After BBC Land and Development, Inc. and its loan guarantors1 defaulted on loan obligations owed to the Bank of North Georgia, the Bank conducted a non-judicial foreclosure sale of real property securing the loans, and obtained an order from the Henry County Superior Court pursuant to OCGA § 44-14-161 confirming that the sale was lawfully conducted and that the property sold for at least its fair market value. BBC and the guarantors appeal from the confirmation order, and for the following reasons, we affirm. 1. Two weeks before the Bank filed the application in Henry County Superior Court for confirmation of the foreclosure sale, the Appellants filed a civil action in Fulton County Superior Court seeking damages for the Bank’s alleged wrongful foreclosure on the real property. The Appellants claim that the Henry County Superior Court erred by denying their motion pursuant to OCGA § § 9-2-5 a and 9-2-44 a seeking dismissal of the Bank’s application for a confirmation order on the basis that the wrongful foreclosure action was a prior pending action involving the same cause of action between the same parties. Under OCGA § § 9-2-5 a and 9-2-44 a, when two civil actions involving the same cause of action and the same parties are filed at different times, and both remain pending, the later-filed action is abated and must be dismissed. Sadi Holdings, LLC v. Lib Properties, Ltd. , __Ga. App.__ Case No. A08A1566, decided July 24, 2008. Although the Bank’s application for a confirmation order pursuant to OCGA § 44-14-161 was filed after the wrongful foreclosure action, and both matters involved the same parties, the application was not subject to abatement and dismissal because it did not involve the same cause of action as the wrongful foreclosure.
An application for confirmation pursuant to OCGA § 44-14-161 is a special statutory proceeding and not a complaint which initiates a civil action or suit in the ordinary meaning of those terms. Vlass v. Security Pacific Nat. Bank , 263 Ga. 296, 297 430 SE2d 732 1993. The statutory proceeding required that, before the Bank was entitled to file an action to obtain a deficiency judgment against the debtors, it must report the foreclosure sale and seek confirmation of the sale in the Henry County Superior Court where the foreclosed land was located by showing that the sale was lawfully conducted and brought at least the fair market value of the land on the date of the sale. McCain v. Galloway , 267 Ga. App. 505 600 SE2d 449 2004; Atlanta Empowerment Zone Corp. v. Light Energy Mgmt., Inc. , 269 Ga. App. 728, 729 605 SE2d 124 2004. A confirmation proceeding under OCGA § 44-14-161does not undertake to decide controversies between parties as to the amount of the debt, side agreements, or matters in defense of default or in denial of indebtedness, or which might have been the basis of an injunction preventing the foreclosure sale. The confirmation judgment is not a personal judgment and it does not adjudicate the title of the property sold. Except as to the confirmed amount of the sale, it does not establish the liability of any party with regards to the indebtedness.Dorsey v. Mancuso , 249 Ga. App. 259, 261 547 SE2d 787 2001 punctuation and citations omitted. The trial court correctly found that the prior pending wrongful foreclosure action did not require abatement and dismissal of the Bank’s application for confirmation.
