Fei Zhong v. Pnc Bank, N.A. , 812 S.E.2d 514 ( 2018 )

FIFTH DIVISION
MCFADDEN, P. J.,
BRANCH and BETHEL, 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
March 13, 2018
In the Court of Appeals of Georgia
A17A1891. ZHONG v. PNC BANK, N. A. et al.
MCFADDEN, Presiding Judge.
This is the second appearance before us of this case, which arises from Fei
Zhong’s action for breach of contract, negligence, and wrongful foreclosure against
Wells Fargo Bank, N. A. and PNC Bank, N. A. In Zhong v. PNC Bank, N. A., 334 Ga.
App. 653 (780 SE2d 92) (2015) (Zhong I), we reversed the trial court’s grant of
summary judgment to Wells Fargo and PNC on the ground that the trial court based
his ruling on an erroneous legal theory — that Zhong could seek as damages only her
equity in the property at issue — and we remanded the case to the trial court for
further proceedings. On remand, and after further evidence and a hearing, the trial
court again granted summary judgment to Wells Fargo and PNC, and Zhong appeals.
As detailed below, Wells Fargo is not entitled to summary judgment because
the well-pled allegations of Zhong’s complaint — as to which Wells Fargo defaulted
— have established its liability and there exist genuine issues of material fact on the
amount of damages, which is the only question remaining for resolution. PNC, on the
other hand, is entitled to summary judgment on Zhong’s claims for breach of her
security deed and negligence based on a breach of its duties under the Real Estate
Settlement Procedures Act (RESPA), but it is not entitled to summary judgment on
Zhong’s claim for wrongful foreclosure. And although Zhong’s oral agreement with
PNC regarding her monthly payment is not enforceable, she has pointed to facts
allowing her to pursue a claim for breach of that agreement under the theory of
promissory estoppel.
We therefore affirm in part and reverse in part the trial court’s judgment.
1. Facts and procedural posture.
“We review a grant of summary judgment de novo and the evidence, and all
reasonable conclusions and inferences drawn from it, in the light most favorable to
the nonmovant.” Zhong I, 334 Ga. App. at 653 (1) (citation omitted). So viewed, the
evidence at the time of Zhong I showed:
2
Zhong purchased the property, a house, in 2004 for $600,000. She
first lived in the house and then leased it to tenants. In 2005, PNC
bought the loan Zhong used to purchase the property.
For more than six years, Zhong paid her mortgage without
incident. On March 31, 2010, PNC paid Zhong’s delinquent 2009
property taxes, more than $11,000. Months later, PNC informed Zhong
that she had an escrow shortage of $23,310.98 that had to be paid over
12 months. It established an escrow account and informed her that her
monthly payment would be increased to $5,527.06. Zhong’s payment
had been $2,731.11. Zhong immediately called PNC to ask for an
explanation and was told that PNC would investigate the matter but she
should keep making the current payment.
In November 2010, Zhong paid $2,731.11, which PNC applied to
principal and interest, but asked Zhong to pay the difference of
$2,795.97. In December 2010 and January 2011, Zhong paid $2,838.92,
which PNC applied to the negative escrow balance. PNC wrote Zhong,
notifying her of the insufficiency of the payments, in letters mailed to
the property address. Zhong again contacted PNC, not having received
an explanation from the investigation that PNC earlier had promised, to
ask how PNC determined the amount owed and for an explanation of the
escrow account.
Eventually PNC told Zhong that the increase reflected an increase
in her escrow payment but it did not explain why the increase was
necessary. In January 2011, PNC and Zhong agreed that Zhong would
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make payments of $3,891.98 for the next five years, retroactive to
December 2010, and PNC sent Zhong a coupon book reflecting
payments due in that amount, with the first coupon due February 2011.
The day after reaching that agreement, on January 28, 2011,
Zhong made a payment of $3,891.98. PNC returned the check, with a
letter stating that the payment did not “meet current acceptance
guidelines.” Zhong mailed payments of $3,891.98 in February and
March 2011 through an overnight delivery service and using her online
banking account, but PNC returned the payments. Zhong again
contacted PNC for an explanation, but received none. She hired counsel
and instructed PNC to direct all communication to him.
In the meantime, on January 20, 2011, PNC sent a letter to Zhong
at the property address that she was in breach and that if she failed to
pay a $16,990.96 deficiency by February 19, 2011, it would accelerate
the loan. In March 2011, PNC wrote Zhong that she owed $560,000,
that Wells Fargo was the creditor, and that PNC was the servicer. Zhong
called the number listed on the letter, but received no explanation. Her
attorney contacted PNC, and eventually PNC said that it would forebear
foreclosure. Per PNC’s request, Zhong repeatedly submitted a hardship
application and related documents.
In 2012, Wells Fargo foreclosed on the property. Neither Zhong
nor her counsel received notice of the foreclosure sale, which was sent
to the vacant property address even though Zhong had instructed PNC
to direct all communications to counsel. As a result, Zhong lost the
4
property, her credit was damaged, and she was “devastat[ed] and
embarrass[ed].”
