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McInnis v. Community Bank & Trust; MCIBO Inv. LLC v. Community Bank & Trust

The Court reversed an order confirming the sale of property following a non-judicial foreclosure, since the appellee bank failed to show that the sale was properly advertised under OCGA § 19-13-140.

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Hugh A. McInnis, James A. Bouchillon and McIbo Investments, LLC appeal the order of the trial court confirming the sale of property following a non-judicial foreclosure sale.1 For the reasons that follow, we reverse. The only issue before us on appeal is whether the evidence supported the trial court’s finding that the requirements for publication of the notice of sale under power were satisfied. Specifically, appellants argue that the trial court improperly relied upon hearsay to find that the Bank met its burden of showing that the advertisement was properly published; they also argue that the Bank’s evidence of publication violated the best evidence rule.

OCGA § 9-13-140 a provides for the manner in which notice of foreclosure sales must be advertised.2 In relevant part, the statute provides that the notice of sale must run for four weeks and that the advertisement must contain “a full and complete description of the property to be sold, making known the names of the plaintiff, the defendant, and any person who may be in the possession of the property. In the case of real property, such advertisement shall include the legal description of such real property and may include the street address . . . if available, . . .”

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