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2018 Georgia Code 9-12-86 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 9-12-86 Case Law from Google Scholar Amendments to OCGA 9-12-86

TITLE 9 CIVIL PRACTICE

Section 12. Verdict and Judgment, 9-12-1 through 9-12-138.

ARTICLE 4 JUDGMENT LIENS

9-12-86. Recordation in county where property located prerequisite to lien on land.

  1. For purposes of this Code section, the term "applicable records" shall include deed books, lis pendens dockets, federal tax lien dockets, general execution dockets, and attachment dockets.
  2. No judgment, decree, or order or any writ of fieri facias issued pursuant to any judgment, decree, or order of any superior court, city court, magistrate court, municipal court, or any federal court shall in any way affect or become a lien upon the title to real property until the judgment, decree, order, or writ of fieri facias is recorded in the office of the clerk of the superior court of the county in which the real property is located and is entered in the indexes to the applicable records in the office of the clerk. Such entries and recordings must be requested and paid for by the plaintiff or the defendant, or his attorney at law.
  3. The recording and indexing required by this Code section shall be in addition to and supplemental to all other recording of judgments, decrees, and orders required by law.
  4. This Code section shall only apply to judgments, decrees, or orders rendered after March 25, 1958.

(Ga. L. 1958, p. 379, §§ 1-5; Ga. L. 1966, p. 142, §§ 1-3; Ga. L. 1983, p. 884, § 3-5.)

JUDICIAL DECISIONS

Purpose of O.C.G.A. § 9-12-86 is to protect third persons acting in good faith and without notice by requiring that any judgment, decree, or order must be recorded before it will in any way affect or become a lien on title to real property. National Bank v. Morris-Weathers Co., 248 Ga. 798, 286 S.E.2d 17 (1982).

Effect of O.C.G.A. § 9-12-86 is not to repeal either O.C.G.A. § 9-12-87 or O.C.G.A. § 9-12-80. While it is true that § 9-12-86, as amended, provides that all laws or parts of laws in conflict are repealed, there is no conflict which requires a repeal. National Bank v. Morris-Weathers Co., 248 Ga. 798, 286 S.E.2d 17 (1982).

Section not concerned with perfection of title.

- Language in statute that provides that no judgment shall in any way affect or become a lien upon real property until that judgment is recorded concerns perfection of judgments as liens upon real property, and not perfection of title. Richardson v. Park Ave. Bank, 173 Ga. App. 43, 325 S.E.2d 455 (1984).

Time from which liens to be dated.

- This section manifests an intention to date liens from the time of recording on the general execution docket. The obvious import is to allow all persons, whether purchasers or creditors, to rely on courthouse records to determine what claims to real property exist. In re Tinsley, 421 F. Supp. 1007 (M.D. Ga. 1976), aff'd, 554 F.2d 1064 (5th Cir. 1977). But see, National Bank v. Morris-Weathers Co., 248 Ga. 798, 286 S.E.2d 17 (1982).

Recorded lien relates back to time of judgment.

- Although O.C.G.A. § 9-12-86 causes a judgment to have no effect as a lien on real estate during the period in which the judgment is not recorded, it does not mean that the judgment does not exist. The period between the taking of the judgment and the judgment's recording is merely a period of dormancy. When the judgment is recorded as provided for, the dormancy ends and the judgment becomes effective as a lien on real estate. For priority purposes, the judgment then relates back to the date of the judgment's rendition and shall be considered of equal date with other perfected liens arising from judgments on verdicts rendered at the same term of court. Otherwise there would be a race to the courthouse by competing judgment creditors. This is the very evil which O.C.G.A. § 9-12-87 was intended to avoid. National Bank v. Morris-Weathers Co., 248 Ga. 798, 286 S.E.2d 17 (1982).

Recordation prerequisite applicable only to liens on real property.

- Requirement of recordation in this section as a prerequisite to the creation of a lien applies only to liens on real property. In re Tinsley, 421 F. Supp. 1007 (M.D. Ga. 1976), aff'd, 554 F.2d 1064 (5th Cir. 1977); National Bank v. Morris-Weathers Co., 248 Ga. 798, 286 S.E.2d 17 (1982).