Zhong I, 334 Ga. App. at 653-654 (1). We also described in our prior opinion the
procedural posture of Zhong’s first appeal:
Zhong filed this action against PNC and Wells Fargo, claiming
breach of contract, wrongful foreclosure, and negligence, and seeking
damages, punitive damages, and attorney fees. Wells Fargo did not
timely answer the complaint, and the trial court entered default against
it.
Wells Fargo and PNC filed separate motions for summary
judgment. The trial court conducted a hearing, received supplemental
briefing, and granted the defendants summary judgment. The court ruled
that, in the face of the evidence of Zhong’s lack of equity, her failure to
point to specific evidence that she had equity in the property entitled the
defendants to summary judgment. Although the order did not
specifically address the negligence or breach of contract claims, the trial
court directed the clerk to close the case.
Zhong I, 334 Ga. App. at 654-655 (1).
On appeal in Zhong I, we reversed the grant of summary judgment to Wells
Fargo and PNC, holding that “[t]he trial court erred by adopting the argument that
Zhong’s damages were limited to equity in the property and that because she had no
5
equity, the defendants were entitled to summary judgment.” Zhong I, 334 Ga. App.
at 655 (2). Because the trial court did not address other arguments Wells Fargo and
PNC had raised in their summary judgment motions, we remanded the case for further
proceedings not inconsistent with our opinion. Id. at 656 (2).
On remand, the trial court reopened discovery, which explored the nature of
Zhong’s claimed damages, among other things. Zhong stated in response to
interrogatories that she was damaged by the wrongful foreclosure in several respects,
including: “losing her custom-built dream house . . . , the money she put into the
house and its value, damage to her credit, . . . damage to her overal[l] well-being, and
damage from having to go through the entire ordeal.” As to her credit, she gave
deposition testimony1 that there is a “negative thing on [her] credit report” from the
foreclosure and that the limits on several of her credit cards were severely curtailed,
other credit cards were closed, and her current credit status prevents her from renting
an apartment or obtaining a car loan. But she could not testify to a specific calculation
1
We note that the appellate record contains only a few pages excerpted from
Zhong’s two-day deposition. The record indicates that the parties did not file the
entire deposition with the trial court. While parties may file deposition excerpts in
support of or opposition to summary judgment, see Blake v. KES, Inc., 329 Ga. App.
742, 745 (1) (a) (766 SE2d 138) (2014), our review on appeal is limited to the
evidence in the record. Community Newspaper Holdings v. King, 299 Ga. App. 267,
270 (1) n. 9 (682 SE2d 346) (2009).
6
of the damage she sustained from the damaged credit. Zhong also testified that the
experience of losing her house in the foreclosure caused her physical and emotional
pain and suffering.
2. Summary judgment to Wells Fargo.
(a) Enumeration of errors.
Zhong enumerates as error the trial court’s grant of summary judgment to Wells
Fargo. As an initial matter, we reject Wells Fargo’s assertions that “[t]his enumeration
failed to identify any specific error of law or fact” by the trial court and that Zhong
“did not appeal” certain aspects of the trial court’s summary judgment order. “An
error of law has as its basis a specific ruling made by the trial court.” Felix v. State,
271 Ga. 534, 539 (523 SE2d 1) (1999). The trial court’s grant of summary judgment
to Wells Fargo is a specific ruling made by the trial court, and Zhong’s enumeration
of that ruling as error is sufficient to place that ruling before us for review. Zhong is
not required to enumerate as error the individual facets of her attack on that ruling.
Felix, supra at 539-540.
(b) Default.
As detailed below, the trial court erred in granting summary judgment to Wells
Fargo. Earlier in the proceeding, the trial court entered a default judgment against
7
Wells Fargo because Wells Fargo did not timely answer Zhong’s complaint.
Consequently, Wells Fargo has “admitted each and every well-pled material factual
allegation of [Zhong’s] complaint, except as to the amount of damages alleged.”
Hooker v. Roberson, 316 Ga. App. 345 (1) (729 SE2d 484) (2012) (citations omitted).
Accord Cohran v. Carlin, 254 Ga. 580, 585 (3) (331 SE2d 523) (1985); Hope Elec.
Enterprises v. Proforce Staffing, 268 Ga. App. 302, 303 (2) (601 SE2d 723) (2004).
Nevertheless,
[a]lthough a default operates as an admission of the well-pled factual
allegations of the complaint, it does not admit allegations not well pled,
forced inferences, or conclusions of law. Default does not preclude [a]
defendant[ ] from showing that under the facts as deemed admitted, no
claim exists which would allow the plaintiff to recover.
