*1 605 months, vening responsibilities relative burdens and have been significantly. clarified confidence, then, It is with that would remand this case to the trial court for complete Bat- hearing appellant’s son claim. stated,

For the reasons I must dissent to the holdings Division 2 of the majority opinion and to 18, 1988 Fears, D. Bartles, William P. Fears, Jr., D. ap- Alfred Alfred

pellant. Byron Smith, E. District Attorney, Tommy Floyd, K. Assistant District Attorney, for appellee.

75753. FIRST FEDERAL SAVINGS BANK OF GEORGIA v. EAGLEWOOD COURT ASSOCIATION, CONDOMINIUM INC. (367 SE2d

Carley, Appellant-defendant First Savings Federal Bank Georgia (First Federal) made Burnette, loans to Richard who used the funds buy units the Eaglewood development. Court First Federal purchase money security deeds for each of Burnette’s units. Burnette subsequently defaulted on his loans from First Fed- eral and on the condominium association assessments which he was obligated to pay to appellee-plaintiff Eaglewood Court Condominium Association, Inc. (Eaglewood). First Federal foreclosed on the erty by exercising power of sale as security contained deeds. After First Federal had assumed ownership of the Eaglewood sought payment from First Federal of a rata share of the de- faulted assessments. See OCGA 44-3-80 First Federal refused to pay Eaglewood brought this against suit First Federal. sought a recovery rata share of the defaulted assess- ments, but also sought recovery penalties as to such various for late payment attorney’s fees as for in the Declaration (Declaration). (b). Condominium See OCGA In all, Eaglewood sought an $4,880.17. amount of par- not less than ties filed cross-motions for judgment. The trial court or- dered $4,168.91, First pay Federal having found that sum to re- present the principal assessments, amount of delinquency charges, allocable to Federal. appeals. First Federal this civil ac- to maintain is authorized It is clear that alleg- recovery sums as are of such

tion proscrip- edly no is there assessments. Not to it as due action, § 44- Eaglewood’s a civil of such maintenance empowers Eaglewood to re- “an action to maintain 3-76 to be resolved . .” issue . cover sums due. *2 correctly that, of rec- under the evidence the trial court $4,168.91 the sum which as ord, was authorized due from First Federal. was provides Federal, as the that First § 44-3-80

OCGA mortgagee, con- the not liable for nor shall “shall be first any subject this to lien assessment dominium unit be Code section or under a any to the instrument any period prior acquisition of to the condominium unit on account of (f). Having unqualifiedly that a § .” title. . . OCGA 44-3-80 foreclosing mortgagee nor the condomin- be liable for shall shall not subject assessment,” the then lien statute ium unit be provides to a “for unpaid share of an or assessments shall assessment expenses be from all of the deemed to be common collectable including successors, [its] such holder or other (Emphasis supplied.) § successors-in-title, OCGA 44-3- Thus, 80 erty not nor is its while First Federal is liable subject obligated assessment, it is a lien for to interest part pay pro “unpaid a a amount of that share” which becomes rata expenses. of the common judgment $4,168.91 that was entered First Federal represent merely pro unpaid

does not a rata of the assessments. judgment charges, pro interest, also included a rata of late expenses fees, fair value of the units of rental question. only recovery Eaglewood in However, of the basis for the expenses additional established be a the lien above enumerated would result of (a). provisions pursuant § to the Sub- of (b) provides section the “[t]o of OCGA 44-3-109 the extent that provide, lien condominium instruments for assessments shall charge, litigation expenses, also include” the late fair (f) specifically provides However, rental value. since OCGA 44-3-80 property that no lien shall circum- attach to the foreclosed under the foreclosing mortgagee stances have no involved this case and that the liability per se, for an must assessment it nec- essarily (f), that, follow sum portion pro which would be “collectable” from First Federal is its rata “unpaid [the] [which share of assessment or assessments be- expenses. the] came a .” To that the . . the extent judgment against trial court entered in an amount pro portion excess of rata of the share of assessment applicable the trial court erred. foreclosed share of pro would not be entitled recover from First Federal a ele- the elements because those enumerated lien from to make ments arise from the which results the failure timely payment is liable for a of assessments. First Federal rata share of the original order, court incon- is reversed with direction that new opinion,

sistent be entered. Judgment J., Sognier, Birdsong, reversed with direction. C. J., J., Pope, Beasley, JJ., concur. P. P. McMurray, J., Banke, Benham, J., dissent.

Benham, Judge, dissenting. I agree portion

While majority opinion with the of the due, Eaglewood’s right to sums I must dis- sue Federal for the sent the analysis applied reached in the lat- conclusion ter of the It is my opinion decision. the trial court did not err in the of late charges, interest, attorney litigation, and fair rental value of the properly foreclosed units. Those sums *3 against the units before foreclosure and

(a) and agree Declaration. I do not that First Federal is only liable for its pro rata share of the on the base assessments due property, and not a of the other fees. While it is that true (f), appellant solely under OCGA 44-3-80 is liable for whole amount of the property, responsi- it is ble for owing. and all assessments due and (f) proviso states that an assessment or assessments shall be ex- deemed be common penses collectable from all of the holder such or successors, successors-in-title, other and his Under (b), appellant the items about which complains are categorized as lawfully “sums the associa- unit, unit owner or condominium for the that pertaining to condominium unit otherwise,” i.e., I interpret meaning statute as although that mortgagee First Federal’s status as the protects it from singular liability a lien for those assess- items as ments, basis, it is still liable for them on a as common ex- penses. The judgment indicates the amount awarded was determined on I that basis. would find no error and would affirm Presiding Judge Presiding am authorized to state

Judge McMurray, join in this dissent. Presiding Judge Banke 18, 30, 1988 Joiner, appellant.

John Barrow, appellee. J.

John THE OF SOCIETY EQUITABLE LIFE ASSURANCE 75940. v. REYNOLDS. UNITED STATES (367 SE2d

Sognier, filed an Society of the United States Life Assurance agent, commis- A. a former against Ray Reynolds, action policies life insurance him the sale of certain sions advanced to on Reynolds subsequently refunded. premiums thereon were when the sum- answered, indebtedness, parties and both moved denying the of sum- appeals grant court’s mary judgment. Equitable trial Reynolds of its own motion. mary judgment and the denial Appellant by granting 1. contends the court erred repayment of unearned ad- appellee favor of because clearly required contract between the vanced commissions matter of parties, appellee was not entitled to as a thus agree. law. We employment his

It is the course of during uncontroverted alia, inter appellant, appellee signed a contract which ... and consid- premiums that he would “be allowed commissions policies annuity erations for insurance contracts secured (is- in accordance with the Schedules Commissions Agreement by The Agent) sued with notice to the force on date contract, of application policy premiums and con- such paid.” (Emphasis supplied.) In oppo- siderations become due and are appellee’s motion, John appellant sition to the affidavit of submitted Brennan, testimony proper president, assistant vice whose laid *4 into foundation the admission evidence of the attached “Sched- ules of Commissions and Service Fees For Individual Insurance Poli- January Agent cies and Annuities 14th Effective Edition Agreements” as that referred to “Schedules Commissions” signed by appellee. pertinent contract document part: reason, “If subsidiary, The refunds premium consideration, value in the nature termination Agent premium, any paid commissions Agent thereon be an indebtedness of the which may compensation Agreement. offset under this claim