Although a judgment creditor did not have a lien on debtor's real property because the creditor did not record the out-of-state judgment on the general execution docket pursuant to O.C.G.A. § 9-12-86, the creditor did have a lien on the debtor's personal property because the recordation requirement only applied to liens on real property. Natl Serv. Direct, Inc. v. Anderson (In re Nat'l Serv. Direct, Inc.), Bankr. (Bankr. N.D. Ga. Jan. 28, 2005).

In a declaratory judgment action brought by the purchasers of certain real property to remove a cloud from the purchaser's title asserted by a bank who had obtained a writ of fieri facias (the lien) against one of the sellers, the trial court erred by granting summary judgment to the bank and holding that the purchasers had a duty to inquire as to prior names used by that seller. The purchasers provided expert testimony that the lien using that seller's married name had not been recorded and, in turn, the bank failed to present any evidence to dispute the affidavits of the purchasers' witnesses or to cite to any authority which imposed a duty on the purchasers or the purchasers' agents to investigate prior or alternative names of that seller when nothing occurred prior to or during the closing that created a duty to inquire and that the seller had falsely sworn under oath that the property was not subject to any encumbrances or liens and that there were no outstanding judgments. Gallagher v. Buckhead Cmty. Bank, 299 Ga. App. 622, 683 S.E.2d 50 (2009), cert. denied, No. S09C2080, 2010 Ga. LEXIS 2 (Ga. 2010).

A creditor had a judicial lien against a debtor's personal property that was obtained through a consent judgment for a deficiency on a car loan, even without recording the lien or obtaining a writ of fieri facias, as O.C.G.A. §§ 9-12-80 and9-12-86 did not require a recording for personal property, and the failure to record only affected the creditor's interests against third parties. Action Motors, Inc. v. Milliner (In re Milliner), 554 Bankr. 525 (Bankr. M.D. Ga. 2016).

As to personal property, former Code 1933, §§ 110-506 and 110-507 (see now O.C.G.A. §§ 9-12-80 and9-12-89) applied to establish the date of a trial court judgment as the date on which the creditors obtain a lien. In re Tinsley, 421 F. Supp. 1007 (M.D. Ga. 1976), aff'd, 554 F.2d 1064 (5th Cir. 1977).

Georgia law determines when transfer takes place for Bankruptcy Code, 11 U.S.C. § 547(e)(1), purposes; and a transfer for preference avoidance purposes does not occur until the lien is recorded on the general execution docket pursuant to O.C.G.A. § 9-12-86. Wall v. Asics Tiger Corp., 216 Bankr. 1016 (Bankr. M.D. Ga. 1998).

Under O.C.G.A. § 9-12-86, a creditor's judgment lien against a debtor's real property was not perfected for purposes of 11 U.S.C. § 547(b) until the lien was recorded, and because the lien was recorded within 90 days of the filing of the debtor's bankruptcy petition, a trustee was permitted to avoid the transfer of the security interest as a preference; the court declined to use the court's equitable powers under 11 U.S.C. § 105(a) to find that the transfer occurred outside the preference period because to do so would have circumvented the trustee's clear statutory authority to avoid preference transactions. Pettigrew v. Hoey Constr. Co. (In re NotJust Another CarWash, Inc.), Bankr. (Bankr. N.D. Ga. Feb. 15, 2007).

In determining that a debtor's transfer of a security interest in certain real property to a judgment creditor occurred for purposes of 11 U.S.C. § 547(b) when the creditor's judgment lien was recorded, the court applied O.C.G.A. § 9-12-86 because: (1) case law holding that an unrecorded deed had priority over a recorded judgment lien was limited to O.C.G.A. § 44-2-2 and did not prevent the application of § 9-12-86 in the instant case; (2) § 9-12-86 provided an exception to O.C.G.A. § 9-12-80's general rule that a creditor acquired a lien when judgment was entered; and (3) a trustee's imputed knowledge of a transfer was not relevant for purposes of 11 U.S.C. § 547. Pettigrew v. Hoey Constr. Co. (In re NotJust Another CarWash, Inc.), Bankr. (Bankr. N.D. Ga. Feb. 15, 2007).

