Appellant David Roylston filed this lawsuit seeking damages for breach of the Georgia Residential Mortgage Act (“GRMA”) and wrongful foreclosure of real property against the foreclosing lien holders, Bank of America, N.A. and Wachovia Bank, N.A. f/k/a First Union National Bank, N.A. 1 Roylston claimed that the banks failed to provide him with proper notice of the foreclosure sales. The banks filed motions for summary judgment and sought attorney fees, arguing that Roylstоn’s claims were frivolous. Roylston filed a cross-motion for partial summary judgment against Bank of America. The trial court granted summary judgment as to all claims in favor of the banks and denied Roylston’s motion. Roylston appeals, contending that the trial court erred in granting Bank of America’s motion for summary judgment and in awarding attorney fees to both Bank of America and Wachovia. For the reasons that follow, we affirm the trial court’s award of attоrney fees to Wachovia, but reverse the trial *557 court’s decision granting summary judgment and awarding attorney fees to Bank of America on the wrongful foreclosure claim.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA§ 9-11-56 (c).Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.
(Citation omitted.)
Matjoulis v. Integon Gen. Ins. Corp.,
So viewed, the evidence shows that the foreclosed property, a private residence, was formerly owned by Kyoung and Deok Lee. The Lees pledged the property as security for a first mortgage with Bank of America, a second mortgage with Wachovia, and a third mortgage with Summit Bank. The Lees defaulted on their loans and filed for bankruptcy. Wаchovia and Bank of America, both of which were represented by the same law firm, subsequently moved for relief from the automatic bankruptcy stay, which was granted.
Wachovia then initiated foreclosure proceedings against the property. Wachovia sent notice of the foreclosure to the Lees and issued published notice. The published notice stated that the property would be sold subject to all “matters superior to the [s]ecurity [d]eed” held by Wachovia and stated that the sale was “subject to security deed recorded in Deed Book 11177, Page 282,” i.e., the first priority security interest held by Bank of America. Roylston purchased the property as the highest bidder at the foreclosure sale on May 3, 2005, extinguishing the second mortgage held by Wachovia and the junior third mortgage held by Summit.
Roylston did not receive the deed from the foreclosure sale until June 4, 2005. A few dаys later, on June 7, 2005, Bank of America foreclosed upon its first priority lien against the property. While Bank of America had issued a public notice of the sale, it did not mail written notice to Roylston prior to conducting the foreclosure. 2 At the Bank of America foreclosure sale, a third party acquired title to the property as the highest bidder.
Following Bank of America’s foreclosure sale, Roylston filed suit seeking the excess proceeds from both foreclosure sales and damages based upon claims that Wachovia and Bank of America failed to *558 provide proper notice of the foreclosure sales. Both banks filed motions for summary judgment and for attorney fees under OCGA § 9-15-14 relating to frivolous lawsuits. The trial court granted the banks’ motions.
1. Roylston argues that the trial court erred in granting summary judgment to Bank of America because he was entitled to mailed notice of the foreclosure sale pursuant to the GRMA and OCGA § 44-14-162.2. 3 We conclude that Roylston’s claim failed to fall within the purview of the GRMA, and therefore, summary judgment was properly granted as to that claim. In contrast, we conclude that summary judgment was improper as to Roylston’s wrongful foreclosure claim predicated upon OCGA § 44-14-162.2.
(a) Roylston first claims that Bank of America violated OCGA § 7-1-1013 (6) of the GRMA when it failed to provide him with mailed notice оf its foreclosure proceedings. OCGA § 7-1-1013 (6) 4 prohibits any person transacting a mortgage business from “[e]ngagfing] in any transaction, practice, or course of business which is not in good faith or fair dealing, or which operates a fraud upon any person, in connection with the attempted or actual making of, purchase of, transfer of, or sale of any mortgage loan.” The plain language of the statute limits its applicability to the actions taken to make, purchase, transfer, or sell mortgage loans.
Significantly, however, Roylston’s claims in this case did not relate to the making, purchase, transfer, or sale of a mortgage loan. Rather, Roylston’s challenge in this case was to a foreclosure sale. In a foreclosure sale, title to the property is sold and transferred to the highest bidder, but the security interest itself is not sold or transferred; instead, it is extinguished altogеther upon satisfaction of the debt from the sale proceeds. See generally
Coleman Road Assoc. v. Culpepper,
(b) We reach a different conclusion as to Roylston’s claim for wrongful foreclosure. OCGA§ 44-14-162.2 (a) governs the provision of notice of a foreclosure sale and mandates that no later than 15 days before the date of the proposed foreclosure, the secured creditor must *559 send the debtor written notice of the foreclosure by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address or to such other address designated in writing by the debtor to the secured creditor. See OCGA § 44-14-162.2 (a). In turn, OCGA § 44-14-162.1 defines the debtor who is entitled to such written notice of the foreclosure and pertinently provides that
[i]n the event the property encumbered by the mortgage, security deed, or lien contract has been transferred or conveyed by the original debtor, the term “debtor” shall mean the current owner of the property encumbered by the debt, if the identity of such owner has been made known to аnd acknowledged by the secured creditor prior to the time the secured creditor is required to give notice pursuant to [OCGA §] 44-14-162.2.
