TITLE 44 PROPERTY

Section 14. Mortgages, Conveyances to Secure Debt, and Liens, 44-14-1 through 44-14-613.

ARTICLE 7 FORECLOSURE

44-14-233. Answer; reopening the default; granting writ upon default; trial; order to turn over property to sheriff or other.

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.
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.
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.
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 __________ COURT OF __________ COUNTY

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"

(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.)

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).

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).

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. Borg-Warner Acceptance Corp., 168 Ga. App. 46, 308 S.E.2d 54 (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).

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).

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).

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).

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).

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. §§ 44-14-234(3) and44-14-237. Deere Park & Assocs. v. C H Furniture Source, LLC, 296 Ga. App. 382, 674 S.E.2d 635 (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).

Cited in Harper v. First Nat'l Bank, 133 Ga. App. 690, 212 S.E.2d 20 (1975); Greene v. Citizens & S. Bank, 134 Ga. App. 73, 213 S.E.2d 175 (1975); Candler I-20 Properties v. Inn Keepers Supply Co., 137 Ga. App. 94, 222 S.E.2d 881 (1975); Wallace v. Aetna Fin. Co., 137 Ga. App. 580, 224 S.E.2d 517 (1976); Jordan v. F & M Bank, 138 Ga. App. 43, 225 S.E.2d 498 (1976); Bank of S. v. Hammock, 140 Ga. App. 552, 231 S.E.2d 407 (1976); Brock v. GMAC, 140 Ga. App. 526, 231 S.E.2d 524 (1976); Favors v. Vintage Credit Corp., 141 Ga. App. 47, 232 S.E.2d 387 (1977); First Nat'l Bank v. Baker, 142 Ga. App. 870, 237 S.E.2d 233 (1977); Flanders v. Commercial Credit Equip. Corp., 145 Ga. App. 193, 243 S.E.2d 525 (1978); Chapman v. Bank of Cumming, 150 Ga. App. 85, 256 S.E.2d 601 (1979); 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); Jones v. First Carolina Fin. Corp., 158 Ga. App. 818, 282 S.E.2d 364 (1981); Smith v. GMAC, 178 Ga. App. 848, 344 S.E.2d 768 (1986); Hill v. First Community Bank, 180 Ga. App. 772, 350 S.E.2d 486 (1986).

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.

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