SunTrust Bank held a promissory note, secured by a deed to secure debt over real property, given by Pine Grove Builders, Inc. and *765 guaranteed by Robert C. Belans. After Pine Grove and Belans defaulted on the note, SunTrust exercised power granted in the security deed to conduct a nonjudicial foreclosure sale of the real property, and thereafter obtained an order from the Paulding County Superior Court pursuant to OCGA § 44-14-161 which confirmed the sale as to Pine Grove and Belans. 1 The order found that Pine Grove and Belans were properly served with notice; that the foreclosure sale was lawfully conducted; and that the property sold for at least its fair market value. Pine Grove and Belans appeal from the confirmation order. We affirm confirmation of the sale as to Pine Grove, and reverse confirmation as to Belans.
1. Belans correctly contends that the court erred by confirming the foreclosure sale as to him because he was not served with notice of the confirmation hearing as required by OCGA § 44-14-161 (c). Under OCGA § 44-14-161 (c), “[t]he court shall direct that a notice of the hearing shall be given to the debtor at least five days prior thereto. ...” Because of evidence that Belans could not be located and was concealing himself to avoid diligent attempts to serve him personally, the court properly directed that he be served by publication.
Belans v. Bank of America,
We find no merit in SunTrust’s contention that, when Belans filed a notice of appeal from the confirmation order in the superior court, this amounted to a general appearance and consent to the court’s jurisdiction and a waiver of any objection to notice of the hearing. SunTrust’s application for confirmation named Belans as a debtor entitled to receive notice of the confirmation hearing pursuant to OCGA § 44-14-161 (c). Belans did not respond to the application; did not attend the confirmation hearing; filed no motion
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to set aside after entry of the confirmation order; and made no appearance in the superior court until he and Pine Grove filed a notice of appeal. Even if Belans had actual notice or knowledge of the confirmation hearing, in the absence of notice complying with OCGA § 44-14-161 (c), he could elect to make no appearance without waiving the lack of statutory notice.
Henry,
supra at 88. “Where there has been no legal service or waiver of service, the court’s judgment is null and void.” Id. Without waiving the notice issue or consenting to the court’s jurisdiction, Belans could have moved to set aside the confirmation order for lack of notice and then appealed from a denial of the motion. Id. Belans was also entitled without waiving notice or consenting to jurisdiction to appeal directly to this Court on the notice issue without filing a motion to set aside the order. See
Brock Built City Neighborhoods v. Century Fire Protection,
2. Pine Grove claims that the trial court erred by confirming the foreclosure sale because there was a lack of evidence to support a finding that the sale took place. We find no merit to this claim. “The trial court is the trier of fact in a confirmation proceeding, and an appellate court will not disturb its findings if there is any evidence to support them.”
Nash v. Compass Bank,
Judgment affirmed in part and reversed in part.
Notes
SunTrust’s confirmation application also named Gregory W. Shoops as a debtor who guaranteed the defaulted note and was entitled to notice of the confirmation hearing. The trial court’s confirmation order found that Shoops was not given notice of the hearing as required under OCGA § 44-14-161 (c), so the order did not confirm the foreclosure sale as to Shoops.