Thus, the current owner of property encumbered by debt is a “debtor” within the meaning of OCGA § 44-14-162.1, and is therefore entitled to receive the notice prescribed by OCGA§ 44-14-162.2, if the identity of the owner is known to the creditor.
Wright v. Barnett Mtg. Co.,
Where a foreclosing creditor fails to comply with the statutory duty to provide notice of sale to the dеbtor in accordance with OCGA § 44-14-162 et seq., the debtor may either seek to set aside the foreclosure or sue for damages for the tort of wrongful foreclosure.
Calhoun First Nat. Bank v. Dickens,
Bearing these legal principles in mind, we address whether Roylston was a “debtor” entitled to notice of Bank of America’s
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foreclosure sale in accordance with OCGA § 44-14-162.2. The evidence establishes that Roylston acquired ownership of the property on May 3,2005, more than one month in advance of Bank of America’s subsequent foreclosure sale on June 7, 2005. Roylston thus had become the owner of the propеrty well before Bank of America was required to give its 15-day notice of the sale under OCGA § 44-14-162.2 (a). As such, Roylston was a “debtor” entitled to receive the required statutory notice of the foreclosure sale, if Bank of America had actual knowledge of his identity as owner of the property. See
Wright,
The law imputes to the principal, and charges him with, all notice or knowledge relating to the subject-matter of the agency which the agent acquires or obtains while acting as such agent and within the scope of his authority, or which hе may previously have acquired, and which he then had in mind, or which he had acquired so recently as to reasonably warrant the assumption that he still retained it; provided, however, that such notice or knowledge will not be imputed: 1. Where it is such as it is the agent’s duty not to disclose, and, 2. Where the agent’s relations to the subject-matter, or his previous conduct, render it uncertain that he will not disclose it, and, 3. Where the person claiming the benefit оf the notice, or those whom he represents, colluded with the agent to cheat or defraud the principal. This rule is applicable to the relation of attorney and client.
(Citations and punctuation omitted; emphasis supplied.)
Bean v. Barron,
Here, the evidence reflects that the Wachovia and Bank of America foreclosure transactions were both handled by the same law firm, which served as the agent for both banks. It can be inferred that one or more of the attorneys who worked on and conducted the Wachovia foreclosure sale were aware of who purchased the property
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as part of that sale and had sеen the documentation reflecting the same; indeed, it is clear that the sale information clearly was in the Wachovia file and had been accessed, in light of the deed subsequently sent by the law firm to Roylston evidencing his purchase. See generally
Fann v. Mills,
2. Roylston also argues that the trial court erred in granting attorney fees to Wachovia and Bank of America under OCGA § 9-15-14. The trial court granted attorney fеes to Bank of America based upon its finding that Roylston’s claims lacked substantial justification. The trial court also granted attorney fees to Wachovia, concluding that its motion for fees was “well taken” based upon its findings that “under no construction of any document, law or circumstances would Roylston ever be entitled to the excess proceeds from the *562 [Wachovia] [foreclosure [s]ale” and that there was “no merit in [Roylston’s] сontention that Wachovia’s foreclosure of the [property was wrongful.”
OCGA § 9-15-14 (a) provides that the trial court shall award reasonable and necessary attorney fees where the offending party’s position lacked any justiciable issue of law or fact so that it could not be reasonably believed that a court would accept it. OCGA § 9-15-14 (b) provides that the trial court may assess attorney fees if the action brought or defended lacked substantial justification, was interposed for delay or harassment, or an attorney or party unnecessarily expanded the proceeding by other improper conduct. OCGA § 9-15-14 (a) provides for a mandatory award of attorney fees. The standard of review for this section is the “any evidence” rule. OCGA § 9-15-14 (b) is discretionary, and the standard of review is abuse of discretion.
(Citation and punctuation omitted.)
La Petite Academy v. Prescott,
(a) We conclude that the trial court was authorized to аward attorney fees to Bank of America based upon Roylston’s claims that lacked substantial justification. Roylston abandoned most of the causes of action presented in his amended complaints, and as explained in Division 1 (a), he failed to present a valid claim under OCGA § 7-1-1013 (6) of the GRMA. Although Roylston contends that he attempted to present a novel argument for the application of the GRMA, the plain language of the statute shows that it was inapplicable to Roylston’s claims, and the trial court was authorized to reject his contention that his argument was novel and not frivolous. See
Franklin Credit Mgmt. Corp. v. Friedenberg,
But, Bank of America was not entitled to attorney fees incurred in dеfending against the wrongful foreclosure claim. As stated in Division 1 (b), Roylston’s wrongful foreclosure claim against Bank of America presents a genuine issue for jury resolution and thus does not lack substantial justification. See
Dills v. Bohannon,
In awarding Bank of America attorney fees in the total amount of $6,567.50, the trial court did not apportion the fees based upon the different claims presented. “[I]n cases involving OCGA § 9-15-14 (a)
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or (b), the trial court must limit the fees award to those fees incurred because of the sanctionable conduct. Lump sum attorney fees awards are not permitted in Georgia.” (Citations and punctuation omitted.)