Standridge v. Spillers, 263 Ga. App. 401, 404 (2) (587 SE2d 862) (2003) (citation and
punctuation omitted). Accord Willis v. Allstate Ins. Co., 321 Ga. App. 496, 498 (740
SE2d 413) (2013). Wells Fargo argues that under the facts as deemed admitted,
Zhong cannot recover against it. We disagree.
Zhong alleged in her complaint that Wells Fargo foreclosed on her property
even though she had informed the loan servicer, PNC, that “she was ready, willing,
and able to comply with her loan obligations and tender payments as agreed” and had
8
made monthly payments in an amount to which PNC had agreed. She alleged that
Wells Fargo foreclosed without giving her notice in compliance with OCGA § 44-14-
162.2, and that Wells Fargo foreclosed without having a recorded interest in the
property. She alleged that she suffered damages as a result of the foreclosure and of
Wells Fargo’s breach of its statutory duties. “The facts as alleged in the complaint,
together with the fair inferences and conclusions of fact to be drawn from those
allegations, support [Zhong’s] claim[s and] provide ample evidence to support the
conclusion of law reached in [Zhong’s] complaint — that is, that [Wells Fargo’s]
conduct was the proximate cause of [Zhong’s] injuries.” Freese II v. Mitchell, 318
Ga. App. 662, 665 (2) (734 SE2d 491) (2012) (citation and punctuation omitted). See
Roylston v. Bank of America, N. A., 290 Ga. App. 556, 559 (1) (b) (660 SE2d 412)
(2008) (physical precedent only) (“Where a foreclosing creditor fails to comply with
the statutory duty to provide notice of sale to the debtor in accordance with OCGA
§ 44-14-162 et seq., the debtor . . . may sue for damages for the tort of wrongful
foreclosure.”) (citation omitted). See also Babalola v. HSBC Bank, USA, N. A., 324
Ga. App. 750, 752-753 (2) (a) (751 SE2d 545) (2013) (allegations of complaint that
lender and loan servicer failed to provide borrower with notice required by OCGA
§ 44-154-162.2 sufficiently stated claim of wrongful foreclosure to avoid dismissal);
9
Azarat Mktg. Group v. Dept. of Administrative Affairs, 245 Ga. App. 256, 258 (1) (b)
(537 SE2d 99) (2000) (in considering sufficiency of allegations in complaint to which
defendant has defaulted, we resolve all doubts in favor of plaintiff, as we would on
motion to dismiss for failure to state claim); Southwest Community Hosp. & Med.
Center v. Thompson, 165 Ga. App. 442, 443 (3) (301 SE2d 501) (1983) (“The
element of proximate cause . . . having been alleged in plaintiff’s complaint is
admitted due to the default of defendant and requires no further proof.”); Flanders
v. Hill Aircraft & Leasing Corp., 137 Ga. App. 286, 289 (223 SE2d 482) (1976) (by
defaulting, defendant admitted proximate causation of alleged injuries).
(c) Damages.
Wells Fargo argues that the well-pled allegations in the complaint do not show
that Zhong was damaged. But Zhong alleged in her complaint that she sustained
damage in several respects, including “damage to her credit and reputation for
creditworthiness.” Wells Fargo argues that, as a matter of law, Zhong cannot seek to
recover this type of damage in a wrongful foreclosure claim under state law. In Zhong
I, however, we held this type of damage to be legally compensable in this case. Zhong
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I, 334 Ga. App. at 655 (2). Our ruling that Zhong can seek to recover for damage to
her credit standing is law of this case and therefore binding in this proceeding. See
OCGA § 9-11-60 (h).2
Moreover, contrary to Wells Fargo’s argument, Zhong’s allegation that she
sustained damage, including damage to her credit standing, is an allegation of fact,
not a legal conclusion. See Aldworth Co. v. England, 286 Ga. App. 1, 2 (1) (648 SE2d
198) (2007) (whether plaintiff suffered harm as result of defendant’s tortious act or
omission is a fact question that can be deemed admitted through default). So by virtue
of the default, Wells Fargo has admitted Zhong’s allegation that she sustained
damage, including damage to her credit standing, and at this stage in the proceeding
Wells Fargo cannot contest the factual basis of that allegation. See Cohran, 254 Ga.
at 585 (3). “The default concludes [Wells Fargo’s] liability, and estops [it] from
offering any defenses which would defeat [Zhong’s] right of recovery.” Id. (citations
omitted). Zhong is not required, to avoid summary judgment, to produce any evidence
2
Wells Fargo asserts that we also implied in Zhong I that Zhong may not have
any damages, and it argues that we should treat this implication as the law of the case.
While we disagree with this interpretation of our earlier decision, even if the decision
contained that implication it is not the law of the case. The law of the case rule,
OCGA § 9-11-60 (h), does not encompass implied rulings. See Currid v. DeKalb
State Court Probation Dept., 285 Ga. 184, 186 n. 5 (674 SE2d 894) (2009).
