Essien v. CitiMortgage, Inc.

Citations: 335 Ga. App. 727; 781 S.E.2d 599; 2016 Ga. App. LEXIS 28Docket: A16A0062

Court: Court of Appeals of Georgia; January 28, 2016; Georgia; State Appellate Court

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Ronke Essien filed a lawsuit against CitiMortgage, Inc. and Pendergast Associates, P.C. shortly before a foreclosure sale, alleging wrongful foreclosure, breach of contract, trespass, and violations of the Georgia RICO Act, and seeking damages, punitive damages, and attorney fees. CitiMortgage and Pendergast moved for summary judgment, which Essien did not contest. The trial court granted the motions, leading to Essien's appeal, where she argued that a material fact dispute existed regarding CitiMortgage's compliance with pre-acceleration notice requirements under the security deed, claiming this was an error in the summary judgment.

Summary judgment is proper when there are no genuine issues of material fact, requiring plaintiffs to provide evidence against defendants' claims. The appellate court reviews summary judgments de novo, considering evidence in favor of the nonmovant. In this case, CitiMortgage and Pendergast presented undisputed evidence that the foreclosure sale did not occur, rendering any wrongful foreclosure claim premature. Even if Essien's claim were viewed as wrongful attempted foreclosure, she did not demonstrate error in the trial court's ruling. Essien claimed the defendants failed to prove they provided the required pre-acceleration notice, yet the record included an affidavit from Pendergast's attorney confirming that such notice was sent on March 8, 2011, allowing Essien to cure her default. Because Essien did not respond to the summary judgment motions, the defendants' evidence remained uncontested, leading the court to uphold the judgment without error. Essien's appeal reiterated her unsupported allegations.

The case involves the plaintiff's claim that the defendants did not provide the required notice prior to initiating foreclosure proceedings. The defendants successfully presented evidence showing that the notice was provided, which the plaintiff failed to contest with any counter-evidence or legal argument. Consequently, the appeal claiming the trial court erred in granting summary judgment is deemed frivolous. The court cites precedent, indicating that sanctions may be imposed for frivolous appeals, as seen in We Care Transp. v. Branch Banking & Trust Co., where sanctions were previously assigned to the plaintiff's counsel, Grady Roberts III. In this case, Roberts again failed to present a viable argument in the appellate brief, leading the court to impose a $2,500 penalty against him, split between two parties. The court also emphasizes that powers of sale in foreclosure must be exercised fairly and outlines the requirements for a wrongful foreclosure claim, noting that even if a legal duty was breached, the plaintiff must demonstrate a causal link between that breach and the resulting injury. The trial court's denial of the plaintiff's motion for a directed verdict on the wrongful foreclosure claim was upheld, as the plaintiff did not prove the necessary causal connection despite the bank's failure to provide the required notice.

A claim for wrongful exercise of a power of sale can arise when a creditor forecloses on property without legal authority, violating the security deed's terms. Relevant case law includes Aetna Finance Co. v. Culpepper, Mayo v. Bank of Carroll County, and Sale City Peanut Milling Co. v. Planters Citizens Bank. If a debtor alleges that an attorney threatened immediate foreclosure despite the lender's failure to comply with required notice provisions, this can constitute a claim for wrongful foreclosure under Georgia law, potentially leading to damages for emotional distress and violations of the Fair Debt Collection Practices Act. It is important to note that an unverified complaint, like Essien's, does not serve as evidence, whereas a verified complaint does.