Bryan Cave’s Atlanta Office Files Amicus Brief for Georgia Bankers Association Regarding Guarantor / Deficiency Claims
September 14, 2015
Authored by: General Announcement
On September 11, 2015, three of Bryan Cave’s financial institution / banking litigators (Curtis Romig, Edwin Cook, and Leah Fiorenza McNeill) filed an amicus curiae brief on behalf of the Georgia Bankers Association in a case currently pending before the Georgia Supreme Court, PNC Bank, N.A v. Smith, Case No. S15Q1445. The case is of great interest to banks operating in Georgia, as well as other states that reject the “single action” rule and allow pursuit of judgments after foreclosure. The focus of the Supreme Court will be the Georgia Court of Appeals’ 2013 ruling in HWA Properties, Inc. v. Cmty. & S. Bank, 322 Ga. App. 877 (2013), holding that a lender was entitled to pursue a guarantor for any deficiency remaining on a debt after a foreclosure, regardless of whether the lender had confirmed the foreclosure sale, if the guaranty included language waiving all defenses to collection of the debt. As set forth in Bryan Cave’s amicus brief, a ruling by the Georgia Supreme Court upholding HWA and its progeny will do much to correct the current abuse of Georgia’s foreclosure confirmation statute, O.C.G.A. § 44-14-16, which commercial borrowers and guarantors have long used to draw out foreclosure proceedings and prevent collection of any deficiency. A copy of the brief is available here. Check back in a few months, or reach out to Curtis, Win, or Leah, to hear the results or to consult with them on your commercial guaranty matters.