirmation on it had expired by the time the mortgagee moved to be added as a party. Small Bus. Admin. v. Desai, 193 Ga. App. 852, 389 S.E.2d 372, cert. denied, 193 Ga. App. 911, 389 S.E.2d 372 (1989).

- Even though power of sale in mortgage is conferred upon the grantee for the purpose of facilitating the grantee's collection of the amount of the underlying debt which is secured by the property, the power must be exercised fairly; breach of this duty to conduct the sale "fairly" gives rise to a claim for damages to the injured holder of the equity of redemption. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867 (1980).

- There is no right to a jury trial on an application for confirmation under O.C.G.A. § 44-14-161. BBC Land & Dev., Inc. v. Bank of N. Ga., 294 Ga. App. 759, 670 S.E.2d 210 (2008).

O.C.G.A. § 44-14-161 requires that evidence satisfactory to the court of the true market value of the property is a condition precedent to the confirmation. Goodman v. Nadler, 113 Ga. App. 493, 148 S.E.2d 480 (1966).

Discovery procedures of the Civil Practice Act, O.C.G.A. Ch. 9, T. 11 are permitted in a confirmation proceeding because it is a special statutory proceeding and no statute establishes a contrary rule of discovery. Alliance Partners v. Harris Trust & Sav. Bank, 266 Ga. 514, 467 S.E.2d 531 (1996).

Discovery is limited to the issues considered at the confirmation hearing and, thus, a debtor is permitted discovery only on the regularity of the sale and the market value of the property. Alliance Partners v. Harris Trust & Sav. Bank, 266 Ga. 514, 467 S.E.2d 531 (1996).

The applicant for confirmation must introduce evidence sufficient to show that the price equaled the property's value. FDIC v. Dye, 642 F.2d 837 (5th Cir. 1981).

Inasmuch as the statute does not specifically require the taking of evidence by oral testimony nor is a jury trial mandated, the failure to proceed in such a fashion does not raise itself to the sort of inherently personal and fundamental right which may not be waived. Lewis v. First Nat'l Bank, 141 Ga. App. 338, 233 S.E.2d 465 (1977).

- The better practice is to conduct a confirmation hearing by way of testimony, but affidavit evidence, by agreement will satisfy the requirements of O.C.G.A. § 44-14-161. Lewis v. First Nat'l Bank, 141 Ga. App. 338, 233 S.E.2d 465 (1977).

Ex parte affidavits should not be allowed in evidence in any trial when the evidence was finally adjudicated because admission denied the privilege of cross-examination as allowed by former O.C.G.A. § 24-9-64 (see now O.C.G.A. § 24-6-611). Lewis v. First Nat'l Bank, 141 Ga. App. 338, 233 S.E.2d 465 (1977).

- As against general demurrer (now motion to dismiss), there is no requirement that the one asking for confirmation must affirmatively allege what the true market value is. Hinson v. First Nat'l Bank, 221 Ga. 408, 144 S.E.2d 765 (1965).

Evidence supported approval of a bank's foreclosure sale because the bank's expert testified that: (1) the value of the property did not exceed the amount paid by the bank; (2) the expert used both a cost and a market approach to determine the property's value; (3) the expert considered the percentage of the property that consisted of wetlands; and (4) the expert verified the comparable sales used to form the expert's opinion. Statesboro Blues Dev., LLC v. Farmers & Merchants. Bank, 301 Ga. App. 851, 690 S.E.2d 205 (2010).

5. Review

Standard of review.

- Where the trial judge, sitting as the trier of the facts, hears the evidence, the judge's finding based upon conflicting evidence is analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238 (1972); Thomas v. Henry, 150 Ga. App. 792, 258 S.E.2d 710 (1979).

The trial court has considerable discretion in the conduct of a confirmation hearing and in determining the relief to be afforded but the finding of the trial court, as the trier of fact, must be supported by some evidence. Wheeler v. Coastal Bank, 182 Ga. App. 112, 354 S.E.2d 694 (1987).

- No evidence having been produced showing a sale under the power contained in a deed to secure debt, the appellate court assumed the order of the court confirming the sale was correct. Worth v. Alma Exch. Bank & Trust, 171 Ga. App. 748, 320 S.E.2d 816 (1984).

