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Nexgen Cumming LLC v. State Bank and Trust Co.

The evidence supported the trial court's finding that the required nonjudicial foreclosure notice was published once a week for four consecutive weeks in the county's legal organ.

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State Bank and Trust Company “the Bank” applied for confirmation of a nonjudicial foreclosure sale on property securing a loan to Nexgen Cumming, LLC and guaranteed by, among others, Premium Investment Properties, LLC and Rajeshwar D. Sharma. The trial court entered an order confirming the sale. Nexgen Cumming, Premium Investment Properties, and Sharma collectively, “Nexgen” appeal on the ground that the Bank failed to show that it properly advertised the sale. We find that the trial court did not err in admitting into evidence at the confirmation hearing a publisher’s affidavit, the contents of which, along with other evidence presented at the hearing, authorized the court to find that the Bank met the advertising requirement. Accordingly, we affirm. “The trial court is the trier of fact in a confirmation proceeding, and we will not disturb its findings if there is any evidence to support them. We are not, however, bound by the trial court’s conclusions of law, which are subject to de novo review.” Citations and punctuation omitted. TKW Partners v. Archer Capital Fund , 302 Ga. App. 443 691 SE2d 300 2010.

Pursuant to OCGA § 44-14-161 c, the trial court shall “pass upon the legality of the notice, advertisement, and regularity of a nonjudicial foreclosure sale.” A nonjudicial foreclosure sale must be advertised in the same manner as a judicial foreclosure sale. OCGA § 44-14-162 a. That manner is set forth in OCGA § § 9-13-140 a and 9-13-141, which provide, among other things, that notice of the sale shall be published once a week for four weeks in the legal organ for the county.

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