(Ga. L. 1890-91, p. 221, § 1; Civil Code 1895, § 3667; Ga. L. 1900, p. 53, § 1; Civil Code 1910, § 4252; Code 1933, § 20-506; Ga. L. 1946, p. 761, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 545, § 1; Ga. L. 1957, p. 264, § 1; Ga. L. 1968, p. 317, § 1; Ga. L. 2010, p. 878, § 13/HB 1387; Ga. L. 2012, p. 1035, § 1/SB 181.)
The 2010 amendment, effective June 3, 2010, part of an Act to revise, modernize, and correct the Code, in subsection (a), in the introductory language, substituted "collectable" for "collectible", added "and" at the end of paragraph (a)(2), and substituted "his or her attorney" for "his attorney" in the first sentence of paragraph (a)(3).
The 2012 amendment, effective July 1, 2012, inserted "subsection (b) of this Code section and to" near the end of the introductory language of subsection (a); added present subsection (b); redesignated former subsection (b) as present subsection (c); and added subsection (d). See Editor's notes for effective date and applicability.
Cross references.- Liens for attorneys' services generally, § 15-19-14.
Code Commission notes.- Pursuant to Code Section 28-9-5, in 2012, in subsection (d), "Code" was inserted before "section" and "attorney's" was substituted for "attorneys".
Editor's notes.- Ga. L. 2012, p. 1035, § 3/SB 181, approved by the Governor May 2, 2012, provided that the effective date of the amendment to this Code section is July 1, 2011, and that the amendment of this Code section applies to contracts entered on or after July 1, 2011. See Op. Att'y Gen. No. 76-76 for construction of effective date and applicability provisions that precede the date of approval by the Governor.
Law reviews.- For article, "Attorney's Fees for Secured Creditors in Bankruptcy Proceedings," see 13 Ga. St. B.J. 126 (1976). For article discussing attorney's fees as an obligation owed to the secured creditor in bankruptcy proceedings, see 13 Ga. St. B.J. 118 (1977). For article surveying recent judicial developments in commercial law, see 31 Mercer L. Rev. 13 (1979). For article on protecting the secured creditor in business bankruptcies, see 18 Ga. St. B.J. 62 (1981). For survey article on commercial law, see 34 Mercer L. Rev. 31 (1982). For survey article on real property, see 34 Mercer L. Rev. 255 (1982). For annual survey of commercial law, see 38 Mercer L. Rev. 85 (1986). For annual survey of law of real property, see 38 Mercer L. Rev. 319 (1986). For survey article on commercial law, see 44 Mercer L. Rev. 99 (1992). For article, "Commercial Law," see 53 Mercer L. Rev. 153 (2001). For survey article on appellate practice and procedure, see 60 Mercer L. Rev. 21 (2008). For article, "Buying Distressed Commercial Real Estate: What are the Alternatives?," see 16 (No. 4) Ga. St. B.J. 18 (2010). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017).
JUDICIAL DECISIONSANALYSIS
Legislative intent behind the enactment of O.C.G.A.13-1-11 has been fulfilled so long as a debtor has been informed that the debtor has 10 days from receipt of notice within which to pay principal and interest without incurring any liability for attorney fees. Trust Assoc. v. Snead, 253 Ga. App. 475, 559 S.E.2d 502 (2002).
Constitutionality.
- Supreme Court of Georgia held that O.C.G.A. § 13-1-11 bears a rational relationship to the purpose for which the statute was intended, namely to provide debtors with the opportunity to avoid the contractual obligation to pay the creditor's attorney fees by allowing the debtor a last chance to pay the balance of the debt and avoid litigation. Austin v. Bank of Am., N.A., 293 Ga. 42, 743 S.E.2d 399 (2013).
Term "principal," as used by the drafters of O.C.G.A. § 13-1-11, refers only to the principal amount owing on the note in question. ITT Com. Fin. Corp. v. Fisher, 690 F. Supp. 1021 (N.D. Ga. 1988).
Statute merely restricts right which common law recognized.
