Dip Lending I, LLC v. Cleveland Avenue Properties, LLC

FIFTH DIVISION
MCFADDEN, P. J.,
BRANCH and BETHEL, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

March 14, 2018

In the Court of Appeals of Georgia
A17A1410, A17A1411. DIP LENDING I, LLC v. CLEVELAND
AVENUE PROPERTIES, LLC; and vice versa.

BETHEL, Judge.

These appeals arise from the trial court’s partial grant and denial of cross

motions for summary judgment in a wrongful foreclosure action between Cleveland

Avenue Properties, LLC (hereinafter “Cleveland”) and Dip Lending I, LLC

(hereinafter “Dip Lending”). In Case No. A17A1410, Dip Lending contends the trial

court erred by finding that Dip Lending (1) failed to comply with the statutory notice

provisions of OCGA § 44-14-162.2, and (2) breached its duty to provide Cleveland

notice of the foreclosure sale. Dip Lending further contends the trial court erred when

applying the standard for the defense of equitable estoppel. In Case No. A17A1411,

Cleveland argues the trial court erred by finding Cleveland was not entitled to the
equitable remedy of setting aside the foreclosure sale of its two properties because it

had not tendered the amounts due on the note. For the reasons explained, we affirm.

Summary judgments enjoy no presumption of correctness on appeal, and
an appellate court must satisfy itself de novo that the requirements of
OCGA § 9-11-56 (c) have been met. In our de novo review of the grant
or denial of a motion for summary judgment, we must view the
evidence, and all reasonable inferences drawn therefrom, in the light
most favorable to the nonmovant.

Essien v. CitiMortgage, Inc., 335 Ga. App. 727, 728 (781 SE2d 599) (2016) (citation

and punctuation omitted).

So viewed, the evidence shows that in 2010, ATA Properties, Inc. (hereinafter

“ATA”), deeded two properties (“Properties”) located in East Point, Georgia to

Cleveland. At the time of the transfer, the Properties were subject to a lien held by

Rockbridge Commercial Bank which was under the control of its receiver, the Federal

Deposit Insurance Corporation (“FDIC”). In 2015, the FDIC assigned its interest in

the Properties to Dip Lending. Dip Lending sold the Properties through a non-judicial

foreclosure sale.1

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Cleveland filed a verified complaint seeking to enjoin the foreclosure of the
Properties. The injunction was denied because Cleveland had not tendered the
balance due on the debt.

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 Cleveland filed an action for wrongful foreclosure alleging that Dip Lending

failed to send it notice of the foreclosure and that Cleveland was entitled to have the

foreclosure sale of the Properties set aside. Dip Lending answered and denied

Cleveland’s claim that it was never notified that the Properties were being foreclosed.

Both parties moved for summary judgment. The trial court partially granted

Cleveland’s motion for summary judgment on the elements of legal duty and breach

of legal duty on its claim for wrongful foreclosure based on its conclusion that Dip

Lending failed to provide Cleveland notice pursuant to OCGA § 44-14-162.2. The

trial court partially granted Dip Lending’s motion for summary judgment on

Cleveland’s request for the equitable remedy of setting aside the foreclosure sale

because Cleveland failed to tender the amounts due. These appeals followed.

Case No. A17A1410

1a. Dip Lending argues the trial court erred in finding that it failed to comply

with the notice provisions of OCGA § 44-14-162.2 because the foreclosure sale

notices were sent to the appropriate address and otherwise substantially complied

with the statute’s requirements. In support of its argument, Dip Lending contends that

Cleveland had actual notice of the foreclosure sale and filed a subsequent petition to

enjoin the sale because notice was provided. We disagree.

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 OCGA § 44-14-162.2 (a) provides in part that

Notice of the initiation of [foreclosure] proceedings . . . shall be given
to the debtor . . . shall be in writing, shall include the name, address, and
telephone number of the individual or entity who shall have full
authority to negotiate, amend, and modify all terms of the mortgage with
the debtor, and shall be sent by registered or certified mail or statutory
overnight delivery, return receipt requested, to the property address or
to such other address as the debtor may designate by written notice to
the secured creditor.

OCGA § 44-14-162.1 defines the term “debtor” to mean the “grantor of the .

. . lien contract.” In the event the encumbered property has been transferred by the

original debtor, the same statute provides that the “debtor” is “the current owner of

the property encumbered by the debt.”

