Vlass v. Security Pacific Nat. Bank, S93A0875
| Decision Date | 21 June 1993 |
| Docket Number | No. S93A0875,S93A0875 |
| Citation | 430 S.E.2d 732,263 Ga. 296 |
| Parties | VLASS v. SECURITY PACIFIC NATIONAL BANK. |
| Court | Georgia Supreme Court |
Glenville Haldi, Atlanta, for Vlass.
Lawrence S. Burnat, and Debra A. Wilson, Schreeder, Wheeler & Flint, Atlanta, for Security Pacific Nat. Bank.
Pursuant to the power of sale in a security deed given by appellant-debtor, appellee-creditor conducted a non-judicial foreclosure sale of real property on October 6, 1992. On October 30, 1992, within the 30-day period mandated by OCGA § 44-14-161(a), appellee reported the sale to the superior court for confirmation. On December 9, 1992, appellant was personally served with a copy of appellee's application for confirmation and with notice that the hearing was to be held on December 28, 1992. On December 23, 1992, appellant filed a challenge to the constitutionality of the statutory provisions regarding service in confirmation proceedings. After conducting the scheduled hearing, the superior court entered an order finding no merit in appellant's constitutional challenge and confirming appellee's sale of the property. It is from that order that appellant brings the instant appeal.
1. Appellant contends that service of appellee's application for confirmation in accordance with OCGA § 9-11-4 is a prerequisite to the initiation of a valid confirmation proceeding under OCGA § 44-14-161.
The provisions of the Civil Practice Act (CPA), of which OCGA § 9-11-4 is one, "shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict [t]herewith are expressly prescribed by law...." OCGA § 9-11-81. OCGA § 44-14-161 does not expressly provide for service upon the debtor of the creditor's application for confirmation. OCGA § 44-14-161(c) provides only that the superior court "shall direct that a notice of the hearing shall be given to the debtor at least five days prior thereto...." (Emphasis supplied.) Since OCGA § 44-14-161 does not expressly provide to the contrary, it is appellant's contention that the CPA is applicable and that service upon the debtor of the creditor's application in accordance with OCGA § 9-11-4 is required.
The CPA "governs the procedure in all courts of record of this state in all actions of a civil nature...." (Emphasis supplied.) OCGA § 9-11-1. "A civil action is commenced by filing a complaint with the court." (Emphasis supplied.) OCGA § 9-11-3. "Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service." (Emphasis supplied.) OCGA § 9-11-4(a). "When service is to be made within this state, the person making such service shall make the service within five days from the time of receiving the summons and complaint; but failure to make service within the five-day period will not invalidate a later service." (Emphasis supplied.) OCGA § 9-11-4(c). Thus, the debtor would be entitled to service of the creditor's application for confirmation in accordance with the CPA if, but only if, that application constitutes a "complaint" which initiates a "civil action" in the superior court.
It is clear, however, that an application for confirmation is not a "complaint" which initiates a "civil action" in the superior court. "Even though an application to confirm a foreclosure sale is a special statutory proceeding[, it is] not a 'civil suit' in the ordinary meaning of that term ( [cits.] )...." Small Business Admin. v. Desai, 193 Ga.App. 852, 853(1), 389 S.E.2d 372 (1989). Wammock v. Smith, 143 Ga.App. 186, 187(2), 237 S.E.2d 668 (1977). See also Wall v. Fed. Land Bank of Columbia, 240 Ga. 236, 237-238(1), 240 S.E.2d 76 (1977) () Indeed, entirely unlike a "civil action" which is initiated by the filing of a "complaint" with the clerk of the court, a confirmation proceeding can only be initiated by the creditor's report of the sale to the superior court judge. Bentley v. North Ga. Prod. Credit Assn., 170 Ga.App. 361, 362(1), 317 S.E.2d 339 (1984); Goodman v. Vinson, 142 Ga.App. 420, 236 S.E.2d 153 (1977); Dukes v. Ralston Purina Co., 127 Ga.App. 696, 194 S.E.2d 630 (1972). The only purpose of the confirmation statute is to subject the creditor's potential deficiency claim "to the condition that the foreclosure sale under power be given judicial approval." First Nat. Bank & Trust Co. v. Kunes, 230 Ga. 888, 890, 199 S.E.2d 776 (1973). The confirmation proceeding does not result in Harris & Tilley, Inc. v. First Nat. Bank of Cartersville, 157 Ga.App. 88, 91(5), 276 S.E.2d 137 (1981).
Since it is clear that an application for confirmation merely invokes the superior court's supervisory authority over non-judicial foreclosure sales under power and is not a "complaint" by which the creditor initiates a "civil action" against the debtor in the superior court, it necessarily follows that such an application need not be served on the debtor in accordance with OCGA § 9-11-4. All that is statutorily required is that the debtor be personally served with notice of the hearing on the creditor's application at least five days prior thereto. See Henry v. Hiwassee Land Co., 246 Ga. 87, 269 S.E.2d 2 (1980). "[D]espite appellant's suggestion, there is no indication of a legislative intent to incorporate within the reporting provision [of OCGA § 44-14-161(a),] the time requirement of the [CPA], OCGA § 9-11-4(c), for service on the debtor within five days from the day the report is presented to the judge." Oviedo v. Conn. Nat. Bank, 194 Ga.App. 626-627, 391 S.E.2d 417 (1990). See also Phillips v. Conn. Nat. Bank, 196 Ga.App. 477, 478(1), 396 S.E.2d 538 (1990). Compare Small Business Admin. v. Desai, supra, 193 Ga.App. at 853(1), 389 S.E.2d 372 ().
2. Appellant further contends that if, as we have held, the service requirements of OCGA § 9-11-4 are not applicable to an application for confirmation, then the provisions of OCGA § 44-14-161 regarding service are unconstitutional. Since, according to appellant, all other defendants in "civil actions" are entitled to service of the "complaint" in accordance...
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