THIRD DIVISION
DOYLE, P. J.,
GOBEIL, J., and SENIOR JUDGE FULLER
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
November 16, 2023
In the Court of Appeals of Georgia
A23A1279. HEAD et al. v. PLANET HOME LENDING, LLC et al.
FULLER, Senior Judge.
In this action to cancel a security deed and for declaratory and injunctive relief,
plaintiffs Charles and Lisa Head appeal from the grant of summary judgment to
defendants Planet Home Lending, LLC (“PHL”) and BCMB1 Trust. The Heads
contend that the defendants were not entitled to summary judgment because title
under the security deed has reverted to the Heads and, alternatively, that any claims
the defendants may have under the deed are barred by laches. For the reasons that
follow, we disagree and affirm.
“We review de novo a grant or denial of summary judgment, viewing the
evidence and all reasonable conclusions and inferences drawn from it in the light
most favorable to the nonmovant.” Henry v. Griffin Chrysler Dodge Jeep Ram, 362
Ga. App. 459, 460 (868 SE2d 827) (2022). So viewed, the record shows that, in 2007,
the Heads obtained a second mortgage and executed a related promissory note (the
“Note”) in the amount of $65,000 in favor of Countrywide Bank, N.A. At that time,
Countrywide also held the primary mortgage on the Heads’ property. That same day,
the Heads executed a security deed (the “Security Deed”) conveying the real property
securing the second mortgage loan to Mortgage Electronic Registration Systems, Inc.
(“MERS”), as Countrywide’s nominee. The Security Deed identifies the maturity date
for the underlying debt as March 1, 2022. In June 2019, MERS assigned the Security
Deed to defendant BCMB1. PHL is BCMB1’s servicer for the debt.
The Heads fell behind on both mortgage payments in 2009 and received letters
of acceleration as to both loans in 2011. As a result, they initiated bankruptcy
proceedings in May 2011. The bankruptcy action was dismissed later that year after
the lender refinanced the primary mortgage. At that time, the Heads were unaware
that the second mortgage (which is at issue in this action) was not refinanced and that
their indebtedness under the Note thus remained outstanding. It appears that neither
party took any action with respect to the Note for several years thereafter.
In April 2020 (approximately ten months after BCMB1 obtained the Security
deed), counsel for PHL mailed to the Heads notice that they had defaulted on the
2
Note, under which they owed $114,499.92, and that a foreclosure sale would be held.
Later that month, the Heads sued PHL and BCMB1, seeking: (i) a declaration that the
expiration of the statute of limitation bars enforcement of the debt evidenced by the
Note; (ii) a declaration that they are the true owners of the property, subject to
satisfaction only of their primary mortgage; (iii) a temporary injunction barring the
foreclosure and sale of the property; (iv) cancellation of the Security Deed; and (v) a
declaration that the defendants’ attempts to enforce the debt and foreclose are barred
by laches. In May 2020, the trial court temporarily enjoined the foreclosure
proceedings pending resolution of this action.
Following discovery, the defendants moved for summary judgment. The trial
court granted the motion on grounds that: (i) statutes of limitation play no part in the
enforceability of security deeds, which instead are governed by the reversionary
periods in OCGA § 44-14-80; (ii) here, the Security Deed is valid and enforceable
because, under that statute, title will not revert to the Heads until March 1, 2029,
seven years after the maturity date shown in the deed; (iii) any potential acceleration
of the underlying debt did not accelerate the running of the reversionary period for
3
the Security Deed; and (iv) the doctrine of laches does not bar foreclosure in this
case.1 This appeal followed.
Summary judgment is proper when there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law.
The burden on the moving party may be discharged by pointing out by
reference to the affidavits, depositions and other documents in the
record that there is an absence of evidence to support the nonmoving
party’s case. If the movant meets this burden, the nonmovant cannot rest
on his pleadings, but rather must point to specific evidence giving rise
to a triable issue.
Henry, 362 Ga. App. at 460-461 (citations and punctuation omitted); see OCGA
§ 9-11-56 (c), (e).
1. The Heads primarily contend that the trial court erred when it determined
that the Security Deed is not subject to a statute of limitation and instead is subject
only to the reversionary statute. We disagree.
The reversionary statute provides, in relevant part:
Title to real property conveyed to secure a debt or debts shall revert to
the grantor or his or her heirs, personal representatives, successors, and
assigns at the expiration of seven years from the maturity of the debt or
1
The trial court did not address the enforceability of the Note, an issue on
which we express no opinion.
4
debts or the maturity of the last installment thereof as stated or fixed in
the record of the conveyance or, if not recorded, in the conveyance . . . .
