Adrian Tisdale v. the Westmoore Group, LLC
341 Ga. App. 445
| Ga. Ct. App. | 2017Background
- In 2011 Tisdale obtained a high‑interest mortgage from Westmoore for $49,062 secured by a deed with an acceleration/cure clause.
- After disputes over costs and payments, Westmoore and Tisdale executed a February 28, 2012 loan modification and a Release (Aug. 28, 2012) in which Tisdale stated the loan was proper and released all past and future claims; the Release allowed acceleration for any violation.
- Tisdale later fell further into arrears; Westmoore sent a Postponement Letter (Aug. 15, 2013) delaying acceleration if Tisdale made specified payments; the letter said failure to comply allowed immediate foreclosure and Tisdale admitted she had no defenses to Westmoore’s security interest.
- Tisdale filed multiple suits (state and federal) challenging the mortgage and foreclosure; federal claims were dismissed and state claims (fraud, conspiracy, GFLA) were remanded. Tisdale also filed bankruptcy, which stayed foreclosure.
- Defendants moved for summary judgment; the trial court granted it, finding the Release and Postponement Letter barred Tisdale’s state‑law claims, and awarded defendants $61,231.10 in attorney fees under OCGA § 13‑6‑11.
- On appeal, the Court of Appeals affirmed summary judgment as to the merits but reversed the award of fees because a trial court cannot award OCGA § 13‑6‑11 fees on summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Release bars Tisdale’s fraud, conspiracy, and GFLA claims arising before Aug. 28, 2012 | Release is void/unenforceable (signed under threat of foreclosure) and therefore does not bar claims | Release is a valid, unambiguous contract that releases all past claims and confirms loan compliance | Release is valid and bars claims arising before its execution |
| Whether the Postponement Letter bars claims between Aug. 28, 2012 and Aug. 15, 2013 | Postponement Letter is void/unenforceable | Postponement Letter is binding and admits no defenses; it postpones acceleration only if payments are made | Postponement Letter is binding and bars claims for that period |
| Whether Westmoore prevented Tisdale from curing default (i.e., breached by refusing payment) | Westmoore refused to accept payments and thwarted cure attempts | Tisdale points to no evidence she tendered payments; the letter allowed foreclosure on nonpayment | No genuine issue of material fact; summary judgment for defendants on post‑letter claims |
| Whether defendants were entitled to attorney fees under OCGA § 13‑6‑11 on summary judgment | Trial court properly awarded fees because Tisdale’s claims were meritless | Fees under § 13‑6‑11 require jury determination of liability and amount; court cannot award on summary judgment | Reversed: trial court lacked authority to award § 13‑6‑11 fees on summary judgment; fee award vacated |
Key Cases Cited
- Chapman v. C. C. Dickson Co., 273 Ga. App. 640 (de novo review on appeal from summary judgment)
- UniFund Financial Corp. v. Donaghue, 288 Ga. App. 81 (contract interpretation—release construction rules)
- Savannah Sav. Bank v. Logan, 99 Ga. 291 (threat of lawful foreclosure does not constitute duress)
- Cannon v. Kitchens, 240 Ga. 239 (same—foreclosure threat not duress)
- Covington Square Assoc., LLC v. Ingles Markets, Inc., 287 Ga. 445 (OCGA § 13‑6‑11 liability and amount are for the jury; cannot be awarded as matter of law)
- Sherman v. Dickey, 322 Ga. App. 228 (trial court not a trier of fact on summary judgment; cannot award § 13‑6‑11 fees on summary judgment)