From 2005 to 2008, Branch Banking & Trust Company BB&T and its predecessors made 16 loans for residential housing development to two companies Borrowers which executed promissory notes and deeds to secure debt. The notes were guaranteed by various other companies Guarantors which, along with Borrowers, were all controlled by the same individuals. After default on the notes, BB&T gave Borrowers notice of foreclosure as to nine of the notes and purportedly conducted non-judicial foreclosures on June 2, 2009. BB&T was the sole and winning bidder but, three days later, notified Borrowers that it rescinded any notices or actions taken with respect to the foreclosure and that the foreclosure sale had not been and would not be consummated. On June 22, 2009, BB&T brought suit against Borrowers and Guarantors Appellants for more than $19 million then due under the notes. BB&T also raised fraudulent transfer claims, and the trial court entered an interlocutory injunction to preserve the status quo, which was affirmed by this Court in SRB Investment Services v. Branch Banking and Trust Co. , 289 Ga. 1 709 SE2d 267 2011. On cross-motions for partial summary judgment, the trial court held that BB&T’s claims as to the nine notes were barred as improper deficiency actions due to its foreclosure sales on properties securing those notes and its failure to seek confirmation within 30 days of those sales as required by OCGA § 44-14-161 a. The trial court further held that the Statute of Frauds does not bar BB&T’s claims that the guaranty agreements entered in 2008 by three Guarantors 2008 Guarantors made them liable not only on the notes executed in 2008 but also as additional guarantors on the notes which were executed prior to 2008. The Court of Appeals reversed with respect to the former ruling and affirmed with respect to the latter. In Division 1 of its opinion, the Court of Appeals determined that acceptance of a bid at a foreclosure sale under power creates an oral contract which is subject to the Statute of Frauds, that BB&T, either as Borrowers’ attorney-in-fact or as the creditor on the notes, never executed a deed under power conveying Borrowers’ interest to itself or any writing showing that it had applied any foreclosure proceeds, and that rescinding the foreclosures did not harm Borrowers but left them in the same position as before the auctions. Legacy Communities Group v. Branch Banking & Trust Co. , 310 Ga. App. 466, 469-470 1 713 SE2d 670 2011. Under these circumstances, the Court of Appeals ruled, the transfer of Borrowers’ rights of possession and equity of redemption to BB&T as the foreclosure sale purchaser never occurred and, thus, there had been no foreclosure sale, confirmation was therefore not required, and the failure to seek confirmation could not bar BB&T’s claims. Legacy Communities Group v. Branch Banking & Trust Co. , supra at 470-471 1. In Division 2 of its opinion, the Court of Appeals held that, although the 2008 guaranties failed to identify the pre-2008 notes with the specificity required under the Statute of Frauds, the 2008 Guarantors are estopped by BB&T’s part performance from asserting that defense because BB&T performed an act essential to the contract by extending credit pursuant to the 2008 notes and because the 2008 Guarantors enjoyed the benefit of the bargain. Legacy Communities Group v. Branch Banking & Trust Co. , supra at 474-475 2. In Case Number S11G1728, we granted certiorari to consider Appellants’ contention that the Court of Appeals erred in Division 1. We granted certiorari in Case Number S11G1729 to consider the 2008 Guarantors’ contention that the Court of Appeals erred in Division 2.
S11G1728
