Opinion
59888.
SUBMITTED MAY 5, 1980.
DECIDED MAY 21, 1980.
Illegal sale of land; damages. Stewart Superior Court. Before Judge Blanks.
James A. Elkins, Jr., for appellant.
Weyman E. Cannington, Jr., for appellee.
Baublitz borrowed money from the Farmers State Bank, executing two deeds to secure debt on real estate as security. There was an eventual default and a public foreclosure sale in which the property was sold by the appellee by virtue of powers contained in the instruments. The record contains references to three other contemporaneous pieces of litigation between the parties — one in the superior court (No. 3140) which apparently was concerned with an alleged seizure of a deposit to be credited against the debt, one in the Federal District Court (78-64-COL) in which Baublitz pleaded inter alia that the bank had wrongfully refused to notify him of his right to rescind the conveyance as required by Regulation Z, 12 C.F.R. 226.9. Contemporaneously with this latter case the bank brought a petition for confirmation in the superior court (No. 3173); Baublitz prayed for and obtained an order in the federal proceeding restraining a hearing on the confirmation in the state court which, after presentation of evidence, was rescinded. Thereafter a summary judgment in favor of the bank was granted in the federal court and a confirmation of sale was granted by order of the state court. Although the above facts are not in all respects supported by certified pleadings, they are not contradicted either in the record or brief of counsel. They are supported in part by certified copies of documents in this record, in part by affidavit, and in part by a brief reciting the history of the cases and certified as having been presented to the district court in support of the bank's motion for judgment in that proceeding. From them it further appears that Baublitz, after a bankruptcy proceeding in which the bank was named as a creditor, reassumed the indebtedness here involved. He litigated over two small bank accounts which had been appropriated to the debt and won a small judgment. The confirmation of sale on foreclosure was granted in the state court and became final when the time for appeal passed. The summary judgment in the federal court in favor of the bank also became final when no appeal was filed. The final orders in the district court case affirmatively disclose that the summary judgment was based on the brief mentioned above which was filed in that case, to which no response was filed. In the absence of any denial in the record before us, these facts constitute a prima facie showing that the Regulation Z defense was attempted to be urged in the prior federal and state cases, and that it was successful in neither.
Thereafter the present action (No. 3178) was filed in the Superior Court of Stewart County by the appellant, seeking damages for wrongful foreclosure on the dual basis that the appellant was not indebted to the appellee at the time of the sale in any amount and that because of the bank's failure to comply with Regulation Z "to permit your petitioner to pay the said defendant herein the money owed less interest [and] to permit your petitioner to rescind the said agreement" it was not entitled to sell the property in the foreclosure proceedings. This petition seeks general and punitive damages. The defendant moved to dismiss the complaint, a motion eventually converted into a motion for summary judgment by the addition of the record analyzed above. The plaintiff made no effort to controvert any of the material offered. The trial court granted the defendant a summary judgment, and this appeal follows.
SUBMITTED MAY 5, 1980 — DECIDED MAY 21, 1980.
1. "Summary judgment under Georgia law is a proceeding where one must present his case sufficiently to raise an issue of fact or risk judgment going against him. See Summer-Minter Assoc. v. Giordano, 231 Ga. 601 ( 203 S.E.2d 173) (1974) and Allen Kane's Major Dodge, Inc. v. Barnes, 243 Ga. 776, 779 (n. 1) ( 257 S.E.2d 186) (1979)." Withrow Timber Co. v. Blackburn, 244 Ga. 549, 552 ( 261 S.E.2d 361) (1979). The defendant's motion is based on the contention that the issues raised in this complaint — that the plaintiff was not indebted and that the defendant had violated Regulation Z — had been adjudicated in the prior litigation. The plaintiff filed neither a response to the motion nor any affidavits or other evidence in the trial court, although this was obviously the crucial issue for decision, as shown by the fact that the trial court in this case stayed his decision on the motion until the federal case was disposed of, as it was on July 16, 1979, and the judgment in this case was thereafter entered. Neither in this case nor in the federal case (as reflected in the final order) did the plaintiff make any attempt to meet the defense of res judicata. He has accordingly not attempted to meet even that slightest of burdens which the law places upon the party opposing a motion for summary judgment.
2. The appellant contends that res judicata is not involved because under the holding in Scroggins v. Harper, 138 Ga. App. 783 (1) ( 227 S.E.2d 513) (1976) and Southwest Ga. Land Development Co. v. Hillas, 144 Ga. App. 670 (1) ( 242 S.E.2d 267) (1978) the issue at a confirmation hearing is true market value, and monetary claims having no relation to market value must be determined in other lawsuits. We recognize that the confirmation action (No. 3173) did not decide the issues attempted to be raised here, but the record affirmatively shows that they were attempted to be raised — to the extent that at one point in the federal case a restraining order, subsequently retracted, had issued to prevent the foreclosure. A Regulation Z defense was also raised in the superior court. These cases, as well as the federal action, put the plaintiff on notice of the bank's position. Whether or not the superior court would have had jurisdiction to pass on these defenses in the confirmation case, we are satisfied both that the issue was considered and disposed of in the federal court and that this constitutes an estoppel to raise it again here. Doyle v. United Finance Co., 97 Ga. App. 257 (1 (a)) ( 102 S.E.2d 637) (1958); Stevens v. Board of Regents, 129 Ga. App. 347 ( 199 S.E.2d 620) (1973).
Judgment affirmed. Birdsong and Sognier, JJ., concur.