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Villanueva v. First Am. Title Ins. Co.

A legal malpractice claim for financial loss, involving solely the right of property, is assignable.

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We granted the petition for a writ of certiorari filed by appellants Derick Villanueva and The Villanueva Law Firm LLC following the decision of Court of Appeals in Villanueva v. First American Title Ins. Co., 313 Ga. App. 164 721 SE2d 150 2011. In granting the petition, we expressed interest in the Court of Appeals’s holding in Division 2 of its opinion that legal malpractice claims are not per se unassignable. After studying the issue, we agree with the Court of Appeals that legal malpractice claims are not per se unassignable.

In May 2007, appellant Villanueva acted as the closing attorney for a mortgage-refinance transaction in which Homecomings Financial, LLC served as the lender supplying funds to pay off earlier mortgages on the secured property. Appellee First American Title Insurance Company issued title insurance on the transaction. Pursuant to Villanueva’s instructions, Homecomings wired funds into a specified escrow account. However, the funds were not used to pay off the earlier mortgages; instead, the funds were withdrawn and the account closed by a person not a lawyer. First American paid off the earlier mortgages and, pursuant to its closing protection letter to Homecomings, became “subrogated to all rights and remedies Homecomings would have had against any person or property. . . .” First American then filed this lawsuit against appellants, the estate of another attorney, the escrow account, the non-lawyer who withdrew the funds from the escrow account, and others, seeking damages for legal malpractice and breach of a contract with Homecomings. The trial court denied summary judgment to appellants.

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