Recordation of in-state federal judgment in county is all that is required to establish lien.

- To establish a lien on real property, a judgment creditor must file the writ of fieri facias on the general execution docket of the county in which the property is located. Thus, given the requirement that intrastate federal court judgments must receive the same treatment as state court judgments, all that a holder of an in-state federal judgment must do to establish a lien on real property is record a federal writ of execution on the general execution docket of the respective county. Tunnelite, Inc. v. Estate of Sims, 266 Ga. App. 476, 597 S.E.2d 555 (2004).

Cited in Dunlap Hdwe. Co. v. Tharp, 2 Ga. App. 63, 58 S.E. 398 (1907); Stephens v. Stephens, 220 Ga. 22, 136 S.E.2d 726 (1964); City of Rome v. Pilgrim, 246 Ga. 281, 271 S.E.2d 189 (1980); Southern Educators Assocs. v. Silver, 245 Ga. 520, 284 S.E.2d 3 (1981); Landmark First Nat'l Bank v. Schwall & Heuett, 161 Ga. App. 356, 288 S.E.2d 331 (1982); Watkins v. Citizens & S. Nat'l Bank, 163 Ga. App. 468, 294 S.E.2d 703 (1982); Eavenson v. Parker, 261 Ga. 607, 409 S.E.2d 520 (1991); Baggett v. Baggett, 270 Ga. App. 619, 608 S.E.2d 688 (2004).

OPINIONS OF THE ATTORNEY GENERAL

Any and all judgments, orders, decrees, or writs of fieri facias must be recorded and not merely one of them, and they must be recorded in as many of the appropriate records of the clerk's office as included within the definition of "applicable records." 1967 Op. Att'y Gen. No. 67-222.

RESEARCH REFERENCES

Am. Jur. 2d.

- 46 Am. Jur. 2d, Judgments, §§ 349, 352.

15 Am. Jur. Pleading and Practice Forms, Judgments, § 18.

C.J.S.

- 49 C.J.S., Judgments, § 772 et seq.

ALR.

- Judgment as lien on unrecorded title to real estate, 43 A.L.R. 44.

Decree on bill of review reversing prior decree as affecting purchaser or mortgagee of real property in the interval between the original decree and the filing of the bill of review, 150 A.L.R. 676.

Cases Citing O.C.G.A. § 9-12-86

Total Results: 3  |  Sort by: Relevance  |  Newest First

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Vance v. Lomas Mortg. USA, Inc., 426 S.E.2d 873 (Ga. 1993).

Cited 25 times | Published | Supreme Court of Georgia | Mar 15, 1993 | 263 Ga. 33, 93 Fulton County D. Rep. 1160

...the institution of the action, the name of the court in which it is pending, a description of the real property involved, and a statement of the relief sought regarding the property. [3] Recordation of final judgments in the manner provided by OCGA § 9-12-86 remains a prerequisite to notice of the rights created or adjudicated by such final judgment....
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Synovus Bank d/b/a First Cmty. Bank of Tifton v. Kelley, 847 S.E.2d 592 (Ga. 2020).

Cited 7 times | Published | Supreme Court of Georgia | Aug 24, 2020 | 309 Ga. 654