11
of the fact that she was damaged with respect to her credit standing (or in any other
way), because she alleged in her complaint that she was damaged and Georgia law
entitles her to judgment as if her allegations “were supported by proper evidence.”
OCGA § 9-11-55 (a). See Southwest Community Hosp. & Med. Center, 165 Ga. App.
at 443 (3) (where elements of claim are admitted by virtue of defendant’s default,
plaintiff is not required to prove them).
What remains for resolution is the amount of damages Zhong sustained. This
is a distinct question from whether Zhong sustained damages. Wells Fargo argues that
Zhong has not presented evidence from which a jury could determine the amount of
her damages. See OCGA § 9-11-55 (a) (when a case in default involves unliquidated
damages, “the plaintiff shall be required to introduce evidence and establish the
amount of damages”). A plaintiff seeking compensatory damages is “not required to
present evidence of a specific dollar amount of damages to avoid summary judgment,
but [she is] required to present evidence sufficient to serve as the basis for a factfinder
to calculate the amount of damages due [her after] liability [is] established.” Pollman
v. Swan, 289 Ga. 767, 768 (2) (716 SE2d 191) (2011). But we need not reach the
issue of whether Zhong presented evidence that would support an award of
compensatory damages because the record, viewed in the light most favorable to
12
Zhong, supports the possibility that she could recover nominal damages and punitive
damages even if a jury is unable to determine the amount of her compensatory
damages.
Nominal damages are available to a successful plaintiff in a wrongful
foreclosure case. See Hodson v. Whitworth, 173 Ga. App. 863, 864 (1) (328 SE2d
753) (1985) (finding, in wrongful foreclosure case, that “a verdict for nominal
damages was authorized but not demanded”). See generally OCGA § 51-12-4
(“Damages are given as compensation for injury; generally, such compensation is the
measure of damages where an injury is of a character capable of being estimated in
money. If an injury is small or the mitigating circumstances are strong, nominal
damages only are given.”); Williams v. Harris, 207 Ga. 576, 579 (2) (63 SE2d 386)
(1951) (“The law infers some damage from the invasion of a property right; and if no
evidence is given of any particular amount of loss, it declares the right by awarding
what it terms ‘nominal damages.’”) (citations omitted). Wells Fargo argues that
Zhong is not entitled to nominal damages because the allegations in her complaint did
not establish that she was injured or that her injuries were proximately caused by
Wells Fargo’s tortious act. See Whiteside v. Decker, Hallman, Barber & Briggs, P.
C., 310 Ga. App. 16, 20 (2) (712 SE2d 87) (2011) (“In the absence of specific proof
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of the amount of damages flowing from a tortious act, general or nominal damages
may be inferred, but the defendant’s liability for the damages must be established,
including proof that the tortious act was the proximate cause of some actual loss.”)
(citation omitted). But as discussed above, the complaint allegations, deemed
admitted by virtue of Wells Fargo’s default, are sufficient on the issue of Wells
Fargo’s liability for damages. While Wells Fargo may “dispute the amount of
damages even to the point of showing their nonexistence, [it may] not . . . deny the
admitted injuries or its liability therefor.” Flanders, 137 Ga. App. at 289 (citation
omitted; emphasis supplied).
Wells Fargo also argues that Zhong is not entitled to nominal damages because
she did not specifically plead them in her complaint. In support of this argument, it
cites a decision of our Supreme Court, Haber, Blum, Bloch Hat Co. v. Southern Bell
Tel. & Tel., 118 Ga. 874 (45 SE 696) (1903), that predates the 1966 enactment of our
Civil Practice Act. “Under the Civil Practice Act it is not necessary to pray
specifically for general or nominal damages in order to present a question for the jury
as to nominal damages. All that is now necessary is that the plaintiff raise the issue
during the trial so that it may be presented to the jury.” Bishop v. Intl. Paper Co., 174
Ga. App. 863, 864 (1) (332 SE2d 12) (1985) (citation, punctuation, and emphasis
14
omitted). In discovery following remand, Zhong asserted that she seeks nominal
damages, among other types of damage.
Punitive damages are also potentially available to Zhong. We held in Zhong I
that “sufficiently culpable conduct may present a jury issue as to punitive damages”
in this case. Zhong, supra, 334 Ga. App. at 655 (2) (citations omitted). Moreover,
“punitive damages may be awarded even when actual damages are small,” Tyler v.
Lincoln, 272 Ga. 118, 121 (1) (527 SE2d 180) (2000) (citation omitted), and they may
be awarded in a case where the plaintiff receives nominal but not actual damages. See
Hosp. Auth. of Gwinnett County v. Jones, 261 Ga. 613, 614-615 (1) (409 SE2d 501)
(1991). “Whether the circumstances were sufficiently aggravating to authorize
punitive damages is a jury question.” Dow Chemical Co. v. Ogletree, 237 Ga. App.
27, 32 (3) (514 SE2d 836) (1999) (citation omitted).
