O.C.G.A. § 11-9-601 (2019)
Rights after default; judicial enforcement; consignor or buyer of accounts, chattel paper, payment intangibles, or promissory notes
(a) Rights of secured party after default. After default, a secured party has the rights provided in this part and, except as otherwise provided in Code Section 11-9-602, those provided by agreement of the parties. A secured party:
(1) May reduce a claim to judgment, foreclose, or otherwise enforce the claim, security interest, or agricultural lien by any available judicial procedure; and
(2) If the collateral is documents, may proceed either as to the documents or as to the goods they cover.
(b) Rights and duties of secured party in possession or control. A secured party in possession of collateral or control of collateral under Code Section 11-9-104, 11-9-105, 11-9-106, or 11-9-107 has the rights and duties provided in Code Section 11-9-207.
(c) Rights cumulative; simultaneous exercise. The rights under subsections (a) and (b) of this Code section are cumulative and may be exercised simultaneously.
(d) Rights of debtor and obligor. Except as otherwise provided in subsection (g) of this Code section and Code Section 11-9-605, after default, a debtor and an obligor have the rights provided in this part and by agreement of the parties.
(e) Lien of levy after judgment. If a secured party has reduced its claim to judgment, the lien of any levy that may be made upon the collateral by virtue of an execution based upon the judgment relates back to the earliest of:
(1) The date of perfection of the security interest or agricultural lien in the collateral;
(2) The date of filing a financing statement covering the collateral; or
(3) Any date specified in a statute under which the agricultural lien was created.
(f) Execution sale. A sale pursuant to an execution is a foreclosure of the security interest or agricultural lien by judicial procedure within the meaning of this Code section. A secured party may purchase at the sale and thereafter hold the collateral free of any other requirements of this article.
(g) Consignor or buyer of certain rights to payment. Except as otherwise provided in subsection (c) of Code Section 11-9-607, this part imposes no duties upon a secured party that is a consignor or is a buyer of accounts, chattel paper, payment intangibles, or promissory notes.
History
Code 1981, § 11-9-601, enacted by Ga. L. 2001, p. 362, § 1.
Annotations
JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION DEFAULT General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Article 9 are included in the annotations for this Code section. For a table of comparable provisions, see the table at the beginning of the Article. Nature of remedies provided in this article. - The former provisions set forth general remedies of both creditor and debtor while remaining provisions of Art. 9 simply elaborated on the various remedies summarized herein, and as such, are neither mandatory nor mutually exclusive. McCullough v. Mobiland, Inc., 139 Ga. App. 260, 228 S.E.2d 146, 1976 Ga. App. LEXIS 1762 (1976) (decided under former Code 1933, § 109A-9-501). Construction of former subsection (4). - The last clause of former subsection (4) (“in which case the provisions of this part do not apply”) is itself applicable only where the creditor proceeds “as to both the real and the personal property in accordance with his rights and remedies in respect of the real property . . . ”, where the creditor sells the debtor’s personalty pursuant to debtor’s notes and security
agreement and seeks to proceed against the debtor’s guarantor’s real estate for the balance pursuant to their deed. United States ex rel. FHA v. Kennedy, 256 Ga. 345, 348 S.E.2d 636, 1986 Ga. LEXIS 835 (1986) (decided under former Code Section 11-9-501). Filing suit after repossession without first disposing of collateral. - Secured creditor’s election to repossess collateral and then to file suit on contract without first disposing of the collateral was not improper under the terms of the sale contracts or of the UCC. ITT Terryphone Corp. v. Modems Plus, Inc., 171 Ga. App. 710, 320 S.E.2d 784, 1984 Ga. App. LEXIS 2323 (1984) (decided under former Code Section 11-9-501). Trial court did not err in granting summary judgment to a bank, a secured creditor, that brought an action for money judgment on a note while holding the collateral pledged by a corporation and an individual because O.C.G.A. §§ 11-9601(c) and 11-9-609(a)(1) allowed a secured creditor in possession of a debtor’s collateral to employ a number of different remedial steps until the debt was satisfied. Okefenokee Aircraft, Inc. v. Prime-
south Bank, 296 Ga. App. 782, 676 S.E.2d 394, 2009 Ga. App. LEXIS 337 (2009). Default Standard for determining default to be determined contractually. - Since there is no definition per se of what constitutes default within purview of Uniform Commercial Code, this is one of those standards to be determined by parties contractually. Borochoff Properties, Inc. v. Howard Lumber Co., 115 Ga. App. 691, 155 S.E.2d 651, 1967 Ga. App. LEXIS 1210 (1967) (decided under former Code 1933, § 109A-9-501). Standards for determining whether there has been default. - This title does not specifically define “default” under a security agreement. For the most part, the security agreement itself must define standards for determining whether default occurs. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827,
1969 Ga. App. LEXIS 1263 (1969) (decided under former Code 1933, § 109A-9-501). Pre-petition enforcement under Georgia law of an assignment of rents from a hotel’s operation is not essential to the existence of a post-petition lien under 11 U.S.C. § 552(b)(2). In re Resort Inns, Inc., No. 04-41721, 2004 Bankr. LEXIS 1580 (Bankr. S.D. Ga. Aug. 30, 2004). Default found. - Summary judgment was properly entered for a credit union on an owner’s claim for wrongful possession as the owner defaulted on the owner’s agreement with the credit union by failing to pay the storage fees for the car, which resulted in a garageman’s lien; under O.C.G.A. § 11-9-601(a), as the owner was in default, the credit union could, pursuant to O.C.G.A. § 11-9-609(a), take possession of the collateral, and under O.C.G.A. § 11-9-610, the credit union could sell it. Endsley v. Robins Fed. Credit Union, 267 Ga. App. 512, 600 S.E.2d 441, 2004 Ga. App. LEXIS 700 (2004).
RESEARCH REFERENCES Am. Jur. 2d. 68A Am. Jur. 2d, Secured Transactions, §§ 109, 160 et seq., 192 et seq., 556-575, 581, 590 et seq., 637, 734. C.J.S. 72 C.J.S., Pledges, §§ 49, 50. U.L.A. Uniform Commercial Code (U.L.A.) § 9601. ALR. Rights and remedies as between parties to a conditional sale after the seller has repossessed himself of the property, 37 A.L.R. 91; 83 A.L.R. 959; 99 A.L.R. 1288; 49 A.L.R.2d 15. Right, upon buyer’s default in payment of installment due, to recover amount not due, in absence of acceleration clause, 57 A.L.R. 825.
Right to attorneys’ fees on enforcing chattel mortgage, 63 A.L.R. 1314. Attachment as affected by release or modification of lien to which property was subject when attachment was levied, 128 A.L.R. 1392. Right of conditional seller to retake property without legal process, 146 A.L.R. 1331. Payment or discharge of principal obligation as affecting right of the pledgee to sue or continue pending suit against the maker of the collateral pledged, or judgment previously recovered on the collateral obligation, 157 A.L.R. 261. Construction of §§ 301 and 700 of Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended, relating to instalment contracts for purchase of property, 24 A.L.R.2d 1074.