Krell v. National Mortg. Corp.

• Citation: 214 Ga.App. 503,448 S.E.2d 248
• Decision Date: 15 August 1994
• Docket Number: No. A94A0923,A94A0923
• Parties: KRELL v. NATIONAL MORTGAGE CORPORATION.
• Court: United States Court of Appeals (Georgia)

Page 248

448 S.E.2d 248

214 Ga.App. 503

KRELL v. NATIONAL MORTGAGE CORPORATION.

No. A94A0923.

Court of Appeals of Georgia.

Aug. 15, 1994.

Reconsideration Denied Aug. 25, 1994.

Certiorari Denied Jan. 19, 1995.

Mark L. Krell, pro se.

Webb, Tanner & Powell, Anthony O.L. Powell, R. Jack Wilson, Steven A. Pickens, Lawrenceville, for appellee.

ANDREWS, Judge.

National Mortgage Corporation (National) held mortgages over Krell's residence and a separate rental property owned by Krell. Both mortgages were insured by the United States Department of Housing & Urban Development (HUD) under the National Housing Act (12 USC § 1701 et seq.). See 12 USC § 1709.

Krell defaulted on both mortgages by failing to make timely monthly payments. National refused to accept Krell's tender of partial payment on amounts due, insisting that payment be made on each mortgage for the full amount of the monthly payments due plus late charges. The mortgages continued in default without payments for approximately one year. After National instituted foreclosure proceedings, Krell filed for protection under Chapter 13 of the United States Bankruptcy Code. Krell subsequently made lump sum full payments bringing both mortgages current and stopping the foreclosure proceedings.

Krell instituted two actions against National (one for each mortgage) on the basis that National's refusal to accept partial payments violated HUD regulations controlling mortgage servicing responsibilities for federally insured mortgages (see 24 CFR § 203.500 et seq.) and was an unfair or deceptive practice in the conduct of consumer transactions in violation of the Georgia Fair Business Practices Act (Georgia Act) (OCGA § 10-1-390 et seq.) or the Tennessee Consumer Protection Act of 1977 (Tennessee Act) (Tenn.Code Ann. § 47-18-101 et seq.). ¹ Krell appeals from the trial court's grant of summary judgment in favor of National in both actions.

For purposes of reviewing the grant of summary judgment, we will assume, without deciding, that National violated HUD regulations promulgated pursuant to the National Housing Act requiring acceptance of partial payments by a mortgagor. See 24 CFR § 203.556. Nevertheless, we conclude that "the National Housing Act and the regulations promulgated thereunder deal only with the regulations between the mortgagee and the government, and give the mortgagor no claim to duty owed nor remedy for failure to follow." Roberts v. Cameron-Brown Co., 556 F.2d 356, 360 (5th Cir.1977). Accordingly, Krell had no private cause of action against National for violation of the HUD regulations and the trial court properly granted summary judgment in favor of National on this claim. Id.; see Kingston Square Tenants Assn. v. Tuskegee Gardens, Ltd., 792 F.Supp. 1566, 1573 (S.D.Fla.1992); Fed. Nat'l Mortgage Assoc. v. Prior, 128 Wis.2d 182, 381 N.W.2d 558 (App.1985).

For the same reason, the trial court also properly granted summary judgment on Krell's remaining assertions that violation of the HUD regulations supported claims under the Georgia Act or the Tennessee Act. Even assuming, arguendo, that the Georgia Act would apply to a mortgage transaction of this type (see Whisenant v. Fulton Fed. Sav. & Loan Assn., 200 Ga.App. 31, 34, 406 S.E.2d 793 (1991), Krell's action cannot be based solely on a claim that National...