- The statute is not origin of all right to recover attorney's fees in this state; the statute does not give a right where none existed at common law; on the other hand, the statute merely restricted a right which common law recognized. Keating v. Woods-Young Co., 42 Ga. App. 63, 155 S.E. 206 (1930); Global Indus., Inc. v. Harris, 376 F. Supp. 1379 (N.D. Ga. 1974).
Statute to be strictly construed.
- This statute being in derogation of common law and an abridgment of ordinary right of contract is to be strictly construed, and not to extend to case not clearly falling within its terms. Oliver Typewriter Co. v. Fielder, 7 Ga. App. 525, 67 S.E. 210 (1910) (see O.C.G.A. § 13-1-11).
Statute, being in derogation of common law, is strictly construed. Ratliffe v. Hartsfield Co., 49 Ga. App. 598, 176 S.E. 151 (1934), rev'd on other grounds, 181 Ga. 663, 184 S.E. 324 (1935) (see O.C.G.A. § 13-1-11).
Section applies to all contracts.
- O.C.G.A. § 13-1-11 by operation of law constitutes a part of all contracts incorporated in promissory notes, and all such instruments must be construed in the light of this particular section. Anderson v. Hendrix, 175 Ga. App. 720, 334 S.E.2d 697 (1985).
Section inapplicable in eminent domain proceeding.
- O.C.G.A. § 13-1-11 was intended to apply only in default situations where an indebtedness is collected by or through an attorney after maturity, and the provision in a deed that a bank sought to enforce for reasonable attorney fees incurred as the result of an eminent domain proceeding in order to protect the bank's security interest in the condemned property was not contemplated by the statutory scheme. Boddy Enters., Inc. v. City of Atlanta, 171 Ga. App. 551, 320 S.E.2d 374 (1984).
Section inapplicable to exclusive listing contract.
- Exclusive listing contract is not a "note or other evidence of indebtedness" within the meaning of subsection (a) of O.C.G.A. § 13-1-11. O'Brien's Irish Pub, Inc. v. Gerlew Holdings, Inc., 175 Ga. App. 162, 332 S.E.2d 920 (1985).
O.C.G.A. § 13-1-11 is inapplicable to personal services contracts. See Holcomb v. Evans, 176 Ga. App. 654, 337 S.E.2d 435 (1985).
Given the Georgia Supreme Court's recent guidance on this issue, the district court properly applied O.C.G.A. § 13-1-11 in calculating attorneys' fees. Because the guaranties provided for the payment of reasonable attorney's fees without specifying any specific percent, the district court correctly concluded that § 13-1-11(a)(2) governed in this case. Asma v. Wells Fargo Bank, N.A., F.3d (11th Cir. July 9, 2014)(Unpublished).
A lease was an "evidence of indebtedness" within the meaning of O.C.G.A. § 13-1-11. Holmes v. Bogino, 219 Ga. App. 858, 467 S.E.2d 197 (1996).
Phrase "evidence of indebtedness" in O.C.G.A. § 13-1-11 is construed broadly so as to encompass leases. RadioShack Corp. v. Cascade Crossing II, LLC, 282 Ga. 841, 653 S.E.2d 680 (2007).
Debtor afforded opportunity to avoid attorney fees by paying debt.
- Law provides additional requirement that notice be given debtor in order that the debtor be afforded an opportunity to avoid attorney fees by paying the debt. GECC v. Brooks, 242 Ga. 109, 249 S.E.2d 596 (1978).
Section as part of contract providing for attorney's fees.
- All contracts to pay attorney's fees incorporated in promissory notes or other evidences of indebtedness must be construed in light of the statute, which by operation of law constitutes a part of all such contracts. Hall v. Pratt, 103 Ga. 255, 29 S.E. 764 (1898); Stoner v. Pickett, 115 Ga. 653, 42 S.E. 41 (1902); Booth v. Rosier, 124 Ga. 154, 52 S.E. 327 (1905).
A lessor was correct in asserting a right to recover reasonable attorney fees under the lessor's lease with its lessee as there was no special pleading requirement for the enforcement of such provision, and the lessor prevailed on the lessor's claim for reimbursement for insurance premiums paid over the life of the lease; thus, the case was remanded for further proceedings as to the amount of reasonable fees the lessor could recover. Ranwal Props., LLC v. John H. Harland Co., 285 Ga. App. 532, 646 S.E.2d 730 (2007).
