[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-12779

Non-Argument Calendar

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D.C. Docket No. 1:11-cv-00821-SCJ

CLARENCE CARR, 

 Plaintiff-Appellant,

 versus

U.S. BANK, NA, 

as trustee for TBW Mortgage Backed-Trust

Series 2006-6 Mortgage Pass Through 

Certificates Series 2006-6, 

 Defendant-Appellee,

MORTGAGE ELECTRONIC REGISTRATION

SYSTEMS, INC.,

 Defendant.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(August 16, 2013)

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Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

Clarence Carr appeals the district court’s grant of summary judgment in 

favor of U.S. Bank on his wrongful foreclosure claim, in which he sought a 

declaration that the nonjudicial foreclosure sale of his home was void or, in the 

alternative, equitable rescission of the sale and damages. On appeal, Carr argues 

that he never received adequate notice that foreclosure proceedings had been 

instituted and also never received notice of the date of the nonjudicial foreclosure 

sale. After careful review, we affirm.

We review de novo a district court’s grant of summary judgment and apply 

the same standard used by the district court. Burton v. Tampa Hous. Auth., 271 

F.3d 1274, 1276 (11th Cir. 2001). The moving party has the burden to show “an 

absence of evidence to support the nonmoving party’s case.” Celotex v. Catrett, 

477 U.S. 317, 325 (1986). The nonmovant must then “go beyond the pleadings” 

and “designate specific facts showing that there is a genuine issue for trial.” Id. at 

324. The court views all evidence and factual inferences reasonably drawn from 

the evidence in the light most favorable to the nonmovant, and summary judgment 

is appropriate “if the pleadings, depositions, answers to interrogatories, and 

admissions on file” show that there is no genuine issue as to any material fact and 

that the moving party is entitled to judgment as a matter of law. Id. at 322.

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Under Georgia law, a debtor successfully challenging a wrongful foreclosure 

based on improper notice may either seek to set aside the foreclosure as invalid or 

sue for damages in tort. Calhoun First Nat’l Bank v. Dickens, 443 S.E.2d 837, 838 

(Ga. 1994). A plaintiff seeking damages must “establish a legal duty owed to it by 

the foreclosing party, a breach of that duty, a causal connection between the breach 

of that duty and the injury it sustained, and damages.” Heritage Creek Dev. v. 

Colonial Bank, 601 S.E.2d 842, 844 (Ga. Ct. App. 2004).

Georgia law permits non-judicial power of sale foreclosures “as a means of 

enforcing a debtor’s obligation to repay a loan secured by real property.” You v. 

JP Morgan Chase Bank, N.A., No. S13Q0040, 2013 WL 2152562, *2 (Ga. May 

20, 2013). Non-judicial foreclosures are governed primarily by contract law. Id. 

The statutory law governing non-judicial foreclosures in Georgia is codified in 

O.C.G.A. § 44-14-160 through § 44-14-162.4. Id. The statute defines debtor as 

“the grantor of the mortgage, security deed, or other lien contract.” O.C.G.A. § 44-

14-162.1. The statute refers to the other party to the foreclosure as the “secured 

creditor,” but does not define that term. You, 2013 WL 2152562 at *3; see 

generally O.C.G.A. §§ 44-14-160-162.4. The statutory requirements “consist 

primarily of rules governing the manner and content of notice that must be given to 

a debtor in default prior to the conduct of a foreclosure sale.” You, 2013 WL 

2152562 at *2.

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Pursuant to the statute, the following notice requirements must be given to 

the debtor prior to a foreclosure sale: 

[n]otice of the initiation of proceedings to exercise a power of sale in a 

mortgage, security deed, or other lien contract shall be given to the debtor by

the secured creditor no later than 30 days before the date of the proposed 

foreclosure. Such notice shall be in writing, shall include the name, address, 

and telephone number of the individual or entity who shall have full 

authority to negotiate, amend, and modify all terms of the mortgage with the 

debtor, and shall be sent by registered or certified mail or statutory overnight 

delivery, return receipt requested, to the property address or to such other 

address as the debtor may designate by written notice to the secured creditor. 

O.C.G.A. § 44-14-162.2(a). Additionally, the notice required by § 44-14-162.2(a) 

“shall be given by mailing or delivering to the debtor a copy of the notice of sale to 

be submitted to the publisher.” Id. § 44-14-162.2(b). Moreover, any real estate 

sale “under powers contained in mortgages, deeds, or other lien contracts [will not 

be] valid unless the sale [is] advertised and conducted at the time and place and in 

the usual manner of the sheriff’s sales in the county in which such real estate . . . is 

located.” Id. § 44-14-162(a). Within 90 days of the foreclosure sale, all deeds 

under power must be recorded by the holder of a deed to secure debt or a mortgage 

with the superior court clerk of the county where the property is located. Id. § 44-

14-160. At least one Georgia court has indicated that notice is proper so long as it 

substantially complies with the requirements of § 44-14-162.2. See TKW Partners, 

LLC v. Archer Capital Fund, LP, 691 S.E.2d 300, 303 (Ga. Ct. App. 2010). 

