WELLS FARGO BANK, N.A. Et Al. v. MOLINA-SALAS
332 Ga. App. 641
Ga. Ct. App.2015Background
- Molina-Salas obtained a 2007 loan from Wells Fargo secured by a recorded security deed granting a power of sale; the deed contained an accurate legal description showing the property in Gwinnett County’s 6th District.
- Molina-Salas defaulted; Wells Fargo published a four-week foreclosure advertisement in January 2011 and served her a copy as required.
- The advertisement accurately described the property except that, by typographical error, the first two weekly ads identified the property as in the 5th District rather than the 6th; the last two weeks were correct.
- A foreclosure sale occurred in March 2011; Wells Fargo was the successful bidder and later conveyed the property to Freddie Mac.
- Molina-Salas sued for wrongful foreclosure and inadequate notice, arguing the temporary district error voided the sale and that she should have received a corrected advertisement; the trial court denied Wells Fargo and Freddie Mac’s summary judgment motion.
- The Court of Appeals granted interlocutory review and reversed, holding the defendants were entitled to summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an advertisement that misidentified the land district for two of four weeks is defective as a matter of law under OCGA § 9-13-140(a) | Molina-Salas: the erroneous district made the ad legally defective and voided the sale | Wells Fargo/Freddie Mac: the ad substantially complied; the error was typographical and cured by other accurate info and later corrections | Court: Not defective as a matter of law; temporary district error did not render ad inadequate |
| Whether defects in the ad entitled plaintiff to wrongful-foreclosure relief absent proof bidding was chilled | Molina-Salas: the error supports wrongful foreclosure per se | Wells Fargo/Freddie Mac: plaintiff must show chilled bidding or inadequate sale price; she offered no such evidence | Court: Without evidence of chilled bidding or inadequate price, claim fails |
| Whether failure to send Molina-Salas an amended advertisement after correcting the error invalidates notice under OCGA § 44-14-162.2 | Molina-Salas: she should have received corrected notice and the failure rendered notice invalid | Wells Fargo/Freddie Mac: original notice included required information and the typographical error caused no harm | Court: Notice was sufficient; no harm shown from not receiving corrected ad |
| Whether summary judgment on wrongful eviction claim (based on same arguments) was improper | Molina-Salas: same defects make eviction wrongful | Wells Fargo/Freddie Mac: eviction claim rises or falls with wrongful-foreclosure claim | Court: Defendants entitled to summary judgment on wrongful eviction as well |
Key Cases Cited
- Deljoo v. SunTrust Mortgage, Inc., 284 Ga. 438 (typographical errors in conveyance descriptions do not necessarily invalidate the description)
- Racette v. Bank of America, N.A., 318 Ga. App. 171 (errors in ad require evidence of chilled bidding/inadequate price to support wrongful-foreclosure claim)
- Williams v. S. Cent. Farm Credit, ACA, 215 Ga. App. 740 (typographical errors in some advertisements do not void sale absent evidence of confusion or chilled bidding)
- Heritage Creek Dev. Corp. v. Colonial Bank, 268 Ga. App. 369 (not every irregularity in foreclosure advertisement voids sale)
- Donalson, 177 Ga. 84 (reference to public records can serve as a sufficient key to identify property)
- Smith v. Wilkinson, 208 Ga. 489 (description in conveyance is sufficient unless manifestly too meager or uncertain)