O.C.G.A. § 44-14-211 (2019)
Attachment against grantor in deed to realty to secure debt; execution and recordation of quitclaim, levy, and deed following judgment; sale; disposition of proceeds
In all cases where a deed to land has been executed to secure a debt or the performance of an obligation and the grantor therein is or becomes thereafter liable to the process of attachment, an attachment may issue against him at the instance of the payee, assignee, or holder of the debt or obligation upon his compliance with the provisions of law relating to attachments. The attachment shall be levied upon the land described in the deed, and the subsequent proceedings shall be in all respects as prescribed by law in relation to attachments. The holder of the legal title of the land described in the deed or, if dead, his executor or administrator may make and execute, without order of any court, for the purpose of levy and sale after the rendition of judgment in attachment and the issuance of execution thereon, a quitclaim deed of conveyance of the land to the grantor in the deed and may file the same for record in the office of the clerk of the superior court of the county where the land is located. When a judgment is obtained upon the attachment and the deed is so filed and recorded, the execution issued upon the judgment may be levied upon the land and the land may be sold as other property of the defendant. The proceeds arising from the sale shall be applied to the payment of the judgment or, if there are conflicting claims, the proceeds shall be applied as determined in proceedings had for that purpose; provided, however, this Code section shall not apply unless the debt or debts or liabilities so secured have become due under the terms of the contract creating the obligation or obligations.
History
Ga. L. 1918, p. 133, § 1; Code 1933, § 67-1502.
T.44, C.14, A.7, P.4
Annotations
JUDICIAL DECISIONS Election of remedies. - The holder of a note who is also the grantee in a deed to secure the indebtedness of the note is not forced to exercise the power of sale in the deed. The holder may sue on the note or
exercise the power of sale. Trust Inv. & Dev. Co. v. First Ga. Bank, 238 Ga. 309, 232 S.E.2d 828, 1977 Ga. LEXIS 1010 (1977).
RESEARCH REFERENCES Am. Jur. 2d. 6 Am. Jur. 2d, Attachment and Garnishment, §§ 144-146. 55 Am. Jur. 2d, Mortgages, § 525.
C.J.S. 7 C.J.S., Attachment, §§ 49, 54.
PART 4 FORECLOSURES ON PERSONALTY Cross references. Die, molds, forms, and patterns, T. 44, C. 12, Art. 8. Law reviews. For note discussing execution and levy as a means of enforcing security interest in light of Article 9, Part 5 of the Uniform Commercial Code, see 3 Ga. L. Rev. 198 (1968). For comment discussing due process problems with Georgia’s personal prop-
erty foreclosure procedure prior to the adoption of the 1974 Acts, in light of Hall v. Stone, 229 Ga. 96, 189 S.E.2d 403 (1972), see 9 Ga. St. B.J. 336 (1973). For article surveying Georgia cases in the area of commercial law from June 1979 through May 1980, see 32 Mercer L. Rev. 11 (1980). For article, “Nonjudicial Foreclosures in Georgia: Fresh Doubts, Issues and Strategies,” see 23 Ga. St. B.J. 123 (1987).
JUDICIAL DECISIONS Application of §§ 9-11-1 through 9-11-132. - As a proceeding under O.C.G.A. Ch. 14, T. 44 is a special statutory proceeding, the rules in O.C.G.A. §§ 9-11-12(a) and 9-11-56 regarding the time periods granted for the filing of an answer and the filing of and hearing on a motion for summary judgment are not applicable. Adams v. Citizens & S. Nat’l Bank, 132 Ga. App. 622, 208 S.E.2d 628, 1974 Ga. App. LEXIS 1770 (1974). A claim for indebtedness, whether filed in a separate action or in the same action as a foreclosure proceeding under O.C.G.A. § 44-14-230 et seq., must stand or fall upon the principles set forth in O.C.G.A. §§ 9-11-1 through 9-11-132, including, but not limited to, process and service of process, and may not be “piggybacked” into court using the special rules applicable to foreclosure actions under O.C.G.A. § 44-14-230 et seq. Porter v.
Midland-Guardian Co., 242 Ga. 1, 247 S.E.2d 743, 1978 Ga. LEXIS 1066 (1978); Dein v. Citizens Jewelry Co., 149 Ga. App. 340, 254 S.E.2d 403, 1979 Ga. App. LEXIS 1844 (1979); Good Housekeeping Shops v. Hines, 150 Ga. App. 240, 257 S.E.2d 205, 1979 Ga. App. LEXIS 2131 (1979). Sections 9-13-120 through 9-13-129 apply to the use of an affidavit of illegality to halt an execution proceeding on a writ of possession issued pursuant to a proceeding under O.C.G.A. § 44-14-230 et seq. Riviera Equip., Inc. v. Omega Equip. Corp., 147 Ga. App. 412, 249 S.E.2d 133, 1978 Ga. App. LEXIS 2703 (1978). An affidavit of illegality will lie to halt an execution which the defendant in a foreclosure case swears is proceeding illegally. Riviera Equip., Inc. v. Omega Equip. Corp., 147 Ga. App. 412, 249 S.E.2d 133, 1978 Ga. App. LEXIS 2703 (1978).
