Iwan Renovations Inc. v. North Atlanta Nat'l Bank

The creditor was barred from pursuing a deficiency judgment, because the creditor failed to secure judicial confirmation of the foreclosure sale of the secured property.

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North Atlanta National Bank “Bank” brought this action against Iwan Renovations, Inc., and Dave Iwan collectively “defendants”, seeking recovery on a promissory note and a guaranty. Following the denial of their motion for summary judgment and the grant of summary judgment to the Bank, defendants appeal, arguing that the trial court erred in i finding that the Bank’s lawsuit was not a claim for a deficiency judgment requiring judicial confirmation under OCGA § 44-14-161, ii finding that the Bank could maintain its collection action against defendants, and iii awarding the bank attorney fees under OCGA § 13-1-11. For the reasons set forth below, we reverse the grant of summary judgment to the Bank and also reverse the denial of summary judgment to the defendants except as to the issue of whether Dave Iwan remains liable as guarantor, which we do not address. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 c; Britt v. Kelly & Picerne, Inc. 1 “On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.” McCaskill v. Carillo .2

So construed, the evidence shows that on May 18, 2005, Iwan Renovations executed a promissory note in favor of the Bank for the principal sum of $338,000.00 in order to purchase property and to build a home thereon. The note was secured by a construction security deed to the purchased property, and a guaranty of its payment was executed by Dave Iwan. On November 15, 2005, the Bank and Iwan Renovations executed a “Change in Terms Agreement” to increase the note’s principal to $360,150.00 and to extend the maturity date. One month later, the parties again agreed to extend the note’s maturity date. In both instances, the security deed was also modified to reflect the note’s new maturity date.

Iwan Renovations Inc. v. North Atlanta Nat'l Bank

The creditor was barred from pursuing a deficiency judgment, because the creditor failed to secure judicial confirmation of the foreclosure sale of the secured property.

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