OCGA § 44-14-80 (a) (1). The statute of limitation on which the Heads seek to rely
pertinently provides: “All actions upon simple contracts in writing shall be brought
within six years after the same become due and payable.” OCGA § 9-3-24.
Under these statutory provisions, the enforceability of a security deed operates
independently of the enforceability of its underlying promissory note, and a security
deed thus may be enforced even though the lender cannot collect on the underlying
debt because the statute of limitation on the note has expired. See Minton v. Raytheon
Co., 222 Ga. App. 85, 86-87 (473 SE2d 177) (1996); accord Brinson v. McMillan,
263 Ga. 802, 803 (2) (440 SE2d 22) (1994). That is because “the reversionary statute
has a different function than, and is unaffected by, statutes of limitation.” White
Properties Investments v. DIP Lending I, 366 Ga. App. 242, 244 (1) (881 SE2d 706)
(2022).
A statute of limitation . . . is a rule limiting the time in which a party
may bring an action for a right which has already accrued. OCGA
§ 44-14-80 (a) is not a statute of limitation. Rather, it establishes a time
period after which title to real property conveyed by a security deed that
has not been cancelled or foreclosed upon reverts to the grantor as a
matter of law.
5
Id. at 246 (1) (citations and punctuation omitted); accord Griggs v. Miller, 363 Ga.
App. 82, 88 (3) (870 SE2d 578) (2022). That distinction follows naturally from the
General Assembly’s decision to establish “a non-judicial foreclosure process” and
thereby “allow secured creditors to foreclose without ever going to court.” Ames v.
JP Morgan Chase Bank, 298 Ga. 732, 740 (3) (d), n. 6 (783 SE2d 614) (2016); see
Patel v. J. P. Morgan Chase Bank, 327 Ga. App. 321, 324 (1) (757 SE2d 460) (2014)
(“a power of sale in a mortgage or security deed” is “a remedy by contract intended
to substitute the remedy by law”) (citation and punctuation omitted).
Thus, “a security deed stands alone so long as the underlying debt remains, and
[the deed holder] is not obligated to satisfy it until the debt is paid regardless of the
note’s enforceability.” Decatur Fed. S & L Assn. v. Gibson, 268 Ga. 362, 364 (2) (489
SE2d 820) (1997). So even if “an action to collect the debt is barred by the statute of
limitation, such would not prevent [the holder of a security deed] from exercising [its]
rights under the security deed.” Brinson, 263 Ga. at 803 (2).
Here, the defendants’ ability to foreclose depends only on the enforceability of
the Security Deed, not their ability to collect on the underlying debt (which
undisputedly remains unsatisfied). And regardless of whether the statute of limitation
bars enforcement of the Note, the enforceability of the Security Deed is unaffected
6
by the statute of limitation for the underlying debt. See Decatur Fed. S & L Assn., 268
Ga. at 364 (2); Brinson, 263 Ga. at 803 (2); White Properties Investments, 366 Ga.
App. at 244 (1); Minton, 222 Ga. App. at 86-87.
The Heads’ claim that acceleration of the underlying debt also accelerates the
expiration of the reversionary period contravenes the plain language of the
reversionary statute. Under the statute, title reverts “seven years from the maturity of
the debt or debts or the maturity of the last installment thereof as stated or fixed in the
record of the conveyance.”2 OCGA § 44-14-80 (a) (1) (emphasis supplied). If the
General Assembly had intended for the expiration of the statutory reversionary period
to be accelerated by the acceleration of the underlying debt — or otherwise altered
by events outside of the “record of conveyance” — it could have said so. See Deal
v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (when considering the
meaning of a statute, a court must “presume that the General Assembly meant what
it said and said what it meant” and afford the statutory text its “plain and ordinary
meaning”) (citations and punctuation omitted).
2
It is undisputed that the Security Deed was properly recorded in the county
real estate records.
7
Nevertheless, the Heads contend that “[i]t is well-settled law that acceleration
applies to [the] underlying debt as a whole, and thus applies to the security deed[ and]
underlying note[ ] and initiates the running of the statute of limitations and the
reversionary statute.” But the authority they cite in support of that claim does not
reach so far. In King v. Edel, 69 Ga. App. 607 (26 SE2d 365) (1943), on which the
Heads rely, this Court observed that a promissory note and deed executed to secure
payment of the note “together constituted one contract.” Id. at 613 (citation and
punctuation omitted). King, however, involved an action on a promissory note, in
which the question presented was whether the claim was barred by the statute of
limitation applicable to simple contracts. Id. at 607. We held that the action was not
time-barred, relying in part on representations in the security deed as to the maturity
date of the underlying debt. See id. at 611-613. Nowhere in King did we suggest that
the acceleration of an underlying debt has any effect on the statutory reversionary
period applicable to security deeds.3 See generally id.
