Thompson v. Maslia
| Decision Date | 21 November 1972 |
| Docket Number | Nos. 1,Nos. 47406,2,3,47407,s. 47406,s. 1 |
| Citation | 127 Ga.App. 758,195 S.E.2d 238 |
| Parties | Wayne C. THOMPSON v. Victor D. MASLIA et al. Tony DiMAURO et al. v. Victor D. MASLIA et al |
| Court | Georgia Court of Appeals |
Powell, Goldstein, Frazer & Murphy, Larry I. Bogart, Stuart E. Eizenstat, Atlanta, for appellant.
Marvin P. Nodvin, Ira S. Zuckerman, Atlanta, for appellees.
Syllabus Opinion by the Court
For decision is an appeal from the confirmation of a debt deed foreclosure sale in proceedings brought under the provisions of Code Ann. § 67-1503 (Ga.L.1935, p. 381). In case No. 47407, Thompson, one of four respondents involved in the court below, has appealed, he contending the evidence concerning 'the true market value' was such that the trial judge erred in confirming the sale. Such confirmation is a condition precedent to the creditor being permitted to sue debtor for any money deficiency resulting from the sale. Code Ann. § 67-1504. This opinion is limited to that question which is presented here under an immediate review certificate.
In Case No. 47407, two of the other three defendants filed a notice of appeal but took no steps to perfect their appeal.
Maslia and Sater (hereafter referred to as appellees) were owners and builders of a sixteen-unit apartment house at 127 Eleventh Street, N.E., in Atlanta. Upon completion in December, 1963 they had obtained a first loan deed from Fulton Federal Savings & Loan Association for $88,000. On August 3, 1970, they sold this property to DiMauro for $115,000, of which $70,774.62 was represented by assumption of the outstanding Fulton Federal loan deed, $4,490.38 was cash, and the balance of $34,400 was secured by a purchase money subordinate loan deed. Buyer deeded the property to T.R.G. Corporation which in turn on August 3, 1971, conveyed the property to Hamilton and Thompson. When Fulton Federal advertised foreclosure for October, 1971 because of defaults, appellees paid $6,229.65 on this prior loan deed which halted completion of foreclosure and themselves instituted foreclosure of their purchase money second loan deed. At their foreclosure sale on November 2, 1971, appellees through their attorney purchased the property for a recited consideration of $1,000 cash plus assumption of amounts owing on the prior security instrument and outstanding unpaid taxes so that the gross price is averred to be $74,414.95.
The instant proceeding for confirmation was then filed in conformity with Code Ann. § 67-1503 (Ga.L.1935, p. 381), naming DiMauro, T.R.G. Corporation and Thompson and Hamilton as respondents. Intervention filed by an unhappy tenant resulting in appointment of receiver is not involved in this appeal nor are certain damage claims recited in an amendment by appellees adding a second count to the petition for confirmation, left pending by the denial of a motion to dismiss the amendment.
At the first hearing on January 14, 1972, before Hon. G. Ernest Tidwell, the evidence for appellees consisted of their attorney's testimony (his qualifications were 'approximately 15 years experience in real estate, having closed, I'd say at least 1,000 loans and sales and have bought and sold real estate for my own, for my own account, and for accounts of others),' the realtor who had managed the property for appellees, and a Fulton Federal Savings and Loan official, along with 72 pages of documents. The adverse parties relied upon testimony of an experienced appraiser and some of appellees' documents. These were the 1963 appraisal of Fulton Federal at $126,000, another Fulton Federal appraisal dated September 21, 1971, at $80,000, the amount of insurance procured in March, 1970 ($133,000 building, $29,000 rental income), the construction cost of 1963 and present value of the land, and the purchase by Hamilton and Thompson on August 3, 1971 for $130,000. None of the respondents testified.
