HUNSTEIN, Chief Justice.
Appellant JIG Real Estate, a limited liability company that speculates in real estate, brought this appeal to challenge the ruling of the trial court upholding the constitutionality of OCGA § 9-13-172.1 (authorizing the rescission of foreclosure sales under certain conditions) in its suit against appellee Countrywide Home Loans in which JIG asserted it was entitled as high bidder to delivery of the Deed Under Power to the home of appellees James and Tammi Garland. For the reasons that follow, we affirm.
After James Garland, the owner of the property in issue, defaulted on his mortgage, Countrywide, the current holder of the deed
Two days after the sale, before any deed or deed under power was delivered, JIG was notified that, because the default had been cured prior to the foreclosure sale, the sale was rescinded pursuant to OCGA § 9-13-172.1. Returned with the notice were all bid funds paid by JIG and a check for two days of 18 percent interest on that payment. See id. at (d). JIG chose to reject the money and demanded delivery of the Deed Under Power; it subsequently filed suit against appellees. The trial court granted summary judgment to appellees on all of JIG's claims.
The statute at the heart of this appeal, OCGA § 9-13-172.1, provides as follows:
1. In recognition of the well-established rule that this Court will not consider a constitutional challenge to a statute if there exists a non-constitutional basis for resolving the case, e.g., Garden Club of Ga. v. Shackelford, 274 Ga. 653(2), 560 S.E.2d 522 (2002), JIG contends that, even assuming that OCGA § 9-13-172.1 is constitutional, the trial court erred by ruling that Countrywide had the right to rescind the foreclosure sale pursuant to OCGA § 9-13-172.1. JIG's argument in this regard is based on its claim that OCGA § 9-13-172.1 serves only to limit damages after rescission and does not itself provide any grounds for rescission of contracts. Hence, JIG asserts, in the absence of authority under OCGA § 9-13-172.1, there were no other legal grounds upon which Countrywide could have rescinded the sale.
We find no merit in this argument. OCGA § 9-13-172.1 authorizes under clearly defined circumstances the rescission of an eligible sale "due to" an automatic stay pursuant to the filing of bankruptcy, id. at (c), or "due to" the occurrence of any one of the three situations set forth in subsection (d), i.e., because (1) the statutory requirements for the sale were not fulfilled; (2) the default leading to the sale was cured prior to the sale; or (3) the lender and the borrower agreed prior to the sale to cancel the sale based upon an enforceable promise by the borrower to cure the default. JIG, in its contrary construction of the statute, ignores the "due to" phrase in OCGA § 9-13-172.1(c) and (d) and seeks, by an overly technical and strained focus on the verb tenses used in the
2. JIG contends the trial court erred by ruling that OCGA § 9-13-172.1 is not unconstitutionally void for vagueness. In addressing this challenge to the constitutionality of the Act, we recognize at the outset that
(Citations and punctuation omitted.) Dev. Auth. of DeKalb County v. State of Ga., 286 Ga. 36, 38(1), 684 S.E.2d 856 (2009).
(Punctuation omitted.) Jekyll Island-State Park Auth. v. Jekyll Island Citizens Assn., 266 Ga. 152, 153(2), 464 S.E.2d 808 (1996). Even though First Amendment rights are not implicated in this case,
(Citations and punctuation omitted.) Catoosa County v. R.N. Talley Properties, 282 Ga. 373, 374, 651 S.E.2d 7 (2007).
(a) JIG asserts that persons of reasonable intelligence
(b) The trial court found that the Legislature intended with OCGA § 9-13-172.1 to "create a mechanism to give homeowners every opportunity to cure a default and avoid the harmful and disturbing effects of foreclosure." We agree with the trial court regarding this legislative intent behind the enactment of OCGA § 9-13-172.1. JIG, however, asserts that the trial court's finding is "the best evidence of the confusion" created by the statute because OCGA § 9-13-172.1 "says nothing about the homeowner." However, there is an unquestionable impact by the statute on homeowners of property in foreclosure who, prior to sale, cure the default or enter into agreements to cure the default. Rather than "evidencing confusion," the trial court's finding as to the Legislature's intent merely states the obvious.
(c) JIG next asserts that OCGA § 9-13-172.1 is unconstitutionally vague due to the use in subsection (d)(3) of the terms "plaintiff in execution" and "defendant in execution." Asserting that these are not terms applicable to non-judicial foreclosures but are used to describe the parties under a sheriff's levy and sale under a judgment lien, JIG argues that it is "anybody's guess" whether OCGA § 9-13-172.1(d)(3) is applicable to a nonjudicial foreclosure sale. We disagree. While the nomenclature chosen may be imprecise, the nature of the parties discussed in subsection (d)(3) is readily discernible to persons of common intelligence, and no reasonable person could fail to understand that subsection (d)(3) applies when the seller and defaulting party have agreed prior to the sale to cancel the sale based upon an enforceable promise by the defaulting party to cure the default. Where the legislative intent is clear and the statute provides fair notice of its meaning, this Court will not deem a statute unconstitutionally vague merely because it "could be more artfully drafted." Davenport v. Davenport, 243 Ga. 613, 615(2), 255 S.E.2d 695 (1979).
(d) There is no question that the Legislature, by enacting OCGA § 9-13-172.1, intended to address the limitation of damages in civil actions by purchasers for property sold in certain judicial and certain nonjudicial sales that are later rescinded. See preamble to Ga. L.2003, p. 413. However, as that preamble also reflects, the statute was enacted to "provide for related matters; to repeal conflicting laws; and for other purposes," id., which clearly establishes the error of JIG's assertion that the statute's "only purpose and intent" is damages limitation. JIG has failed to show how any person of common intelligence would need to guess at the meaning of the damages provision in OCGA § 9-13-172.1 or would differ as to its application. Although JIG asserts that there are no damages in a legally rescinded contract that are in need of limitation, the Legislature decided otherwise in regard to those contracts legally rescinded pursuant to OCGA § 9-13-172.1. It was within the Legislature's broad authority to so decide, see generally Sears v. State of Ga., 232 Ga. 547, 554(3), 208 S.E.2d 93 (1974) ("[t]he legislature is absolutely unrestricted in its power to legislate, so long as it does not undertake to enact measures prohibited by the State or Federal Constitution. [Cits.]"), and nothing in OCGA § 9-13-172.1 is rendered unconstitutionally vague by the Legislature's exercise of its discretion. Thus, even assuming, arguendo, that JIG's arguments in this regard properly pertain to a vagueness challenge, we find them to be without merit.
(e) JIG asserts in its final argument that the statute is void for vagueness because a person must guess if OCGA § 9-13-172.1(d)(3)
Accordingly, because JIG has completely failed to carry its burden of showing that OCGA § 9-13-172.1 is unconstitutionally vague in any of its applications, see Catoosa County v. R.N. Talley Properties, supra, 282 Ga. at 374, 651 S.E.2d 7; Jekyll Island-State Park Auth. v. Jekyll Island Citizens Assn., supra, 266 Ga. at 153(2), 464 S.E.2d 808, the trial court did not err by upholding the constitutionality of the statute.
3. JIG contends that the trial court erred by failing to find OCGA § 9-13-172.1 could not be applied retroactively
4. Given our holdings above that the trial court properly upheld the constitutionality of OCGA § 9-13-172.1 and correctly found that Countrywide was authorized to and properly did rescind the sale to JIG, we need not address JIG's remaining arguments.
Judgment affirmed.
All the Justices concur, except NAHMIAS, J., who concurs in judgment only as to Division 2(b).