“Liability having been established [through the default], the possible recovery
by [Zhong] of at least nominal [and punitive] damages was sufficient to preclude the
grant of summary judgment in favor of [Wells Fargo].” Bishop, 174 Ga. App. at 864
(1) (citation omitted). We therefore reverse the grant of summary judgment to Wells
Fargo.
3. Summary judgment to PNC.
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Zhong brought claims for breach of contract, negligence, and wrongful
foreclosure against PNC. The trial court granted summary judgment to PNC on all of
Zhong’s claims. As detailed below, we find that PNC is entitled to summary judgment
on the claim that it breached the security deed but we find that Zhong may pursue a
claim for promissory estoppel. We further find that PNC is entitled to summary
judgment on the claim for negligence based on a RESPA violation but not on the
claim for wrongful foreclosure.
(a) Breach of contract — security deed.
Zhong argues that a genuine issue of material fact exists as to whether PNC
breached the terms of her security deed in the way that PNC treated Zhong’s
outstanding tax obligation. We disagree.
It is undisputed that PNC paid Zhong’s delinquent property taxes and then
recalculated Zhong’s monthly escrow payment to include a repayment of that amount.
The security deed permitted PNC to pay Zhong’s delinquent property taxes, which
were “Escrow Items” under the deed, and to demand repayment. Section 3 of the
security deed provided: “If . . . Borrower fails to pay the amount due for an Escrow
Item, Lender may exercise its rights under Section 9 and pay such amount and
Borrower shall then be obligated under Section 9 to repay to Lender any such
16
amount.” Section 9 of the security deed permitted PNC to “do and pay for whatever
is reasonable or appropriate to protect [its] interest in the Property and rights under
this Security Instrument,” and it provided that: “Any amount disbursed by Lender
under this Section 9 shall become additional debt of Borrower secured by this
Security Instrument. These amounts shall bear interest at the Note rate from the date
of disbursement and shall be payable, with such interest, upon notice from Lender to
Borrower requesting payment.”
Zhong does not appear to challenge that PNC could demand repayment under
the security deed; instead, she argues that, because the security deed required
repayment to become additional secured debt, PNC was not authorized to incorporate
that amount into her monthly escrow payments. We discern no such prohibition in the
security deed. The deed’s plain language permitted PNC to demand repayment of the
amount it paid for Zhong’s taxes, with interest, at any time, so long as it gave notice
to Zhong of its request. Nothing in the deed precluded PNC from allowing Zhong to
make this payment over time, incorporated into her monthly payments, rather than as
a single payment.
Zhong argues that the notice she received from PNC regarding repayment of
the delinquent taxes was confusing and unhelpful. But she does not argue that this
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notice itself constituted a breach of the security deed. Moreover, PNC has pointed to
evidence that it informed Zhong by letter that it would be paying her delinquent taxes,
that it estimated the amount of those taxes, with service fee, to be $10,300.37, and
that the estimated amount would “be reflected in your next escrow analysis.” There
is evidence that PNC’s subsequent written demands for escrow payments included a
line item for “Prorated Escrow Shortage.” A written escrow disclosure statement that
PNC sent Zhong in late January 2011 expressly states that her monthly payment is
calculated to address an escrow shortage. Zhong has neither argued nor pointed to
evidence to show that these communications failed to constitute the “notice . . .
requesting payment” contemplated in § 9 of the security deed. See generally Cowart
v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (when, in support of
summary judgment motion, defendant presents evidence negating an essential
element of plaintiff’s claim, plaintiff must point to specific evidence giving rise to
triable issue).
(b) Breach of contract — agreement regarding monthly payment.
Zhong argues that a genuine issue of material fact exists as to whether PNC
breached its agreement to accept monthly payments in the amount of $3,891.98. As
detailed below, although the agreement is unenforceable on account of the statute of
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frauds, summary judgment is not appropriate because Zhong may proceed under the
doctrine of promissory estoppel. See generally 20/20 Vision Center v. Hudgens, 256
Ga. 129, 135 (7) n. 6 (345 SE2d 330) (1986) (reversing dismissal of complaint
because its allegations could support relief under theory of promissory estoppel,
although complaint did not raise that argument); U. S. Foodservice v. Bartow County
Bank, 300 Ga. App. 519, 522 (2) (685 SE2d 777) (2009) (applying 20/20 Vision
Center, supra, in resolving appeal from denial of summary judgment, where
complaint did not expressly set forth promissory estoppel argument but did allege
facts that, if proved, could entitle plaintiff to relief under that doctrine).
(i) Statute of frauds.
Our analysis of Zhong’s claim that PNC breached an agreement about her
monthly payment requires a more detailed discussion of the relevant evidence.
Viewed in the light most favorable to Zhong, the evidence3 shows that after PNC
informed Zhong that it was increasing her monthly mortgage payment from $2,795.95
to $5,527.06, she called PNC and was told to “keep paying [her] current mortgage
payment in the amount of $2,795.95 until PNC could investigate the issue.” In
3
The evidence on summary judgment includes the facts alleged in Zhong’s
verified complaint that are within her personal knowledge. See Moore v. Goldome
Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988).
