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BAC Home Loans Servicing LP v. Wedereit

The trial court erred in awarding sua sponte partial summary judgment to the plaintiff because he failed to carry his burden of proving that he was entitled to summary judgment.

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Brian Wedereit sued BAC Home Loans Servicing, L.P. “BAC” for, among other things, breach of contract and wrongful foreclosure. BAC moved for summary judgment, and the trial court denied BAC’s motion on Wedereit’s claims for wrongful foreclosure, equitable relief, punitive damages and attorney fees. However, the trial court also granted sua sponte partial summary judgment to Wedereit on his breach of contract claim because BAC allegedly failed to give proper pre acceleration notice as required under Paragraph 22 of the Security Deed. BAC appealed, and, in Divsion 1 of its opinion, the Court of Appeals affirmed the trial court’s sua sponte grant of partial summary judgment to Wedereit. BAC Home Loans Servicing, L.P. v. Wedereit, 328 Ga. App. 566 1 759 SE2d 867 2014. We granted BAC’s petition for certiorari to determine whether the Court of Appeals erred when it held in its Division 1 that the issues resolved by the award to Wedereit of partial summary judgment were the same as those raised by BAC’s motion for summary judgment, such that an award of partial summary judgment sua sponte to a nonmovant was permissible. See Covington v. Countryside Investment Co., Inc., 263 Ga. 125, 127 3 428 SE2d 562 1993. For the reasons that follow, we reverse.

Under limited circumstances, a court may grant summary judgment sua sponte in favor of a nonmoving party:

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