Quattlebaum v. Ameribank, N.A.

McMurray, Presiding Judge. This case concerns Ameribank, N.A.’s (“Ameribank”) application to confirm a real property foreclosure sale. The trial court entered an order confirming the sale on September 12, 1994, but later set aside that portion of this order finding that the guarantor, Robert Quattlebaum, Jr., had been personally served with notice of the confirmation hearing. After this judgment was affirmed in Ameribank, N.A. v. Quattlebaum, 220 Ga. App. 345 (469 SE2d 462), Ameribank personally served Quattlebaum with a copy of its confirmation application and a document entitled, “NOTICE OF HEARING.” This document begins with the notation, “TO: ROBERT B. QUATTLEBAUM, JR., M.D.,” and provides notice of a hearing on May 20, 1996, “for the purposes of confirming the price obtained ($355,704.44) for [the collateral real] property at the foreclosure sale conducted by Plaintiff on May 3, 1994. . . .” Neither the “NOTICE OF HEARING” document nor Ameribank’s attached confirmation application name Robert B. Quattlebaum, Jr. as a party to the proceedings. The “NOTICE OF HEARING” document closes with the following: ‘You are invited, but not required, to attend the hearing.” Over Quattlebaum’s objections, the trial court conducted a second confirmation hearing during which Ameribank’s appraiser testified that he examined the subject realty on February 10, 1994, about three months before the foreclosure sale, and that he then gave the property a “final value estimate [of] $400,000.” Based on this testimony and other proof regarding the property’s true market value, the trial court confirmed the foreclosure sale finding “that the bid-in price (in aggregate with the outstanding taxes paid by Ameribank) was within the range shown by evidence as the true market value. . . .” This appeal followed. Held: 1. The trial court did not err in conducting a confirmation hearing after Ameribank’s unsuccessful appeal in Ameribank, N.A. v. Quattlebaum, 220 Ga. App. 345, supra. Contrary to Quattlebaum’s assertions, the substantive aspect of the confirmation proceedings did not end when the trial court entered an order on September 12, 1994, confirming the foreclosure sale as to the primary debtors. Just as in Rogers v. Fidelity Fed. Sav. &c. Assn., 180 Ga. App. 330, 331 (349 SE2d 7), the trial court’s set-aside order in the case sub judice returned Quattlebaum to the posture he occupied before the first confirmation hearing. Id. at 331. Quattlebaum argues, nonetheless, that Rogers is not controlling because, unlike Rogers, the trial court in the case sub judice set aside only part of the September 12, 1994 confirmation order. This difference, Quattlebaum reasons, placed him at a disadvantage because his position at the second confirmation hear [518] ing was contrary to the remaining part of the trial court’s September 12, 1994 confirmation order finding that the encumbered property sold fairly as to the primary debtors. We find no difference in this distinction. The trial court in Rogers, just as the trial court in the case sub judice, was required to disregard its prior confirmation order and consider anew the issue of whether the encumbered property sold fairly. While Quattlebaum perceives difficulty in escaping prejudice under such circumstances, it is presumed that the trial judge acted properly and provided Quattlebaum with a fair and impartial confirmation hearing. Siegel v. Gen. Parts Corp., 165 Ga. App. 339, 340 (2) (301 SE2d 292). We also reject Quattlebaum’s argument that the second confirmation hearing unfairly diminished his right to challenge the foreclosure sale because of the two-year interval between the foreclosure sale and the second confirmation hearing. Although Quattlebaum’s appraiser testified that this delay rendered it impossible for him to form an opinion as to the value of the encumbered property’s building, such evidentiary difficulties are often an unavoidable circumstance of confirmation proceedings and are tolerated as a matter for the -trial court’s consideration in weighing the evidence. See Thompson v. Maslia, 127 Ga. App. 758, 763 (4), 764 (195 SE2d 238). 2. Quattlebaum next contends the trial court erred in denying his motion to dismiss, pointing out that he was not named as a party to the confirmation proceedings and that the trial court did not direct that a notice of the confirmation hearing be given to him as required by OCGA § 44-14-161 (c). In First Nat. Bank &c. Co. v. Kunes, 128 Ga. App. 565 (197 SE2d 446), aff’d, 230 Ga. 888 (199 SE2d 776), this Court affirmed the trial court’s order dismissing a bank’s claims for a deficiency judgment against individual debtors under seven promissory notes because, unlike the corporate debtor, they were not named as parties in the underlying confirmation petition and the trial court’s rule nisi for the confirmation hearing was directed solely to the corporate debtor. 128 Ga. App. at 566 (3). Because Georgia’s confirmation statute is in derogation of the common law and must therefore be strictly construed, the Court of Appeals held that the individual debtors’ actual notice of the confirmation hearing was insufficient to satisfy the statute’s notice requirements. Id. at 566-567 (4). Similar circumstances appear in the case sub judice. Quattlebaum is not named as a party in the confirmation petition, and he was not given notice of the confirmation hearing by the trial court as required by OCGA § 44-14-161 (c). Ameribank gave Quattlebaum the “NOTICE OF HEARING” document and advised him therein that, “You are invited, but not [519] required, to attend the hearing.”1 Under these circumstances, we are compelled to reverse the trial court’s denial of Quattlebaum’s motion to dismiss. Quattlebaum’s third and fourth enumerations of error provide no ground for reversal. Judgment reversed. Beasley, J., concurs specially. Smith, J., concurs in the judgment only. Footnotes [1] This sort of guidance, which could easily lull an unrepresented debtor away from the confirmation hearing, provides good reason for OCGA § 44-14-161 (c)’s requirement that the trial court direct that the notice of hearing be given to the debtor.