O.C.G.A. § 40-11-5 (2019)
Lien foreclosure procedure
All liens acquired under Code Section 40-11-4 shall be foreclosed as follows: (1) Any proceeding to foreclose a lien on an abandoned motor vehicle must be instituted within one year from the time the lien is recorded or is asserted by retention; (2) The person desiring to foreclose a lien on an abandoned motor vehicle shall, by certified or registered mail or statutory overnight delivery, make a demand upon the owners for the payment of the reasonable fees for removal and storage plus the costs of any notification or advertisement up to the date of retrieval or public sale of such vehicle. Such written demand shall include an itemized statement of all charges and may be made concurrent with the notice required by subsection (f ) of Code Section 40-11-2. Such demand shall be made on a form prescribed by rule or regulation of the Department of Revenue and shall notify the owner of his or her right to a judicial hearing to determine the validity of the lien. The demand shall further state that failure to return the written demand to the lien claimant, file with a court of competent jurisdiction a petition for a judicial hearing, and provide the lien claimant with a copy of such petition, all within ten days of delivery of the lien claimant’s written
demand, shall effect a waiver of the owner’s right to such a hearing prior to sale. The form shall also provide the suspected owner with the option of disclaiming any ownership of the vehicle, and his or her affidavit to that effect shall control over anything contrary in the records of the Department of Revenue. No such written demand shall be required if the identity of the owner cannot be ascertained and the notice requirements of subsection (g) of Code Section 40-11-2 have been complied with; (3)(A) If, within ten days of delivery to the appropriate address of the written demand required by paragraph (2) of this Code section, the owner of the abandoned motor vehicle fails to pay or file with the court a petition for a judicial hearing with a copy to the lien claimant in accordance with the notice provided pursuant to paragraph (2) of this Code section, or if the owner of the abandoned motor vehicle cannot be ascertained, the person removing or storing the abandoned motor vehicle may foreclose such lien. The person asserting such lien may move to foreclose by making an affidavit to a court of competent jurisdiction, on a form prescribed by rule or regulation of the Department of Revenue, showing all facts necessary to constitute such lien and the amount claimed to be due. Such affidavit shall aver that the notice requirements of Code Section 40-11-2 have been complied with, and such affidavit shall also aver that a demand for payment in accordance with paragraph (2) of this Code section has been made without satisfaction or without a timely filing of a petition for a judicial hearing or that the identity of the owner cannot be ascertained. The person foreclosing shall verify the statement by oath or affirmation and shall affix his or her signature thereto. (B) Regardless of the court in which the affidavit required by this paragraph is filed, the fee for filing such affidavit shall only be $10.00 per motor vehicle upon which a lien is asserted. Notwithstanding any law to the contrary, the affidavit filing fee shall not be taxed nor shall any additional fee or surcharge be assessed for such filing. (4) If no timely petition for a hearing has been filed with a court of competent jurisdiction, then, upon such affidavit’s being filed by the lien claimant pursuant to paragraph (3) of this Code section, the lien will conclusively be deemed a valid one and foreclosure thereof allowed; (5) If a petition for a hearing is filed with a court of competent jurisdiction within ten days after delivery of the lien claimant’s demand, a copy of which demand shall be attached to the petition, the court shall set such a hearing within ten days of filing of the petition; (6) Upon the filing of such petition by an owner, neither the lien claimant nor the court may sell the motor vehicle, although posses595
sion of the motor vehicle may be retained by the lien claimant or obtained by the court in accordance with the order of the court which sets the date for the hearing; (7) If, after a full hearing, the court finds that a valid debt exists, then the court shall authorize foreclosure upon and sale of the motor vehicle subject to the lien to satisfy the debt if such debt is not otherwise immediately paid; (8) If the court finds the actions of the person asserting the lien in retaining possession of the motor vehicle were not taken in good faith, then the court, in its discretion, may award damages to the owner, any party which has been deprived of the rightful use of the vehicle, or the lessee due to the deprivation of the use of the motor vehicle; and (9) If an affidavit meeting the requirements of paragraph (3) of this Code section is filed and no petition for a hearing is timely filed, or if, after a full hearing, the court determines that a valid debt exists, the court shall issue an order authorizing the sale of such motor vehicle. However, the holder of a security interest in or a lien on the vehicle, other than the holder of a lien created by Code Section 40-11-4, shall have the right, in the order of priority of such security interest or lien, to pay the debt and court costs. If the holder of a security interest or lien does so pay the debt and court costs, he or she shall have the right to possession of the vehicle, and his or her security interest in or lien on such vehicle shall be increased by the amount so paid. A court order shall be issued to this effect, and in this instance there shall not be a sale of the vehicle.