The record reflects that as of April 1, 2015, the registered address for

Cleveland was 963 Cleveland Avenue, and the registered address for ATA was 1827

Warren Way. It is undisputed that Dip Lending sent notices of the initiation of

foreclosure proceedings for the Properties to ATA, Cleveland’s predecessor in

interest, and ATA’s registered agent, Tony White, at the 963 Cleveland Avenue

address. When the notices were sent, Dip Lending knew Cleveland was the owner of

record for the Properties, but it did not list Cleveland as a recipient on the notices as

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required by the statute. However, Dip Lending argues that the notice statute only

required that the notices be sent to the proper address. Dip Lending’s argument is

without merit.

OCGA § 44-14-162.2 not only requires that foreclosure notices be sent to the

proper address, but also requires that notices be sent to the “current owner of the

property encumbered by the debt.” Nowhere does the plain language of the statute

specify or even suggest that the foreclosure notice can be sent to anyone other than

the debtor. See Farris v. First Fin. Bank, 313 Ga. App. 460, 464 (2) (722 SE2d 89)

(2011) (concluding that the debtor is the only party required to receive notice of

foreclosure sale). Contrary to Dip Lending’s argument, addressing the notices to a

third-party located at the proper address is not sufficient to satisfy the statutory notice

requirement.

We are also unpersuaded by Dip Lending’s argument that because Cleveland

had actual knowledge of the initiation of foreclosure proceedings, as evidenced by

their petition to enjoin the foreclosure sale, the trial court erred in finding Cleveland

lacked the required statutory notice. OCGA § 44-14-162.2 requires a showing that the

initiator of the foreclosure proceedings complied with statutory and contractual notice

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requirements.2 The record reflects that Dip Lending did not send the foreclosure sale

notices to Cleveland as required by statute. It is of no consequence that Cleveland

was made aware of the foreclosure via ATA or Tony White. As we have ruled in

regard to other notice requirements in the context of a foreclosure, actual knowledge

does not relieve a party of its statutory duty to provide notice. See Colbert v. Branch

Banking & Tr. Co., 302 Ga. App. 687, 689 (691 SE2d 598) (2010) (actual notice to

bank was insufficient to show compliance with the requirement that the debtor

designate an address by written notice); Ameribank, N.A. v. Quattlebaum, 269 Ga.

857, 859, (505 SE2d 476) (1998) (“[A]ctual notice or knowledge will not cure the

failure to comply with the statute as to confirmation.” (citation omitted)).

Moreover, Dip Lending’s argument that strict compliance is not required to

satisfy OCGA § 44-14-162.2 (a) is misguided, and its reliance on this Court’s holding

in TKW Partners, LLC v. Archer Capital Fund, L.P. is misplaced. 302 Ga. App. 443,

446 (1) (691 SE2d 300) (2010). In TKW Partners, this Court held that the notice at

2
See Thompson-El v. Bank of Am., N.A., 327 Ga. App. 309, 311 (2) (759 SE2d
49) (2014) (“where the grantee in a security deed mails a notification of the sale under
power correctly addressed to the grantor of the security deed in accordance with the
provisions of OCGA § 44-14-162.2, the actual receipt, or want of receipt, by the
grantor is immaterial to the right of the grantee to sale under power.” (citation and
punctuation omitted)).

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issue in that case substantially complied with the contact information provision of

OCGA § 44-14-162.2 even though it included the contact information for the lender’s

attorney, as opposed to the lender, who had the same authority as any individual to

negotiate on the lender’s behalf. The only alleged deficiency was that the notice did

not specifically identify the listed attorney as the person with authority to negotiate,

modify or amend the terms of the mortgage. Id. at 445; see also Stowers v. Branch

Banking & Trust Co., 317 Ga. App. 893, 896 (1) (731 SE2d 367) (2012) (confirming

TKW Partners holding stands for the proposition that substantial compliance with the

contact information requirement of the statute is sufficient). While this Court has

permitted substantial compliance with respect to OCGA § 44-14-162.2 (a), we have

emphasized that it is only permitted under the narrowest of circumstances relating to

the listing of the person with authority to modify, negotiate, or amend the terms of the

mortgage. See Peters v. CertusBank Nat. Assn., 329 Ga. App. 29, 31-32 (2) (763

SE2d 498) (2014) (physical precedent only); see also Mbigi v. Wells Fargo Home

Mortg., 336 Ga. App. 316, 320-31 (1) (b) (785 SE2d 8) (2016) (physical precedent

only).

