O.C.G.A. § 44-14-281 (2019)

Annotations

JUDICIAL DECISIONS The debtor may, by affidavit of illegality, utilize any defense which the debtor might set up in an ordinary action upon the demand secured by a mortgage, and which goes to show that the amount claimed is not due and owing in a proceeding to foreclose a bill of sale retaining title to secure a debt. Atlas Auto Fin. Co. v. Atkins, 79 Ga. App. 91, 53 S.E.2d 171, 1949 Ga. App. LEXIS 589 (1949). While the debtor is permitted to utilize a valid defense of recoupment, the debtor is not entitled to plead the defense of setoff in such a summary proceeding, since the latter defense is not one which goes to the justice of the plaintiff’s demand. Atlas Auto Fin. Co. v. Atkins, 79 Ga. App. 91, 53 S.E.2d 171, 1949 Ga. App. LEXIS 589 (1949). A general plea of no indebtedness is insufficient as setting out a defense in an affidavit of illegality to a statutory foreclosure of a retention of title contract of sale. Kent v. Rogers, 58 Ga. App. 835, 200 S.E. 235, 1938 Ga. App. LEXIS 147 (1938). In a suit to foreclose a contract retaining title to personalty, ground of an affidavit of illegality which states that the debt is not due and not unpaid and that the affidavit of foreclosure is untrue, pleads no facts showing that the amount

claimed is not due, and, as a general denial, it is not an issuable defense which the defendant might have set up in an ordinary action upon the demand secured by the contract retaining title. Carter v. Rich’s, Inc., 83 Ga. App. 188, 63 S.E.2d 241, 1951 Ga. App. LEXIS 829 (1951). Lack of authority. - Ordinarily, where a retention-of-title contract is foreclosed against property, that the employee who signed the contract in the partnership name was not authorized to execute an instrument of that nature on behalf of the partnership sets up a valid defense to the foreclosure. Long Tobacco Harvesting Co. v. Brannen, 98 Ga. App. 142, 105 S.E.2d 390, 1958 Ga. App. LEXIS 528 (1958). Failure to set up defense. - Where a proceeding to foreclose a retention of title contract is instituted and the defendant’s answer sets up no defense to the foreclosure proceeding and, in fact, is not responsive to the foreclosure proceeding, but refers to a trover proceeding and nowhere denies that the amount claimed or any part thereof is due, the answer filed fails to set up any defense and is subject to dismissal. Little v. Yow, 69 Ga. App. 335, 25 S.E.2d 232, 1943 Ga. App. LEXIS 71 (1943).

RESEARCH REFERENCES C.J.S. 14 C.J.S., Chattel Mortgages, § 405.