Reese v. Provident Funding Associates, LLP

Blackwell, Judge, dissenting.

I respectfully dissent. In clear and certain terms, the General Assembly has identified the necessary contents of a statutory notice of foreclosure, including the person whose identity must be disclosed therein. According to OCGA § 44-14-162.2 (a), the statutory notice must disclose the identity of the “individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor.” The statute says nothing at all about any requirement that the notice identify any other person. To the extent that Provident had “full authority to negotiate, amend, and modify all terms of the mortgage with the debtor,” something that the Reeses do not really dispute in this case, the content of the notice complied with the statutory requirements.8

The majority concludes, however, that OCGA § 44-14-162.2 requires not only the identification of the person having “full authority to negotiate, amend, and modify all terms of the mortgage with the debtor,” but also the identification of the “secured creditor” itself, at least in a case in which these persons are not one and the same. As I understand its opinion, the majority relies not so much on the words of the statute to reach this conclusion, but instead upon Stubbs v. Bank of America, 844 FSupp.2d 1267 (N.D. Ga. 2012). That reliance is misplaced. In Stubbs, the court looked to the caption of Ga. L. 2008, p. 624, which amended OCGA § 44-14-162.2.9 From the caption of this legislation, the court found that its “clear purpose” was “to *361increase transparency and clarity in what can otherwise be a quite bewildering process,” and it concluded that this legislative purpose would best be served by construing OCGA § 44-14-162.2 (a) to mean that the notice must disclose not only the identity of the person identified in the text of the statute, but the identity of the secured creditor as well.10 See id. at 1269-1273 (IV) (A). The decision in Stubbs, and our decision today, amount to a judicial rewriting of OCGA § 44-14-162.2. Because the courts are without authority to rewrite a statute, I respectfully dissent. See Frazier v. Southern R. Co., 200 Ga. 590, 593 (2) (37 SE2d 774) (1946) (“[Appellate courts] must frequently construe the language of a statute, but such courts may not substitute by judicial interpretation language of their own for the clear, unambiguous language of the statute, so as to change the meaning”).

Decided July 12, 2012 Reconsideration denied July 31, 2012 David C. Ates, for appellants. Ellis, Painter, Ratterree & Adams, Sarah B. Akins, for appellee. I am authorized to state that Judge Andrews and Judge Boggs join in this dissent.

When judicial construction of a statute is required, it is permissible to look to the caption of the statute to discern the intent of the legislature. See Sovereign Camp Woodmen of the World v. Beard, 26 Ga. App. 130, 131 (105 SE 629) (1921). But when the text of the statute is clear and unambiguous, judicial construction of the statute is not permitted, and no inquiry into *361legislative intent beyond the plain terms of the statute itself is necessary or warranted. Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981).

In particular, Stubbs noted that, according to the title of the 2008 legislation, it was intended “to provide for the identity of the secured creditor to be included in the advertisement [of foreclosure] and in court records.” Stubbs, 844 FSupp.2d 1267, 1271 (IV) (A). To the extent that the statutes governing the advertisement of foreclosure or the recording of security deeds were ambiguous, perhaps this language might be a helpful interpretative aid. But it is of no help in understanding the meaning of OCGA § 44-14-162.2, which concerns notice of foreclosure, not advertisement or court records.

And in any event, I note that, when the original version of the 2008 legislation first was introduced in the General Assembly, it proposed to amend OCGA § 44-14-162, the statute governing advertisements of foreclosures, and it proposed to require that the required advertisement “include the identity of the secured creditor” and “the name, address, and telephone number of the party having authority to service the underlying debt.” See SB 531 (LC 33 2521) (2007-2008 Regular Session) (available at http://www.legis.ga.gov/ (visited July 2, 2012)). That proposal, however, was stripped from the legislation by substitution, and the substitute bill was the one ultimately passedby the General Assembly and approved by the Governor. To the extent that a search for legislative intent is appropriate, the legislative history shows not only that the General Assembly knew how to write a statute that requires the identification of the secured creditor, but that it squarely rejected such a requirement when it enacted the 2008 legislation upon which the majority and Stubbs rely.