3
King presumably did not address the reversionary statute because the deed to
secure debt at issue in that decision was executed in 1928, several years before the
reversionary statute was enacted in 1941. See Ga. L. 1941, pp. 487-489, §§ 1, 10;
King, 69 Ga. App. at 609.
8
The Heads similarly maintain that, under Georgia law, “when a lender
accelerates an indebtedness, such acceleration applies to both the security deed and
the underlying note.” But again, neither of the two decisions on which they rely for
that assertion — Mayo v. Bank of Carroll County, 157 Ga. App. 148 (276 SE2d 660)
(1981), and Ward v. Watkins, 219 Ga. 629 (135 SE2d 421) (1964) — supports it. In
Mayo — an action for wrongful acceleration of a promissory note and attempted
foreclosure of a security deed and other claims — we made the unremarkable
observation that, “if the acceleration of the debt was proper for whatever reason . . . ,
then the security deed grants defendant the power to sell the secured property.” 157
Ga. App. at 148, 150 (3). But nothing in Mayo suggests that the authority to foreclose
due to acceleration of the debt has any effect on the statutory reversionary period. See
generally id. And in Ward — an ejectment action — a sale of the collateral property
“occurred after default and acceleration of the entire indebtedness by the holder of the
deed and note.” 219 Ga. at 629. But once again, nothing in that decision may be read
to suggest that “acceleration of the entire indebtedness” has any effect on the
statutory reversionary period. See generally id.
The Heads also cite Wall v. C & S Bank of Houston County, 247 Ga. 216 (274
SE2d 486) (1981), for the proposition that, “[w]hen a lender elects acceleration,” both
9
“the statute of limitations and the reversionary period begin[ ] to run upon such
acceleration.” But the decision in Wall — an action to recover on a promissory note
— says no such thing. See generally id. Rather, the Court in Wall merely held that
the note gives the [lender-]bank an election to accelerate maturity of the
debt; . . . if maturity was in fact accelerated, the statute of limitations
began to run from the time of the election to accelerate rather than on the
date the last installment was due; and . . . the question for the jury was
one of whether or not the bank had accelerated maturity.
Id. at 216-217 (1). Nothing in that holding has any bearing on the effect of
acceleration on the reversionary statute.
The Heads further contend that the inclusion of an acceleration clause in the
Security Deed here shows that acceleration applied to the reversionary period. But
they read too much into that clause, which provides:
17. Acceleration; Remedies. Except as provided in paragraph 16 hereof
[addressing transfer of the property], upon Borrower’s breach of any
covenant or agreement of Borrower in this deed, including the covenants
to pay when due any sums secured by this Deed, Lender prior to
acceleration shall give notice to Borrower as provided [elsewhere in the
deed] specifying: (1) the breach; (2) the action required to cure such
breach; (3) a date, not less than 10 days from the date the notice is
mailed to Borrower, by which such breach must be cured; and (4) that
failure to cure such breach on or before the date specified in the notice
10
may result in acceleration of the sums secured by this Deed, and sale of
the Property. . . . If the breach is not cured on or before the date
specified in the notice, Lender, at Lender’s option, may declare all of the
sums secured by this Deed to be immediately due and payable without
further demand and may invoke the power of sale herein granted . . . .
(Emphasis omitted.) By its terms, the acceleration clause governs “acceleration of the
sums secured by this Deed” — i.e., the underlying debt — and not the statutory
reversionary period applicable to the deed. And the grant of authority to “declare all
of the sums secured by this Deed to be immediately due and payable” upon an
uncured breach likewise says nothing about the effect of a breach on the statutory
reversionary period.
For the above reasons, we hold that acceleration of the underlying debt has no
effect on the statutory reversionary period, which operates independently of the
statute of limitation as to the debt, and we reject the Heads’ claim to the contrary. Our
ruling to that effect renders it unnecessary to address their contentions that the trial
court improperly ignored disputed factual issues and weighed the evidence regarding
whether the debt was accelerated, as any such acceleration has no bearing on the
enforceability of the Security Deed.
11
2. The Heads further contend that the trial court erred when it rejected their
claim that foreclosure is barred by laches. Again, we disagree.
The doctrine of laches is codified in two statutes: (i) OCGA § 9-3-3, which
provides, in relevant part, that “courts of equity may interpose an equitable bar
whenever, from the lapse of time and laches of the complainant, it would be
inequitable to allow a party to enforce his legal rights”; and (ii) OCGA § 23-1-25,
which provides: “Equity gives no relief to one whose long delay renders the
ascertainment of the truth difficult, even when no legal limitation bars the right.”
