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2018 Georgia Code 9-13-172 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 9-13-172 Case Law from Google Scholar Amendments to OCGA 9-13-172

TITLE 9 CIVIL PRACTICE

Section 13. Executions and Judicial Sales, 9-13-1 through 9-13-178.

ARTICLE 7 JUDICIAL SALES

9-13-172. When execution sale set aside.

Courts shall have full power over their officers making execution sales. Whenever the court is satisfied that a sale made under process is infected with fraud, irregularity, or error to the injury of either party, the court shall set aside the sale.

(Civil Code 1895, § 5427; Civil Code 1910, § 6032; Code 1933, § 39-1316.)

History of section.

- The language of this Code section is derived in part from the decision in Parker v. Glenn, 72 Ga. 637 (1884).

Law reviews.

- For note discussing legal and equitable relief from execution available to debtors, see 12 Ga. L. Rev. 814 (1978).

JUDICIAL DECISIONS

This section gives to court full power over the court's officers making judicial sale. The same authority further authorizes the court to set aside such sale whenever the sale is infected with fraud, irregularity, or error. Parker v. Glenn, 72 Ga. 637 (1884).

Courts have full power over their officers and their acts in making execution sales so far as to correct wrongs and abuses, errors, irregularities, mistakes, omissions, and frauds. Wachovia Mtg. Co. v. DeKalb County, 241 Ga. 416, 246 S.E.2d 183 (1978).

Court upon whose judgment execution issues has full power to set aside sale whenever the ends of justice and fair dealing require it, and to order a resale, or award execution anew at the court's discretion. Johnson v. Dooly, 72 Ga. 297 (1884); Suttles v. Sewell, 109 Ga. 707, 35 S.E. 224 (1900).

Whenever courts are satisfied that a sale made under process is infected with fraud, irregularity, or error, to the injury of either party, or that the officer selling is guilty of any wrong, irregularity, or breach of duty, to the injury of the parties in interest, or either or any of them, the sale will be set aside; and so also when there has been a willful disregard of the law as to the manner of selling. Wachovia Mtg. Co. v. DeKalb County, 241 Ga. 416, 246 S.E.2d 183 (1978).

Any contemplated fraud, irregularity, or error on the officer's part may, upon proper proceeding, be prevented. Fears v. State, 102 Ga. 274, 29 S.E. 463 (1897); Suttles v. Sewell, 109 Ga. 707, 35 S.E. 224 (1900); Smith v. Georgia Loan & Trust Co., 114 Ga. 189, 39 S.E. 846 (1901); Stark v. Cummings, 119 Ga. 35, 45 S.E. 722 (1903); Ruis v. Branch, 138 Ga. 150, 74 S.E. 1081 (1912).

Inadequacy of price alone is not sufficient to set aside sale, unless coupled with other circumstances, such as fraud, mistake, misapprehension, surprise, or collusion. McInvale v. Walter E. Heller & Co., 116 Ga. App. 71, 156 S.E.2d 371 (1967).

Mere inadequacy of price is not of itself sufficient ground for setting aside a sale, but when coupled with other circumstances showing fraud, accident, or mistake tending to bring about such inadequacy a sufficient reason is presented. Warren Co. v. Little River Farms, Inc., 125 Ga. App. 332, 187 S.E.2d 568 (1972); Small Equip. Co. v. Walker, 126 Ga. App. 827, 192 S.E.2d 167 (1972).

Inadequacy of the price alone is not enough to cause the sale to be set aside. There must also be a showing of "fraud, irregularity, or error to the injury of either party." Wilson v. Citizens Bank, 143 Ga. App. 402, 238 S.E.2d 754 (1977).

Sale of subdividable land for grossly inadequate amount without officer's offering to sell land in parcels is void. Pierce v. Gaskins, 168 Ga. App. 446, 309 S.E.2d 658 (1983).

Allegations that sheriff misled plaintiff's attorneys as to time of foreclosure sale may be insufficient grounds to set aside the sale, unless it appears that the purchaser knew of or had some hand in the misleading. American Sec. Inv. Co. v. Poppell, 114 Ga. App. 268, 150 S.E.2d 697 (1966).

Sale at improper place voidable.

- Sale at a place other than at the court house, and other than that designated in the judicial order and announced in the notice and advertisements, is such an irregularity as renders the sale voidable at the option of one who was thereby deprived of a bid. Warren Co. v. Little River Farms, Inc., 125 Ga. App. 332, 187 S.E.2d 568 (1972).

Defect in notice of sale not preserved for review.

