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SUGARLOAF PLAZA LLC v. TOUCHMARK NATIONAL BANK

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Court of Appeals of Georgia.

SUGARLOAF PLAZA, LLC. et al. v. TOUCHMARK NATIONAL BANK et al.

No. A12A1861.

Decided: February 04, 2013

Elizabeth Louise Fite, Atlanta, for Appellant. John Robert Autry, Kelley Bowden Gray, Atlanta, for Appellee.

This appeal arises from the trial court's order confirming a sale under power1 of certain Gwinnett County property instigated by Touchmark National Bank and TMAK Properties, LLC (collectively “Touchmark”), after Sugarloaf Plaza, LLC, the borrower on the underlying note, and Alan Ahlzadeh, Barham Ahlzadeh, and Dennis Ahlzadeh, each guarantors (collectively “Sugarloaf”), failed to repay the deed to secure debt on the property.2 Sugarloaf appeals, challenging the confirmation order because Touchmark failed to admit a certified copy of the deed to secure debt or evidence that a default occurred and thereby triggered Touchmark's power to foreclose. For the reasons that follow, 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. Furthermore, we do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court's judgment.”3

In the event that a non-judicial foreclosure sale does not bring the amount owed under a secured instrument, OCGA § 44–14–161 sets forth the confirmation procedure that a person instituting a foreclosure proceeding must follow in order to obtain a deficiency judgment on the remainder against the debtor.4 OCGA § 44–14–161(a) requires that the lienholder report the sale to the superior court of the appropriate county within 30 days and petition that court for confirmation of the sale.5 The Code section requires that the court conduct a hearing on the petition and “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.”6 In addition to the showing of true market value, the court “shall also pass upon the legality of the notice, advertisement, and regularity of the sale.”7

1. Sugarloaf argues that the trial court erred by confirming the foreclosure sale because Touchmark failed to admit into evidence a certified copy of the deed to secure debt.

OCGA § 44–14–161(c) requires the trial court to pass on the legality of the notice, the advertisement, and the regularity of the sale. When a power of sale is exercised all that is required of the foreclosing party is to advertise and sell the property according to the terms of the instrument, and that the sale be conducted in good faith.8

The duty of the court is to test the fairness of the technical procedure of the actual sale and to insure that the sale has brought at least the true market value of the property. The statute does not contemplate that the court shall undertake to decide controversies between the parties as to the amount of the debt or side agreements which could have been the basis of an injunction preventing the foreclosure sale. Issues which go to the heart of the underlying obligation itself should be raised within the confines of a subsequent suit for a deficiency judgment.9

Pretermitting the issue of whether the trial court erred by overruling Sugarloaf's objection to admission of a non-certified copy of the deed to secure debt, Sugarloaf has not shown error to support reversal of the trial court's order confirming the sale. Sugarloaf argues that without an admissible copy of the deed to secure debt, the trial court was not able to confirm the sale because (1) the court could not determine whether the sale met the requirements of the document; (2) the court could not determine whether the entity conducting the sale was the appropriate party in interest; and (3) the court could not determine whether the sale was properly advertised. This Court has repeatedly held, however, that issues such as the right to foreclose or those related to the underlying debt are irrelevant to the confirmation proceeding.10 With regard to issues of notice and advertisement, the attorney who conducted the sale provided admissible testimony as to the advertisement, notice, and regularity of the actual sale, supporting documents thereto, including the newspaper advertisement, affidavit of publication, and deed under power of sale, were admitted without objection, and the trial court was authorized to accept that testimony as credible and to rely on the other properly admitted documents to support its confirmation order.11 Finally, Sugarloaf has failed to advance any argument regarding how the advertisement, notice, or sale were defective or irregular in contravention of the other properly admitted evidence.12

2. Sugarloaf argues that the trial court erred by confirming the foreclosure sale because Touchmark failed to provide sufficient evidence of a default necessary to trigger the power of sale. This issue, however, is irrelevant to a confirmation proceeding.13

Judgment affirmed.

DOYLE, Presiding Judge.

ANDREWS, P.J. and BOGGS, J., concur.

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