“Under the doctrine of laches, a party is barred from receiving equitable relief when
he has unreasonably delayed in seeking that relief and such delay is prejudicial to the
person from whom the relief is sought.” Rhone v. Bolden, 270 Ga. App. 712, 721 (9)
(608 SE2d 22) (2004).
Laches is a defense that is grounded in principles of equity. See Redfearn v.
Huntcliff Homes Assn., 271 Ga. 745, 748-750 (3)-(4) (524 SE2d 464) (1999).
Consequently, it is not available to a plaintiff. Steele v. Waycross, 190 Ga. 816, 822-
823 (3) (10 SE2d 867) (1940) (by its plain terms, a predecessor to OCGA § 9-3-3 —
which was identical in relevant part to the current statute — made the defense of
laches available only to the defendant and not to “the complainant”); Ga. R. &
12
Banking Co. v. Wright, 124 Ga. 596, 620 (18) (53 SE 251) (1906) (under an earlier
— and also materially identical — predecessor to OCGA § 9-3-3, the defense of
laches was “available to the defendant only, and [could] not be employed by the
complainant in an equitable proceeding to enjoin the enforcement of a purely legal
right”), rev’d on other grounds, Central of Ga. R. Co. v. Wright, 207 U. S. 127, 141-
142 (28 SCt 47, 52 LE 134) (1907); Nicholas v. Van, 252 Ga. App. 411, 414 (556
SE2d 497) (2001) (the plaintiff could not take advantage of the defendant-city’s
alleged laches to excuse the plaintiff’s late ante litem notice because OCGA § 9-3-3
affords relief resulting only from the laches of “the complainant”) (citation,
punctuation, and emphasis omitted), disapproved in part on other grounds, Dept. of
Pub. Safety v. Ragsdale, 308 Ga. 210, 213-215 & n. 7 (839 SE2d 541) (2020); see
also generally Hall v. Trubey, 269 Ga. 197, 199 (1) (498 SE2d 258) (1998) (“A court
of equity may bar a complaint based on laches when the lapse of time and the
claimant’s neglect in asserting rights result[ ] in prejudice to the adverse party.”);
Troup v. Loden, 266 Ga. 650, 651 (1)-(2) (469 SE2d 664) (1996) (to successfully
assert the “factual defense” of laches, “[t]he defendant must show prejudice from the
delay”). It therefore is not surprising that the parties have not cited, and research has
13
not revealed, any Georgia appellate decisions endorsing a plaintiff’s claim of laches
against a defendant, as the Heads seek to do here.
Indeed, in the only decision we have found contemplating laches under such
circumstances, the Supreme Court of Georgia rejected a plaintiff’s claim — in an
action to enjoin the defendant from foreclosing on a security deed and for
cancellation of the deed — that the defendant’s rights under the deed were barred by
laches. Brinson, 263 Ga. at 802, 803 (2). The Court explained, “Provided the right to
foreclose or otherwise recover the land conveyed by the security deed is not barred
by the provisions of OCGA § 44-14-83” — which bars foreclosure after title has
reverted by statute — “even if the evidence at trial reveals that an action to collect the
debt is barred by the statute of limitation, such would not prevent [the defendant]
from exercising [its] rights under the security deed.”4 Id. at 803 (2). Thus, even if
4
The Heads highlight a footnote in Brinson, in which the Court stated that “the
security deed ceases to be effective when the power of sale is barred by the statute of
limitation” and cited “OCGA § 44-14-80 et seq.” 263 Ga. at 802 (1), n. 2. When
viewed in context with the cited statutory provisions, it is apparent that the “statute
of limitation” mentioned in the Brinson footnote refers to the reversionary periods in
OCGA § 44-14-80.
14
laches arguably could be available to a plaintiff seeking to enjoin a foreclosure sale,
Brinson squarely forecloses the Heads’ claim that laches may bar foreclosure here.5
Judgment affirmed. Doyle, P. J., and Gobeil, J., concur.
5
In Patel, 327 Ga. App. at 321-322, 325 (1) & n. 15, we rejected the plaintiff-
appellants’ claim that laches barred the defendant-lender’s counterclaim seeking
reinstatement of an erroneously-cancelled security deed. Under the procedural posture
of that case, the defendant stood in the shoes of a plaintiff for purposes of its
counterclaim, and the plaintiffs thus stood in the shoes of defendants asserting laches
as a defense, rather than offensively.
15