- As a purchaser of property at a tax sale failed to raise a claim of error in a summary judgment motion regarding an erroneously listed record owner of property in the notice of tax sale, such claim of error was waived on appeal; further, any such defect in the notice warranted an award of damages under O.C.G.A. § 9-13-172, but did not warrant setting aside the deed as requested by the purchaser. Hash Props., LLC v. Conway, 298 Ga. App. 241, 679 S.E.2d 799 (2009).

Second unauthorized tax sale did not affect fee simple title of buyer at first tax sale.

- Although a county did not have the recognized statutory option of conducting a second tax sale in order to satisfy the remainder of the tax deficiency owed, and while the assignee who took the property as a result of the second tax sale might be entitled to a refund of the purchase price, the special master's recommendation to issue a decree of fee simple title in the underlying property to the buyer at the first tax sale was upheld on appeal. DRST Holdings, Ltd. v. Agio Corp., 282 Ga. 903, 655 S.E.2d 586 (2008).

Cited in Davis & Brandon v. Elliott, 163 Ga. 169, 135 S.E. 731 (1926); Wiley v. Martin, 163 Ga. 381, 136 S.E. 151 (1926); Bibb County v. Elkan, 184 Ga. 520, 192 S.E. 7 (1937); Caldwell v. Northwest Atlanta Bank, 194 Ga. 370, 21 S.E.2d 619 (1942); Riviera Equip., Inc. v. Omega Equip. Corp., 147 Ga. App. 412, 249 S.E.2d 133 (1978).

RESEARCH REFERENCES

Am. Jur. 2d.

- 47 Am. Jur. 2d, Judicial Sales, § 218 et seq.

C.J.S.

- 50A C.J.S., Judicial Sales, § 113 et seq.

ALR.

- Grounds of collateral attack on judicial and execution sales, 1 A.L.R. 1431.

Effect of reversal or vacation of judgment on execution sale, 29 A.L.R. 1071.

Remedy for fraud preventing redemption from judicial sale, 44 A.L.R. 690.

Rights and remedies of purchaser at judicial or execution sale, where sale is void or is set aside because proceedings are imperfect or irregular, or where description of property is defective, 142 A.L.R. 310.

Rights and remedies of one purchasing at judicial or execution sale where there was misrepresentation or mistake as to acreage or location of boundaries of tract sold, 69 A.L.R.2d 254.

Right of purchaser at execution sale, upon failure of title, to reimbursement or restitution from judgment creditor, 33 A.L.R.4th 1206.

Cases Citing O.C.G.A. § 9-13-172

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JIG Real Est., LLC v. Countrywide Home Loans, Inc., 712 S.E.2d 820 (Ga. 2011).

Cited 26 times | Published | Supreme Court of Georgia | Jul 5, 2011 | 289 Ga. 488, 2011 Fulton County D. Rep. 2062