Fees awarded under paragraph (a)(2).
- Attorneys' fees were awarded as designated by paragraph (a)(2) of O.C.G.A. § 13-1-11 where the guaranty agreement provided only for reasonable attorneys' fees without designating any specific percent and the creditor complied with the notice provisions of § 13-1-11 by way of the creditor's complaint. Westinghouse Credit Corp. v. Hall, 144 Bankr. 568 (S.D. Ga. 1992).
There is no law requiring that promise to pay attorney's fee shall be in writing in order to be enforceable. Forsyth Mercantile Co. v. Williams, 36 Ga. App. 130, 135 S.E. 755 (1926).
Attorney's fees are for benefit of note holder, not attorney.
- Under O.C.G.A. § 13-1-11, contractual provisions for attorney's fees are not for the benefit of attorneys. The fees are in the nature of liquidated damages which inure to the benefit of the holder of the note. Specialty Inv. Corp. v. Village Apt. Assocs., 9 Bankr. 211 (Bankr. N.D. Ga. 1981).
When attorney's fees actually incurred or paid, debtor bound to pay as provided by law. National Acceptance Co. v. Zusmann, 379 F.2d 351 (5th Cir.), cert. denied, 389 U.S. 975, 88 S. Ct. 478, 19 L. Ed. 2d 469 (1967).
Collection of debt through foreclosure proceedings.
- A creditor is entitled to recover attorney fees pursuant to O.C.G.A. § 13-1-11 if the creditor's attorney collects the debt via a foreclosure proceeding. Kenemer v. First Nat'l Bank, 210 Ga. App. 389, 436 S.E.2d 96 (1993).
Curing of default on underlying obligation.
- Statutory attorney's fees, as contemplated by O.C.G.A. § 13-1-11, do not become a lien against secured property where a default on an underlying obligation is cured and reinstated pursuant to the provisions of the Bankruptcy Code (11 U.S.C.), as where default in a Chapter 12 case is cured in the confirmed plan of reorganization. In re Davis, 77 Bankr. 313 (Bankr. M.D. Ga. 1987).
Summary judgment entitling one to attorney fees.
- Plaintiff entitled to a summary judgment on a document establishing "evidence of indebtedness," within the meaning of subsection (a) of O.C.G.A. § 13-1-11 is also entitled to a judgment for attorney fees thereon. Dalcor Mgt., Inc. v. Sewer Rooter, Inc., 205 Ga. App. 681, 423 S.E.2d 419 (1992).
Reasonable attorney fees awarded.- See Chemical Bank v. Grigsby's World of Carpet, Inc. (In re WWG Indus., Inc.), 44 Bankr. 287 (N.D. Ga. 1984).
Attorney fee award held excessive.
- In an action to recover on a promissory note with past due interest, and upon entering summary judgment in favor of the lender, the trial court erred in awarding the lender $10,195.40 in attorney fees in a judgment in which the principal and interest amounted to only $6,259.12; under the formula delineated under O.C.G.A. § 13-1-11, such amount was limited to $650.91. Long v. Hogan, 289 Ga. App. 347, 656 S.E.2d 868 (2008), cert. denied, 2008 Ga. LEXIS 516 (Ga. 2008).
Defenses to collection action.
- Bank was entitled to collect upon the indebtedness of a defaulted loan because the evidence did not support either of the defenses of estoppel or breach of an implied duty of good faith and fair dealing in opposition to the bank's collection claims. Griffin v. State Bank, 312 Ga. App. 87, 718 S.E.2d 35 (2011).
Fee award improper when only generalized assertions of connectedness.
- While the trial court properly ruled that the defendant's fee recovery was not limited by O.C.G.A. § 13-1-11 since the litigation was not an attempt to collect on a defaulted debt after maturity, the court abused the court's discretion in awarding the defendant the full amount of requested fees because the court did not require the defendant to shoulder the defendant's burden of proving that the claims were too intertwined to permit the separation of fees, instead allowing the defendant to make only generalized assertions of connectedness. Eagle Jets, LLC v. Atlanta Jet, Inc., 347 Ga. App. 567, 820 S.E.2d 197 (2018).
