PNC Bank, National Ass'n v. Smith

NAHMIAS, Justice,

concurring.

I join the Court’s opinion in full, as it properly applies current Georgia law in answering the two questions presented. But I write to express concern about an issue lurking in today’s decision.

As the Court explains, our opinion in First Nat. Bank & Trust Co. v. Kunes, 230 Ga. 888 (199 SE2d 776) (1973), equated guarantors of loans secured by real estate with borrowers and their sureties under Georgia’s 1935 foreclosure confirmation statute, which is now codified as OCGA §§ 44-14-161 and 44-14-162. That holding was a reasonable interpretation of the 1935 act, and in any event it is a four-decade-old statutory precedent that created a workable rule involving contract and property rights, and thus it should be followed as a matter of stare decisis. See Woodard v. State, 296 Ga. 803, 812 (771 SE2d 362) (2015) (discussing factors to consider in deciding whether to apply stare decisis); Savage v. State, 297 Ga. 627, 641 (774 SE2d 624) (2015) (explaining that “stare decisis is especially important where judicial decisions create substantial reliance interests, as is most common with rulings involving contract and property rights”). Indeed, the detailed waiver provisions included in the guarantees suggest that the parties here, including PNC Bank, understood the law to require confirmation before deficiency actions against guarantors: there would be no need to so explicitly waive a defense that one believes does not exist.

I also agree with the Court’s conclusion that, under current law, a guarantor may, through clear and explicit contractual language, waive the confirmation protection afforded by OCGA § 44-14-161. The confirmation provision does not affect the jurisdiction of a court to decide a deficiency action. And as the Court explains, in making amendments to the confirmation statute in 1981, the General Assembly directly addressed this waiver issue and determined, as the public policy of Georgia, that while lenders may not extract waivers of confirmation rights from borrowers (or their successor property owners), this protection from waivers does not extend to guarantors.

*825Decided April 4, 2016. Carlton Fields Jorden Burt, Walter H. Bush, Jr., Francisco X. Balderas, Christopher B. Freeman, for appellant. Andersen, Tate & Carr, Elizabeth L. Clack-Freeman, Robert M. Reeves, Robert D. Thomas, for appellees.

As alluded to in footnote 9 of the Court’s opinion, there is a significant question whether, in reorganizing the 1935 act as amended in 1981 into the Official Code of Georgia that took effect in 1982, the protection that borrowers had against waivers of the confirmation proceeding notice requirement was properly eliminated. The face of the Code indicates that this protection no longer exists, but the codifiers were not supposed to be making any substantive revisions to the prior law. See OCGA § 1-1-2; Brophy v. McCranie, 264 Ga. 187, 188-189 (442 SE2d 230) (1994). There is no textual argument, however, that the General Assembly has ever extended the no-waiver protection to encompass guarantors. That is enough to resolve the waiver question presented in this case.

Nevertheless, the potential conflict between the statutes enacted by the General Assembly and the Official Code of Georgia Annotated is important to note. If one relies only on the face of the Code as compiled, then given Kunes’s equation of guarantors and borrowers, if guarantors can waive the protections of the confirmation statute, it would seem to follow that borrowers too can waive those protections. And if that is the case, then it may well be — given the imbalance in bargaining power between lenders and many borrowers — that before long, virtually every security deed in Georgia, particularly for residential home buyers, will include such a waiver, and the confirmation requirement of OCGA § 44-14-161 could become a dead letter for those whom it was most clearly designed to protect. Perhaps the Code does not accurately reflect the law, for the reasons I have outlined or for other reasons. But if the General Assembly still considers judicial confirmation of non-judicial foreclosure sales to be necessary to protect borrowers, or even only residential borrowers, it should avoid any uncertainty by amending the Code to distinctly allow, prohibit, or regulate contractual waivers of the confirmation requirement of OCGA § 44-14-161. With this concern noted, I join the Court’s opinion.

I am authorized to state that Justice Blackwell joins in this concurrence.

Bryan Cave, Curtis J. Romig, Edwin M. Cook, Leah F. McNeill; Schreeder, Wheeler & Flint, John A. Christy, Scott D. McAlpine; Wilson Brock & Irby, Kyler L. Wise; Bruce M. Edenfield; Vaughn & Clements, Jesse L. Vaughn; Louis G. McBryan, amici curiae.