Automated Summary
Key Facts
Summit Investment Management Acquisitions I, LLC appealed from a trial court's order dismissing its request for confirmation of a second foreclosure sale of property owned by Greg A. Becker Enterprises, Ltd. and related entities. The first foreclosure sale occurred on August 3, 2010, for $1.1 million, but the trial court denied confirmation because the property failed to sell for its true market value based on appraisal discrepancies. Becker appealed, and the trial court ordered a resale. The second foreclosure sale occurred on May 3, 2011, for $2 million. Summit applied for confirmation, but the trial court dismissed the second application on November 9, 2011, concluding a supersedeas arose from Becker's appeal. Summit argued that a supersedeas cannot be created under OCGA § 5-6-46 (a) unless all trial court costs are paid, contending the statute applies only to civil cases, not foreclosure confirmation proceedings.
Issues
The court addressed whether a supersedeas was properly created when the appellant appealed the trial court's order denying confirmation of the first foreclosure sale. The court held that OCGA § 5-6-46 (a) applies only to civil cases, not to foreclosure confirmation proceedings under OCGA § 44-14-161 (a), and therefore the trial court erred in dismissing the second confirmation application based on the supersedeas argument. The court concluded that a petition for confirmation of a sale is merely an application to the judge of the superior court and not a 'suit' or 'civil action' under the ordinary meaning of the term.
Holdings
The Court of Appeals reversed the trial court's order dismissing Summit Investment Management's second foreclosure sale confirmation application. The court held that OCGA § 5-6-46 (a), which requires payment of all trial court costs to create a supersedeas, applies only to civil cases and not to foreclosure confirmation proceedings under OCGA § 44-14-161 (a). Therefore, no supersedeas was created by Becker's appeal of the first confirmation denial, and the trial court erred in dismissing the second confirmation request.
Remedies
The Court of Appeals of Georgia reversed the trial court's order dismissing Summit Investment Management Acquisitions I, LLC's request for confirmation of a second foreclosure sale. The court held that OCGA § 5-6-46 (a) does not apply to foreclosure confirmation proceedings, and therefore a supersedeas was not created by Becker's appeal of the first confirmation denial. Summit may proceed with confirming the second foreclosure sale.
Legal Principles
The court held that OCGA § 5-6-46 (a) applies only to 'civil cases,' not foreclosure confirmation proceedings under OCGA § 44-14-161 (a). A petition for confirmation of a sale is merely an application to the superior court judge, not a civil suit or complaint that initiates a civil action. Therefore, a supersedeas cannot be created under this statute for foreclosure confirmation proceedings regardless of whether trial court costs are paid.
Precedent Name
- Durrah v. State Farm Fire & Cas. Co.
- Vlass v. Security Pacific Nat. Bank
- Wall v. Fed. Land Bank
- Birchby v. Carboy
- Lunsford v. DeKalb Medical Center
- Greg A. Becker Enterprises v. Summit Investment Management Acquisitions I, LLC
- Lott v. Arrington & Hollowell PC
Cited Statute
Official Code of Georgia Annotated
Judge Name
- Boggs, Judge
- Doyle, P. J.
- Andrews, J.
Passage Text
- "[a] petition for confirmation of a sale is not a 'suit' but merely an application to the judge of the superior court' in which no judgment is entered against the debtor and no title to land is determined. Indeed, the Supreme Court of Georgia has expressly held that 'an application for confirmation is not a 'complaint' which initiates a 'civil action' in the superior court.'
- OCGA § 5-6-46 (a), on the other hand, provides: 'In civil cases, the notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38 shall serve as supersedeas upon payment of all costs in the trial court by the appellant and it shall not be necessary that a supersedeas bond or other form of security be filed.' (Emphasis supplied.) Thus, by its express terms, this statute applies only to 'civil cases,' not foreclosure confirmation proceedings under OCGA § 44-14-161 (a). As a result, the trial court erred by dismissing Summit's second confirmation action based upon the authority of OCGA § 5-6-46 (a).
- Judgment reversed.