Essien v. CitiMortgage, Inc.
335 Ga. App. 727
| Ga. Ct. App. | 2016Background
- Essien filed suit in Fulton County Superior Court against CitiMortgage and Pendergast & Associates asserting wrongful foreclosure, breach of contract, trespass, Georgia RICO Act violations, and punitive damages; request for damages and attorney fees.
- CitiMortgage and Pendergast moved for summary judgment; Essien did not respond.
- Trial court granted summary judgment on all claims.
- Foreclosure sale was never conducted on the scheduled date, rendering any wrongful-foreclosure claim premature.
- Pendergast filed affidavits asserting that pre-acceleration notice was sent March 8, 2011, advising cure by April 7, 2011; Essien did not controvert this evidence.
- Appellant seeks reversal; sanctions against counsel Roberts for frivolous appeal were imposed, directing judgment of $1,250 each to CitiMortgage and Pendergast.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pre-acceleration notice was proven or disputed | Essien argues disputed pre-acceleration notice. | Defendants produced notice affidavit and records; Essien failed to respond. | No genuine issue; notice undisputed; summary judgment proper. |
| Whether the foreclosure sale was ever conducted, rendering the claim premature | Foreclosure never occurred; claim premature. | Sale did not take place; supports premature claim. | Sale did not occur; claim premature; no reversible error. |
| Whether sanctions for frivolous appeal were warranted | (Roberts) challenged appellate standards; not on client. | Frivolous appeal under Rule 15; sanctions appropriate. | Sanctions imposed; award of $2,500 total against counsel; remittitur to follow. |
Key Cases Cited
- Bowden v. Pryor, 215 Ga. App. 351 (1994) (summary judgment burdens and proof standards; failure to controvert evidence)
- Wade v. Howard, 232 Ga. App. 55 (1998) (affirmative duty to respond to properly supported summary judgment)
- We Care Transp. v. Branch Banking & Trust Co., 335 Ga. App. 292 (2015) (sanctions for frivolous appeal; Court of Appeals Rule 15)
- Cowart v. Widener, 287 Ga. 622 (2010) (de novo review standard for summary judgments; nonmovant guidance)
- Wells Fargo Bank v. Molina-Salas, 332 Ga. App. 641 (2015) (foreclosure duties to exercise power of sale fairly)
- Metro Atlanta Task Force for the Homeless v. Ichthus Community Trust, 298 Ga. 221 (2015) (elements of wrongful foreclosure claim)
- Calhoun First Nat. Bank v. Dickens, 264 Ga. 285 (1994) (damages for wrongful foreclosure require causal link)
- Aetna Finance Co. v. Culpepper, 171 Ga. App. 315 (1984) (notice and wrongful foreclosure principles)