Kingsmill Village Condominium Ass'n, Inc. v. Homebanc Federal Sav. Bank

• Decision Date: 23 June 1992
• Docket Number: No. A92A1095,A92A1095
• Citation: 420 S.E.2d 771,204 Ga.App. 900
• Parties: KINGSMILL VILLAGE CONDOMINIUM ASSOCIATION, INC. v. HOMEBANC FEDERAL SAVINGS BANK.
• Court: Georgia Court of Appeals

Page 771

420 S.E.2d 771

204 Ga.App. 900

KINGSMILL VILLAGE CONDOMINIUM ASSOCIATION, INC. v. HOMEBANC FEDERAL SAVINGS BANK.

No. A92A1095.

Court of Appeals of Georgia.

June 23, 1992.

Reconsideration Denied July 13, 1992.

Lipshutz, Greenblatt & King, Randall M. Lipshutz, Timothy L. Sitz, Atlanta, for appellant.

Hishon & Burbage, Robert H. Hishon, R. Bradley Carr, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

Appellee Homebanc Federal Savings Bank (Homebanc) filed a motion to dismiss plaintiff's complaint, pursuant to OCGA § 9-11-12(b)(6), for failure to state a claim upon which relief could be granted. Appellant/plaintiff Kingsmill Village Condominium Association (Kingsmill) appeals the order of the trial court granting the motion and dismissing its complaint. The trial court concluded that plaintiff's complaint, averring a quantum meruit claim for unjust enrichment under the provisions of OCGA § 9-2-7, was preempted by the provisions of OCGA § 44-3-80 precluding liability upon a foreclosing mortgagee for past-due condominium assessments arising prior to the mortgagee's taking of title. Held:

1. "When the sufficiency of the complaint is questioned by a motion to dismiss for failure to state a claim for which relief may be granted, the rules require that it be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible." (Citations and punctuation omitted.) Morgan v. Ga. Vitrified Brick etc. Co., 196 Ga.App. 779, 780(1), 397 S.E.2d 49. And, the motion " 'should not be granted unless the complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim.' " Southern Gen. Ins. Co. v. Holt, 200 Ga.App. 759, 766(3), 409 S.E.2d 852.

2. OCGA § 44-3-80(f) pertinently provides: "In the event that the holder of a first or secondary purchase money mortgage of record or any other person acquires title to any condominium unit as a result of foreclosure of a first or secondary purchase money mortgage, such holder or other person ... shall not be liable for nor shall the condominium unit be subject to a lien for any assessment under this Code section or under any condominium instrument chargeable to the condominium unit on account of any period prior to the acquisition of title; provided, however, that the unpaid share of an assessment or assessments shall be deemed to be common expenses collectable from all of the unit owners, including such holder or other person and his successors, successors-in-title, and assigns."

Appellant's complaint averred, inter alia, that certain condominium property is subject to the Georgia Condominium Act and the declaration of condominium for Kingsmill; Homebanc held security deeds or deeds to secure debt on each unit which is part of the averred property; between certain averred dates Homebanc filed a deed under power indicating they had foreclosed their security deed on each of the units; Kingsmill manages and maintains the property pursuant to the declaration and the Georgia Condominium Act; pursuant to this Act, Kingsmill is obligated to manage the averred property, insure it and provide for its maintenance; the management, insurance and maintenance provided by Kingsmill directly benefits all holders of legal interest in the property; Homebanc was aware of the delivery of and accepted the benefits from the management, insurance, and maintenance provided the property by Kingsmill; and during the periods prior to the foreclosure of the security deeds by Homebanc, appellee Homebanc's borrowers failed to pay required assessments in an amount to be proven at trial; and, Homebanc has failed to pay any amounts for services and benefits received in connection with any of the units prior to its foreclosure of each individual condominium unit.

In its order dismissing the complaint the trial court noted the following operative facts: Homebanc made purchase money loans on a number of condominium units in Kingsmill Village. These units, pursuant to the declaration of condominium and the Georgia Condominium Act, are managed and maintained by Kingsmill. Homebanc received security deeds from the unit owners to whom it had made purchase money loans. These security deeds were foreclosed after various defaults by the unit owners. Prior to the foreclosure, the owners of the condominium failed to pay the condominium assessments on their units. Kingsmill, pursuant to the declaration of condominium, had previously made payments to third parties for insurance, property management and maintenance, which payments were to be recouped through the aforementioned assessments. It must be assumed that these payments benefited Homebanc because of its then existing security interest in the units. Before and after Homebanc foreclosed its security deeds, Kingsmill made demand on defendants as provided in the complaint. The demand related to...