Neither the plain language of the statute nor our prior holdings permit us to do

what Dip Lending suggests. See You v. JP Morgan Chase Bank, N.A., 293 Ga. 67, 71

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(1) (743 SE2d 428) (2013) (“Where the plain language of the statute is clear and

susceptible to only one reasonable construction, we must construe the statute

according to its terms.” (citation omitted)); see also Ray v. Atkins, 205 Ga. App. 85,

89 (2) (421 SE2d 317) (1992) (“[OCGA § 44-14-162.2], being in derogation of

common law, must be strictly construed according to its terms.” (citation omitted));

OCGA § 23-2-114 (“Powers of sale in deeds of trust, mortgages, and other

instruments shall be strictly construed and shall be fairly exercised.”). Thus, the trial

court did not err in finding Dip Lending failed to comply with the notice provisions

of OCGA § 44-14-162.2.

1b. Dip Lending contends that because it reasonably relied on the

representations made by Tony White, who held himself out as Cleveland’s

representative and received the notices in that capacity, the trial court erred by

concluding that Cleveland was not equitably estopped from asserting that Tony White

was not its representative and therefore not entitled to receive statutory notice. We

disagree.

As the foreclosing party, Dip Lending owed Cleveland a legal duty to exercise

its power of sale fairly and in accordance with statutory and contractual notice

requirements. See Thompson-El, 327 Ga. App. at 310 (2). It is undisputed that ATA

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transferred ownership of the Properties to Cleveland and that Dip Lending knew

Cleveland was the owner of record for the Properties. Notwithstanding Dip Lending’s

argument that Tony White held himself out as a representative of Cleveland, Dip

Lending does not allege, and the evidence does not show, that Cleveland held Tony

White out as its representative or as a party designated to receive notices on its behalf.

Even if the doctrine of equitable estoppel were available, Dip Lending cannot

establish that the doctrine should apply here. “In order for an equitable estoppel to

arise, there shall generally be some intended deception in the conduct or declarations

of the party to be estopped, or such gross negligence as to amount to constructive

fraud, by which another has been misled to his or her injury.” OCGA § 24-14-29.

Additionally, “the party who claims the benefit of estoppel must have acted in good

faith and reasonable diligence; otherwise, no equity will arise in his favor[.]” Yancey

v. Harris, 234 Ga. 320, 323 (216 SE2d 83) (1975) (citation, punctuation, and

emphasis omitted).

Regardless of any representations made by Tony White or his attorney, Dip

Lending offers no reasonable explanation as to why, despite knowing that Cleveland

was the record owner of the Properties, it only sent the notices to ATA, the

predecessor in interest, and its agent Tony White, neither of whom had any legal

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interest in the Properties. See Roylston v. Bank of Am., N.A., 290 Ga. App. 556, 561

(1) (660 SE2d 412) (2008) (concluding the evidence showed that the lender had

actual knowledge of the debtor’s ownership interest and was therefor required to give

him statutory notice). Accordingly, we find no error.

Case No. A17A1411

2. Lastly, we see no merit in Cleveland’s argument that it was entitled to the

equitable remedy of setting aside the foreclosure. It has long been established that

“[h]e who would have equity must do equity, and . . . [u]nder [the] application of this

maxim, before the complainant would be entitled to equitable relief, [he or] she must

do equity and tender the amount due under the security deed and note.” Stewart v.

Suntrust Mortg., Inc., 331 Ga. App. 635, 640 (6) (770 SE2d 892) (2015) (citations

and punctuation omitted).

The record reflects that the Properties were encumbered by a lien which was

later assigned to Dip Lending. Despite Cleveland’s assertions that there is a dispute

as to the amounts still owed, the record shows that no payments have been made on

the debt since December 2009 and Cleveland has not tendered any amounts owed

since that time. Because setting aside a foreclosure sale requires that Cleveland first

tender to Dip Lending the amount of principal and interest due, we find no error in

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the trial court’s denial of its motion for summary judgment to set aside the

foreclosure. See Hill v. Filsoof, 274 Ga. App. 474, 475 (1) (618 SE2d 12) (2005).

Judgment affirmed. McFadden, P. J., and Branch, J., concur.

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