White Oak Homes, Inc. v. Cmty. Bank & Trust

• Decision Date: 01 March 2012
• Docket Number: No. A11A2191.,A11A2191.
• Citation: 12 FCDR 873,724 S.E.2d 810,314 Ga.App. 502
• Court: Georgia Court of Appeals
• Parties: WHITE OAK HOMES, INC. et al. v. COMMUNITY BANK & TRUST.

12 FCDR 873
314 Ga.App. 502
724 S.E.2d 810

WHITE OAK HOMES, INC. et al.
v.
COMMUNITY BANK & TRUST.

No. A11A2191.

Court of Appeals of Georgia.

March 1, 2012.

[724 S.E.2d 811]

Thomerson, Spears & Robl, Michael D. Robl, Decatur, for appellants.

Hulsey, oliver & Mahar, Joseph D. Cooley III, Jason A. Dean, Gainsville, for appellee.

MIKELL, Presiding Judge.

[314 Ga.App. 502] White Oak Homes, Inc. (White Oak), appeals from the trial court's order confirming Community Bank & Trust's (CB & T) nonjudicial[314 Ga.App. 503] foreclosure sale pursuant to OCGA § 44–14–161, contending that the foreclosure notice was deficient as a matter of law. Finding no error, we affirm.

“The trial court is the trier of fact in a confirmation proceeding, and an appellate court will not disturb its findings if there is any evidence to support them. We are not, however, bound by the trial court's conclusions of law, which are subject to de novo review.” ¹

White Oak defaulted under a deed to secure debt to CB & T. CB & T pursued nonjudicial foreclosure of the property at issue and advertised the sale under power in the Athens Banner–Herald, the legal organ of Clarke County. On the date of the last advertisement, the FDIC, as receiver for CB & T, sold the property to another bank, SCBT, N.A. The subject property then was sold at auction, but because the sale price did not satisfy the amount of the indebtedness, CB & T petitioned for confirmation, which the trial court granted. White Oak appeals.

1. At the confirmation hearing, an attorney for CB & T testified that, as was his practice when running a notice of sale under power, he asked the publisher to provide an affidavit of publication of the foreclosure notice. The attorney submitted into evidence the original affidavit of publication, and, attached to it by the publisher, the tear sheet, or clipping, from the Athens Banner–Herald. Asked if the tear sheet reflected the same advertisement that he transmitted to the newspaper, the attorney confirmed that it did. The publisher's affidavit attests that the advertisement was published on each of four listed dates. The court admitted both the affidavit and the tear sheet into evidence.

White Oak challenges the admissibility of the publisher's affidavit and the tear sheet, on the ground of hearsay. However, this court has, in similar situations,

found no error in the admission of publisher's affidavits over hearsay or authenticity objections where, as here, a witness testified at the hearing that he or she caused the foreclosures to be advertised in the

[724 S.E.2d 812]

legal organ of the county at issue, identified the publisher's affidavits, and affirmed [314 Ga.App. 504] that the advertisements ran four times during the month that preceded the foreclosure.²

We conclude that the publisher's affidavit in this case, as identified by the attorney, was “competent proof of the facts recited therein, namely the contents of the advertisement and the dates of publication.” ³ The cases White Oak cites in support of this enumeration are distinguishable. ⁴ We find no error.

2. White Oak contends that the foreclosure advertisement did not comply with OCGA §§ 44–14–162 and 9–13–140(a) because it failed to identify the owner of the loan. The advertisement identified CB & T as the party in whose favor the security deed was executed; but White Oak asserts that the FDIC as receiver for CB & T sold the loan to another bank on January 29, 2010, the same date that the last advertisement ran in the Athens Banner–Herald.

This error has been waived on appeal. White Oak, in contravention of our rules, has not shown how this enumeration of error was preserved for our review, nor has White Oak provided any relevant citation to the record showing that this claim of error was raised below.⁵ CB & T asserts that this enumeration was not raised below, and our review of the record has yielded nothing contrary to this assertion. “An appellate court will not consider an issue raised for the first time on appeal, because the trial court has not had the opportunity to consider it.” ⁶

3. White Oak argues that the confirmation was not filed by the real party in interest as required by OCGA § 44–14–162(a), because the FDIC in its capacity as receiver for CB & T sold CB & T's assets to another bank on the same date as the final foreclosure advertisement and...