Newkirk v. United Federal Sav. & Loan Ass'n, 65149
| Decision Date | 12 January 1983 |
| Docket Number | No. 65149,65149 |
| Court | Georgia Court of Appeals |
| Parties | NEWKIRK v. UNITED FEDERAL SAVINGS & LOAN ASSOCIATION. |
Casper Rich, Douglas R. Daum, Decatur, for appellant.
David P. Hartin, Marietta, for appellee.
On the Cobb County Courthouse steps, appellant Newkirk bid on a piece of property being sold at foreclosure by United Federal Savings & Loan Association (United). The debt foreclosed on was $30,000. Evidence alleges the property was worth $70,000; Newkirk's successful bid was $35,000. The sale was later vacated and set aside by the Bankruptcy Court of the Northern District of Georgia as a result of a stay entered after Newkirk's bid was accepted but prior to Newkirk's actual payment for the property and delivery of the deed to Newkirk.
Newkirk alleges fraud and shows, by evidence and affidavit: That at about 9:30 a.m. on the day of the foreclosure sale, the debtor's attorney called Garvis Sams, United's attorney and member of the board of directors, and after unsuccessfully offering a settlement of the debt, told Sams the debtor was immediately filing a petition for bankruptcy and advised Sams not to sell the property. Nevertheless, at 10:05 a.m., Sams proceeded to bid out the property for sale and accepted Newkirk's bid. The debtor's bankruptcy petition was in fact filed at 10:34 a.m. At about 11:00 a.m. the debtor's attorney called and told Sams that the bankruptcy petition had been filed, thus automatically staying any further action as to the subject property; the attorney told Sams not to transfer the property. At 11:45 a.m. Newkirk paid to Sams the $35,000 he had bid and received a deed under power from United, which Newkirk filed of record at 12:15 p.m. At no time did Sams tell Newkirk about the threatened and consummated bankruptcy stay. Subsequently, the bankruptcy court set aside the sale to Newkirk, although Newkirk himself unsuccessfully entered the bankruptcy proceedings to enjoin the stay. Newkirk sued United for fraud, seeking $72,500 damages.
The trial court granted summary judgment to the defendant bank, saying that United had "negated essential elements of plaintiffs claim and ... is entitled to summary judgment as a matter of law." On appeal, the appellee United essentially contends that appellant Newkirk has shown no fraud because the circumstances did not rise to the level of fraud, that United had no duty to tell Newkirk of the bankruptcy...
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