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In light of the limited statutory law governing non-judicial foreclosures, the 

Northern District of Georgia recently certified several questions to the Supreme 

Court of Georgia regarding the operation of Georgia’s law governing non-judicial 

foreclosures. You, 2013 WL 2152562 at *1-2. In answering one question, the 

Georgia Supreme Court concluded that “the holder of a deed to secure debt is 

authorized to exercise the power of sale in accordance with the terms of the deed 

even if it does not also hold the note or otherwise have any beneficial interest in 

the debt obligation underlying the deed.” Id. at *6. In answering another, the 

Georgia Supreme Court said that:

If that [individual with the authority to negotiate, amend, and modify the 

terms of the mortgage] is the holder of the security deed, then the deed 

holder must be identified in the notice; if that individual [with the authority] 

is the note holder, then the note holder must be identified. If that individual . 

. . is someone other than the deed holder or the note holder, such as an 

attorney or servicing agent, then that person . . . must be identified.

Id. Section 44-14-162.2(a) “does not require the individual or entity be expressly 

identified as having full authority” to modify the mortgage. TKW Partners, 691 

S.E.2d at 303 (quotation omitted). Instead, the notice only needs to inform the 

debtor of the contact information if he wishes to pursue a modification of the 

security deed. See id.

Here, Carr’s security deed contains slightly different provisions for what 

constitutes a valid notice prior to acceleration of the debt and foreclosure. See

Gordon v. S. Cent. Farm Credit, 466 S.E.2d 514, 515 (Ga. Ct. App. 1994) (holding 

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that a security deed with a power of sale is a contract, and that “its provisions are 

controlling as to the rights of the parties thereto” (quotation omitted)). The 

security deed provides that the notice must specify the default, the action required 

to cure the default, a date not less than 30 days from the date of the notice by 

which default must be cured, and that failure to cure the default by the specified 

date may result in sale of the property. It further says that if the power of sale is 

invoked, Carr must be given a copy of the foreclosure sale advertisement in the 

time and manner prescribed by applicable law. 

As for Carr’s argument that notice was improper because the two notice 

letters he received did not identify the secured creditor, we are unpersuaded. 

Indeed, the statute does not require that notice letters must identify the security 

creditor. You explains that § 44-14-162.2(a) only requires notice letters to identify 

the entity with the authority to modify the mortgage. Carr’s security deed likewise 

does not require the secured creditor to identify itself in a notice that foreclosure 

proceedings have been initiated. Carr’s two notice letters include the name, 

address, and telephone number of the loan servicer and instruct Carr to contact the 

loan servicer if he has servicing questions or if he intends to pay the full amount, 

and are thus in compliance with Georgia law. The two letters also fulfill the terms 

of the security deed. Both letters are thus valid notices.

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Nor are we persuaded by Carr’s claim that the two notice letters were sent 

too far in advance of the nonjudicial foreclosure sale and did not include a copy of 

the foreclosure sale advertisement. The statute and the security deed only require 

that the notice of the initiation of proceedings be sent at least 30 days in advance of 

the foreclosure sale, and do not impose any restrictions on how far in advance. See

O.C.G.A. § 44-14-162.2(a). Also, while the statute and the security deed require 

the secured creditor to send the debtor a copy of the foreclosure sale advertisement, 

neither requires that the copy of the foreclosure sale advertisement and the notice 

of initiation of proceedings be sent together. See id. § 44-14-162.2(b). In fact, the 

statute appears to contemplate that they will be mailed separately, as the notice of 

initiation of proceedings letter must be mailed certified, registered, or overnight, 

but the copy of the foreclosure sale ad need only be “mailed or delivered.” See id.

To the extent that Carr is arguing the letters were invalid notices because 

they did not identify a specific date of sale, the statute does not expressly require 

that a notice of the initiation of proceedings give this information. See id. § 44-14-

162.2(a). Instead, the statute requires, in similar fashion as the security deed, that 

notice of the actual date of sale be given by mailing a copy of the foreclosure sale 

advertisement. See id. § 44-14-162.2(b). Carr does not point to any evidence that 

he never received a copy of the foreclosure sale advertisement itself. U.S. Bank, 

however, submitted a copy of the Deed Under Power regarding the foreclosure sale 

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of Carr’s property which recites that notice was given pursuant to O.C.G.A. § 44-

14-162 et seq., and that a copy of the advertisement was mailed at least 30 days 

before the sale date. Thus, Carr received notice of the date of the foreclosure sale, 

through a copy of the foreclosure sale advertisement, as required by the statute.

Carr’s final argument -- that the notices were improperly sent by a law firm -

- fails because Georgia law permits agents to send notice on behalf of the secured 

creditor. See Reese v. Provident Funding Assoc., LLP, 730 S.E.2d 551 (Ga. Ct. 

App. 2012) (quoting with approval that it is “of no consequence who actually 

sends the notice, and that task may properly be delegated to a servicing agent (or, 

as is often the case, an attorney)” (quotation omitted)), vacated and remanded on 

other grounds, No. S12C2028 (Ga. May 20, 2013).

In short, the district court did not err in concluding that Carr failed to create 

a genuine issue of material fact as to whether he received adequate notice of the 

nonjudicial foreclosure sale. Further, because Carr has not shown a breach of duty 

with regard to U.S. Bank’s obligation to provide him with adequate notice, he is 

also is not entitled to damages. To the extent that Carr asserts a separate breach of 

duty, he does not challenge, in his initial brief on appeal, the district court’s 

conclusion that he had not shown any causal connection between any breach of 

duty and his damages. Accordingly, we affirm.

AFFIRMED.

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