Lead Opinion
Appellant is seeking to set aside the foreclosure sale of her house, which resulted in the loss of her substantial equity in the property. The trial court granted summary judgment to the defendants. In our opinion there are triable issues of fact, including but not limited to those discussed below, and we reverse.
Appellant contends that a quasi new agreement had been formed in the course of the execution of the loan contract. Code § 20-116. First Federal had accepted late and irregular payments for severаl years, preferring to contact appellant and convince her to make up the defaults (at least in part). No notice was given of First Federal’s intention to insist on compliance with the exact terms of the agreement prior to a letter dated October 28, 1976, in which the Savings & Loan Association accelerated the balance of the debt. In this letter First Federal offered to reinstate the loan on payment of
Appellees have failed to establish the nonexistence of any essential element of appellant’s cause of action under Code § 20-116. Verner v. McLarty,
In light of the fact that this case must be remanded for trial, we express no opinion as tо the merits of appellant’s arguments under Code § 37-607. See Delray, Inc. v. Reddick,
Judgment reversed.
Dissenting Opinion
dissenting.
I cannot agree with the majority opinion in this case.
I conclude as a matter of law that the association complied with Code Ann. § 20-116 when it advised plaintiff in writing, demanding the loan be brought current in ten days. The amount demanded was not the full amount of thе loan but the arrearage, and no payment had been made in over two months at the time of demаnd. No effort was made by plaintiff to comply with the written notice. Payment demand for the outstanding delinquent payments and advice that the contract would be reinstated upon receipt of payment is lеgal notice to return to the terms of the original agreement.
Bank checks are not payment until thеmselves paid. Code Ann. § 20-1004. Thus, the payment credited to plaintiff after the date of full accelerаtion could not reinstate the installment provisions of the original note.
After notice of return to the tеrms of the original contract is given and there is no compliance, demand is made for the full balanсe owed, and acceleration has occurred, a partial payment thereafter would not amount to a waiver of time of payment of an installment or a quasi new agreement for the rеason that deferred payment times are no longer available to be waived. The whole debt is due, the contract provisions as to acceleration having been exercised at that time. Morrison v. Roberts,
Inadequacy of price paid upon the sale of property under power will not of itself and standing alone be sufficient reason for setting aside the sale. It is only when the price realized is grossly inadеquate and the sale is accompanied by fraud, mistake, misapprehension, surprise or other сircumstances which might authorize a finding that such circumstances contributed to bringing about the inadequacy оf price that such a sale may be set aside by a court of equity. Gunter v. Tucker Federal Savings &c. Assn.,
The due date of installments, deviated by mutual
A bona fide purchaser for value, without notice of an equity will not be interfered with by equity. Code Ann. § 37-111. If such is not the law, no one could ever safely bid at a properly advertised and conducted public sale, with the result that both parties, debtor and creditor will suffer.
Additionаlly, for plaintiff to resort to a court of equity she must offer to do equity. She tenders nothing and offers to tender nothing. She cannot prevail. Code Ann. § 37-104. Cochran v. Teasley,