Reese v. Provident Funding Associates, LLP
317 Ga. App. 353
Ga. Ct. App.2012Background
- Reeses defaulted on their loan; Provident sent a 2009 foreclosure notice while Provident was servicer, not the secured creditor; RFC was the secured creditor as of 24 June 2009; MERS held the security deed until mid-2009; July 7, 2009 non-judicial sale occurred; Reeses sued for wrongful foreclosure and eviction; trial court granted Provident summary judgment on wrongful foreclosure; on appeal, Reeses argue deficiency in OCGA 44-14-162.2(a) notice and misidentification of secured creditor; court reverses and remands for judgment in Reeses’ favor; dissenting opinions discuss statutory interpretation and legislative intent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether notice complied with OCGA § 44-14-162.2(a). | Reeses contend notice failed to identify the secured creditor. | Provident argues notice sufficed because it identified authority to negotiate, amend, modify. | Yes; notice failed to identify the secured creditor and was improper. |
| Whether the notice properly identifies the secured creditor when a servicer sent the notice. | Reeses rely on the statute’s transparency goal requiring identifying the secured creditor. | Provident argues service by agent is acceptable. | The statutory requirement includes identifying the secured creditor; misidentification invalidates the notice. |
Key Cases Cited
- Roylston v. Bank of America, N.A., 290 Ga. App. 556 (Ga. App. 2008) (notice defects allow wrongful foreclosure claims; discusses 162.2(a) identifiers)
- Stubbs v. Bank of America, 844 F.Supp.2d 1267 (N.D. Ga. 2012) (statutory amendments intended transparency of secured creditor identity)
- Moore v. Moore-McKinney, 297 Ga. App. 703 (Ga. App. 2009) (statutory construction guiding legislative intent)
- Mason v. Home Depot U.S.A., 283 Ga. 271 (Ga. 2008) (duty to ascertain legislative intent in statute interpretation)
- ALLTEL Ga. Communications Corp. v. Ga. Public Srv. Comm., 270 Ga. 105 (Ga. 1998) (canons of statutory construction and intent guidance)
- LaCosta v. McCalla Raymer, No. 1:10-CV-1171-RWS, 2011 U.S. Dist. LEXIS 5168 (N.D. Ga. 2011) (discusses agent sending foreclosure notice; non-official reporter cited here (LEXIS))
- McDaniel v. Hensons’, Inc., 229 Ga. App. 213 (Ga. App. 1997) (agency binding when principal undisclosed)