O.C.G.A. § 44-14-231 (2019)

Annotations

Law reviews. For article on this part and personal property foreclosures, see 11 Ga. St. B. J. 230 (1975).

JUDICIAL DECISIONS Venue. - An action under O.C.G.A. § 44-14-231 is not a “civil action” within the meaning of Ga. Const. 1983, Art. VI, Sec. II, Para. VI, and thus venue is proper in a county other than that of the defendant’s residence. McClintock v. Wellington Trade, Inc., 252 Ga. 563, 315 S.E.2d 428, 1984 Ga. LEXIS 772 (1984). An action pursuant to O.C.G.A. § 44-14-231 is not limited to proceeding only against a debtor who is in possession of the property, but contemplates that the defendant may be someone who is in possession of the property other than the debtor. Camilla Cotton Oil Co. v. C.I.T. Corp., 143 Ga. App. 840, 240 S.E.2d 212, 1977 Ga. App. LEXIS 2528 (1977); Sylvester Motor & Tractor Co. v. Farmers Bank, 153 Ga. App. 614, 266 S.E.2d 293, 1980 Ga. App. LEXIS 1923 (1980). Rights determined. - Like writ of possession, writ of immediate possession, whether upheld or dissolved, determines only right to possession pending final decision on merits. Ward v. Charles D. Hardwick Co., 156 Ga. App. 96, 274 S.E.2d 20, 1980 Ga. App. LEXIS 2893 (1980). Judicial immunity for magistrate judge. - Given that, in Georgia, issuance

of writs of possession is delegated to magistrates by Georgia law, the debtor’s complaint against the magistrate judge was subject to dismissal for failure to state a claim because the magistrate judge was acting as an arm of the state and was therefore entitled to Eleventh Amendment immunity; the judge was also acting within the judge’s judicial capacity and therefore entitled to judicial immunity. Singleton v. Yoder’s Storage Bldgs., LLC (In re Singleton), No. 16-60415-EJC, No. 16-06015-EJC, 2017 Bankr. LEXIS 3213 (Bankr. S.D. Ga. Sept. 20, 2017). Oath administered by unauthorized person. - Where oath made before notary public and not by party authorized to issue summons, all subsequent proceedings were nugatory. Jordan v. Ford Motor Credit Co., 141 Ga. App. 280, 233 S.E.2d 256, 1977 Ga. App. LEXIS 1871 (1977). Amendable defect. - Where a party seeking to foreclose a security interest in personal property sues out a writ of possession based on a petition not under oath, in violation of O.C.G.A. § 44-14-231, the failure is an amendable defect under

O.C.G.A. §§ 9-11-1 through 9-11-132 and does not render the proceedings void. C.E. Morgan Bldg. Prods., Inc. v. Safe-Lite Mfg., Inc., 244 Ga. 475, 260 S.E.2d 870, 1979 Ga. LEXIS 1296 (1979). Failure to raise timely objection. - Where the parties went to trial on the merits of the plaintiff’s petition for writ of possession seeking to foreclose security interest in personal property, without the defendant’s raising any objection concerning the plaintiff’s failure to verify the petition until appeal, the objection came too late. C.E. Morgan Bldg. Prods., Inc. v. Safe-Lite Mfg., Inc., 244 Ga. 475, 260 S.E.2d 870, 1979 Ga. LEXIS 1296 (1979). Court cannot command return of property, dispensing with levy on secured property. - O.C.G.A. § 44-14231 authorizes a court having jurisdiction to grant a writ of possession to secured property; it does not authorize a state court judge to command affirmatively that the defendant return the property and thus allow a plaintiff to dispense with a levy made on the secured property. Ponderosa Granite Co. v. First Nat’l Bank, 173 Ga. App. 105, 325 S.E.2d 591, 1984 Ga. App. LEXIS 2739 (1984). Default judgments. - O.C.G.A. § 4414-269 deals with petitions for immediate

writ of possession and is inapplicable to a proceeding dealing with a petition for a writ of possession under O.C.G.A. § 4414-231. Spencer v. Taylor, 144 Ga. App. 641, 242 S.E.2d 308, 1978 Ga. App. LEXIS 1721 (1978). Res judicata and collateral estoppel did not apply. - Trial court did not err in ruling for a creditor in the creditor’s action against a debtor pursuant to O.C.G.A. § 44-14-231 to foreclose on personal property and to recover monies lent and unpaid because the doctrines of res judicata and collateral estoppel did not apply when the merits of the creditor’s claims for foreclosure and monies lent had not been previously adjudicated by a court of competent jurisdiction; the issue before an administrative law judge (ALJ) in the Office of State Administrative Hearings was limited to whether the Georgia Department of Revenue acted properly in cancelling the creditor’s certificate of title to a vehicle, and the issue of the debtor’s failure to pay the debtor’s debt to the creditor was not an issue litigated and decided in the administrative proceeding. Allen v. Santana, 303 Ga. App. 844, 695 S.E.2d 314, 2010 Ga. App. LEXIS 422 (2010).

OPINIONS OF THE ATTORNEY GENERAL A justice of the peace may only honor applications for writs of possession as provided by 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 Am. Jur. 2d. 69 Am. Jur. 2d, Secured Transactions, §§ 590-606. C.J.S. 14 C.J.S., Chattel Mortgages, §§ 272, 405-408. 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.

Jurisdiction of court of state other than that in which property is located to redeem from or enforce a chattel mortgage debt secured thereby, 69 A.L.R. 622. Bankruptcy court’s injunction against mortgage or lien enforcement proceedings commenced, before bankruptcy, in another court, 40 A.L.R.2d 663. Maintenance of replevin or similar possessory remedy by cotenant, or security transaction creditor thereof, against other cotenants, 93 A.L.R.2d 358.