Syfert Injury Law Firm

Your Trusted Partner in Personal Injury & Workers' Compensation

Call Now: 904-383-7448

2018 Georgia Code 44-14-241 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 44-14-241 Case Law from Google Scholar Amendments to OCGA 44-14-241

TITLE 44 PROPERTY

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

ARTICLE 7 FORECLOSURE

44-14-241. 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.

(Ga. L. 1882-83, p. 109, § 3; Civil Code 1895, § 2756; Civil Code 1910, § 3289; Code 1933, § 67-1004.)

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).

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).

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).

Cited in Anderson v. Hilton & Dodge Lumber Co., 121 Ga. 688, 49 S.E. 725 (1905); Berry v. Robinson & Overton, 122 Ga. 575, 50 S.E. 378 (1905); Berckmans v. Tarnok, 151 Ga. 117, 106 S.E. 2 (1921); Hartman v. Citizens' Bank & Trust Co., 47 Ga. App. 562, 171 S.E. 195 (1933); Coolidge v. Sandwich, 49 Ga. App. 564, 176 S.E. 525 (1934); Wilder Bros. v. Montgomery, 51 Ga. App. 231, 179 S.E. 861 (1935).

Subpart 2 Foreclosures Arising out of Commercial Transactions

44-14-260. Definitions.

As used in this subpart, the term:

  1. "Commercial transaction" means a transaction which gives rise to an obligation to pay for goods sold or leased, services rendered, or moneys loaned for use in the conduct of a business or profession and not for personal consumption.
  2. "Consumer transaction" means the sale, lease, or rental of goods, services, or property, real or personal, primarily for personal, family, or household purposes.
  3. "Waiver" means a written statement signed by the defendant, which statement contains language clearly and unambiguously waiving any and all rights the defendant may have to a notice prior to seizure by a creditor having an interest in personal property of the defendant. No waiver shall be effective unless the interest sought to be foreclosed upon arose out of a commercial transaction.

(Code 1933, § 67-718, enacted by Ga. L. 1975, p. 1213, § 3.)

JUDICIAL DECISIONS

Motor home loan consumer transaction.

- Because motor homes are generally used for personal purposes rather than commercial ones, the trial court properly concluded that a loan transaction between original motor home purchaser and bank was a consumer transaction. Washington State Employees Credit Union v. Robinson, 206 Ga. App. 782, 427 S.E.2d 15 (1992).

Cited in Porter v. Midland-Guardian Co., 242 Ga. 1, 247 S.E.2d 743 (1978); Sumner v. Adel Banking Co., 244 Ga. 73, 259 S.E.2d 32 (1979).

RESEARCH REFERENCES

Am. Jur. 2d.

- 68 Am. Jur. 2d, Secured Transactions, §§ 23, 590-606.

C.J.S.

- 14 C.J.S., Chattel Mortgages, § 370.

ALR.

- Chattel mortgage on property consumable in use, 49 A.L.R. 1495.

No results found for Georgia Code 44-14-241.