One of the appellees' witnesses stated the property This testimony was not contradicted by respondents but in other respects there were conflicts, particularly as to the basic reason for the difference in estimating fair market value. Whereas respondents' appraiser pointed to the nearby development of Colony Square as increasing his valuation the appellees' witness swore
Attorney for appellees offered in behalf of his clients three alternatives: (a) readvertise foreclosure at expense of the other parties, (b) convey the property to respondents for the amount of the appellees' bid, or (c) to reconvey the property and reinstate the second mortgage upon repayment of the amounts which appellees had paid Fulton Federal to cure its delinquency and the delinquent payments due on the second security. Respondents were unwilling to accept either alternative.
Judge Tidwell entered two orders as to this hearing. In the first, dated January 24, 1972, he overruled a constitutional attack made on the statute by appellees and confirmed the sale. The other order, dated January 26, 1972, was divided into 'Findings of Fact' which recited the property was sold in compliance with the law and that the price 'was the true market value on the date of said sale' and under the caption of 'conclusions of law' confirmed the sale. A notice of appeal was filed as to these orders by Thompson, but later withdrawn in writing.
Thereafter an unexpected development occurred when a realtor tendered a sales contract for $95,000 from an outside party. The term of court had not expired, and the defendants filed motions 'to set aside, revise and vacate the prior orders and judgments' on the basis of this alleged newly discovered evidence. Appellees moved to dismiss the motions for reconsideration. The orders were never vacated, but Judge Tidwell proceeded with another full-scale hearing on March 1, 1972, and entered a series of additional orders and judgments on March 3 which included denying the motion to reconsider and overruling appellees' motion to dismiss. Again judgment confirming the sale was entered. Thereafter a clarification order was entered March 10, in which the court concluded: '(1) The court finds that the property involved herein was sold in compliance with the applicable provisions of law; (2) The court finds that the price for which the subject property was sold was the true market value of said property; (3) The court therefore confirms the sale in question pursuant to Ga.Code Ann. § 67-1504 and finds said statute to be constitutional; (4) This order shall supplement this Court's orders of January 24, 1972, and January 26, 1972, and give nunc pro tunc effect to defendants' certificate of immediate review.'
In Case No. 47406 Thompson filed his appeal with his enumerations of error attacking separately each of the court orders. The complete record of 146 pages plus the transcripts of the two hearings are on file in this case along with brief for Thompson.
In Case No. 47407, DiMauro and T.R.G. Corporation filed a separate notice of appeal with direction to the court clerk to 'transmit the record and transcript as set out by defendant, Wayne C. Thompson, in his notice of appeal.'
No cross appeal was filed by appellees to the order dated March 3 overruling their motion to dismiss the application for a reopening and revision of the original orders of January 24 and 26, but any error in refusing to dismiss became moot upon denial of the application. Held:
1. Appellants DiMauro and T.R.G. Corporation in Case No. 47407 having failed to file an enumeration of errors or brief, and having failed to appear, in person or by counsel, their appeal was dismissed for want of prosecution upon its call on the September calendar. Cf. Griffith v. Mitchell, 117 Ga. 476, 478, 43 S.E. 742.
2. When in 1935 the General Assembly enacted 'An Act to provide for confirmation of sales under foreclosure proceedings on real estate, to limit and abate deficiency judgments in suits and foreclosure proceedings on debts secured by mortgages, security deeds and other lien contracts on real estate, to provide for advertisement of foreclosure sales; and for other purpose' (Ga.L.1935, p. 381), our country was emerging from a disastrous depression during which many mortgagors had not only lost their property through foreclosure but were forced to bankrupt against deficiency judgments after foreclosure sales in which mortgagees usually acquired the property at nominal or depressed bids. Although the Act as passed contained only two sections, the codifiers divided Section One into three Code Sections, 1 for our Annotated Code these being now codified as §§ 67-1503, 67-1504 and 67-1505 and codified the Second Section as § 67-1506.
The key portion with which we must deal is in haec verbae: 'The court shall require evidence to show the true market value of the property sold under such powers, and shall not confirm the sale unless he is satisfied the property so sold brought its true market value on such foreclosure sale.' This language places the burden of proof upon the mortgagee and also vests considerable discretion in the judge. The breadth of this discretion is shown in the following section which not only requires the court to 'pass upon the legality of the notice, advertisement, and regularity of the sale' but...
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