PNC Bank, National Ass'n v. Smith, 298 Ga. 818

PNC Bank held a deed to secure debt and a promissory note on commercial property; borrower Hoschton Towne Center, LLC defaulted and the property was sold at a nonjudicial foreclosure sale.
PNC elected not to obtain a post-sale judicial confirmation under OCGA § 44-14-161 and later sued multiple guarantors for the deficiency.
Multiple guarantors executed broad guaranties expressly waiving defenses (including anti-deficiency/one-action defenses) and acknowledging liability even if post-sale confirmation did not occur.
The Northern District of Georgia certified two questions to the Georgia Supreme Court concerning (1) whether compliance with OCGA § 44-14-161 is a condition precedent to pursuing a deficiency against guarantors, and (2) whether guarantors can contractually waive that condition.
The Court limited its ruling to guarantors (no borrowers are parties) and answered the certified questions generally rather than resolving the federal case on the merits.

Issue	Plaintiff's Argument (PNC)	Defendant's Argument (Guarantors)	Held
Whether compliance with OCGA § 44-14-161 is a condition precedent to suing a guarantor for a deficiency after a nonjudicial foreclosure	Confirmation is not a jurisdictional requirement; lender may proceed without strict compliance	Section 44-14-161 requires confirmation/notice before deficiency actions against guarantors	Yes — compliance with § 44-14-161 is a condition precedent (an element of the claim) for suing guarantors unless waived
Whether guarantors can waive the confirmation/notice requirement by contract	Waivers in the guaranty should allow lender to pursue deficiency despite no confirmation	Such waivers are contrary to public policy and statutory protections and therefore invalid	Yes — guarantors may contractually waive the condition precedent; such waivers are valid as to guarantors (statutory no-waiver protection in 1981 amendments applies to borrowers/current owners, not guarantors)

First Nat. Bank & Trust Co. v. Kunes, 230 Ga. 888 (Ga. 1973) (held sureties/guarantors are "debtors" for confirmation-notice purposes under the 1935 act)
HWA Properties, Inc. v. Community & Southern Bank, 322 Ga. App. 877 (Ga. Ct. App. 2013) (upheld enforceability of explicit guaranty waivers of confirmation protections)
Community & Southern Bank v. DCB Investments, LLC, 328 Ga. App. 605 (Ga. Ct. App. 2014) (same)
Villanueva v. First American Title Ins. Co., 292 Ga. 630 (Ga. 2013) (legislative enactment is conclusive expression of public policy)
Crutchfield v. Lawson, 294 Ga. 407 (Ga. 2014) (distinguishing subject-matter jurisdiction from other procedural conditions)