dissenting.
I fully concur in Justice Thompson’s dissent. Additionally, the Georgia Court of Appeals erroneously applied a maxim of statutory construction in this case, just as it has in other confirmation cases.3
In its opinion, the court of appeals construes the confirmation statute against the lender because “Georgia’s confirmation statute is in derogation of the common law and must therefore be strictly construed.” This analysis is faulty. At common law, there was no confirmation requirement. If the purchase price paid pursuant to a valid foreclosure sale did not satisfy the secured indebtedness, the lender could maintain a direct action against the debtor for the deficiency.4 The legislature enacted the confirmation statute “to limit and abate deficiency judgments in suits and foreclosure proceedings.”5 Because this limitation is in derogation of the lender’s rights at common law, the statute must be strictly construed against the debtor under the rule of statutory construction that the court of appeals cites.
Despite the court of appeals’ talismanic reference to strict construction in derogation of the common law, it is appropriate to construe the confirmation statute against the lender based on legislative intent. The confirmation statute was passed during the Depression to help individual debtors by precluding lenders from bringing deficiency actions.6 The act protected homeowners by requiring the trial court to approve a foreclosure sale only if the sale price reflected the true market value of the property. This protection has become less necessary as lenders now require private mortgage insurance to ensure that their loans are paid.
Instead, the statute is increasingly being used, as in this case, by commercial property owners who rely on technical arguments to overturn a confirmation in which they fully participated. Because I believe the confirmation proceeding in this case met both the statute’s legislative purpose and procedural requirements, I dissent.
*861Decided October 5, 1998. Ellis, Painter, Ratterree & Bart, Paul W. Painter, Jr., J. Keith Berry, Jr., for appellant. McCorkle, Pedigo & Johnson, David H. Johnson, Inglesby, Falli-gant, Horne, Courington & Nash, Kathleen Horne, McCallar & Associates, Mark Bulovic, for appellee.I am authorized to state that Justice Carley and Justice Thompson join in this dissent.
First National Bank & Trust Co. v. Kunes, 128 Ga. App. 565 (1) (197 SE2d 446) (1973).
Calhoun v. Phoenix Mutual Life Ins. Co., 46 Ga. App. 807 (169 SE 262) (1933).
1935 Ga. Laws 381.
See id.