O.C.G.A.
O.C.G.A.

O.C.G.A. § 9-13-172.1 (2019)

‘‘Eligible sale’’ defined; recision of sale; damages

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) As used in this Code section, ‘‘eligible sale’’ means a judicial or nonjudicial sale that was conducted in the usual manner of a sheriff’s sale and that was rescinded by the seller within 30 days after the sale but before the deed or deed under power has been delivered to the purchaser. (b) Upon recision of an eligible sale, the seller shall return to the purchaser, within five days of the recision, all bid funds paid by the purchaser. (c) Where the eligible sale was rescinded due to an automatic stay pursuant to the filing of bankruptcy by a person with an interest in the property, the damages that may be awarded to the purchaser in any civil action shall be limited to the amount of the bid funds tendered at the sale. (d) Where the eligible sale was rescinded due to: (1) The statutory requirements for the sale not being fulfilled; (2) The default leading to the sale being cured prior to the sale; or (3) The plaintiff in execution and the defendant in execution having agreed prior to the sale to cancel the sale based upon an enforceable promise by the defendant to cure the default,

the damages that may be awarded to the purchaser in any civil action shall be limited solely to the amount of the bid funds tendered at the sale plus interest on the funds at the rate of 18 percent annually, calculated daily. Notwithstanding any other provision of law, specific performance shall not be a remedy available under this Code section.

History

(Code 1981, § 9-13-172.1, enacted by Ga. L. 2003, p. 413, § 1.)

Annotations

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2003, ‘‘usual’’ was substituted for ‘‘ususal’’ in subsection (a). Law reviews. - For survey article on

real property law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 397 (2003). For annual survey on real property, see 64 Mercer L. Rev. 255 (2012).

JUDICIAL DECISIONS Legislative intent. - Legislature intended with O.C.G.A. § 9-13-172.1 to create a mechanism to give homeowners every opportunity to cure a default and avoid the harmful and disturbing effects of foreclosure because there is an unquestionable impact by the statute on homeowners of property in foreclosure who, prior to sale, cure the default or enter into agreements to cure the default. JIG Real Estate, LLC v. Countrywide Home Loans, Inc., 289 Ga. 488, 712 S.E.2d 820 (2011). Statute not unconstitutionally vague. - Trial court did not err by upholding the constitutionality of O.C.G.A. § 9-13-172.1 because the purchaser completely failed to carry the purchaser’s burden of showing that § 9-13-172.1 was unconstitutionally vague in any of the statute’s applications; persons of common intelligence would have no difficulty understanding that § 9-13-172.1 in and of itself authorizes rescission of an eligible sale due to the occurrence of the bankruptcy stay in § 9-13-172.1(c) or one of the

three situations set forth in § 9-13-172.1(d). JIG Real Estate, LLC v. Countrywide Home Loans, Inc., 289 Ga. 488, 712 S.E.2d 820 (2011). Statute authorized rescission of eligible sale. - Trial court did not err by finding that the holder of the deed to secure debt on mortgagors’ property was authorized to and properly did rescind a foreclosure sale to a purchaser because O.C.G.A. § 9-13-172.1 authorized under clearly defined circumstances the rescission of an eligible sale. JIG Real Estate, LLC v. Countrywide Home Loans, Inc., 289 Ga. 488, 712 S.E.2d 820 (2011). Application. - Rescission provisions of O.C.G.A. § 9-13-172.1, by their terms, allow a foreclosing lender to rescind a foreclosure sale and the memorandum of sale simply memorializes certain aspects of the foreclosure sale, thus, rescinding the foreclosure sale also rescinds the memorandum of sale. Stowers v. Branch Banking & Trust Co., 317 Ga. App. 893, 731 S.E.2d 367 (2012).

Notes of Decisions
Cited in 8 cases, 2005–2020 · leading case: JIG Real Est., LLC v. Countrywide Home Loans, Inc., 712 S.E.2d 820 (Ga. 2011).
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JIG Real Est., LLC v. Countrywide Home Loans, Inc., 712 S.E.2d 820 (Ga. 2011). · cites it 62× “Appellant JIG Real Estate, a limited liability company that speculates in real estate, brought this appeal to challenge the ruling of the trial court upholding the constitutionality of OCGA § 9-13-172.1 (authorizing the rescission of foreclosure sales under certain conditions)…”
Stowers v. Branch Banking & Trust Co., 731 S.E.2d 367 (Ga. Ct. App. 2012). · cites it 10× “Stowers argues that the bank’s rescission of a foreclosure sale at which he was the high bidder does not come within the “safe harbor” provision of OCGA § 9-13-172.1. Under that statute, in certain circumstances, when a foreclosing lender rescinds a foreclosure sale, the high…”
Bank of North Georgia v. Windermere Dev., Inc., 728 S.E.2d 714 (Ga. Ct. App. 2012). · cites it 2× “Disregarding, as we must, the affiant’s statement’s concerning the propriety of the foreclosure sale, BNG has not shown that the foreclosure sale was void and subject to recision pursuant to OCGA § 9-13-172.1.”
Harpagon Co. v. Gelfond, 608 S.E.2d 597 (Ga. 2005). · cites it 4× “The parties offer OCGA § 9-13-172.1 as possible statutory authority for the sheriffs action.”
Najarian Capital, LLC v. Fed. Nat'l Mortg. Ass'n (Ga. Ct. App. 2020). · cites it 22× “Within the 30-day time periods for each of the sales, and before the deeds were delivered to the Appellant, the Appellee rescinded the sales of Property I and Property II2 pursuant to OCGA § 9-13-172.1 (d). After each of the rescissions, the Appellant contacted the Appellee and…”
William Stowers v. Branch Banking & Trust Co. (Ga. Ct. App. 2012). · cites it 12× “Stowers argues that the bank’s rescission of a foreclosure sale at which he was the high bidder does not come within the “safe harbor” provision of OCGA § 9-13-172.1. Under that statute, in certain circumstances, when a foreclosing lender rescinds a foreclosure sale, the high…”
Georgia Home Appraisers, Inc. v. Trintec Portfolio Servs., LLC (Ga. Ct. App. 2019). · cites it 2× “” OCGA § 9-13-172.1 (d) (1). 5 Trintec to conduct a resale; and (3) the parties would waive any remaining claims they had in the quiet title action After a hearing at which the parties stipulated to the facts, the trial court denied GHA’s petition to quiet title and entered an…”
Windermere Dev., Inc. v. Bank of North Ga (Ga. Ct. App. 2012). · cites it 2× “cross- appellants contend that the debts evidenced by the reimbursement agreements in the letters of credit are inextricably intertwined with their other debts and that BNG’s claims on the letters of credit amount to claims for a deficiency following the propriety of the…”
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