History
(Ga. L. 1980, p. 995, § 5; Ga. L. 1982, p. 1650, §§ 1, 2; Ga. L. 1983, p. 3, § 29; Ga. L. 1984, p. 22, § 40; Ga. L. 1985, p. 1265, § 3; Ga. L. 1988, p. 1750, § 3; Ga. L. 1998, p. 1305, § 3; Ga. L. 2000, p. 951, § 7-1; Ga. L. 2000, p. 1589, §§ 3, 4; Ga. L. 2002, p. 563, § 4; Ga. L. 2005, p. 334, § 21-4/HB 501; Ga. L. 2011, p. 777, § 2/HB 114; Ga. L. 2014, p. 807, § 5/HB 753.)
Annotations
Code Commission notes. - Pursuant to Code Section 28-9-5, in 2002, ‘‘Code section’’ was substituted for ‘‘subsection’’ twice in subparagraph (3)(A), in paragraph (4), and in paragraph (9).
Law reviews. - For note on the 2002 amendment of this Code section, see 19 Ga. St. U.L. Rev. 266 (2002).
JUDICIAL DECISIONS Failure to comply strictly with notice provisions. - Notice issued by a towing company did not include an itemized list of the charges underlying the lien and neglected to notify the recipient that the failure to petition for a judicial hearing would waive the recipient’s right to a
hearing before the public sale; thus, absent strict compliance with the notice provisions of O.C.G.A. § 40-11-5(2), a valid lien upon the vehicle had not been created upon which to foreclose. Accordingly, in a conversion action, the towing company owner was properly ordered to return the
vehicle to the owner. Horner v. Robinson, 299 Ga. App. 327, 682 S.E.2d 578 (2009). Violation of automatic stay. - Court denied motion to dismiss creditor’s complaint seeking an order that a towing company’s statutory lien be set aside under 11 U.S.C. § 545(2) as the company violated the automatic stay, 11 U.S.C. § 362(a)(4), when the company impounded a debtor’s truck and took steps to obtain a statutory lien and to have the truck declared legally abandoned under O.C.G.A. § 40-11-5 as the bankruptcy court had subject matter jurisdiction over causes of action relating to the enforcement of the automatic stay and the avoidance of a statutory lien, which were both created and determined by Title 11. The
matter was related to bankruptcy, as it was certainly conceivable that the outcome of this proceeding could have an effect on the debtor’s bankruptcy case because if the creditor prevailed, the creditor would sell the truck, and any proceeds from the sale in excess of the creditor’s claim would be returned to the estate. Mercedes-Benz Fin. Servs. of Am., LLC v. Corner Lot, Inc. (In re Lyons), 489 B.R. 270 (Bankr. N.D. Ga. 2013). Cited in Atlanta Truck Serv., Inc. v. Associates Com. Corp., 146 Ga. App. 170, 246 S.E.2d 2 (1978); Gearing v. Complete Wrecker Serv., Inc., 187 Ga. App. 242, 370 S.E.2d 9 (1988); Mitsubishi Motors Credit of Am., Inc. v. Robinson & Stephens, Inc., 263 Ga. App. 168, 587 S.E.2d 146 (2003).
OPINIONS OF THE ATTORNEY GENERAL Affidavit filing fee in foreclosure of lien on abandoned motor vehicle. - Magistrate court should collect only a $5.00 fee per vehicle upon the filing of an affidavit in support of the foreclosure of a lien on any abandoned motor vehicle pursuant to subparagraph (3)(B) of O.C.G.A.
§ 40-11-5; the $20.00 filing fee for civil actions in magistrate court should not be collected until the filing of a petition for probable cause hearing pursuant to paragraph (5) of O.C.G.A. § 40-11-5. 1989 Op. Att’y Gen. U89-13.
RESEARCH REFERENCES Am. Jur. 2d. - 1 Am. Jur. 2d, Abandoned, Lost, and Unclaimed Property, § 48.