FIRST DIVISION

BARNES, P. J.,

MCMILLIAN and MERCIER, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

January 10, 2018

In the Court of Appeals of Georgia

A17A1587. BLACK et al. v. NATIONSTAR MORTGAGE LLC. et

al.

BARNES, Presiding Judge.

The trial court granted appellees’, Nationstar MortgageLLCand Federal Home

Loan Mortgage Corporation, motion for summary judgment on their complaint for

declaratory judgment and equitable reformation, in which they had sought to reverse

a foreclosure, void the related deed under power and special warranty deed, and

reinstate the modified security deed to a first priority position. The appellants, Lee

Angel Black, formerly known as, Lee Angel White, and Stacy M. Black appeal from

that order. Following our review, and discerning no reversible error, we affirm the

trial court’s judgment. 

On May 23, 2007, the appellants obtained a loan from Advanced Financial

Services, Inc. (“Advanced”) in the amount of $17l,000. On the same date, they

executed and delivered a security deed conveying certain property to Mortgage
Electronic Registration Systems, Inc. (“MERS”) as nominee for Advanced to secure

repayment of the loan. The subject property is commonly known as 3284 Price Mill

Road, Bishop, Georgia 30621. The property consists of two parcels: Parcel 04A/3284

(“Parcel l”), valued at $187,230, and Parcel 04B (“Parcel II”), valued at $12,000.

Parcel 1 is a four-acre lot with a house, and Parcel II is an adjacent, undeveloped

one-acre lot. 

The security deed was recorded on July 2, 2007, and referenced that the

property conveyed was 3284 Price MillRoad, but the legal description of the property

attached to the deed only referenced Parcel II, the undeveloped one-acre lot. In

December of 2012, MERS, assigned the security deed to Nationstar. Appellants and

Nationstar executed a modification of the security deed to include both Parcel I and

Parcel II in the legal description, which was filed with the clerk of superior court on

May 15, 2013. The modification, in pertinent part, provided, that “the legal

description of the real property attached an incorporated in the Security Deed at the

time of its execution. . . does not describe the entire Five Acre Tract as intended by

the [appellants].” And that:

by executing and delivering to [Nationstar] this Modification,

[appellants] wish to establish,state, clarify, and restate their intention to

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grant and convey the Five Acre Tract to [Nationstar] as security for the

Loan and to provide that the Five Acre Tract is encumbered by, made

part of, and incorporated into the Security Deed for all purposesset forth

therein, as fully as if the description of the Five Acre Tract were

attached to the Security Deed as and when the Security Deed was

executed by [appellants], delivered to [MERS], and recorded in the . . .

real property records. 

Appellants subsequently defaulted on the loan, and after they failed to

cure the default payments on the loan, Nationstar conducted a non-judicial

foreclosure sale of the subject property on November 5, 2013, and purchased the

property for $100,000. However, the foreclosure notice described onlyParcelII of the

property. On November 5, 2013, Nationstar, as attorney-in-fact of appellants,

prepared, executed, and delivered a “Deed Under Power” to Nationstar. The Deed

Under Power specifically cross-indexed to the security deed and was recorded on

December 5, 2013. Nationstar also prepared a “Special Warranty Deed” The legal

description of the subject property set forth in both the Deed Under Power and the

Special Warranty Deed referred only to Parcel II rather than the entirety of the

property. Neither Nationstar nor Federal Home reported the sale within thirty days of

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the foreclosure sale to the superior court for confirmation and approval pursuant to

OCGA § 44-14-161 (a).1

Thereafter, on September 4, 2015, the appellees filed a Complaint For

Declaratory Judgment and Equitable Reformation seeking to (1) reverse the

foreclosure, (2) void the Deed Under Power and Special Warranty Deed, and (3)

reinstate the modified security deed to the first priority position that it occupied

before the foreclosure. 

Following crossmotions forsummary judgment, the trial court entered an order

granting appellees’ motion and denying appellants’ motion, finding that:

1 When any real estate is sold on foreclosure, without legal

process, and under powers contained in security deeds,

mortgages, or other lien contracts and at the sale the real

estate does not bring the amount of the debt secured by the

deed, mortgage, or contract, no action may be taken to

obtain a deficiency judgment unless the person instituting

the foreclosure proceedings shall, within 30 days after the

sale, report the sale to the judge of the superior court of the

county in which the land is located for confirmation and

approval and shall obtain an order of confirmation and

approval thereon.

OCGA § 44-14-161 (a). 

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[appellees] intended to take a security interest in the entirety of the

property comprised of both Parcel I and Parcel II. Indeed, after

discovering the mistaken legal description in the original SecurityDeed,

Plaintiff Nationstar and both Defendants executed the Modification to

amend the description to include both Parcels, asintended by the parties.

Only after foreclosure did [appellees] realize that the mistaken property

description had carried over to the Deed Under Power and the Special

WarrantyDeed. The evidence conclusively establishes a mutualmistake

relievable in equity.... OCGA § 23-2-21 (a). The evidence further shows

that omission of Parcel II from the description in the Deed Under Power

and the Special Warranty Deed was contrary to the parties’ intention. 

The trial court further found that appellants had not demonstrated that they would be

prejudiced by the reformation of the security deed, and that the reformation related

back to date of the security’s deed execution and thus the deed was reinstated to first

priority lien position. 

Summary judgment is proper if the pleadings and evidence “show that there is

no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” OCGA § 9-11-56 (c). On appeal from the grant of

summary judgment, we “conduct a de novo review, construing all reasonable

inferences in the light most favorable to the nonmoving party.” Bank of North Ga. v.

