In ordering confirmation of foreclosure sale, it is a trial court's discretion to weigh credibility of expert appraiser's opinion.
On March 2, 2010, First Citizens Bank and Trust Company (Citizens) foreclosed on property supporting a loan made to REF Development, Inc. (REF). Citizens was the sole bidder at the foreclosure sale and purchased the property for $1,402,750. On March 31, 2012, Citizens filed a report of sale and petitioned the superior court for confirmation of the sale.
On April 1, 2011, a trial court held a confirmation hearing where both Citizens and REF presented competing expert appraisal testimony as to the property's value. Citizens' appraiser concluded that the value was $1,335,000, while REF's appraiser determined that the value was $1,695,000. After evaluating all of the evidence, the trial court determined that the true market value of the property was $1,335,000. REF appealed, arguing that the evidence did not support the trial court's confirmation of the sale and the trial court improperly ignored the expert testimony of its appraiser.
On appeal, the Court of Appeals of Georgia first noted, "value on the date of sale is a factual question to be resolved by the trier of fact, which is the judge in a confirmation proceeding." Then, the court of appeals addressed REF's argument that the evidence did not support the trial court's order of confirmation. Here, the court of appeals noted that Citizens' appraiser provided expert testimony in which he explained his methodologies, described the facts used in the appraisal, and gave his expert opinion on the true fair market value. As the trial court found the appraiser's opinion was not based on "sheer speculation," the court of appeals held that there was evidence to support the trial court's confirmation.
Next, the court of appeals turned to REF's argument that the trial court ignored the expert testimony of its appraiser. Here, the court of appeals found the trial court expressly indicated it had reviewed all the evidence. In fact, the trial court had reviewed the competing evidence and found the testimony of REF's appraiser to be less credible than Citizens' appraiser. Whereas Citizens' appraiser produced documents supporting the basis of his opinions, REF's appraiser stated that the basis of his opinion was "in his file at home."
Noting that the trial court "is the judge of credibility of the witnesses and of the weight to be given to the evidence," the Court of Appeals of Georgia affirmed the trial court's order confirming the sale.
REF Development, Inc. v. First Citizens Bank and Trust Co., Inc.
Court of Appeals of Georgia
June 26, 2012
2012 WL 2384722
I would like to acknowledge the contributions of my research assistant, Michael Brain, in the preparation of this column.
Alan M. Weinberger, JD, has been a professor at St. Louis University School of Law since 1987. Previously, he practiced for twelve years with law firms in Detroit and Washington, DC, where he specialized in real estate transfer, finance, and development. Weinberger graduated magna cum laude from the University of Michigan Law School. He has published articles and chapters in the fields of real estate finance, partnership, and property law. He is coauthor of Property Law Cases, Materials and Problems, 3rd ed., published by West Group. Contact: email@example.com
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|Title Annotation:||Recent Court Decisions|
|Author:||Weinberger, Alan M.|
|Date:||Sep 22, 2012|
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