C.K.C., Inc. v. Free
| Decision Date | 10 July 1990 |
| Docket Number | No. A90A0437,A90A0437 |
| Parties | C.K.C., INC. v. FREE, et al. |
| Court | Georgia Court of Appeals |
Gary C. Harris, Atlanta, for appellant.
Wendell K. Willard, Atlanta, for appellees.
This court granted appellant's application for an interlocutory appeal to hear this appeal from the denial of appellant's motion for summary judgment by the trial court.
In 1986, appellant purchased certain real estate from appellees and in return executed two separate promissory notes in favor of appellees. One note in the amount of $75,195 represented a portion of the down payment under the contract, and the second note in the amount of $500,797.50 represented the balance of the purchase price. Both notes recited that they were secured by the deed to secure debt of the same date from appellant to appellees (the "Security Deed") which covered the entire property purchased, and the deed to secure debt also recited that it secured the two notes. In 1987, appellant executed a renewal note in the amount of $75,195 which extended and replaced the original $75,195 note. The renewal note stated that it was secured by a deed recorded at Book 4107, Page 78 1, Gwinnett County Records, apparently the same deed referenced in the earlier notes. Upon appellant's default under both notes, appellees (1) notified appellant of the acceleration of the $75,195 note and of appellees' intentions to initiate foreclosure proceedings under the Security Deed; (2) filed a complaint seeking to recover the amounts due under the $75,195 note; (3) advertised the foreclosure, yet referenced only the larger note in the foreclosure advertisement; (4) sold the property at foreclosure to themselves for $504,000; (5) conveyed the property to themselves via a Deed Under Power of Sale which referenced the debt secured as evidenced by both notes; and (6) applied for a confirmation of the sale in which appellees referenced the indebtedness secured by the Security Deed as evidenced by both notes, and in which appellees stated that the sale did not bring in the amount of the debt. After the trial court denied the confirmation, appellees appealed to this court in a companion case which we remanded to the trial court for specification of findings of fact and conclusions of law. The confirmation was again denied, and this court has no record of any subsequent appeal. The time for such appeal having expired, the denial of confirmation by the trial court is final.
The instant appeal results from the denial of appellant's motion for summary judgment in the suit filed by appellees on the $75,195 note. Appellant's sole enumeration of error is that the court erred in denying its motion.
1. (Citations and punctuation omitted.) Waits v. Makowski, 191 Ga.App. 794(1), 383 S.E.2d 175 (1989). We first agree with appellant that there is no genuine issue as to any material fact. The terms of the real estate transaction, the documents at issue and the underlying facts of this case go undisputed by the parties. Appellees' only argument on appeal is that the confirmation decision is not final, therefore creating an issue of fact as to whether or not the confirmation will be denied. This argument goes to the ripeness of the appeal, not to a factual question. Further, as we have stated, no appeal having been filed from the second denial of confirmation by the trial court, the denial is final and the legal merits of this appeal can be reached.
2. At the outset, it must be determined whether appellees are seeking a deficiency judgment against appellant which is barred due to the failure to obtain a confirmation of the sale. A creditor may not seek a deficiency judgment with respect to any real estate sold on foreclosure unless a confirmation of the sale is obtained. OCGA § 44-14-161. Redman Indus. v. Tower Properties, 517 F.Supp. 144, 151(5) (N.D.Ga.1981). The Georgia courts have determined whether a deficiency judgment is being sought in a variety of circumstances....
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