The trial court's determination that the sale reflects "true market value" will be affirmed, where there is no evidence that the sale was chilled or any fraud exerted. Smith v. Fidelity Fed. Sav. & Loan Ass'n, 149 Ga. App. 730, 256 S.E.2d 43 (1979).

- A reviewing court should not disturb the trial judge's findings merely because there is in the record evidence that at a time three months after the sale it may have acquired a different value. If that were true a confirmation could always be attacked because of a subsequent change in value. Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238 (1972).

- Evidence was sufficient to support a judgment of confirmation of sale under the exercise of the power contained in the security deed on the theory that the property brought its fair market value at such sale, and the judgment rendered was not subject to exception on the ground that the court did not make a special finding therein to this effect. Norwood Realty Co. v. First Fed. Sav. & Loan Ass'n, 99 Ga. App. 692, 109 S.E.2d 844 (1959).

- Guarantor did not preserve for review the assertion that the report of the third sale was untimely because the objection to the timeliness of the report of the third sale did not come until the appeal following entry of the first confirmation order. Belans v. Bank of Am., N.A., 309 Ga. App. 208, 709 S.E.2d 853 (2011).

- In a mortgage foreclosure action, the grant of summary judgment to the bank as to the amount of damages owed on the note and guarantees was reversed because the discrepancies were material to the amount of unpaid principal, interest, and contractual attorney fees owed by the mortgagors; thus, material issues of fact existed as to the amount of damages. Mashburn Constr., L.P. v. CharterBank, 340 Ga. App. 580, 798 S.E.2d 251 (2017).

Resale

1. Discretion of Court

- The provision that resale "may be granted for good cause shown" in O.C.G.A. § 44-14-161(c) is entirely permissive, and not mandatory. It means there is no presumption in favor of resale and there is no entitlement to a resale. Resolution Trust Corp. v. Morrow Auto Ctr., Ltd., 216 Ga. App. 226, 454 S.E.2d 138 (1995).

- No presumption exists in favor of resale and there is no entitlement to a resale, either for mere failure to show the sale brought true market value, for a mere flawed appraisal, or for any reason. Sanusi v. Cmty. & S. Bank, 330 Ga. App. 198, 766 S.E.2d 815 (2014).

The authority of the trial judge in O.C.G.A. § 44-14-161 to order a resale may be equated with the right to exercise legal discretion. Adams v. Gwinnett Com. Bank, 238 Ga. 722, 235 S.E.2d 476 (1977).

O.C.G.A. § 44-14-161 plainly grants a trial court the discretionary power to order a resale. Adams v. Gwinnett Com. Bank, 140 Ga. App. 233, 230 S.E.2d 324 (1976), aff'd, 238 Ga. 722, 235 S.E.2d 476 (1977).

O.C.G.A. § 44-14-161(c) confers upon the trial court legal discretion in determining whether to order a resale. Government Nat'l Mtg. Ass'n v. Belue, 201 Ga. App. 661, 411 S.E.2d 894 (1991).

The language of O.C.G.A. § 44-14-161 vests considerable discretion in the judge. Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238 (1972).

There is no requirement that the deed to secure debt itself must authorize a resale. Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321, 254 S.E.2d 475 (1979).

- O.C.G.A. § 44-14-161 leaves the decision whether to order a resale of property sold pursuant to a power of sale, where the property fails to bring its fair market value, to the sound discretion of the trial court. United States v. Golf Club Co., 435 F.2d 9 (5th Cir. 1970).

O.C.G.A. § 44-14-161 imposes no duty on the court to order resales when property sold at a foreclosure sale brings less than its fair market value, but rather leaves the ordering of resales to the discretion of the trial court. United States v. Golf Club Co., 435 F.2d 9 (5th Cir. 1970).

- Trial court did not abuse the court's discretion in denying a resale because the creditor failed to show that either the trial court's ruling was unsupported by any evidence or that the court's ruling misstated or misapplied the relevant law. The creditor should have detected the flaws in the appraisal upon which the creditor relied as the creditor's decision-maker had the experience, sophistication, and resources to detect the flaws. RES-GA LJY, LLC v. Y. D. I., Inc., 322 Ga. App. 607, 745 S.E.2d 820 (2013).

