concurring specially.
The pivotal issue is whether the notice to debtor Quattlebaum was adequate to serve the purpose contemplated by OCGA § 44-14-161 (c), which requires that “[t]he court shall direct that a notice of the hearing shall be given to the debtor at least five days prior thereto. . . .”
There is no doubt that personal service on Quattlebaum was made by the sheriff, as we held is necessary in Ameribank, N.A. v. Quattlebaum, 220 Ga. App. 345, 347 (2) (469 SE2d 462) (1996), and that it was timely. The problem is that the notice was not a rule nisi directed by the court.2 It was a notice from the attorney for Ameribank. Our first opinion in this case refers to Henry v. Hiwassee Land Co., 246 Ga. 87 (269 SE2d 2) (1980). Although we pointed out that Henry’s footnote regarding the CPA method of service was misinformed as shown in the later case of Vlass v. Security Pacific Nat. Bank, 263 Ga. 296 (430 SE2d 732) (1993), Henry’s holding was not disturbed. Henry, supra at 89, held that the “notice” required in what is now OCGA § 44-14-161 (c) “should have been given to Henry by personal service of the application and rule nisi. . . .” (Emphasis supplied.)
Although Vlass did not expressly state that a rule nisi is necessary, the Court referred to the confirmation proceeding as a “special statutory [one] in which the creditor has invoked the superior court’s supervisory authority over non-judicial foreclosure sales under power.” Vlass, supra at 298 (2). The Court pointed out that the statutory proceeding is for a debtor’s relief “and is in derogation of the creditor’s common-law right to seek a deficiency judgment after non*520judicial foreclosure under power of sale.” Id. The debtor is protected by the proceeding “ ‘from being subjected to double payment in cases where the property was purchased for a sum less than its market value.’ ” First Nat. Bank &c. Co. v. Kunes, 128 Ga. App. 565, 566 (2) (197 SE2d 446) (1973), aff’d, 230 Ga. 888, 890 (199 SE2d 776) (1973). Some history of the statute is contained in the Supreme Court’s opinion in the case.
Thus I agree that the legislature’s requirements must be followed. Its explicit instruction that “[t]he court shall direct that a notice of the hearing shall be given” does not leave room for the creditor or creditor’s counsel to do it without explicit direction from the court. This is in keeping with the intendment that the whole matter of confirmation, which will allow a deficiency judgment to be pursued by the creditor, be within the supervisory authority of the court. The court can then assure that the notice is adequate and proper at the outset and that it gives the debtor “an opportunity to contest the approval of the sale[ ] before claims for the balance of the indebtedness could be prosecuted against [the debtor].” Kunes, 230 Ga. at 889. The source of the notice is not merely a matter of form.
Although a debtor is not required to be present, and the confirmation will not be automatic if the debtor is absent because the court must still make an independent judgment that the sale brought true market value, OCGA § 44-14-161 (b), the court does not represent the interests of the debtor. The court reaches its judgment based on the evidence brought before it, and when the debtor is absent, the court does so without conflicting evidence of “true market value” presented by the debtor who can investigate and consult other experts.
For this reason also, a rule nisi rather than a notice from the creditor’s counsel is called for (unless the court specifically directs creditor’s counsel to notify the debtor of specified information). As the trial court recognized, a rule nisi is “a specific direction or requirement of a court with respect to performance of some act incidental thereto.” Beck v. Dean, 177 Ga. App. 144, 145 (338 SE2d 693) (1985). By it a court “directs a party [which the debtor is] to show cause why the rule should not be made absolute and will become a ‘rule absolute’ unless such cause is shown.” Id. Thus, in the confirmation context, the sale which has already occurred without court supervision will be approved and the creditor will be authorized to seek a deficiency judgment unless the court is not satisfied by the seller’s evidence that the property brought its true market value.
Here the trial court’s approval of the notice in its final order confirming the sale cannot be considered as an adoption or ratification of the notice given by debtor’s counsel, so as to relate back or otherwise cloak it with legitimacy. The court, in its supervisory capacity, must “direct” the giving of the notice. We are bound to enforce the proce*521dure created by OCGA § 44-14-161 (c).
Decided June 12, 1997 Reconsideration denied July 24, 1997 McCorkle, Pedigo & Johnson, David H. Johnson, for appellant. Inglesby, Falligant, Horne, Courington & Nash, Kathleen Horne, McCallar & Associates, Mark Bulovic, Jack K. Berry, Jr., for appellee.While it is true that the debtor was served a detailed notice specifying the purpose of the hearing and attaching a copy of the report of sale and application for confirmation, and that he appeared with counsel and presented expert evidence of value which contradicted the seller’s expert and thus had the full opportunity which the statutory scheme intends, this Court has rejected the application of the harmless error rule to procedural departures in a confirmation proceeding. Chastain Place v. Bank South, N.A., 185 Ga. App. 178, 180 (363 SE2d 616) (1987).
The statute does not explicitly require a rule nisi, and whether some other form of notice from the court would suffice is unnecessary to consider; a rule nisi would meet the requirement. In Phillips v. Connecticut Nat. Bank, 196 Ga. App. 477, 478 (396 SE2d 538) (1990), the trial court directed that confirmation hearings be scheduled and ordered the creditor to serve “ ‘a copy of [the] Application and this Order ... at least five (5) days prior to the hearing thereon.’ ” At the confirmation hearing, the debtors’ counsel acknowledged that he received proper notice of the hearing. Id.