concurring specially.
I agree with the majority that East River Savings Bank v. Steele, 169 Ga. App. 9 (311 SE2d 189) (1983), is distinguishable from the present case, but not on the ground that it involved a negligent rather than an intentional wrongful foreclosure. The plaintiff in that case alleged that the defendant had wrongfully attempted to foreclose on certain partnership property in which he (the plaintiff) owned an interest “and that such attempts amounted to intentional infliction of emotional distress upon [him] personally.” Id. at 9. The reason this court ruled against the plaintiff in the East River case was not because the alleged misconduct of the defendant was merely negligent but because it was considered to be “analogous to the filing of legal pleadings.” The court cited Ga. Power Co. v. Johnson, 155 Ga. App. 862, 863 (274 SE2d 17) (1980), for the proposition that the filing of legal pleadings cannot be considered sufficiently “humiliating, insulting, or terrifying” to support an action for intentional infliction of emotional distress. East River Savings Bank, supra at 10,
The defendant in Georgia Power Co. v. Johnson, supra, had instituted condemnation proceedings against certain property owned by the plaintiff and in so doing was alleged to have inflicted mental distress upon the plaintiff by listing as co-owners of the property various individuals who no longer owned any interest in it. That conduct was obviously not remotely comparable to the conduct at issue in the present case, i.e., the institution of wrongful foreclosure proceedings against a personal residence. While the East River, case, supra, did involve an alleged wrongful foreclosure attempt, it is distinguishable because the property involved there was not the plaintiff’s personal residence but rather partnership property in which the plaintiff owned an interest. I believe the prospect of losing one’s home, as opposed to business property in which one merely owns an interest, could, under certain circumstances, be considered sufficiently terrifying or humiliating to support an action for intentional infliction of emotional distress. Consequently, I believe that if the appellant in the present case can prove that the appellees instituted the foreclosure proceedings against her with knowledge that she was not in default on her indebtedness, and if she can further prove that she suffered emotional distress as a reasonable and natural consequence of that conduct, she would be entitled to recover damages in tort for intentional infliction of emotional distress. A motion to dismiss for failure to state a claim “should not be granted unless the complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim.” Property Pickup v. Morgan, 249 Ga. 239, 240 (290 SE2d 52) (1982). Accordingly, I agree that the trial court erred in dismissing the appellant’s complaint.