In this civil action, Irene Canada sued Liberty Lending Services “Liberty”, individually and on behalf of a class of similarly situated persons, alleging that Liberty breached the terms of a security deed by failing to provide written notice prior to assessing inspection and attorney fees that it incurred to protect its interest in the subject property during Canada’s bankruptcy. Liberty appeals from the certification of the class, arguing that the trial court abused its discretion in certifying the class under OCGA § 9-11-23 a and b. For the reasons set forth below, we affirm. The record shows that in 1984, Canada purchased a home, which she financed with a loan from Nationwide Lending Group that used the property as security for the debt. Subsequently, the loan was transferred and assigned to Liberty for servicing. Paragraph 7 of the security deed provides in part:If Borrower fails to perform the covenants and agreements contained in this Deed or if any action or proceeding is commenced which materially affects Lender’s interest in the Property including but not limited to eminent domain, insolvency, code enforcement or arrangements or proceedings involving a bankrupt or decedent then Lender at Lender’s option, upon notice to Borrower may make such appearances, disburse such sums and take such action as is necessary to protect Lender’s interest including but not limited to disbursement of reasonable attorneys fees and entry upon the Property to make repairs. . . . Any amounts disbursed by Lender pursuant to this paragraph 7 with interest thereon shall become additional indebtedness of Borrower secured by this Deed. Paragraph 8 of the security deed provides: “Lender may make or cause to be made reasonable entries upon and inspections of the Property, provided that Lender shall give Borrower notice prior to any such inspection specifying reasonable cause therefor related to Lender’s interest in the Property.” In addition, paragraph 18 of the security deed outlines the lender’s remedies in the event of default and provides that “Lender shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies in this paragraph 18, including, but not limited to, reasonable attorney fees.”
In 1996, Canada defaulted on the loan, and as a result, Liberty notified her that it would be foreclosing on the property and seeking attorney fees pursuant to OCGA § 13-1-11 if the default were not cured. Shortly thereafter, Canada filed a Chapter 13 bankruptcy petition to prevent the foreclosure. During the bankruptcy, Canada brought her loan current by paying all arrearages and by making her regular monthly payments. During the bankruptcy, Liberty conducted inspections of Canada’s property to protect its interest pursuant to paragraph 8 of the security deed and assessed inspection and attorney fees pursuant to paragraph 7. On August 5, 2001, the bankruptcy court discharged Canada. However, at that time, Liberty’s records reflected that the unpaid principal balance of Canada’s mortgage was $48,817.09. Thus, despite the fact that Canada attempted to bring her loan current during the bankruptcy, she was still in default when it was discharged.
