Guthrie v. Bank South , 195 Ga. App. 123 ( 1990 )

Carley, Chief Judge,

concurring specially.

I agree with the result reached by the majority in this case and I concur fully in all that is said in Divisions 1, 3 and 4 of the majority opinion. However, with regard to Division 2, I cannot join the majority’s reliance upon OCGA § 9-11-9 (a) because I do not believe that the provisions of the Civil Practice Act are fully applicable to confirmation proceedings. “The confirmation required by [OCGA § 44-14-161] is not a civil case. ... ‘It is not an action in personam, because no personal judgment is recovered. Strictly speaking, it is not an action in rem, because it does not adjudicate . . . title. . . .’ [Cit.]” Wall v. Fed. Land Bank of Columbia, 240 Ga. 236, 237 (240 SE2d 76) (1977).

Decided March 16, 1990 Rehearing denied March 28, 1990 Hudson & Solomon, James D. Hudson, for appellants. C. Jerome Adams, for appellee.

In my opinion, appellants’ enumeration based upon the contention that Bank South failed to prove that the original deed to secure debt had been assigned to it by the Exchange Bank is simply “not relevant to the confirmation proceeding, even assuming any of the appellants had a meritorious defense to the prosecution of a deficiency judgment against them. The confirmation proceeding is a statutory proceeding which by law determines only that the sale was properly advertised and brought the fair market value of the land. . . . The duty of the trial court is to test the fairness of the technical procedure of the actual sale and to insure that it brought at least the true market value; the statute does not undertake to decide controversies . . . which might have been the basis of an injunction preventing the foreclosure sale. [Cits.]” Harris & Tilley v. First Nat. Bank, 157 Ga. App. 88, 91 (276 SE2d 137) (1981). OCGA § 44-14-161 places the responsibility for commencement of the confirmation proceeding upon the “person instituting the foreclosure proceedings.” Appellee here was the entity “instituting the foreclosure proceedings” and it is uncontroverted that the advertisement and sale were regular and technically correct. Accordingly, appellants’ contention concerning the lack of proof of assignment of the security deed to appellee is not something that can be considered within the confines of this confirmation proceeding.

I am authorized to state that Presiding Judge McMurray joins in this special concurrence.