19
December 2010, PNC notified Zhong that she had a shortage in her escrow account.
Zhong was unable to obtain from PNC an explanation of the shortage. Ultimately,
PNC informed Zhong that it needed to increase her escrow payment but gave her no
substantive reason for the increase. On January 20, 2011, PNC sent Zhong a demand
letter informing her of the amount she needed to pay to make her loan current. Several
days later, on January 27, 2011, Zhong spoke with a representative of PNC about the
situation. Zhong disputed the higher monthly payment as unreasonable and incorrect,
and the PNC representative “agreed that PNC’s actions seemed problematic and
unreasonable.” Zhong stated that, although she “disputed PNC’s actions,” she wanted
to “resolve the issue[.]” Zhong and the PNC representative “agreed that [Zhong]
would make all future payments in the amount of $3,891.98” and that “this is all
[she] needed to do, and the situation would be considered resolved.” (Emphasis
supplied.)
Zhong immediately made a payment of $3,891.98 to PNC, and shortly
afterward she received an escrow disclosure statement and a coupon booklet from
PNC reflecting that her monthly payments were to be $3,891.98. Zhong subsequently
made several other $3,891.98 payments. But notwithstanding the January 27
agreement, PNC refused to cash any of these payments on the ground that they did
20
not “meet current acceptance guidelines.” PNC’s letters rejecting the payments did
not explain what action Zhong could take to make her loan current.
After Zhong was unable to obtain an explanation from PNC about why it was
refusing to accept the agreed-to payments, she hired an attorney. In March 2011,
Zhong received a demand letter for $560,000, which she forwarded to her attorney.
Zhong’s attorney informed PNC in writing that PNC was to address all future
correspondence about the loan to him. PNC was not able to adequately explain the
situation with Zhong’s loan to the attorney. However, PNC informed him that Zhong
should submit certain documents, which would “require PNC to perform an internal
audit of the situation, halt the foreclosure procedure, and put [the attorney] in contact
with someone with power to rectify the situation.” Zhong submitted the requested
forms multiple times.
On January 20, 2012, PNC sent a notice of foreclosure to the address of
Zhong’s property. Zhong was not living at the property and did not receive the notice.
PNC did not send the notice of foreclosure to Zhong’s attorney.
Zhong argues that PNC breached its January 27, 2011 agreement to accept
monthly payments in $3,891.98 on her loan. We agree with PNC, however, that the
January 27 agreement was not an enforceable contract. Assuming without deciding
21
that Zhong’s agreement to pay $3,891.98 in resolution of her dispute with PNC was
sufficient consideration, but see Citizens Trust Bank v. White, 274 Ga. App. 508, 511
(1) (618 SE2d 9) (2005) (“An agreement on the part of one to do what he is already
legally bound to do is not a sufficient consideration for the promise of another.”)
(citations and punctuation omitted), the agreement does not satisfy the statute of
frauds.
The statute of frauds requires contracts for an interest in or concerning lands
to “be in writing and signed by the party to be charged therewith or some person
lawfully authorized by him.” OCGA § 13-5-30 (4). We do not address whether the
January 27 agreement falls within the purview of this provision because Zhong
appears to concede that point; in her opposition to summary judgment before the trial
court and in her appellate briefs before this court she has offered no argument to the
contrary. Instead, she offers two arguments for why the statute of frauds does not
render her agreement with PNC unenforceable. Neither argument has merit.
First, Zhong argues that the escrow analysis and coupon book, sent to her by
PNC, satisfied the requirement that the agreement be in writing. These documents
showed the agreed-to monthly payment of $3,891.98 and provided payment
instructions and other information related to the monthly payment. But the case
22
Zhong cites for the proposition that we should treat these documents as being
“signed” by PNC — Kohlmeyer & Co. v. Bowen, 126 Ga. App. 700 (192 SE2d 400)
(1972) — is inapposite. That case concerns what constitutes a writing within the
context of Georgia’s Commercial Code, which does not apply here. See You v. JP
Morgan Chase Bank, N. A., 293 Ga. 67, 73 (1) (743 SE2d 428) (2013). Even if the
coupon book could satisfy the signature requirement, it does not contain the term
crucial to Zhong’s claim, that the $3,891.98 monthly payment was “all [Zhong]
needed to do” to “resolve” the dispute concerning her debt.
