Gibson Construction Company “Gibson” filed an action against GAA Acquisitions I, LLC, “GAA”, McNeil Management, LLC “McNeil Management”, and Ryan McNeil, alleging a claim to surplus funds from a foreclosure sale, conversion, wrongful foreclosure, and conspiracy, and seeking punitive damages.1 GAA filed a motion for summary judgment on all of Gibson’s claims and on its claim for declarative relief that it had asserted in its counterclaim. Gibson filed a cross motion for partial summary judgment on its claim to the excess proceeds and the conversion of those proceeds. Ruling from the bench, the trial court granted GAA’s motion for summary judgment on all of Gibson’s claims as well as on GAA’s counterclaim but denied its motion for attorney fees. The trial court also denied Gibson’s motion for partial summary judgment. Gibson appeals from the trial court’s order,2 and we affirm. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 c. A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.3 So viewed, the record shows that on or about May 10, 2005, McNeil Management obtained a loan from Charter Bank in the principal amount of $1,280,000 to purchase property. Gibson performed work on the property for which it was not paid. Gibson obtained a judgment and special lien against McNeil Management in the principal amount of $375,092, and filed its claim of lien on February 8, 2008. On or about April 1, 2008, Charter Bank notified McNeil Management that it was in default on the loan. Charter Bank advertised the foreclosure sale of the property in the Fulton County Daily Report on April 10, April 17, April 24, and May 5, with the intent to sell the property on the courthouse steps on May 6, 2008. On May 5, 2008, GAA contacted Charter Bank and purchased the loan, receiving a Transfer and Assignment of Security Deed, which was recorded on May 8, 2008. On May 6, 2008, in exchange for GAA’s agreement not to foreclose, McNeil Management and GAA executed the First Loan Modification Agreement the “Modification Agreement”, which provided that the original loan documents, including the security deed, would remain in full force and effect, except for the amendments specified in the Modification Agreement. The amendments included a provision that the attorney fees to be paid in event of default would be 15 percent of the principal and interest owed on the loan.4 The Modification Agreement also added a note modification fee of $25,000 to the security deed and increased the default interest rate. It is undisputed that the Modification Agreement was not recorded.
On May 15, 2008, GAA informed McNeil Management that it was in default and made a demand for payment of $1,048.948.42. GAA also informed McNeil Management that should it be forced to foreclose, attorney fees would be due in the amount of $157,042.26. GAA published its foreclosure notice. On July 1, 2008, Attorney Jon Erickson, on GAA’s behalf, auctioned the property on the courthouse steps, and there were no third-party bidders. GAA acquired the property in the form of a bid credit for less than the total sum owed, and recorded its Deed Under Power of Sale on the same day.