...Bliss, John Ross Bartholomew, IV, Decatur, amici curiae. HUNSTEIN, Chief Justice. 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) in its suit against appellee Countrywide Home Loans in which JIG asserted it was entitled as high bidder to delivery of the Deed Under Power to the home of appellees James and Tammi Garland....
...w firm on Countrywide's behalf on March 6th. Two days after the sale, before any deed or deed under power was delivered, JIG was notified that, because the default had been cured prior to the foreclosure sale, the sale was rescinded pursuant to OCGA § 9-13-172.1....
...at (d). JIG chose to reject the money and demanded delivery of the Deed Under Power; it subsequently filed suit against appellees. The trial court granted summary judgment to appellees on all of JIG's claims. The statute at the heart of this appeal, OCGA § 9-13-172.1, provides as follows: (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....
...In recognition of the well-established rule that this Court will not consider a constitutional challenge to a statute if there exists a non-constitutional basis for resolving the case, e.g., Garden Club of Ga. v. Shackelford, 274 Ga. 653(2), 560 S.E.2d 522 (2002), JIG contends that, even assuming that OCGA § 9-13-172.1 is constitutional, the trial court erred by ruling that Countrywide had the right to rescind the foreclosure sale pursuant to OCGA § 9-13-172.1. JIG's argument in this regard is based on its claim that OCGA § 9-13-172.1 serves only to limit damages after rescission and does not itself provide any grounds for rescission of contracts. Hence, JIG asserts, in the absence of authority under OCGA § 9-13-172.1, there were no other legal grounds upon which Countrywide could have rescinded the sale. We find no merit in this argument. OCGA § 9-13-172.1 authorizes under clearly defined circumstances the rescission of an eligible sale "due to" an automatic stay pursuant to the filing of bankruptcy, id....
...to the sale; or (3) the lender and the borrower agreed prior to the sale to cancel the sale based upon an enforceable promise by the borrower to cure the default. JIG, in its contrary construction of the statute, ignores the "due to" phrase in OCGA § 9-13-172.1(c) and (d) and seeks, by an overly technical and strained focus on the verb tenses used in the *823 statute, [1] to reach an interpretation contrary to the statute's plain and unambiguous meaning....
...678, 681, 279 S.E.2d 430 (1981) (if the words of a statute are plain and susceptible of having only one natural and reasonable construction, and do not produce any absurd or wholly impracticable consequences, this Court must construe it according to its terms). 2. JIG contends the trial court erred by ruling that OCGA § 9-13-172.1 is not unconstitutionally void for vagueness....
...(Citations and punctuation omitted.) Catoosa County v. R.N. Talley Properties, 282 Ga. 373, 374, 651 S.E.2d 7 (2007). (a) JIG asserts that persons of reasonable intelligence [2] would have to make a guess regarding what law a lender is relying upon when rescinding a sale under OCGA § 9-13-172.1(d) and that such guessing would be "particularly justified" through the eyes of foreclosure sale purchasers due to such purchasers' knowledge of Georgia law that the high bid purchaser at a foreclosure sale has the right to a deed to th...
...Simmons, 207 Ga. 291(2), 61 S.E.2d 410 (1950); Ellis v. Ellis, 161 Ga. 360(1), 130 S.E. 681 (1925); Garrett v. Crawford, 128 Ga. 519(1), 57 S.E. 792 (1907). As an initial matter, we hold that this case law has been superseded by the enactment of OCGA § 9-13-172.1 to the extent a judicial or nonjudicial *824 sale comes within its statutory provisions. As to the merits of JIG's argument, it is based on the same strained construction of OCGA § 9-13-172.1 that we rejected in Division 1, supra. Persons of common intelligence would have no difficulty understanding that OCGA § 9-13-172.1 in and of itself authorizes rescission of an eligible sale due to the occurrence of the bankruptcy stay in subsection (c) or one of the three situations set forth in subsection (d). We find JIG's argument about the vagueness of the statute's definition of "eligible sale" is likewise based on this erroneous construction [3] and is equally meritless. (b) The trial court found that the Legislature intended with OCGA § 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." We agree with the trial court regarding this legislative intent behind the enactment of OCGA § 9-13-172.1. JIG, however, asserts that the trial court's finding is "the best evidence of the confusion" created by the statute because OCGA § 9-13-172.1 "says nothing about the homeowner." However, 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. Rather than "evidencing confusion," the trial court's finding as to the Legislature's intent merely states the obvious. (c) JIG next asserts that OCGA § 9-13-172.1 is unconstitutionally vague due to the use in subsection (d)(3) of the terms "plaintiff in execution" and "defendant in execution." Asserting that these are not terms applicable to non-judicial foreclosures but are used to describe the parties under a sheriff's levy and sale under a judgment lien, JIG argues that it is "anybody's guess" whether OCGA § 9-13-172.1(d)(3) is applicable to a nonjudicial foreclosure sale....
...ning, this Court will not deem a statute unconstitutionally vague merely because it "could be more artfully drafted." Davenport v. Davenport, 243 Ga. 613, 615(2), 255 S.E.2d 695 (1979). (d) There is no question that the Legislature, by enacting OCGA § 9-13-172.1, intended to address the limitation of damages in civil actions by purchasers for property sold in certain judicial and certain nonjudicial sales that are later rescinded....
...ich clearly establishes the error of JIG's assertion that the statute's "only purpose and intent" is damages limitation. JIG has failed to show how any person of common intelligence would need to guess at the meaning of the damages provision in OCGA § 9-13-172.1 or would differ as to its application. Although JIG asserts that there are no damages in a legally rescinded contract that are in need of limitation, the Legislature decided otherwise in regard to those contracts legally rescinded pursuant to OCGA § 9-13-172.1....
...State of Ga., 232 Ga. 547, 554(3), 208 S.E.2d 93 (1974) ("[t]he legislature is absolutely unrestricted in its power to legislate, so long as it does not undertake to enact measures prohibited by the State or Federal Constitution. [Cits.]"), and nothing in OCGA § 9-13-172.1 is rendered unconstitutionally vague by the Legislature's exercise of its discretion....
...Thus, even assuming, arguendo, that JIG's arguments in this regard properly pertain to a vagueness challenge, we find them to be without merit. (e) JIG asserts in its final argument that the statute is void for vagueness because a person must guess if OCGA § 9-13-172.1(d)(3) *825 ever applies, in that it authorizes rescission based upon "an enforceable promise by the defendant to cure the default" yet case law holds that agreements to forbear foreclosure are unenforceable unless supported by new consideration from the borrower....
...639(2), 4 S.E.2d 561 (1939) (agreement on part of one to do what he is already legally bound to do is not a sufficient consideration for the promise of another); All Fleet Refinishing v. West Georgia Nat. Bank, 280 Ga. App. 676(9), 634 S.E.2d 802 (2006). However, in situations where a lender is utilizing OCGA § 9-13-172.1(d)(3) to rescind a sale of the borrower's property based upon the borrower's promise to cure the default, any person of common intelligence would understand that the lender and borrower have entered into an enforceable agreement. Accordingly, because JIG has completely failed to carry its burden of showing that OCGA § 9-13-172.1 is unconstitutionally vague in any of its applications, see Catoosa County v....
...at 374, 651 S.E.2d 7; Jekyll Island-State Park Auth. v. Jekyll Island Citizens Assn., supra, 266 Ga. at 153(2), 464 S.E.2d 808, the trial court did not err by upholding the constitutionality of the statute. 3. JIG contends that the trial court erred by failing to find OCGA § 9-13-172.1 could not be applied retroactively [4] so as to add its provisions to the powers granted Countrywide in the June 2003 mortgage transaction between appellees because the statute was not effective until July 1, 2003. See Ga. L.2003, p. 413; OCGA § 1-3-4(a)(1). However, it is uncontroverted that JIG was not a party to the transaction between appellees and the sale in this case did not occur until March 6, 2007, well after the effective date of OCGA § 9-13-172.1. This enumeration is without merit. 4. Given our holdings above that the trial court properly upheld the constitutionality of OCGA § 9-13-172.1 and correctly found that Countrywide was authorized to and properly did rescind the sale to JIG, we need not address JIG's remaining arguments. [5] Judgment affirmed. All the Justices concur, except NAHMIAS, J., who concurs in judgment only as to Division 2(b). NOTES [1] E.g., JIG argues that, because of the past tense use of "was" in the language in OCGA § 9-13-172.1(d), i.e., that the eligible sale "was rescinded due to ......
...[t]he default leading to the sale being cured prior to the sale," the statute cannot be read as meaning that curing of the default is a ground for rescission because the rescission (past tense) had already occurred. [2] Although JIG asserts that, in assessing the clarity of OCGA § 9-13-172.1, this Court must view the statute from the perspective of foreclosure sale purchasers because they are the persons to whom the statute is directed, see Bryan v....
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Harpagon Co. v. Gelfond, 279 Ga. 59 (Ga. 2005).

