Harper v. Ameris Bank
326 Ga. App. 67
Ga. Ct. App.2014Background
- Darby Bank made a $6,548,000 loan to SB Partners, secured by a deed on ~110 lots in the Southbridge subdivision and by personal guaranties (including Harper). After Darby failed, Ameris (as receiver) acquired the loan and guaranties.
- SB Partners defaulted; Ameris foreclosed and bought the property at the nonjudicial sale for $3,372,000 (20% above the highest pre-sale appraisal). Ameris then filed for confirmation of the sale.
- Ameris obtained two appraisal reports; appraiser Joel Crisler prepared April and August 2011 valuations and testified at the confirmation hearing. Harper moved to exclude Crisler’s expert testimony under former OCGA § 24-9-67.1/Daubert grounds.
- Harper also challenged confirmation on two procedural grounds: (1) Ameris failed to record the deed under power within 90 days as required by OCGA § 44-14-160; and (2) the foreclosure advertisement improperly included two lots that had been released prior to the sale.
- The trial court denied the Daubert motion, confirmed the sale, and Harper appealed.
Issues
| Issue | Plaintiff's Argument (Harper) | Defendant's Argument (Ameris) | Held |
|---|---|---|---|
| Timely recording of deed under OCGA § 44-14-160 | Sale must be voided/confirmation denied because Ameris did not file the deed under power within 90 days | Statute prescribes post-sale recording procedure for future buyers; failure doesn’t affect confirmation; remedy (if any) belongs in wrongful-foreclosure suit | Court: No reversible error; § 44-14-160 concerns post-sale recording/protection of subsequent purchasers, not grounds to deny confirmation; confirmation stands |
| Admissibility of appraiser testimony (Daubert/former OCGA § 24-9-67.1) | Crisler was unqualified to opine that four lots were unbuildable and unreliable for failing to treat the D.R. Horton lot-purchase agreement as controlling; his testimony should be excluded | Crisler is a certified, experienced appraiser who consulted relevant sources (DR Horton rep, engineer); challenges go to weight/credibility, not admissibility | Court: Trial court did not abuse discretion; Crisler’s testimony admissible; issues for cross-examination and weight |
| Sufficiency/accuracy of foreclosure advertisement | Inclusion of two lots already released misled buyers and required denial of confirmation | Advertisement properly described metes-and-bounds, referenced exceptions and matters of record; excepted units were identified at the sale | Court: Error, if any, was not prejudicial; not shown to have chilled bidding or changed outcome; confirmation upheld |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (framework for admissibility of expert testimony)
- WCI Properties, Inc. v. Community & Southern Bank, 320 Ga. App. 671 (2013) (confirmation hearing need not require a Daubert hearing; expert valuation may be admitted and weighed)
- Dan Woodley Communities, Inc. v. SunTrust Bank, 310 Ga. App. 656 (2011) (minor errors in advertisement do not void sale where description and exceptions are adequate and exceptions identified at sale)
- Howser Mill Homes v. Branch Banking & Trust Co., 318 Ga. App. 148 (2012) (confirmation court should pass on validity of advertisement)
- Village at Lake Lanier v. State Bank & Trust Co., 314 Ga. App. 498 (2012) (credential disputes affect weight, not admissibility, of expert testimony)
- River Walk Farm v. First Citizen Bank & Trust Co., 321 Ga. App. 173 (2013) (distinguishing claims cognizable in confirmation proceedings from wrongful-foreclosure claims)
- Heritage Creek Dev. Corp. v. Colonial Bank, 268 Ga. App. 369 (2004) (advertising errors that do not chill bidding or mislead materially do not void sale)