O.C.G.A. § 11-9-623 (2019)

Annotations

JUDICIAL DECISIONS 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. Debtor to be notified he can redeem collateral at any time before sale. - Where the debtor is told by notification letter that he has ten days to redeem his repossessed collateral, but the collateral is sold after the tenth day, the debtor has not, as a matter of law, been notified that he can redeem his collateral at any time before the sale, as required by §§ 10-1-10 and 11-9-506, and a verdict should be directed for the debtor when the creditor sues for a deficiency judgment. Credithrift of Am., Inc. v. Smith, 168 Ga. App. 45, 308 S.E.2d 53, 1983 Ga. App. LEXIS 2670 (1983) (decided under former Code Section 11-9-506). Where debtors were informed that payment to redeem the collateral had to be made on or before 10 days from the date of the letter and were not informed that they had a right to redeem the collateral at any time before its sale, this section was violated. Bradford v. GECC, 183 Ga. App. 782, 359 S.E.2d 757, 1987 Ga. App. LEXIS 2090 (1987), cert. denied, 183 Ga. App. 905 (decided under former Code Section 11-9-506).

Waiver of right to redeem. - Right to redeem collateral may be waived by written agreement after default, but not before default. Kellos v. Parker-Sharpe, Inc., 245 Ga. 130, 263 S.E.2d 138, 1980 Ga. LEXIS 1308, 1980 Ga. LEXIS 715 (1980) (decided under former Code Section 11-9-506). Notice in accord with former Code 1933, § 109A-9-504(3). - Notice in accord with requirements of former Code 1933, § 109A-9-504(3), and which is not such as misled or prevented debtor from exercising his right of redemption under former Code 1933, § 109A-9-506, was sufficient to reasonably notify debtor of his rights. Motor Contract Co. v. Sawyer, 123 Ga. App. 207, 180 S.E.2d 282, 1971 Ga. App. LEXIS 1164 (1971) (decided under former Code 1933, § 109A-9-506). Acts precluding deficiency judgment. - Act of secured party, in selling collateral without strict compliance with notice of sale provisions of former Code 1933, § 109A-9-504 precludes purchaser or owner from exercising his right of redemption under this section, and for that reason secured party cannot recover for deficiency owed him by purchaser. Braswell v. American Nat’l Bank, 117 Ga. App.

699, 161 S.E.2d 420, 1968 Ga. App. LEXIS 1199 (1968) (decided under former Code 1933, § 109A-9-504). Notice only of intention to sell without any notification of time is not in compliance with Uniform Commercial Code, as it precludes purchaser or owner from exercising his right of redemption, and therefore prevents recovery of deficiency. Motor Contract Co. v. Sawyer, 123 Ga. App. 207, 180 S.E.2d 282, 1971 Ga. App. LEXIS 1164 (1971) (decided under former Code 1933, § 109A-9-504). Selling collateral without strict compliance with notice of sale provisions, thereby precluding purchaser or owner from exercising his right of redemption under this section, precludes second party from recovery for deficiency. GEMC Fed. Credit Union v. Shoemake, 151 Ga. App. 705, 261 S.E.2d 443, 1979 Ga. App. LEXIS 2758 (1979) (decided under former Code 1933, § 109A-9-504). Charges imposed in event of default. - Security agreement may impose various charges, not found in promissory note, in event of default. General Fin. Corp. v. Sprouse, 577 F.2d 989, 1978 U.S. App. LEXIS 9750 (5th Cir. 1978) (decided under former Code 1933, § 109A-9-504). Levy and sale upon foreclosure of materialman’s lien, subject to satisfaction of prior security interest. - Where plaintiff materialman obtains lien against property and judgment against

contractor who used materials, and judgment has not been satisfied, plaintiff is entitled to obtain judgment foreclosing his lien, but cannot enforce it by levy and sale until any prior security deed is satisfied. Bowen v. Kicklighter, 124 Ga. App. 82, 183 S.E.2d 10, 1971 Ga. App. LEXIS 822 (1971) (decided under former Code 1933, § 109A-9-506). Mortgagor’s option to purchase collateral not enforceable. - An option agreement executed at the same time as the mortgage, giving the mortgagor the option to purchase the collateral, constituted an impermissible attempt to defeat the mortgagee’s right to redeem the collateral and could not enforced by specific performance. Lewis Broadcasting Corp. v. Phoenix Broadcasting Partners, 232 Ga. App. 94, 502 S.E.2d 254, 1998 Ga. App. LEXIS 586 (1998) (decided under former Code Section 11-9-506). Bankruptcy. - Chapter 13 debtor’s equipment and furnishings repossessed pre-petition by a creditor remained property of the estate and rightfully subject to turnover pursuant to 11 U.S.C. § 542; the debtor could regain possession of the collateral that had been repossessed by redeeming the collateral pursuant to O.C.G.A. § 11-9-623. Dierkes v. Crawford Orthodontic Care, P.C. (In re Dierkes), No. 05-60983-MGD, No. 05-06022, 2005 Bankr. LEXIS 485 (Bankr. N.D. Ga. Feb. 15, 2005).

RESEARCH REFERENCES Am. Jur. 2d. 68A Am. Jur. 2d, Secured Transactions, §§ 564-571. C.J.S. 72 C.J.S., Pledges, §§ 47, 48. U.L.A. Uniform Commercial Code (U.L.A.) § 9623. ALR. Validity of agreement clogging equity of redemption from mortgage or pledge of personal property, 24 A.L.R. 822. Jurisdiction of court of state other than that in which property is located to redeem from or enforce a chattel mortgage or debt secured thereby, 69 A.L.R. 622.

Doctrine of equitable conversion as affecting right of redemption from execution or judicial sale, 138 A.L.R. 1296. 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 obligations, 157 A.L.R. 261. Redemption rights of mortgager making timely tender but of inadequate amount because of officer’s mistake, 52 A.L.R.2d 1327.