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Stowers v. Branch Banking & Trust Co.

The defendant bank properly rescinded a foreclosure sale where the notice of foreclosure sale to its debtor was defective for not identifying the individual with full authority to negotiate and modify the terms of the loan.

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William Gray Stowers appeals the grant of summary judgment to Branch Banking & Trust Company “the bank” in his suit for breach of contract. Stowers argues that the bank’s rescission of a foreclosure sale at which he was the high bidder does not come within the “safe harbor” provision of OCGA § 9-13-172.1. Under that statute, in certain circumstances, when a foreclosing lender rescinds a foreclosure sale, the high bidder’s damages are limited. Although we agree with Stowers that under the law as it currently exists the bank’s reason for rescinding the sale was unsound, we decline to apply that law retroactively and conclude that the rescission falls within the safe harbor provision. We therefore affirm the bank’s summary judgment.

The bank foreclosed on a property securing a note. Stowers was the high bidder at the non-judicial foreclosure sale. Stowers tendered a cashier’s check for the bid amount, and the bank gave him a memorandum of sale. Before the bank had executed a deed under power in favor of Stowers, the debtor’s attorney contacted the bank, asserting that the bank’s notice to the debtor of the foreclosure sale was defective in that it did not comply with the requirement at OCGA § 44-14-162.2 that it identify “the individual with full authority to negotiate, amend, and modify all terms of the mortgage.” The bank agreed with the debtor that the notice was defective and renegotiated the terms of the debt with the debtor.

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