Community & S. Bank v. DCB Invs. LLC

The trial court erred in finding that the lender's failure to obtain judicial confirmation of the foreclosure sale on property associated with one note in a group of three inextricably intertwined notes barred it from recovering on the personal guaranties associated with those notes.

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Community Southern Bank “CSB” brought this action against DCB Investments, LLC, David Belke, Glenn Couey, and Julie Couey the latter three collectively “defendants”, seeking a deficiency judgment pursuant to three simultaneously executed promissory notes and guaranties. Following the denial of its motion for summary judgment and the grant of summary judgment in favor of the defendants, CSB appeals, arguing that the trial court erred in finding that CSB is barred from seeking a deficiency judgment because it failed to obtain judicial confirmation of an earlier foreclosure and in finding that this same failure also bars it from recovering on the guaranties. For the reasons set forth infra, we affirm the trial court’s ruling that CSB cannot seek a deficiency judgment against the borrowers because it failed to comply with the judicial-confirmation requirements. However, we reverse the ruling that CSB is barred from recovering on the guaranties, and, thus, we reverse the denial of summary judgment to CSB on this issue.

At the outset, we note that summary judgment is only warranted if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”1 If summary judgment is granted by a trial court, it enjoys no presumption of correctness on appeal, “and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 c have been met.”2 And in our de novo review of a trial court’s grant of a motion for summary judgment, we are charged with “viewing the evidence, and all reasonable conclusions and inferences drawn from the evidence in the light most favorable to the nonmovant.”3

Community & S. Bank v. DCB Invs. LLC

The trial court erred in finding that the lender's failure to obtain judicial confirmation of the foreclosure sale on property associated with one note in a group of three inextricably intertwined notes barred it from recovering on the personal guaranties associated with those notes.

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