Cited 4 times | Published | Supreme Court of Georgia | Feb 7, 2005 | 608 S.E.2d 597, 2005 Fulton County D. Rep. 351

...However, by its own terms, the statutory provision for interest is applicable to instances when the delinquent taxpayer opts to exercise his or her right to redeem the property. That is plainly not the situation in this case. Judgment affirmed. AU the Justices concur. The parties offer OCGA § 9-13-172.1 as possible statutory authority for the sheriffs action.
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Drst Holdings, Ltd. v. Agio Corp., 655 S.E.2d 586 (Ga. 2008).

Cited 1 times | Published | Supreme Court of Georgia | Jan 8, 2008 | 282 Ga. 903, 2008 Fulton County D. Rep. 73

...However, the decisive factor is not the manner in which the sheriff conducted the sale, but rather the underlying validity of the subsequent sale itself. A tax sale is subject to being set aside whenever it is "infected with . . . irregularity, or error to the injury of either party. . . ." OCGA § 9-13-172....
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Upchurch v. Chaney, 280 Ga. 891 (Ga. 2006).

Cited 1 times | Published | Supreme Court of Georgia | Sep 18, 2006 | 635 S.E.2d 124, 2006 Fulton County D. Rep. 2889

...iscretion in refusing to confirm the sale. Accordingly, we reverse. Judgment reversed. All the Justices concur. Chaney v. Upchurch, 278 Ga. 515 (603 SE2d 255) (2004). OCGA§ 9-13-140 (a). OCGA§ 9-13-161 (a). OCGA § 9-13-140 et seq. OCGA§ 9-13-172. See, e.g., McLendon v....