In these appeals Cynthia E. M. Cloud, Wilbert Cloud, and Diane
The records show that Chrysler First obtained title to certain real property in Decatur, Georgia, pursuant to a non-judicial foreclosure sale conducted by Georgia Central. Subsequently, appellants challenged that action alleging that the foreclosure sale was unlawful. After the trial court ruled against appellants, they appealed.
Then, because appellants did not leave the property after the foreclosure sale, Chrysler First filed a dispossessory action under OCGA § 44-7-50. In this action appellants admitted that Georgia Central effected a non-judicial foreclosure sale of the property to Chrysler First, but maintained that appellees conspired to prevent them from asserting their rights. After the lower court ordered a writ of possession, aрpellants also appealed.
Then, after appellants filed their notice of appeal in the dispos-sessory, Chrysler First moved for and was granted a supersedeas bond under OCGA § 5-6-46. Appеllants have also appealed that order.
Although these were separate actions below and separate appeals, the appeals are consolidated as they concern the same parties and arise from litigation concerning the same property. Held:
Case No. A94A1292
1. Appellants contend the trial court erred by granting Georgia Central’s and Chrysler First’s motion to dismiss and motion for summary judgment because appellants and Georgia Central mutually agreed to a departure from the contract terms; because genuine issues of material fact remain; because notice allegedly required by OCGA § 13-4-4 was not given; because issues of waiver and bad faith necessitated a jury trial; because DeKalb County was the proper venue for an action against Gеorgia Central; and because Georgia Central and Chrysler First acted in concert to oppress the plaintiffs.
The primary thrust of appellants’ arguments is that the trial court erred by granting summary judgment to Gеorgia Central because the foreclosure sale was unauthorized since Georgia Central had effected a departure from the terms of the note sufficient to authorize appellants’ failure to make payments on the debt. This argument is based on the contention that because Georgia Central earlier accepted late and irregular payments, Georgia Centrаl somehow agreed that
While parties may agree to depart from the terms of a contract (sеe OCGA § 13-4-4; Smith v. General Finance Corp.,
2. Apрellants’ argument that they should have been allowed to redeem the property is also based upon a premise that is not supported'by the evidence. Appellants contend that beсause Georgia Central’s agent sent them a notice stating that they could redeem the property by making a payment of the arrearages by a certain date, they were allowed to redeem the property. As review of the security deed, however, shows that it contains no right to redeem the property by reinstating the debt after foreclosure, appellants have no right to dо so. Pretermitting whether the letter, apparently sent to appellants in error, had any force and effect, is the fact that appellants did not pay the arrearages by the date specified in the letter or later. Thus, appellants did not exercise the right of redemption they now claim.
3. Appellants further contend the lower court erred by granting summary judgment when genuine issues of material fact remained for trial on appellees’ bad faith. This argument too is without merit because appellants have produced no evidence creating a genuine issue on this claim. Lau’s Corp. v. Haskins,
4. We find no error in the lower court’s dismissal of appellants’ claim against Georgia Central because the record shows that Georgia Central neither maintained an office nor transacted business in DeKalb County. OCGA § 14-2-510 (b); Hagood v. Garner,
Case No. A94A1341
5. In this appeal appellants contend the trial court erred by granting Chrysler First’s motion for a supersedeas bond since the order was contrary to OCGA § 5-6-46, the order was entered in violation of Uniform Superior Court Rule 6.2; and further that the trial court abused its discretion by fixing an amount for the bond as excessive, punitive, and contrary to law. Appellants’ primary argument is that OCGA § 5-6-46 does not authorize a supersedeas bond in this case because no money judgment was awarded against them. This argument, however, disregards the provision in the Code section that authorizes a supersedeas bond “[w]hen the judgment determines the disposition of the property in controversy as in real actions, trover, and actions to foreclosе mortgages and other security instruments . . . the amount of the supersedeas bond shall be fixed at such sum only as will secure the amount recovered for the use and detention of the property, the cоsts of the action, costs on appeal, interest, and damages for delay.” OCGA § 5-6-46 (a). Therefore, a supersedeas bond was authorized in this case even though no money judgment was entered agаinst appellants.
6. Further, appellants’ contention that the supersedeas bond was granted in violation of Uniform Superior Court Rule 6.2 is also without merit. Although the trial court, in fact, granted the bond within 30 days aftеr Chrysler First moved for the bond, Uniform Superior Court Rule 6.2 does not apply to motions for supersedeas bonds. Since, by its terms, Uniform Superior Court Rule 6 applies to motions before trial, the rule does not govern post-trial motions for su-persedeas bonds under OCGA § 5-6-46. This enumeration is also without merit.
7. Finally, appellants contend the amount of the bond was excessive. Under OCGA § 5-6-46 the trial court has the discretion to fix the amount of the bond when a motion is filed requesting a superse-deas bond. Hyman v. Leathers,
Accordingly the enumerations of error in Case No. A94A1341 are without merit.
Case No. A94A1344
8. Apрellants contend in this appeal that the trial court erred by granting Chrysler First a dispossessory because the foreclosure sale upon which Chrysler First’s right of possession was based was void, contrary to equity, and was conducted in derogation of defendants’ rights to ownership of the premises and, further, that the disposses-sory was unlawful because appellants were not tenants at sufferance аfter the foreclosure but equity title holders since the foreclosure sale was unlawful.
Pretermitting appellants’ arguments concerning the validity of the foreclosure sale, these arguments cannоt be used to contest the dispossessory. Roberts v. Collins,
Judgments affirmed.