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).

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.

Cross references.

- Die, molds, forms, and patterns, Art. 8, Ch. 12, T. 44.

Law reviews.

- 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). 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 property 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).

Finality of judgments.

- The Supreme Court has ruled that O.C.G.A. § 5-6-34 is determinative as to the finality of judgments entered under O.C.G.A. § 44-14-230 et seq. Jordan v. Ford Motor Credit Co., 147 Ga. App. 515, 249 S.E.2d 327 (1978).

Default judgments.

- O.C.G.A. § 44-14-230 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, rev'd on other grounds, 242 Ga. 1, 247 S.E.2d 743 (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 sections 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).

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).

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, rev'd on other grounds, 242 Ga. 1, 247 S.E.2d 743 (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).

Cited in Continental Cas. Co. v. Bibb Chevrolet Co., 49 Ga. App. 523, 176 S.E. 418 (1934); McLendon v. Lemon, 79 Ga. App. 751, 54 S.E.2d 437 (1949); Candler I-20 Properties v. Inn Keepers Supply Co., 137 Ga. App. 94, 222 S.E.2d 881 (1975); Harrison v. Goodyear Serv. Stores, 137 Ga. App. 223, 223 S.E.2d 261 (1976); Fowler v. Ford Motor Credit Co., 143 Ga. App. 680, 240 S.E.2d 608 (1977); Pittard v. Griggs, 148 Ga. App. 663, 252 S.E.2d 181 (1979); King Orthopedic Appliances, Inc. v. Medical Funding Servs., Inc., 152 Ga. App. 544, 263 S.E.2d 485 (1979).

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.

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

44-14-230. Authority to foreclose; execution; sale.

1. Any person holding a security interest on personal property under a transaction governed by this part or by Title 11, the "Uniform Commercial Code," and wishing to foreclose the security interest shall be authorized to foreclose the security interest and shall be entitled to an execution directed to all and singular the sheriffs, the marshals, the constables, or their lawful deputies, of this state, which execution shall command the sale of the secured property to satisfy the amount due from the debtor, together with the costs of the proceedings to foreclose the security interest in accordance with the procedure specified in this part, together with an order directing the defendant or the party in possession to turn over to the sheriff, the marshal, the constable, or their lawful deputies the property sought to be foreclosed upon as provided for in subsection (d) of Code Section 44-14-233.
2. 1. As used in this subsection, the term "rental transaction" means the lease or rental of goods or personal property.
   2. Any owner of personal property leased or rented in a rental transaction who wishes to regain possession of such property as authorized by the terms of the transaction may obtain a writ of possession under this subpart in the same manner as is authorized for a holder of a security interest in personal property.
   3. Solely for the purpose of applying the procedures specified by this part to rental transactions and not for any other purposes, the owner of the property shall be considered to be a secured party and the rented or leased property shall be considered to be secured property. Proceedings to regain property under a rental transaction shall be as provided in this subpart, except that after a writ of possession is granted the rented or leased property shall be delivered to the owner and shall not be levied upon.

(Laws 1799, Cobb's 1851 Digest, p. 571; Laws 1839, Cobb's 1851 Digest, p. 572; Code 1863, § 3875; Code 1868, § 3895; Ga. L. 1871-72, p. 20, § 1; Code 1873, § 3971; Code 1882, § 3971; Ga. L. 1882-83, p. 74, § 1; Ga. L. 1882-83, p. 109, § 1; Civil Code 1895, § 2753; Civil Code 1910, § 3286; Code 1933, § 67-701; Ga. L. 1974, p. 398, § 1; Ga. L. 1983, p. 724, § 1; Ga. L. 1984, p. 892, § 2; Ga. L. 1987, p. 3, § 44; Ga. L. 1987, p. 1023, § 1.)

Law reviews.

- For article on this part and personal property foreclosures, see 11 Ga. St. B. J. 230 (1975). For article, "The Civil Jurisdiction of State and Magistrate Courts," see 24 Ga. St. B. J. 29 (1987). For article, "Foreclosure Diversion and Mediation in the States," see 33 Georgia St. U. L. Rev. 411 (2017).

Editor's notes.

- In light of the similarity of the provisions, decisions under former Code 1933, § 67-701 as it existed prior to the revision by Ga. L. 1976, p. 398, § 1 are included in the annotations for this section.

Nature of proceedings.

- Foreclosing a mortgage on personalty, under this section, is a proceeding at law. Manheim v. Claflin & Co., 81 Ga. 129, 7 S.E. 284 (1888) (decided under former provisions).

A foreclosure under this section is such a disaffirmance of title by the mortgagee as waives the assertion of title, although the mortgage may be only a part of a contract which also contains a reservation of title, and although the instrument in question might either be foreclosed as a mortgage or afford the basis of an assertion of title in the payee by trover. Kennedy v. Manry, 6 Ga. App. 816, 66 S.E. 29 (1909); Puett v. Edwards, 17 Ga. App. 645, 88 S.E. 36 (1916) (decided under former provisions).