- Following confirmation of a foreclosure sale, the debtor argued that the lender did not have title to the property because the trial court had not rescinded an earlier foreclosure sale; however, the trial court's resale order had the effect of setting aside the first sale. Further, a challenge to title fell outside the ambit of a confirmation proceeding. Yellow Creek Invs., LLC v. Multibank 2009-1 CRE Venture, LLC, 329 Ga. App. 577, 765 S.E.2d 728 (2014).

There is no abuse of the exercise of the trial court's discretion, as a matter of law, where no "good cause" has been shown which would demand a foreclosure resale. Five Dee Ranch Corp. v. Federal Land Bank, 148 Ga. App. 734, 252 S.E.2d 662 (1979).

There is no abuse of discretion by the trial court in ordering a resale where there is evidence that the property did not bring its true market value, but the creditor's failure in this regard was not brought about by any failure to sell and buy the property intentionally at a price less than the true market value. Adams v. Gwinnett Com. Bank, 140 Ga. App. 233, 230 S.E.2d 324 (1976), aff'd, 238 Ga. 722, 235 S.E.2d 476 (1977).

Trial court did not err by ordering a resale of property after the court declined to confirm a nonjudicial foreclosure sale, as there was nothing to show that the court did not base the court's order on the court's own discretion or that the court acted under any belief in a mandate to order a resale simply because the property failed to sell for fair market value pursuant to O.C.G.A. § 44-14-161(c). Vill. at Lake Lanier, LLC v. State Bank & Trust Co., 314 Ga. App. 498, 724 S.E.2d 806 (2012).

The court does not err in ordering a resale where there is evidence supporting the court's finding that the price received at the sale was inadequate, and O.C.G.A. § 44-14-161 authorizes such resale. Davie v. Sheffield, 123 Ga. App. 228, 180 S.E.2d 263 (1971).

A failure to sell for the true market value constitutes good cause for ordering a resale. Adams v. Gwinnett Com. Bank, 140 Ga. App. 233, 230 S.E.2d 324 (1976), aff'd, 238 Ga. 722, 235 S.E.2d 476 (1977); Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321, 254 S.E.2d 475 (1979); Damil, Inc. v. First Nat'l Bank, 165 Ga. App. 678, 302 S.E.2d 600 (1983).

A resale may be had for mere inadequacy of price. Davie v. Sheffield, 123 Ga. App. 228, 180 S.E.2d 263 (1971).

- Georgia courts have granted resales only when they find that a mortgagee has in good faith bid a price less than the true market value. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

An order to resell under O.C.G.A. § 44-14-161, which is technically an order to set aside a sale and also an order to resell, may be appropriate where the court denies confirmation of a sale for an inadequate price, but finds that the creditor acted in good faith in conducting the sale. FDIC v. Dye, 642 F.2d 837 (5th Cir. 1981).

Trial court did not err by ordering a resale of property after the court declined to confirm a nonjudicial foreclosure sale as, pursuant to O.C.G.A. § 44-14-161(c), the court focused on the appropriate "good cause" standard rather than a standard based on "good faith"; the resale was properly ordered when the bank acted in good faith and when the property failed to sell for the property's true market value. Vill. at Lake Lanier, LLC v. State Bank & Trust Co., 314 Ga. App. 498, 724 S.E.2d 806 (2012).

A defense to a resale order must bear upon the question of the good faith of the mortgagee in the conduct of the sale and bid, and must be a defense otherwise relevant to the issue of confirmation vel non. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

- Trial court erred in ordering property to be resold under O.C.G.A. § 44-14-161(c) because the mortgagee did not meet the mortgagee's burden of proving good cause for the resale, and the mortgagor did not have the opportunity to defend against the same; by agreement of the parties and with the express consent of the trial court, the remaining issues relevant to the confirmation proceeding had been reserved for a later hearing, and thus, when the trial court ordered the resale, it had neither heard argument nor received any evidence related to the other aspects of the foreclosure sale or the desired outcome of the confirmation proceeding. Nicholson Hills Dev. v. Branch Banking & Trust Co., 316 Ga. App. 857, 730 S.E.2d 572 (2012).