T.44, C.14, A.7, P.4
An affidavit of illegality does not have to be accompanied by bond unless the defendant desires to maintain possession of the property. Riviera Equip., Inc. v. Omega Equip. Corp., 147 Ga. App. 412, 249 S.E.2d 133, 1978 Ga. App. LEXIS 2703 (1978). Finality of judgments. - The Supreme Court has ruled that O.C.G.A. § 56-34 is determinative as to the finality of judgments entered under O.C.G.A. § 4414-230 et seq. Jordan v. Ford Motor Credit Co., 147 Ga. App. 515, 249 S.E.2d 327, 1978 Ga. App. LEXIS 2746 (1978). Default judgments. - O.C.G.A. § 4414-230 et seq. specifically contemplates that under limited circumstances a default judgment is authorized which will fully adjudicate “all of the amount due.” Porter v. Midland-Guardian Co., 145 Ga. App. 262, 243 S.E.2d 595, 1978 Ga. App. LEXIS 1943, rev’d, 242 Ga. 1, 247 S.E.2d 743, 1978 Ga. LEXIS 1066 (1978). Money judgment. - There is no provision in O.C.G.A. § 44-14-230 et seq. allowing a money judgment for the full amount of the indebtedness, as distinguished from a deficiency judgment, to be taken against the debtor other than in O.C.G.A. § 44-14-269 which only applies to immediate writs of possession under O.C.G.A. § 44-14-260 et seq., which sec-
T.44, C.14, A.7, P.4
tions pertain alone to commercial transactions, and not to consumer transactions. Jordan v. Ford Motor Credit Co., 147 Ga. App. 515, 249 S.E.2d 327, 1978 Ga. App. LEXIS 2746 (1978). Where seller of jewelry instituted action under O.C.G.A. § 44-14-230 et seq. which provided the sole basis for jurisdiction, the trial court erred in entering a money judgment. Dein v. Citizens Jewelry Co., 149 Ga. App. 340, 254 S.E.2d 403, 1979 Ga. App. LEXIS 1844 (1979). A person holding a conditional sale contract may pursue any number of consistent remedies to enforce the payment of the debt until it is satisfied. Obtaining a judgment on the note and foreclosure of the security device are consistent remedies, and the utilization of one will not constitute either an election or abandonment of the other. Porter v. Midland-Guardian Co., 145 Ga. App. 262, 243 S.E.2d 595, 1978 Ga. App. LEXIS 1943, rev’d, 242 Ga. 1, 247 S.E.2d 743, 1978 Ga. LEXIS 1066 (1978). A creditor may bring separate actions to foreclose a security interest and on an indebtedness, and accordingly, both remedies may be sought in the same action. Porter v. Midland-Guardian Co., 242 Ga. 1, 247 S.E.2d 743, 1978 Ga. LEXIS 1066 (1978).
OPINIONS OF THE ATTORNEY GENERAL A justice of the peace may only honor applications for writs of possession as provided by former Chapter 67-7 (now
O.C.G.A. § 44-14-230 et seq.) when the amount in controversy does not exceed $200.00. 1974 Op. Att’y Gen. No. U74-104.
RESEARCH REFERENCES ALR. Term “increase,” in description in chattel mortgage on animals, as including increase other than by generation, 1 A.L.R. 554. Uniting interest of chattel mortgagor and mortgagee in same person as merger, 29 A.L.R. 702. Provision in land contract against removal of buildings as affecting rights of third person under chattel mortgage or conditional sale, 30 A.L.R. 542. Remedies in respect of mortgage on real
property in another state or the debt secured thereby, 42 A.L.R. 470. Reacquisition by mortgagor, or his grantee, of the title through foreclosure of first mortgage as affecting rights under a second mortgage to which the property was subject before the foreclosure, 51 A.L.R. 445; 111 A.L.R. 1285. Who may take advantage of failure of chattel mortgagee to file renewal, 51 A.L.R. 591. Premature refiling of chattel mortgage, 63 A.L.R. 591.
T.44, C.14, A.7, P.4
Powers of sale as including power to exchange, 63 A.L.R. 1003. Rights to attorneys’ fees on enforcing chattel mortgage, 63 A.L.R. 1314. Requisites and sufficiency of change of possession under an unrecorded chattel mortgage, 79 A.L.R. 1018. Levy by chattel mortgagee under execution or attachment upon property covered by mortgage as affecting lien of mortgage, 92 A.L.R. 1277. Implied power of trustee under mortgage or deed of trust who purchases property in behalf of bondholders at foreclosure sale, to give new mortgage, 95 A.L.R. 527. Financial depression as justification of moratorium or other relief to mortgagor (including decisions under statutes in that regard), 104 A.L.R. 375. Liability of mortgagee or mortgaged property for expenses of receivership not sought by him, or for expenditures by receiver in connection with the property, 104 A.L.R. 990. Failure to take judgment for deficiency in suit to foreclose mortgage brought after
appointment or receiver of trustee in bankruptcy of mortgagor as affecting right to its allowance as claim in insolvency or bankruptcy proceedings, 104 A.L.R. 1141. Liability of mortgagee for damages because of wrongful foreclosure or improper execution of rightful foreclosure, 108 A.L.R. 592. Accountability of mortgagee or pledgee for profit made upon resale of the property after purchase thereof at foreclosure or other enforcement sale, 117 A.L.R. 863. Waiver of right to foreclose mortgage, 148 A.L.R. 686. Necessity and sufficiency of notice of sale to mortgagor where chattel mortgage is sought to be foreclosed without judicial proceedings by sale under power, 30 A.L.R.2d 539. Rights in proceeds of vehicle collision policy, under “loss-payable” clause, of conditional seller, chattel mortgagee, or the like, of vehicle where there has been improper repossession or foreclosure after the damage, 46 A.L.R.2d 992.
Subpart 1 In General