Southeast Timberlands, Inc. v. Security Nat. Bank

• Decision Date: 27 February 1996
• Docket Number: No. A95A2733,A95A2733
• Citation: 469 S.E.2d 454,220 Ga.App. 359
• Parties: SOUTHEAST TIMBERLANDS, INC. et al. v. SECURITY NATIONAL BANK.
• Court: Georgia Court of Appeals

Page 454

469 S.E.2d 454

220 Ga.App. 359

SOUTHEAST TIMBERLANDS, INC. et al. v. SECURITY NATIONAL BANK.

No. A95A2733.

Court of Appeals of Georgia.

Feb. 27, 1996.

Groover & Childs, Denmark Groover, Jr., Macon, for appellants.

Chambless, Higdon & Carson, James F. Carson, Jr., Macon, for appellee.

BEASLEY, Chief Judge.

Southeast Timberlands appeals the trial court's confirmation of a foreclosure sale carried out by its creditor, Security National Bank. Timberlands contends that a defect in the required advertisement made confirmation improper. Timberlands defaulted on a $362,000 note which renewed an original note issued for $400,000 in 1989. The property in question secured both notes. Because the advertisement was not defective per se, and because no evidence showed this alleged defect affected the selling price, we affirm the trial court's confirmation.

1. Timberlands asserts that the published notice was defective as a matter of law because it referenced only a debt of $400,000 when that debt had been decreased to $362,000, the original note marked "paid by renewal," and a renewal note issued. But the property pledged secured both the $400,000 note and "all other indebtedness, past or future, owed" by Timberlands to the bank. The advertisement accurately described the property pledged, Norwood Realty Co. v. First Fed., etc., of Atlanta, 99 Ga.App. 692, 695(2), 109 S.E.2d 844 (1959), and no evidence showed the $362,000 renewal note extinguished any obligations under the original note. See C & S Nat. Bank v. Richardson, 190 Ga.App. 36, 378 S.E.2d 159 (1989) (renewal note does not extinguish original note unless parties agree otherwise); American Mtg. Co., etc. v. Rawlings, 127 Ga. 82(1), 56 S.E. 110 (1906). The advertisement referenced "all renewal or renewals, extension or extensions of said indebtedness, either in whole or in part" and announced that the bank had declared the entire "balance," not note, due and collectible.

The minimum legal requirements of a foreclosure advertisement are prescribed in OCGA § 9-13-140(a), and only a failure to properly include those items will render the advertisement defective as a matter of law. Shingler v. Coastal, etc., Credit Assn., 180 Ga.App. 539, 540(2)(a), 349 S.E.2d 785 (1986). The amount of the debt is not one of the required items, see Wardlaw v. Woodruff, 175 Ga. 515, 517(9), 165 S.E. 557 (1932), so a misstatement or overstatement of the debt does not render this advertisement legally defective. See First Nat. Bank of Atlanta v. Ferrell, 239 Ga. 8, 11, 235 S.E.2d 507 (1977), where it was held that so long as any obligation is in default, an advertisement improperly identifying the obligation in default is not error per se.

2. If a foreclosure advertisement is not defective as a matter of law, defects in it will prevent confirmation only if the factfinder determines those defects "chilled" bidding and caused an inadequate selling price. Boyce v. Hughes, 241 Ga. 357, 358(1), 245 S.E.2d 308 (1978); see also Smith v. Citizens & Southern Fin. Corp., 245 Ga. 850, 853(3), 268 S.E.2d 157 (1980). A primary object of the advertisement is to attract buyers who will compete against one another so as to yield the highest price; its contents are important to the process. Thus, "[e]rrors that would not confuse the bidding intentions of any potential bidder of sufficient mental capacity to enter a binding contract for the sale of the real property do not show a chilling of the sale so that a fair market value bid was not obtained." Williams v. South Central Farm Credit, ACA, 215 Ga.App. 740, 742(2), 452 S.E.2d 148 (1994). Timberlands concedes sufficient evidence supports the trial court's implicit finding that the property brought fair market value. See Oates v. Sea Island Bank, 172 Ga.App. 178(1), 322 S.E.2d 291 (1984).

Even without that concession, this alleged defect alone would not result in a required denial of the confirmation. The debtor in Boyce, supra at 358, 245 S.E.2d 308, made a similar argument when he challenged a foreclosure advertisement which improperly stated attorney fees and additional interest would be claimed against the property. As in this case, the debtor in Boyce argued that the improper claim of debt chilled bidding by making it appear a higher bid would be needed to purchase the property. The Court rejected that argument, noting that a bidder at a foreclosure sale is not required to bid the amount of the indebtedness. We likewise reject Timberlands' argument.

Timberlands points us to older cases from other jurisdictions for the proposition that substantially overstating the amount of the debt may chill bidding, but one has to look no further than Smith, supra at 853(3), 268 S.E.2d 157, to find recognition of that problem in our own cases. As the Supreme Court noted in Smith, however, a debtor might equally claim bidding was chilled by a failure to include the amount of a debt. In such circumstances, the factfinder is charged with determining whether language in the foreclosure advertisement chilled bidding. Id.

Timberlands does not challenge the notice of sale it received, compare Lee v. O'Quinn, 184 Ga. 44, 46(3), (4), 190 S.E. 564 (1937), or the bank's compliance with the procedures for judicial sales, see OCGA § 9-13-160 et seq.; it only asserts that improper information contained in the required advertisement made the sale defective. Considering the main purpose of the advertisement, as stated earlier, we recognize that many...