Alternatively, Zhong argues that the January 27 agreement falls within one of
the exceptions to the statute of frauds provided in OCGA § 13-5-31. Pertinently, that
Code section states that the writing requirement of the statute of frauds does not
extend to cases “[w]here there has been performance on one side, accepted by the
other in accordance with the contract[,]” OCGA § 13-5-31 (2), or to cases “[w]here
there has been such part performance of the contract as would render it a fraud of the
party refusing to comply if the court did not compel a performance.” OCGA § 13-5-
31 (3). Neither statutory exception applies here. As to OCGA § 13-5-31 (2), even if
Zhong’s tender of a $3,891.98 payment constituted full performance on her side of
the agreement, it is undisputed that PNC did not accept that performance. (Zhong, of
23
course, does not argue that PNC fully performed its side of the agreement.) As to
OCGA § 13-5-31 (3), the part performance must be sufficient as a matter of law to
establish the essential element sought to be proved. Tampa Investment Group v.
Branch Banking & Trust Co., 290 Ga. 724, 729-730 (2) (723 SE2d 674) (2012). The
element Zhong seeks to prove is PNC’s promise that if Zhong made the $3,891.98
monthly payments PNC would not require anything else of her to resolve the dispute
and bring her loan current. Neither PNC’s act of sending payment coupons reflecting
the $3,891.98 amount nor Zhong’s act of making payments in that amount establishes
that PNC promised not to require anything else of Zhong. For these reasons, under
the statute of frauds the January 27 agreement is not enforceable as a contract.
(ii) Promissory estoppel.
Nevertheless, Zhong may proceed against PNC under the doctrine of
promissory estoppel, which is not barred by the statute of frauds. See Sun-Pacific
Enterprises v. Girardot, 251 Ga. App. 101, 105 (2) (553 SE2d 638) (2001).
“[A]lthough [Zhong] did not expressly set forth a promissory estoppel argument in
[her] complaint . . . the complaint did allege facts that, if proved, could entitle [her]
to relief under this doctrine[.]” U. S. Foodservice, supra 300 Ga. App. at 522 (2)
(citation omitted). Moreover, Zhong expressly argued the issue of promissory
24
estoppel in her opposition to summary judgment. See id. (because defendant “did
argue elements of promissory estoppel” in its summary judgment opposition brief, we
could consider on appeal the merits of the promissory estoppel argument).
Under the doctrine of promissory estoppel, “[a] promise which the promisor
should reasonably expect to induce action or forbearance on the part of the promisee
or a third person and which does induce such action or forbearance is binding if
injustice can be avoided only by enforcement of the promise.” OCGA § 13-3-44 (a).
To recover for promissory estoppel, a plaintiff must show:
(1) the defendant made a promise or promises; (2) the defendant should
have reasonably expected the plaintiff to rely on such promise; (3) the
plaintiff relied on such promise to [her] detriment; and (4) an injustice
can only be avoided by the enforcement of the promise, because as a
result of the reliance, plaintiff changed [her] position to [her] detriment
by surrendering, forgoing, or rendering a valuable right.
Hendon Properties, LLC v. Cinema Dev., LLC, 275 Ga. App. 434, 438-439 (2) (620
SE2d 644) (2005) (citation and punctuation omitted). “Promissory estoppel claims are
extremely fact specific and are not susceptible to application of general rules.”
DPLM, Ltd. v. J. H. Harvey Co., 241 Ga. App. 219, 220 (1) (526 SE2d 409) (1999)
(citation and punctuation omitted).
25
The evidence gives rise to genuine issues of material fact that permit Zhong to
proceed on a promissory estoppel claim. Viewed in Zhong’s favor, there is evidence
from which a jury could find that: PNC promised her that if she made monthly
payments of $3,891.98 going forward she would not be in default on her loan
obligations; PNC reasonably should have expected Zhong to believe that it would
adhere to its promise regarding the payments on her account; Zhong relied on that
promise by making payments in that amount rather than paying the higher amounts
demanded in correspondence from PNC that predated the January 27 agreement; as
a result of her reliance on the promise that the $3,891.98 payments were all she
needed to do, Zhong did not take other steps that could have saved her house from
being lost to foreclosure; and injustice could only be avoided by enforcing the
promise. Consequently, PNC is not entitled to summary judgment on this claim.
(c) Negligence.
Zhong argues that the trial court erred in granting summary judgment to PNC
on her claim for negligence because there is evidence showing that PNC failed to
communicate information to her as required by the Real Estate Settlement Procedures
Act (RESPA), 12 USC § 2601 et seq. We do not agree.
26
Zhong argues that PNC breached a duty set forth in RESPA to respond to her
inquiries about her loan, pointing to evidence that PNC did not meet specific five-
and thirty-day deadlines imposed by the current version of that statute. See 12 USC
§ 2605 (e) (1) (A) & (2). She further argues that Georgia law entitled her to pursue
the alleged RESPA breach as a private cause of action. See OCGA § 51-8-1. But as
PNC points out, the version of RESPA in effect during the period when Zhong
alleges the violations occurred (spring of 2011) provided PNC with longer time
frames in which to respond. See 12 USC § 2605 (e) (2011) (providing for 20- and 60-
day deadlines). Zhong has pointed to no evidence that PNC failed to comply with
these longer time frames. So we affirm the grant of summary judgment to PNC on
Zhong’s negligence claim based on the alleged RESPA violation.
