Breeze v. Columbus Bank & Trust Co.
| Decision Date | 29 August 1994 |
| Docket Number | No. A94A1675,A94A1675 |
| Court | Georgia Court of Appeals |
| Parties | BREEZE v. COLUMBUS BANK & TRUST COMPANY. |
Westmoreland, Patterson & Moseley, Bradley G. Pyles, Kirby R. Moore, Macon, for appellant.
Page & Scrantom, James C. Clark, Jr., Columbus, for appellee.
Thomas R. Breeze appeals the judgment of the superior court confirming a foreclosure sale under power by Columbus Bank & Trust Company ("CB & T"). Breeze contends the confirmation was not authorized because CB & T did not give timely notice of the sale to the court in accordance with OCGA § 44-14-161. Held:
The record shows that after proper notice and advertisement, a foreclosure sale was conducted on May 3, 1993. Thereafter, pursuant to the motion of Breeze's bankruptcy trustee, the bankruptcy Breeze had earlier filed was dismissed on August 20, 1993. The superior court was advised of the foreclosure sale by letter dated August 31, 1993, and this report of sale was acknowledged on September 8, 1993. Subsequently, the application for confirmation of the foreclosure sale filed on September 21, 1993, was granted on March 3, 1994. The order confirming the sale recited that the court had considered "the arguments presented by counsel, the pleadings of record, and documents to be considered in connection therewith"; among other findings not relevant here, the court specifically found that a "proper and timely report of the foreclosure sale was made to the court by the plaintiff sufficient to satisfy Georgia law, including OCGA § 44-14-161." In accordance with those findings, the trial court confirmed the sale and authorized an action seeking a deficiency judgment.
Breeze contends the trial court's finding regarding the timeliness of the report of sale was erroneous because the sale was not reported within 30 days of the foreclosure sale as required by OCGA § 44-14-161. Although it is obvious the sale was not reported within 30 days of the foreclosure sale, under the circumstances of this case that is not significant. Breeze had earlier filed for bankruptcy and invoked the automatic stay of proceedings contained in 11 U.S.C. § 362(a). As a result CB & T was prevented from foreclosing on Breeze's property; the foreclosure sale was conducted pursuant to a stipulation between the parties which was approved by the bankruptcy court. This approval, however, extended only to foreclosing on CB & T's security interest in the property, and did not extend to other...
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