Reese v. Provident Funding Assocs., LLP., A12A0619.

• Decision Date: 05 May 2014
• Docket Number: No. A12A0619.,A12A0619.
• Citation: 327 Ga.App. 266,758 S.E.2d 329
• Court: Georgia Court of Appeals
• Parties: REESE et al. v. PROVIDENT FUNDING ASSOCS., LLP.

327 Ga.App. 266

758 S.E.2d 329

REESE et al.

v.PROVIDENT FUNDING ASSOCS., LLP.

No. A12A0619.

Court of Appeals of Georgia.

May 5, 2014.

David Charles Ates, Atlanta, for Appellant.

Sarah Brown Akins, Savannah, for Appellee.

MILLER, Judge.

In Reese v. Provident Funding Assocs., LLP, 317 Ga.App. 353, 730 S.E.2d 551 (2012), we reversed the grant of summary judgment to Provident on Izell and Raven Reese's wrongful foreclosure claim, finding that Provident's notice of foreclosure failed to comply with the requirements of OCGA § 44–14–162.2 in so far as the notice failed to properly identify the secured creditor. The Supreme Court of Georgia granted certiorari, and in Provident Funding Assocs., LLP v. Reese, 2013 Ga. LEXIS 466 (Case No. S12C2028, decided May 20, 2013), it vacated our decision and remanded with direction for this Court to consider this case in light of You v. JP Morgan Chase Bank, 293 Ga. 67, 743 S.E.2d 428 (2013). In You, the Supreme Court held that the plain language of OCGA § 44–14–162.2 requires only that the notice of foreclosure identify “the individual or entity with full authority to negotiate, amend and modify all terms of the mortgage with the debtor.” (Punctuation omitted.) You, supra, 293 Ga. at 67, 743 S.E.2d 428.

On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations and punctuation omitted.) Campbell v. Landings Assn., 289 Ga. 617, 618, 713 S.E.2d 860 (2011).

So viewed, the evidence, as more fully set out in our prior opinion, shows that the Reeses executed a promissory note (the “Note”) in exchange for a $650,000 loan from Provident in order to purchase real property in Roswell, Georgia. The loan was secured by a deed conveying Provident and its nominee an interest in the property and a power of sale in the event of a default (the “Security Deed”). Provident subsequently sold and delivered the Note to Residential Funding Company, LLC, however, Provident remained as the loan servicer, retaining the right to collect payments and perform all other mortgage loan servicing functions authorized by the Security Deed.

In January 2009, the Reeses defaulted on their loan. As a result, on February 13, 2009, Provident sent the Reeses a written notice of default as required by the terms of the Security Deed. The Reeses failed to cure their default within 30 days, and on June 3, 2009, Provident, through its attorneys, sent a letter notifying the Reeses that Provident was commencing foreclosure proceedings. Thereafter, on July 7, 2009, Provident held a non-judicial sale of the Reeses property and purchased the property as the sole bidder at the sale.

The Reeses subsequently sued Provident for wrongful foreclosure. The trial court granted summary judgment to Provident and denied the Reeses' cross-motion for summary judgment, finding that the Reeses could not sustain a claim for wrongful foreclosure, even though the notice of foreclosure did not include information on the secured creditor, because Provident's notice of foreclosure “was in keeping with OCGA § 44–14–162.2.”

1. We now consider whether Provident, as the Reeses' loan servicer, had authority to negotiate, amend and modify all terms of their mortgage. We find that Provident did in fact have such authority.

OCGA § 44–14–162.2 requires that notice of the initiation of foreclosure proceedings must be provided to the debtor no later than 30 days before the date of the proposed foreclosure. That statute further provides that the notice “shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor.” OCGA § 44–14–162.2(a).

Contrary to the Reeses' contention, Provident complied with OCGA § 44–14–162.2 because Provident sent the Reeses a notice of foreclosure more than 30 days before the nonjudicial foreclosure sale and the notice specifically informed the Reeses that Provident had authority to negotiate, amend and modify all terms of their Note and Security Deed. See You, supra, 293 Ga. at 74–75(2), 743 S.E.2d...