Tarleton v. Griffin Federal Sav. Bank

• Decision Date: 07 January 1992
• Docket Number: No. A91A1982,A91A1982
• Citation: 415 S.E.2d 4,202 Ga.App. 454
• Parties: TARLETON v. GRIFFIN FEDERAL SAVINGS BANK.
• Court: Georgia Court of Appeals

Page 4

415 S.E.2d 4

202 Ga.App. 454

TARLETON v. GRIFFIN FEDERAL SAVINGS BANK.

No. A91A1982.

Court of Appeals of Georgia.

Jan. 7, 1992.

Newton & Howell, Griffin E. Howell III, Griffin, for appellant.

Beck, Owen & Murray, Richard M. Hunter, James R. Fortune, Jr., Griffin, for appellee.

BIRDSONG, Presiding Judge.

Appellant Dianne Tarleton appeals the order of the superior court confirming the sale of real property by appellee Griffin Federal Savings Bank. Appellant entered into a promissory note with appellee; the note was secured by certain real estate of appellant. A deed to secure the debt evidencing appellee's security interest in the indebtedness was duly recorded. Appellee bank foreclosed and bid in the property for $200,400. Appellant filed a confirmation petition, and the court entered an order confirming the sale. Held:

1. To confirm a foreclosure sale of real estate, without legal process, "[t]he court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale." OCGA § 44-14-161(b).

Appellee's appraiser, using Fannie Mae's guidelines for residential appraisals, appraised the property at $200,000; appellant's appraiser appraised it at $237,000. Appellant asserts the trial court abused its discretion in finding the property brought its true market value at the foreclosure sale because appellant's appraisal was clearly more accurate and reliable, particularly as her expert had considered comparable sales occurring immediately preceding the confirmation hearing.

On appellate review, the test is not whether this court would accept appellant's expert appraisals as the most reliable and accurate, but whether the record contains any evidence to support the findings of the trial court that the property brought its true market value at the foreclosure sale. Marion G. Davis, Inc. v. Cameron-Brown Co., 177 Ga.App. 646, 340 S.E.2d 216; Oates v. Sea Island Bank, 172 Ga.App. 178(1), 322 S.E.2d 291. Although the evidence was in conflict as to the market value of the property, the findings of the trial court are supported by the evidence and are not clearly erroneous. See Shingler v. Coastal Plain etc. Credit Assn., 180 Ga.App. 539, 542(2e, 4), 349 S.E.2d 785.

2. Appellant asserts the confirmation sale should not have been confirmed as the advertisement of sale (OCGA §§ 9-13-140; 9-13-141; 44-14-162) was legally defective, could have caused confusion among potential buyers and appellee presented no evidence that there were other people present at the sale. The two deficiencies asserted are that: (a) the advertisement referred incorrectly to the security deed as having been recorded at page 3 of the deed book rather than on page 2 thereof, and (b) the phrase reciting the location of the property as "being Lot 10, Block D, Unit 1, Eagles Landing" was erroneously repeated in the legal advertisement.

(a) Appellant asserts in her brief that her appraiser did not find the property by use of the legal advertisement; this claim is unsupported by evidence of record. Likewise, unsupported is appellee's factual assertion that when the deed book is open, page 3 thereof is on the right and page 2 is on the left in plain view. We will not consider on appellate review any assertions of fact unsupported by the trial record. Behar v. Aero Med Intl., 185 Ga.App. 845(1), 366 S.E.2d 223.

(b) "Not every irregularity or deficiency in the advertisement will void the sale. The issue to be decided by the trial court is whether the error contributed to chilling the price on the sale of the property or voiding the advertisement." (Citations and punctuation omitted.) Concept Mgt., Ltd. v. Carpenter, 199 Ga.App. 503, 504(2), 405 S.E.2d 119; Oates v. Sea Island Bank, supra 172 Ga.App. at 179(2a), 322 S.E.2d 291). Thus, the crucial point of an...