Remedy not exclusive.

- A mortgagee of personalty may foreclose under this section and proceed at the same time on the mortgage debt by ordinary action. Juchter v. Boehm, Bendheim & Co., 63 Ga. 71 (1879) (decided under former provisions).

Substantial compliance required.

- A substantial compliance with the method pointed out for foreclosing a chattel mortgage by this section is essential to a judgment of foreclosure. Duke v. Culpepper, 72 Ga. 842 (1884) (decided under former provisions).

If the requirements for the foreclosure of a chattel mortgage have been substantially complied with, and all defects in the proceedings appear to be amendable, the proceeding is not void, and third persons acquiring rights to the property sold thereunder will be protected therein. Hardy v. Luke, 18 Ga. App. 423, 89 S.E. 540 (1916) (decided under former provisions).

Place of foreclosure.

- A mortgage on personalty must be foreclosed in the county of the residence of the mortgagor, if a resident of this state; and that it is so foreclosed should affirmatively appear from the record. Rich v. Colquitt, 65 Ga. 113 (1880) (decided under former provisions).

The issuing of an execution is essential to a complete foreclosure of a chattel mortgage under this section. De Vaughn v. Byrom, 110 Ga. 904, 36 S.E. 267 (1900) (decided under former provisions).

Execution is final process.

- This section provides for issuance of an execution under which the property shall be levied on and sold. This is a summary remedy, and the fi. fa. is final process which may be levied immediately, without any provision for the holder of the note to give notice as prescribed in O.C.G.A. § 13-1-11. Watters & Co. v. O'Neill, 151 Ga. 680, 108 S.E. 35 (1921) (decided under former provisions).

This section does not make provision for the execution to be returnable to any particular term of court, so, O.C.G.A. § 9-13-9 would apply. Youmans v. Consumers Fin. Corp., 77 Ga. App. 373, 48 S.E.2d 684 (1948) (decided under former provisions).

Finality of judgment.

- The judgment of the trial court directing that the property be advertised and the proceeds of the sale paid under certain directions to the plaintiff is a final judgment. A judgment of a court having jurisdiction which provides for the control of the surplus of the funds derived from the sale of the property so as to protect the lien created for the unaccrued instalments of the debt in an action for the foreclosure of a bill of sale on personal property to secure a debt where a part of the payments provided for in the instrument sought to be foreclosed are past due and other payments not yet accrued, is a final judgment. Miller Serv., Inc. v. Miller, 77 Ga. App. 413, 48 S.E.2d 761 (1948) (decided under former provisions).

A general judgment cannot be taken against the defendant in fi. fa. in a foreclosure brought under this section. Walker v. Small Equip. Co., 114 Ga. App. 603, 152 S.E.2d 629 (1966) (decided under former provisions).

Purchase money notes.

- A purchase money note for an amount exceeding $100.00, which contains a reservation of title to the personalty for the purchase price of which the note was given, and does not include a mortgage, cannot be foreclosed as a mortgage. Puett v. Edwards, 17 Ga. App. 645, 88 S.E. 36 (1916) (decided under former provisions).

Single mortgage securing two creditors.

- Where a debtor made a single mortgage covering a stock of goods to secure two creditors to the amounts respectively due them, the mortgage could be foreclosed in favor of both creditors at the same time; and such foreclosure would not be the joining of distinct and separate claims in the same action. Chamberlin & Co. v. Beck, Gregg & Co., 68 Ga. 346 (1882) (decided under former provisions).

Foreclosure on multiple securities.

- A single foreclosure proceeding under this section between the same creditor and the identical defaulting debtor on multiple security instruments is valid, even though the conditional sale contracts involve different motor vehicles and were made on different dates. Dampier v. Citizens & S. Nat'l Bank, 129 Ga. App. 240, 199 S.E.2d 330 (1973) (decided under former provisions).

Attorney's fees.

- By the terms of a contract, attorneys fees were as much a part of the debt secured as were the notes themselves. The court was right in awarding ten per cent to the plaintiff's attorney as fees in the foreclosure under this section. McCall v. Walter, 71 Ga. 287 (1883) (decided under former provisions).

Mortgage to secure note for advances to make crop.

- A chattel mortgage properly executed and recorded, to secure the payment of a promissory note given for advances to make a crop, is a valid mortgage, and may be foreclosed under this section. Stephens v. Tucker, 55 Ga. 543 (1875) (decided under former provisions).

Directing sheriff to sell.

- A direction in a mortgage fi. fa. that of the personalty covered thereby the sheriff make a specified sum, is in effect a direction to sell for that purpose. Chamberlin & Co. v. Beck, Gregg & Co., 68 Ga. 346 (1882) (decided under former provisions).

Omissions or irregularities on the part of the sheriff are not chargeable to the buyer. The only questions with which a purchaser is concerned are the judgment, the levy, and the delivery of the property, all other questions are between the parties to the judgment and the sheriff. Parr & Wood Furn. Co. v. Barnett, 16 Ga. App. 550, 85 S.E. 823 (1915) (decided under former provisions).