(d) Wrongful foreclosure.
Zhong argues that the trial court erred in granting summary judgment to PNC
on her claim for wrongful foreclosure because there is evidence showing that PNC
failed to provide notice of the foreclosure to her in compliance with OCGA § 44-14-
162.2.4 We agree.
4
To the extent that Zhong has alleged a separate claim of negligence based on
this failure to provide the statutorily-required notice, we treat that claim as part of her
wrongful foreclosure claim.
27
“In Georgia, a plaintiff asserting a claim for wrongful foreclosure 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.” Thompson-El v. Bank of America, N. A., 327 Ga. App. 309, 310 (2) (759
SE2d 49) (2014) (citation and punctuation omitted). As the assignee of Zhong’s
security deed, PNC owed Zhong the duty to comply with Georgia’s foreclosure
statute, including its provisions regarding notice. See Calhoun First Nat. Bank v.
Dickens, 264 Ga. 285, 286 (2) (443 SE2d 837) (1994); Thompson-El, supra at 310-
311 (2).
Georgia’s foreclosure statute provides that “[n]o sale of real estate under
powers contained in mortgages, deeds, or other lien contracts shall be valid . . . unless
notice of the sale shall have been given as required by Code Section 44-14-162.2.”
OCGA § 44-14-162 (a). That Code section pertinently requires:
Notice 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 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.
28
OCGA § 44-14-162.2 (a) (emphasis supplied). “The plain language of OCGA § 44-
14-162.2 (a) requires the secured creditor send notice to the property address unless
the debtor designates in writing another address.” Farris v. First Financial Bank, 313
Ga. App. 460, 464 (2) (722 SE2d 89) (2011) (citations and punctuation omitted;
emphasis supplied). See Mbigi v. Wells Fargo Home Mtg., 336 Ga. App. 316, 318 (1)
(a) (785 SE2d 8) (2016) (allegation that bank failed to send foreclosure notice to
address that borrower had provided to bank in writing was sufficient to state claim
for wrongful foreclosure) (physical precedent only).
The evidence viewed in the light most favorable to Zhong shows that neither
she nor her attorney received notice of the foreclosure. There is evidence, however,
that a law firm working on behalf of PNC sent notice by certified mail to the property
address. Zhong argues that this notice did not satisfy OCGA § 44-14-162.2 (a)
because, through her attorney, she had designated in writing another address for the
notice. In more than one letter from Zhong’s attorney to PNC, the attorney stated in
writing, “Please direct any and all future correspondence regarding this matter to
me[,]” and designated as the “matter” Zhong’s loan (identifying it by number) and her
property address. PNC received the attorney’s letters.
29
PNC argues that this designation of a new address was not effective because
Zhong’s attorney did not have the authority to make it. But Zhong’s attorney was her
agent, with the authority to act on her behalf for the purpose for which he was
retained. See Anaya v. Coello, 279 Ga. App. 578, 580 (632 SE2d 425) (2006).
“[F]rom the perspective of the opposing party, in the absence of knowledge of
express restrictions on an attorney’s authority, the opposing party may deal with the
attorney as if with the client[.]” Brumbelow v. Northern Propane Gas Co., 251 Ga.
674, 675 (2) (308 SE2d 544) (1983). PNC asserts that Zhong submitted an
authorization form which gave PNC notice that she had restricted her attorney’s
authority in a manner that would prohibit the attorney from designating a different
address. In the authorization form, however, Zhong merely asked PNC to release
information about her loan to her attorney; the form does not speak to any limits on
the authority of Zhong’s attorney to act on her behalf in communicating with PNC.
The authorization form is applicable to any third party to whom a customer might
want loan information to be released. It cannot be construed as an express restriction
on an attorney’s authority.
So there is evidence giving rise to a triable issue on whether PNC breached its
statutory obligation to send notice of the foreclosure to the address designated by
30
Zhong. And there is evidence giving rise to a triable issue on whether this breach
caused Zhong to sustain damage. In her verified complaint, Zhong stated that she was
“severely damaged including financial damage, damage to her credit and reputation
for creditworthiness and other damages” as a result of PNC’s failure to provide the
required notice. See Moore, supra, 187 Ga. App. at 596 (verified pleading may
provide evidence in opposition to summary judgment). Zhong also gave affidavit and
deposition testimony to this effect. Given this evidence, jury questions exist as to
whether Zhong was damaged and whether her damage was caused by the wrongful
foreclosure. And for the reasons detailed in Division 2 (c), supra, in connection with
Wells Fargo, jury questions also exist as to the amount of Zhong’s damages.
Consequently, the trial court erred in granting summary judgment to PNC on Zhong’s
claim for wrongful foreclosure.
Judgment affirmed in part and reversed in part. Branch and Bethel, JJ.,
concur.
31