...against a debtor’s real property, and the judgment debtor, OCGA § 9-12-80 creates a lien on the debtor’s real property or rather is a lien against the debtor’s real property created at the time of recordation pursuant to OCGA § 9-12-86....
...disagree on whether the transfer of interest in the real property was made as between the Brownlees and Synovus at the time the judgment was entered or at the time the Fi. Fa. was recorded. To answer that question, we begin with the statute most closely on point. OCGA § 9-12-86 (b), provides that [n]o judgment, decree, or order or any writ of fieri facias issued pursuant to any judgment, decree, or order of any superior court, city court, magistrate court, municipal court, or any federal...
...constitutes a transfer under the terms of this provision. in the office of the clerk of the superior court of the county in which the real property is located and is entered in the indexes to the applicable records in the office of the clerk. ... Synovus acknowledges OCGA § 9-12-86 but argues that statute must be read in conjunction with OCGA § 9-12-80, which provides that “[a]ll judgments obtained in the superior courts, magistrate courts, or other courts of this state shall be of equal dignity and shall bind...
...Code.” The statute itself does not explicate the manner in which a judgment “bind[s]” the judgment debtor’s property, and the exception language contemplates that other Code provisions may also address the effect of a judgment on a debtor’s property. OCGA § 9-12-86 (b) directly addresses the effect of a judgment on a judgment debtor’s real property when the judgment or writ of fieri facias is properly recorded, thus creating an exception to § 9-12-80’s general rule. The text of § 9-12-86 (b) could not be plainer in defining when a judgment lien is created on the title to real property, providing that “[n]o judgment ....
...Accordingly, we hold that as between the judgment creditor and the judgment debtor, no lien is created on the title to the debtor’s real property until “the judgment, decree, order, or writ of fieri facias” is properly recorded as required by § 9-12-86. This reading applies the plain text of the statutes to give effect to both. As we explained in Nat. Bank of Ga. v. Morris-Weathers Co., 248 Ga. 798, 800 (286 SE2d 17) (1982), although the provision currently codified at OCGA § 9-12-86 (b)4 causes a judgment to have no effect as a lien on real estate during the period in which it is not recorded, it does not mean that the judgment does not exist....
...on the judgment debtor’s real and personal property to the extent that it prevents the alienation of the property by the judgment debtor from the time the judgment is signed through the pendency of the appeal. See OCGA § 9-12-88.5 Also, OCGA § 9-12-86 by its plain 4 This provision was formerly codified at § 110-515 of the 1933 Georgia Code. 5 OCGA § 9-12-88 provides: In all cases in which a judgment is rendered and an appeal is entered from the judgment, the property of the defendant in terms does not apply to a judgment debtor’s personal property. Synovus argues that OCGA § 9-12-86 should be read in context with similar statutes to establish priority as between the judgment creditor and bona fide purchasers for value and should not apply as between the judgment creditor and debtor....
...far as to prevent the alienation by the defendant of his property between its signing and the signing of the judgment on the appeal, but the property shall be bound from the signing of the judgment on the appeal. application of § 9-12-86 to disputes between bona fide purchasers for value and the judgment creditor. 2....
...Under OCGA § 9-12- 87 (a), “[a]ll judgments signed on verdicts rendered at the same term of court shall be considered, held, and taken to be of equal date.”6 However, the Court of Appeals had held that in accordance with what is now codified at OCGA § 9-12-86, “the priorities among competing lienholders as to the real property in the present case must be based upon the time and date of the recording[,]” and the court determined priority among the three judgment creditors accordingly. Morris-Weathers Co. v. Decatur Fed. S & L Assn., 158 Ga. App. 177, 178 (279 SE2d 482) (1981). On certiorari review of that decision, the single issue before this Court was “whether the Court of Appeals erred in holding that [§ 9-12-86] makes the date of recordation of a judgment on the general execution docket the single date and sole criterion for measuring priorities between competing judgment lien holders and the sole criterion for determining the effect of a judgment on the title to real property.” Morris-Weathers, 248 Ga....
...627, 630 (3) (34 SE2d 836) (1945), and Crosby v. King Hardware Co., 109 Ga. 452, 453-54 (6) (34 SE 606) (1899), which hold that a judgment becomes binding as between the parties on the date it is entered, those cases were decided before the legislature enacted what is now OCGA § 9-12-86 in 1958 to establish that a lien on the title to real property is created at the time of recordation and has no effect on the property’s title before that time....
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Eavenson v. Parker, 261 Ga. 607 (Ga. 1991).

Cited 2 times | Published | Supreme Court of Georgia | Oct 18, 1991 | 409 S.E.2d 520

...(a) At no time after the filing of the complaint for divorce was a lis pendens notice filed under OCGA § 44-14-610.1 (b) No notice of the decree in favor of the former husband was placed upon the execution docket or the real estate records, as provided by OCGA § 9-12-86 (b).2 *608Decided October 18, 1991. Thompson, Thompson & Hilbun, Scott B....