Rights of trustee in bankruptcy.

- If a mortgage on personalty was foreclosed, as provided in this section, and the sheriff took possession, a trustee in bankruptcy of the mortgagor, appointed after a subsequent adjudication, would not have the right to have the property delivered to him, although the petition in involuntary bankruptcy was filed before the mortgage was foreclosed. The mere fact that in the bankruptcy proceeding a temporary receiver had been named, but had not taken possession when the sheriff seized the property under the mortgage foreclosures, would not alter the case. Neill v. Barbaree, 135 Ga. 771, 70 S.E. 638 (1911) (decided under former provisions).

Upon summary foreclosure of a mortgage on personalty under this section and seizure of the property, the mortgagor or other creditor may contest the validity of the lien or the amount claimed to be due. A trustee in bankruptcy may do so. Neill v. Barbaree, 135 Ga. 771, 70 S.E. 638 (1911) (decided under former provisions).

Failure to raise defenses.

- Where a proceeding to foreclose a retention of title contract is instituted and the defendant's answer sets up no defense to the foreclosure proceeding and in fact, is not responsive to the foreclosure proceeding, but refers to a trover proceeding and nowhere denies that the amount claimed or any part thereof is due, the answer filed fails to set up any defense and is subject to dismissal. Little v. Yow, 69 Ga. App. 335, 25 S.E.2d 232 (1943) (decided under former provisions).

Instructions.

- It was not error for the trial court to fail to charge the substance of this section in the absence of a request. First Nat'l Bank v. Vinson, 102 Ga. App. 828, 118 S.E.2d 225 (1960) (decided under former provisions).

Automobile lessor obtained no priority over mechanic's lien by initiating foreclosure.

- Automobile lessor did not, merely by initiating a foreclosure action in regard to the vehicle, thereby acquire any status as a secured party for purposes of obtaining a priority over the holder of a prior validly perfected mechanic's lien. First Nat'l Bank v. Strother Ford, Inc., 188 Ga. App. 749, 374 S.E.2d 203 (1988).

Cited in Evans v. Equico Lessors, 140 Ga. App. 583, 231 S.E.2d 534 (1976); Rome Bank & Trust Co. v. Bradshaw, 143 Ga. App. 152, 237 S.E.2d 612 (1977); Riviera Equip., Inc. v. Omega Equip. Corp., 147 Ga. App. 412, 249 S.E.2d 133 (1978); Grover v. Vintage Credit Corp., 155 Ga. App. 759, 272 S.E.2d 732 (1980); Ward v. Charles D. Hardwick Co., 156 Ga. App. 96, 274 S.E.2d 20 (1980); O'Kelly v. International Bus. Mach. Corp., 158 Ga. App. 509, 281 S.E.2d 275 (1981); Butler v. Home Furnishing Co., 163 Ga. App. 825, 296 S.E.2d 121 (1982); Deutz-Allis Credit Corp. v. Phillips, 183 Ga. App. 760, 360 S.E.2d 29 (1987); Yamaha of Atlanta, Inc. v. Yamaha Motor Corp., 188 Ga. App. 413, 373 S.E.2d 95 (1988); Technology Distrib., Inc. v. American Computer Technology, Inc., 199 Ga. App. 785, 405 S.E.2d 907 (1991).

Am. Jur. 2d.

- 69 Am. Jur. 2d, Secured Transactions, §§ 572 et seq., 637 et seq.

C.J.S.

- 14 C.J.S., Chattel Mortgages, §§ 355-359, 364, 398, 412-422, 425.

ALR.

- Relief to person who by mistake has foreclosed real estate mortgage in manner inimical to his own interests, 42 A.L.R. 1192.

Chattel mortgagee's failure to pursue proper course after taking possession as affecting personal liability of mortgagor, 47 A.L.R. 582.

Purchase by pledgee of subject of pledge, 76 A.L.R. 705; 37 A.L.R.2d 1381.

Exclusiveness of statutory method of enforcing chattel mortgage, 88 A.L.R. 912.

Validity, construction, and application of insecurity clause in chattel mortgage, 125 A.L.R. 313.

Rights and remedies of mortgagee where mortgaged property is bid in on foreclosure as less than mortgage debt and it is redeemed by mortgagor or latter's grantee, 128 A.L.R. 796.

Attachment as affected by release or modification of lien to which property was subject when attachment was levied, 128 A.L.R. 1392.

Mortgagee's purchase at his own foreclosure sale as affecting right of subrogation against him arising out of facts antedating the sale, 141 A.L.R. 1217.

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.

What conduct by repossessing chattel mortgagee or conditional vendor entails tort liability, 99 A.L.R.2d 358.

Replevin or claim-and-delivery: modern view as to validity of statute or contractual provision authorizing summary repossession of consumer goods sold under retail installment sales contract, 45 A.L.R.3d 1233.

Failure to keep up insurance as justifying foreclosure under acceleration provision in mortgage or deed of trust, 69 A.L.R.3d 774.