O.C.G.A. § 44-14-241 (2019)
Foreclosure before debt due; affidavit of illegality; bond; trial of issue
After the levy of the execution on the mortgaged property, the defendant may file his affidavit of illegality, in which affidavit he may avail himself of any defense that he could have set up in an ordinary action upon the demand secured by the mortgage and may show that he is not justly indebted to the plaintiff in the sum claimed in the affidavit of foreclosure. The subsequent proceedings, as to the giving of bond and the trial of the issue made in the case, shall be conducted in the manner prescribed by Code Section 44-14-233.
History
Ga. L. 1882-83, p. 109, § 3; Civil Code
1895, § 2756; Civil Code 1910, § 3289; Code 1933, § 67-1004.
Annotations
JUDICIAL DECISIONS The mortgagor may, in an affidavit of illegality, set up any defense the mortgagor might have urged in an action on the note secured by the mortgage and which goes to show that the amount claimed is not due and owing by the mortgagor. Fellows v. Sapp, 45 Ga. App. 89, 163 S.E. 314, 1932 Ga. App. LEXIS 174 (1932). Setoff not available. - In an affidavit of illegality to the foreclosure of a mortgage on personalty, the mortgagor may
utilize the defense of recoupment; but the mortgagor cannot plead setoff in such a proceeding. Holleman v. Commercial Credit Co., 66 Ga. App. 772, 19 S.E.2d 336, 1942 Ga. App. LEXIS 301 (1942). It was error to dismiss an affidavit of illegality, on motion, on the ground that it was not the proper remedy of the defendant, without passing upon its merits. Crawford v. Scott, 137 Ga. 760, 74 S.E. 520, 1912 Ga. LEXIS 139 (1912).
Subpart 2 Foreclosures Arising out of Commercial Transactions