In this appeal, the plaintiff debtor challenges, on procedural due process grounds, the constitutionality of OCGA§ 44-14-162.2, 1 which providеs for mailing or delivering notice to the debtor of a sale made on foreclosure under power of sale. Finding the challenge to be without merit, we affirm the judgment in favor of the defendant security deed holder.
The following is undisputed. On October 27, 1997, Mary Parks (“Parks”) executed and delivered to TMS Mortgage, Inc. d/b/a The Money Store (“TMS”) a note in the original principal amount of $52,500. To secure thе indebtedness evidencedby the note, Parks also executed and delivered a security deed in favor of TMS regarding certain real property located in Fulton County. Bank of New York (“Bank”) subsequently became the owner and holder of the note and seсurity deed.
Following Parks’s default under the note and security deed, the Bank elected to foreclose on the property рursuant to the power of sale provision in the security deed. On or about December 4, 2002, a letter was sent to Parks, via certifiеd mail, return receipt requested, giving her notice of the foreclosure sale. The certified mail receipt was signed. 2 Follоwing advertisement of the property, the foreclosure sale occurred on January 7, 2003, and the property was sold to Branzak Investments, LLC (“Branzak”). The Bank executed and delivered to Branzak a deed under power of sale to the property.
Thereafter, Branzak filed a dispossessory action in the Magistrate Court of Fulton County demanding that Parks deliver possession of the property. Parks refused to vacate the property and filed the present action against the Bank in the Superior Court оf Fulton County asking for equitable relief to set aside the sale and alleging *419 wrongful foreclosure. The Bankmovedfor summary judgment. Parks amеnded her complaint to add, inter alia, a claim that the notice provisions of OCGA § 44-14-162.2 violated rights to due process under the Stаte and Federal Constitutions. Parks then moved for summary judgment, arguing that “OCGA § 44-14-162.2 does not afford a Georgia Mortgagees [sic] due process, as required by the Federal and State Constitutions, in ensuring that Mortgagees receive actual notice of a pending foreсlosure sale of their home.” The superior court denied Parks’s motion for summary judgment and granted summary judgment to the Bank.
Parks contends thаt OCGA § 44-14-162.2 does not comport with Federal and State due process standards because it does not ensure that there is “actual notice,” i.e., actual receipt. But the contention is wholly unavailing.
In the context of OCGA § 44-14-161, which requires judicial approval оf foreclosure sales under power of sale in order to obtain a deficiency judgment, this Court has clearly held that there is insufficient state action in the Georgia foreclosure procedure so as to leave it vulnerable to an attack on the ground that it is violative of constitutional due process.
Alliance Partners v. Harris Trust & Sav. Bank,
The foreclosure sale is permitted under a power contained in a contract between the lender and debtor; the state does not become involved in thе process until the foreclosing party seeks to recover the difference in the money owed under the contract аnd the amount obtained at the foreclosure sale. If no deficiency exists after the sale, judicial review is unnecessary.
Id. There is no state action involved in OCGA § 44-14-162.2. The statute merely provides the mechanism for giving notice to the debtor, as defined in OCGA § 44-14-162.1, of the foreclosure under power of sale.
However, pretermitting the issue of the lack of state action in this attempted procedural due process challenge, the appeal suffers from other infirmities. The gravamen of Parks’ argument is that OCGA § 44-14-162.2 compromises the rights of “mortgagees” like herself. In fact, she relies upon
Mennonite Bd. of Missions v. Adams,
In
McCollum v. Pope,
Judgment affirmed.
Notes
OCGA § 44-14-162.2 provides:
(a) Notice of the initiation of proceedings to exercise a рower of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 15 days before the date of the proposed foreclosure. Such notice shall be in writing and shall be sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address or to such other аddress as the debtor may designate by written notice to the secured creditor. The notice required by this Code section shall be dеemed given on the official postmark day or day on which it is received for delivery by a commercial delivery firm.
(b) The notice required by subsection (a) of this Code section shall be given by mailing or delivering to the debtor a copy of the published legal advertisement or a copy of the notice of sale submitted to the publisher.
Parks claims that she never received the noticе, and that someone unknown to her signed the certified letter receipt.
Parks also cites certain authority from sister states in suрport of the proposition that actual receipt of notice is required, but the cases are inapposite. They do not involve situations of non-judicial foreclosure.