Trotter v. Summerour,
(b) Roylston also challenges the trial court’s award of attorney fees to Wachovia. Because the trial court was authorized to find that Roylston failed to present any valid claim against Wachovia, its award of attorney fees was proper.
Roylston’s claims against Wachovia alleged that he was entitled to the excess proceeds arising from the Wachovia foreclosure sale, to which Roylston himself was the highest bidder; that Wachovia failed to provide proper notice of the foreclosure sale since it failed to disclose the third priority security interest of Summit Bank; and that Wachovia failed to state that the property was vacant in its foreclosure notice. Roylston failed to present a valid cause of action against Wachovia based upon these claims.
As explained above, the trial court was authorized to reject Roylston’s contention that he presented a novel argument for the application of the GRMA in this case. Moreover, Roylston failed to present any evidence that Wachovia’s foreclosure sale was improperly conducted, and he failed to show that he was harmed by Wacho-via’s sale, under which he obtained his ownership interest in the property. As such, the evidence fails to indicate that Roylston would be entitled to any damages from Wachovia.
Roylston’s claim to the excess proceeds essentially sought a refund from the purchase price from his own winning bid, but he failed to present any legal authority that would tend to provide for such a claim. Contrary to Roylston’s claims, OCGA § 44-14-190 governs the disposition of proceeds and provides for the excess proceeds to be paid to the junior mortgage lienholder, Summit Bank, or to the mortgagors, the Lees. See
Bob Parrott, Inc. v. First Palmetto Bank,
Likewise, Roylston’s claims regarding the disclosures in Wacho-via’s foreclosure notice would not entitle him to relief. The information required to be included in the published notice of the foreclosure sale is designated in OCGA § 9-13-140 (a), including the legal description of the рroperty to be sold, and if possible, the street address. Roylston failed to point to any provision requiring the secured creditor to disclose the third priority security lien in the foreclosure notice. Indeed, since Summit Bank’s junior lien was eliminated following the foreclosure of Wachovia’s superior lien, it was inconsequential to the foreclosure sale and there was no basis for claiming that the foreclosure notice was defective for failing to disclose it. See
Hudson v.
Dobson,
In addition, Roylston failed to present any evidence that Wacho-via’s disclosure regarding the Lees’ possession of the property had any impact on the foreclosure sale. The occupancy or vacancy of the property was unnecessary to the published notice under OCGA § 9-13-140 (a).
Because Roylston failed to present any justiciable issue of law or fact and brought claims that lacked substantial justification against Wachovia, the trial court did not abuse its discretion in its attorney fees award.
See Bircoll v. Rosenthal, 267
Ga. App. 431, 437-439 (2) (a) (i) (
3. Both Wachovia and Bank of America have filed motions for the imposition of sanctions against Roylston under Court of Appeals Rule 15 (b), alleging that the instant appeal is frivolous. We do not find the appeal to be frivolous, and so both motions are denied.
Judgment affirmed in part and reversed in part, and case remanded.
Notes
Roylston also alleged causes of action for declaratory judgment, to stay the transfer of excess sales proceeds, for an award of attorney fees and costs, for money had and received, and for negligence. The trial court granted summary judgment to the banks on these claims. Because Roylston has failed to provide argument or citation of authority as to these additional claims, he has abandoned any argument that summary judgment on these claims was improper. See Court of Appeals Rule 25 (c) (2);
Dashtpeyma v. Wade,
Bank of America had mailed notice of the foreclosure sale to the Lees in April 2005, prior to the time that Roylston had acquired the property.
Roylston does not enumerate as error the trial court’s denial of his motion for partial summary judgment against Bank of America.
OCGA § 7-1-1013 (6) was enacted as part of the GRMA to regulate the licensing of mortgage lenders and brokers. See Ga. L. 1993, p. 543, § 1.
Bank of America’s citation to OCGA § 9-13-140 governing published notice of a foreclosure sale is unavailing. Notwithstanding the requirement to provide published notice of foreclosure sales, OCGA § 44-14-162.2 (a) imposes additional requirements for mailing written notice to the debtor or current property owner as defined by OCGA § 44-14-162.1. While the evidence establishes that there was published notice of the foreclosurе sale, it is undisputed that Bank of America did not send mailed notice of the foreclosure to Roylston pursuant to OCGA § 44-14-162.2 (a).
We also note that although it is unclear whether he or she was an attorney with the law firm, the same “lender representative” appeared and signed the announcement at sale documents for both foreclosure sales.
We note that the present case does not involve a question of attorney-client privilege because the identity of the purchaser at the Wachovia foreclosure sale was public information.