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Parks v. Bank of New York

The notice provisions for foreclosure under O.C.G.A. § 44-14-162.2 are constitutional.

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In this appeal, the plaintiff debtor challenges, on procedural due process grounds, the constitutionality of OCGA § 44-14-162.2,1 which provides for mailing or delivering notice to the debtor of a sale made on foreclosure under power of sale. Finding the challenge to be without merit, we affirm the judgment in favor of the defendant security deed holder. The following is undisputed. On October 27, 1997, Mary Parks “Parks” executed and delivered to TMS Mortgage, Inc. d/b/a The Money Store “TMS” a note in the original principal amount of $52,500. To secure the indebtedness evidenced by the note, Parks also executed and delivered a security deed in favor of TMS regarding certain real property located in Fulton County. Bank of New York “Bank” subsequently became the owner and holder of the note and security deed.

Following Parks’s default under the note and security deed, the Bank elected to foreclose on the property pursuant to the power of sale provision in the security deed. On or about December 4, 2002, a letter was sent to Parks, via certified mail, return receipt requested, giving her notice of the foreclosure sale. The certified mail receipt was signed.2 Following advertisement of the property, the foreclosure sale occurred on January 7, 2003, and the property was sold to Branzak Investments, L.L.C. “Branzak”. The Bank executed and delivered to Branzak a deed under power of sale to the property.

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