O.C.G.A. § 44-14-233 (2019)
Answer; reopening the default; granting writ upon default; trial; order to turn over property to sheriff or other
(a) If the defendant fails to answer on or before the date provided in subsection (b) of Code Section 44-14-232, the defendant may reopen the default as a matter of right by making an answer within seven days after the date of the default notwithstanding the provisions of Code Section 9-11-55. If the seventh day is a Saturday, a Sunday, or a legal holiday, the answer may be made on the next day which is not a Saturday, a Sunday, or a legal holiday. (b) If the defendant fails to answer or open the default, the court shall grant a writ of possession and, if otherwise permitted by this part, the plaintiff shall be entitled to a verdict and a judgment by default in open court or in chambers and without the intervention of a jury for all of the amount due, together with costs, as if every item and paragraph of the affidavit provided for in Code Section 44-14-231 were supported by proper evidence. (c) The defendant may answer either in writing or orally. If the defendant answers orally, the substance thereof shall be endorsed by the court on the petition. The answer may contain any legal or equitable defense or counterclaim. If the defendant answers, a trial of the issues shall be had in accordance with the procedure prescribed for civil
actions in courts of record. Every effort shall be made by the trial court to expedite a trial of the issues and place the case on the next available calendar. However, the trial shall not be held before seven days have elapsed from the date the defendant files his answer. The defendant shall be allowed to remain in possession of the secured property pending the final outcome of the litigation, provided that the defendant complies with Code Section 44-14-234. (d) The court shall issue an order directing the defendant or person in possession of property sought to be foreclosed to turn over said property to the sheriff, marshal, constable, or their lawful deputies whenever that court issues a writ of possession for personal property pursuant to this part. (e) A suggested form for the order authorized under subsection (d) of this Code section is as follows: “IN THE
STATE OF GEORGIA (Style of case)
CIVIL ACTION NO. ORDER
A writ of possession having been issued against the defendant for personal property to be foreclosed upon, it is: ORDERED that the defendant or the party in possession of the property specified in that writ of possession be and that person is hereby directed to turn over to the sheriff, marshal, or constable of County or his lawful deputies, or to any sheriff, marshal, or constable of this state or their lawful deputies, the (describe property), instanter, or advise said officer of the location of the property if same is not in defendant’s possession. SO ORDERED, this .
day of
,
JUDGE PRESENTED BY: Attorney’s name and address”
History
Code 1933, § 67-704, enacted by Ga. L. 1974, p. 398, § 1; Ga. L. 1978, p. 1705, § 3; Ga. L. 1987, p. 1023, § 4; Ga. L. 1999, p. 81, § 44.
Annotations
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).
JUDICIAL DECISIONS The purpose in enacting O.C.G.A. § 44-14-233 was to give defendants who are unrepresented by counsel and who are unschooled in the law an opportunity to state their defenses orally to the court as best they can and to have the substance of their defenses endorsed on the dispossessory warrant, thereby making a record upon which the case may proceed in the trial and appellate courts. Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga. App. 525, 258 S.E.2d 139, 1979 Ga. App. LEXIS 2279 (1979). The Personal Property Foreclosure Act requires the making of a contemporaneous record, and it must be strictly construed and observed. Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga. App. 525, 258 S.E.2d 139, 1979 Ga. App. LEXIS 2279 (1979). Request for jury trial and demand for a court reporter is no “answer” to a petition for a writ of possession. The trial court is therefore mandated by law to issue the writ of possession, which does not amount to a denial of the constitutional right to a jury trial. Banks v. BorgWarner Acceptance Corp., 168 Ga. App. 46, 308 S.E.2d 54, 1983 Ga. App. LEXIS 2671 (1983). The failure to endorse an answer upon the petition at the time of the hearing is not an amendable defect so as to be cured by judgment or subsequent “supplemental record.” Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga. App. 525, 258 S.E.2d 139, 1979 Ga. App. LEXIS 2279 (1979). 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. MidlandGuardian 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). Default judgment entered prior to seven-day period following the original default is voidable during that seven-day period and may be set aside. However, where the defendant files no answer or other pleadings during that time, a later motion to set aside the judgment comes too late. Steele v. Bank of Dalton, 168 Ga. App. 224, 308 S.E.2d 577, 1983 Ga. App. LEXIS 2733 (1983). Answer untimely. - In an action for an immediate writ of possession against borrowers who had defaulted, the bank’s motion to dismiss the borrowers’ answer and counterclaim was properly granted, because the borrowers failed to open the default judgment as a matter of right within seven days, as required by O.C.G.A. § 44-14-233(a) and, thus, the case remained in default. Mathis v. River City Bank, 317 Ga. App. 560, 731 S.E.2d 788, 2012 Ga. App. LEXIS 766 (2012). There is no provision in O.C.G.A. § 44-14-233 allowing a judgment by default for all of the amount due, together with costs. Spencer v. Taylor, 144 Ga. App. 641, 242 S.E.2d 308, 1978 Ga. App. LEXIS 1721 (1978). Defendant’s failure to post bond entitled plaintiff to immediate writ of possession. - Consulting company sued a store for breach of contract; the store’s debt to the company was secured by UCC financing statements on the store’s inventory. The company was entitled to an immediate writ of possession because after the suit was filed, the store sold and transferred merchandise subject to the company’s security interest without posting bond as required by O.C.G.A. §§ 4414-234(3) and 44-14-237. Deere Park &
Assocs. v. C H Furniture Source, LLC, 296 Ga. App. 382, 674 S.E.2d 635, 2009 Ga. App. LEXIS 229 (2009). Judgment reversed when owner not accorded statutory procedures. - Trial court improperly issued the court’s final judgment without affording the owner the procedures accorded the owner by O.C.G.A. § 44-14-233(c). The earlier
hearing did not amount to a trial since it was neither noticed nor understood as such by the parties or the trial court, which issued a ruling only on the interlocutory matter of the registry payments at its conclusion. Ware v. Vanderbilt Mortg. & Fin., Inc., 320 Ga. App. 702, 740 S.E.2d 691, 2013 Ga. App. LEXIS 263 (2013).
RESEARCH REFERENCES Am. Jur. 2d. 69 Am. Jur. 2d, Secured Transactions, § 572. C.J.S. 14 C.J.S., Chattel Mortgages, §§ 355, 400, 405, 411.
ALR. Right to litigate validity of tax title in suit to foreclose mortgage, 85 A.L.R. 1073. Right to jury trial of issues as to personal judgment for deficiency in suit to foreclose mortgage, 112 A.L.R. 1492.