328 Ga. App. 566
Ga. Ct. App.2014Background
- Wedereit sued BAC for breach of contract and wrongful foreclosure after a non-judicial sale in July 2010.
- Deed Paragraph 22 required 30 days to cure before acceleration and notice of cure, with right to reinstate after acceleration.
- BAC purchased the property at foreclosure and contested its ownership of the note and sufficiency of pre-acceleration notice.
- May 2010 letters from the foreclosure firm notified default but did not include cure steps or cure period as required, and did not warn of acceleration with cure rights.
- The trial court sua sponte granted partial summary judgment to Wedereit on pre-acceleration notice and denied summary judgment on other claims; BAC appeals.
- On appeal, the court reviews summary judgment de novo and considers whether the record supports lack of pre-acceleration notice and other issues with wrongful foreclosure, damages, and fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could grant summary judgment sua sponte on pre-acceleration notice. | Wedereit raised lack of notice; BAC had opportunity to respond. | BAC had opportunity to respond; issue could be resolved on record. | Yes; sua sponte grant proper if party had opportunity to respond. |
| Whether BAC failed to provide proper pre-acceleration notice under the Deed. | Deed required 30 days to cure and specific cure steps; notices did not provide cure rights. | Letters indicated default and acceleration but omitted cure details. | BAC failed to provide proper pre-acceleration notice; summary judgment for Wedereit on breach of contract affirmed. |
| Whether the lack of pre-acceleration notice supports a wrongful foreclosure claim. | Premature acceleration due to lack of cure rights makes foreclosure wrongful. | Foreclosure valid if note ownership and statutory requirements met. | Premature acceleration supports wrongful foreclosure; issue to jury for damages and relief. |
| Whether damages, equitable relief, attorney fees, and punitive damages were properly adjudicated. | Damages/relief issues remain; punitive damages viable in wrongful foreclosure. | Some claims should await resolution of underlying issues; fees contingent on bad faith. | Damages and punitive/fees issues remain for jury; summary judgment not proper on these. |
Key Cases Cited
- Rubin v. Cello Corp., 235 Ga. App. 250 (1998) (de novo review of summary judgment standard; view evidence in nonmovant’s favor)
- Tidwell v. Tidwell, 251 Ga. App. 863 (2001) (sua sponte summary judgment requires fair notice and opportunity to respond)
- Forsyth County v. Waterscape Svcs., LLC, 303 Ga. App. 623 (2010) (trial court may grant sua sponte summary judgment to nonmovant if appropriate)
- Austin v. Bank of America, N.A., 293 Ga. 42 (2013) (notice must include default, cure rights, and time to cure)
- Salahat v. Fed. Deposit Ins. Corp., 298 Ga. App. 624 (2009) (premature acceleration may be sufficient to support wrongful foreclosure if cure period is not honored)
- Zions First Nat. Bank v. Macke, 316 Ga. App. 744 (2012) (debt acceleration premature without curing period; proper notice required)
- Canton Plaza, Inc. v. Regions Bank, Inc., 315 Ga. App. 303 (2012) (elements of breach of contract and damages in foreclosure context)