CopyCited 13 times | Published | Supreme Court of Georgia | Nov 23, 2009 | 286 Ga. 284, 2009 Fulton County D. Rep. 3642
...Barnes, Ellen M. Taylor, William A. Castings, Jr., Vincent D. Hyman, Janet S. Todd, Thurbert E. Baker, Atty. Gen., R.O. Lerer, Deputy Atty. Gen., Atlanta, for appellees. NAHMIAS, Justice. The appellants contend the trial court erred in relying on OCGA §
48-4-47 to dismiss their complaint against the appellees to recover property sold at a tax sale to satisfy unpaid property taxes. OCGA §
48-4-47 provides that once the right of redemption has been foreclosed by the providing of notice to the delinquent taxpayer and the passing of the barment date, the delinquent taxpayer cannot file or maintain suit to invalidate the tax deed witho...
...and the resulting tax deed. The appellants argue that the trial court nevertheless erred in dismissing their complaint, because an exception to the statutory payment or tender requirement applies and because the payment or tender requirement of OCGA §
48-4-47 violates their constitutional due process rights....
...reiterated an earlier order referring Foxworthy's counterclaim to a special master for a report and recommendation. The Saffos appealed. [1] 2. The Saffos raise two claims on appeal. First, they argue that the trial court erred in holding that OCGA §
48-4-47 bars their suit challenging the validity of the tax sale and resulting tax deed to Foxworthy. Second, they contend that OCGA §
48-4-47 violates their constitutional right to due process of law....
...Service of the notice of foreclosure of the right of redemption bars the filing or continuance of any action to set aside, cancel, or in any way invalidate the tax deed referred to in the notice or the title conveyed by the tax deed, unless the plaintiff first pays or tenders the full redemption amount. See OCGA §
48-4-47(a)....
...The Code provides only two exceptions to the payment or tender requirement: (1) where it clearly appears that the unpaid taxes which triggered the tax sale were not actually due at the time of the tax sale; and (2) where it clearly appears that "[s]ervice or notice was not given as required in this article." See OCGA §
48-4-47(b)(1),(2). With this background, we turn to the Saffos' two claims. 3. The Saffos contend the trial court erred in applying OCGA §
48-4-47 to bar their lawsuit challenging the tax sale and resulting tax deed to Foxworthy because they were not given timely notice of foreclosure of the right of redemption....
...redeemed at any time before June 20, 2002, by payment of the redemption price as fixed and provided for by law." (Emphasis supplied.) See OCGA §
48-4-46. Thus, the Saffos argue that the second exception to the payment or tender requirement of OCGA §
48-4-47 applies, because it clearly appears that "[s]ervice or notice [of foreclosure of the right of redemption] was not given as required in this article." OCGA §
48-4-47(b)....
...Foxworthy caused a second Notice of Foreclosure of Equity of Redemption to be served on them on November 4, 2004, which specified a barment date of December 28, 2004. The Saffos clearly received much more than the requisite 30 days' notice, and OCGA §
48-4-47(a) bars not only the "fil[ing]" of a suit to set aside a tax deed without payment or tender of the redemption amount, but also "maintain[ing]" such a suit. It is undisputed that the Saffos never paid or tendered the redemption amount. Accordingly, the trial court did not err in dismissing the Saffos' complaint for failing to pay or tender the redemption amount as required by OCGA §
48-4-47....
...ess would start all over again. What the Saffos seek is not simply an opportunity to be heard before a neutral decision maker, but an opportunity to be heard that will result in the return of their property to them without having to pay for it. OCGA §
48-4-47 does not violate the Saffos' due process rights simply because, in effect, it prevents them and others unwilling or unable to pay or tender the redemption amount from forcing the taxing authority, the new owner, and the trial court to enga...
...But procedures may be harsh without being unconstitutional. In this case, the Saffos have failed to make out a valid claim that their due process rights have been violated. Accordingly, we reject their due process challenge to the constitutionality of OCGA §
48-4-47....
...239(1),
430 S.E.2d 1 (1993). While I find the majority's legal analysis to be sound under the current state of the law, I write because I nevertheless believe the result to be harsh and not in keeping with protecting homeowners' rights. Particularly problematic is OCGA §
48-4-47(a), which requires the homeowner to pay the full redemption price as a condition to maintaining a suit over the validity of the tax sale....
CopyCited 6 times | Published | Supreme Court of Georgia | Mar 1, 2010 | 286 Ga. 562, 2010 Fulton County D. Rep. 535
...ALF notes that Dixon tendered to it $6,019.97, an amount she calculated based on the purported unpaid property taxes. ALF returned the tender. In support of its argument that Dixon can continue her suit only by making a full and proper tender, ALF looks to OCGA §
48-4-47, which provides: (a) After notice to foreclose the right of redemption as provided for in this article has been given, no action shall be filed, allowed, sanctioned, or maintained for the purpose of setting aside, canceling, or in any way...
...l assessment for the collection of which the execution under or by virtue of which the sale was held was not due at the time of the sale; or (2) Service or notice was not given as required in this article. Although ALF is correct in noting that OCGA §
48-4-47(a) generally provides that one who wishes to redeem the property must make a complete tender in order to challenge the tax deed, ALF has ignored OCGA §
48-4-47(b)(1), which specifically creates an exception when "it clearly appears that ... [t]he tax ... was not due at the time of the *418 sale." That is exactly what Dixon contends; she avers that she paid her 2003, 2004, and 2005 taxes, and thus asserts that no tax was due at the time of the tax sale. ALF contends that OCGA §
48-4-47(b)'s language stating that the exception to the tender requirement will apply only if it "clearly appears" that the taxes were not due, means that the trial court must first make a factual finding as to what "clearly appears" in order to apply an exception under OCGA §
48-4-47(b)....
...However, ALF cites to no statutory language or case law stating that a factual resolution of what "clearly appears" from the evidence is an issue to be decided by the trial court alone, and we find none. Here, there is a factual dispute as to whether Dixon falls into the exception provided in OCGA §
48-4-47(b); she avers she paid her taxes and nothing was owed at the time of the tax sale....
CopyCited 4 times | Published | Supreme Court of Georgia | Jan 10, 2011 | 288 Ga. 439, 2011 Fulton County D. Rep. 45
...BOA was added as a party to the complaint in early 2004, and more than three years later, in June 2007, CRR filed a motion of unconditional tender of redemption price in the trial court, purporting to completely and continuously tender to Nix and/or BOA. (a) CRR argues the trial court erred in applying OCGA §
48-4-47 to bar its suit because tender of the redemption price is required only after notice to foreclose the right of redemption is provided. [1] It is undisputed that Nix has not given the statutorily required notice of foreclosure of the right to redemption at any time since her purchase of the property by tax deed. Thus, contrary to the conclusion of the trial court, OCGA §
48-4-47 is inapplicable to the instant case....
...City of Atlanta,
281 Ga. 652, 653(2),
642 S.E.2d 100 (2007) (motion to dismiss properly granted if allegations disclose with certainty that plaintiff not entitled to relief under any state of provable facts). Judgment affirmed. All the Justices concur. NOTES [1] OCGA §
48-4-47(a) provides, in pertinent part, that after notice to foreclose the right of redemption has been given, no action to invalidate the tax deed may be filed or maintained unless "the plaintiff in the action pays or legally tenders to the grant...