Windermere Dev., 316 Ga. App. 33, 34 (728 SE2d 714) (2012).

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Appellants contend on appeal that the appellees were not entitled to equitable

reformation and thusthe trial court erred in its grant of summary judgment. We do not

agree.

Equity may intervene and reform a conveyance when the

instrument fails to express accurately the intention of the parties. A

petition for reformation of a written contract will lie where by mistake

of the scrivener and by oversight of the parties, the writing does not

embody or fully express the real contract of the parties. The cause of the

defect is immaterial so long as the mistake is common to both parties to

the transaction. And the negligence of the complaining party will not

defeat hisright to reformation if the other party has not been prejudiced. 

(Footnotes and punctuation omitted.) Curry v. Curry, 267 Ga. 66, 67 (1) (473 SE2d

760) (1996). 

(a) In two related enumerations of appeal, appellants contend that reformation

was not proper because the appellees had actual and/or constructive notice of the

defects in the title instruments, and could have discovered the defects in the title

instruments by reasonable due diligence. Appellants assert that it is presumed that the

purchaser of property has examined every deed and instrument affecting the title, and

is charged with notice of the facts shown in the records. They maintain that appellees

had actual or constructive notice of the defects in the title instruments and the

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foreclosure sale notice because they “unilaterally prepared, executed, and/or

delivered” the documents. Thus, any errors in the legal descriptions were either an

intentional act or unilateral mistake on the behalf of the appellees. 

OCGA § 23-2-25 provides that “[i]f the form of conveyance is, by accident or

mistake, contrary to the intention of the partiesin their contract, equity shall interfere

to make it conform thereto.” See Bank of America v. Cuneo, 332 Ga. App, 73, 79 (2)

(770 SE2d 48) (2015) (“The issue is whether the parties mutually intended for the

[b]ank to lend money and for the loan to be secured by the property[.]” ); Cheatham

v. Palmer, 191 Ga. 617, 625 (a) (13 SE2d 674) (1941) (“In every proper case under

this head of the law, the only inquiry is, does the instrument contain what the parties

intended itshould and understood that it did? Isit their agreement? If not, then it may

be reformed by aliunde proof, so as to make it the evidence of what was the true

bargain between the parties.”). However, “[a] distinction exists between reforming

a contract and executing a contract in case of mistake. To authorize the former, the

courtshall be satisfied by the evidence that the mistake was mutual; but the court may

refuse to act in the latter case if the mistake is confined to the party refusing to

execute.” OCGA § 23-2-30. To that end, “[t]he power to relieve mistakes shall be

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exercised with caution; to justify it, the evidence shall be clear, unequivocal, and

decisive as to the mistake.” OCGA § 23-2-21(c).

Pretermitting whether, as the appellants contend, the appellees had notice of

the mistake in the title instrument, we conclude that the evidence demonstrates that

the parties had earlier attempted to modify the security deed to include both parcels

in the legal description attached to the security deed and, per the stated purpose of the

modification, to “establish, state, clarify, and restate [the appellants]intention to grant

and convey” both parcels as security for the loan. OCGA § 23-2-25 allows a court of

equity to reforma conveyance, if the conveyance is, by accident or mistake, “contrary

to the intention of the parties in their contract.” In this case, it is clear that the parties

intended that both parcels be conveyed in the security deed, and although the

mistaken property description later carried over to the deed under power and the

special warranty deed, this does not contravene the original intent evinced by the

attempted joint modification that both parcels be enucumbered by the security deed. 

Moreover, contrary to the appellants’ contention that the mistake was

unilateral, the evidence demonstratesthat the parties were mutually mistaken that the

security deed included both parcels of land.

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A mutual mistake in an action for reformation means one in which

both parties had agreed on the terms of the contract, but by mistake . .

. the true terms of the agreement were not set forth. In other words, it is

the partiesto the original instrument that must be mutually mistaken for

reformation to occur. And here, [the appellants] presented

uncontroverted evidence that the mistake was mutual as to [them] and

[the appellees].

(Citation and punctuation omitted.) Kim v. First Intercontinental Bank, 326 Ga. App.

424, 428 (2) (a) (756 SE2d 655) (2014). 

As demonstrated by the evidence, the parties intended that both parcels be

encumbered by the security deed, and attempted to correct the mistake by way of the

modification, and “the negligence of the party complaining will not defeat his right

to reformation, if the other party has not been prejudiced thereby.” Aames Funding

Corp. v. Henderson, 275 Ga. App. 323, 324 (620 SE2d 503) (2005). The appellants

do not demonstrate how they would be prejudiced by the reformation, which would

only act to place the partiesin the same position they occupied before the foreclosure.

(b) Appellants further assert that the appellees are attempting an equitable

reformation as an alternative means to obtain a deficiency judgment and circumvent

the statutory reporting requirements of OCGA § 44-14-161 (a) because they did not

report the sale to the superior court within 30 days. In this case, however, the

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appellees were not seeking a deficiency judgment and “as to what appellant[s] fear[]

may arise at a future date, we have no authority to render an advisory opinion.”

(Citations and punctuation omitted.) Daniels v. Price Communications Wireless, 254

Ga. App. 559, 561 (1) (562 SE2d 844) (2002). Thus, this claim presents nothing for

our review. 

Accordingly, the trial court did not err in granting the appellees’ motion for

summary judgment on their complaint for declaratory judgment and equitable

reformation.

Judgment affirmed. McMillian and Mercier, JJ., concur.

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