Section valid.
- Court found no error in the district court's rejection of the company's contention that the attorney's fees provision was an unenforceable penalty; the 15% provisions was permitted under O.C.G.A. § 13-1-11, and was not an unenforceable liquidated damages penalty. Branch Banking & Trust Co. v. Lichty Bros. Constr., Inc., F.3d (11th Cir. Aug. 30, 2012)(Unpublished).
Relief not warranted.- Lender was not entitled to a default judgment for specific performance against borrowers with respect to various loan documents because the lender did not allege that the borrowers breached the provisions or that the lender lacked an adequate legal remedy. Jones v. Bank of Am., N.A., F.3d (11th Cir. Apr. 25, 2014)(Unpublished).
Award not supported by summary judgment affidavit.
- Trial court erred by entering a judgment for the specific amount of the debt and attorney fees and case was remanded to the trial court for further proceedings to determine a proper award of damages and attorney fees as the affidavit presented by the bank in support of the bank's motion for summary judgment stated the bank relied on an attached payoff exhibit but the exhibit was a payoff quote for a loan issued by a different bank and did not support the damages awarded to the bank. Salas v. JP Morgan Chase Bank, N.A., 334 Ga. App. 274, 779 S.E.2d 48 (2015).
Award of fees under foreign jurisdiction law.- Defendants failed to show the court erroneously awarded the bank attorney fees under South Carolina law despite the bank moving for fees under Georgia law because the bank's entitlement to attorney fees stemmed from the terms of the note, and the note was accepted in South Carolina. PNC Bank, N.A. v. GVTG, LLC, F.3d (11th Cir. Nov. 14, 2014)(Unpublished).
Cited in Goodrich v. Atlanta Bldg. & Loan Ass'n, 96 Ga. 803, 22 S.E. 585 (1895); Rimes v. Williams, 99 Ga. 281, 25 S.E. 685 (1896); Jones v. Harrel, 110 Ga. 373, 35 S.E. 690 (1900); DeLamater v. Martin, 117 Ga. 139, 43 S.E. 459 (1903); Holcomb v. Cable Co., 119 Ga. 466, 46 S.E. 671 (1904); Miller v. Ga. R.R. Bank, 120 Ga. 17, 47 S.E. 525 (1904); Booth v. Rosier, 124 Ga. 154, 52 S.E. 327 (1905); Horrigan v. Savannah Grocery Co., 126 Ga. 127, 54 S.E. 961 (1906); J. Everett & Son v. M. Ferst's Sons & Co., 126 Ga. 662, 55 S.E. 916 (1906); Brooks v. Boyd, 1 Ga. App. 65, 57 S.E. 1093 (1907); Mount Vernon Bank v. Gibbs, 1 Ga. App. 662, 58 S.E. 269 (1907); Monroe v. Citizens Bank, 3 Ga. App. 296, 59 S.E. 844 (1907); Jester v. Bainbridge State Bank, 4 Ga. App. 476, 61 S.E. 929 (1908); Roth v. Donnelly Grocery Co., 8 Ga. App. 851, 70 S.E. 140 (1911); Holland v. Mutual Fertilizer Co., 8 Ga. App. 714, 70 S.E. 151 (1911); Stone v. Marshall & Co., 137 Ga. 544, 73 S.E. 826 (1912); Davenport v. Richards, 138 Ga. 611, 75 S.E. 648 (1912); Johnson & Murphy v. Globe Dry Goods Co., 11 Ga. App. 485, 75 S.E. 822 (1912); In re Weiland, 197 F. 116 (N.D. Ga. 1912); Monk v. National Bank, 12 Ga. App. 253, 76 S.E. 278 (1913); Loftis v. Alexander, 139 Ga. 346, 77 S.E. 169, 1914B Ann. Cas. 718 (1913); Shaw v. Probasco, 139 Ga. 481, 77 S.E. 577 (1913); Turner v. Bank of Maysville, 13 Ga. App. 547, 79 S.E. 180 (1913); Strickland v. Lowry Nat'l Bank, 140 Ga. 653, 79 S.E. 539 (1913); Walker v. Wood, 14 Ga. App. 29, 79 S.E. 905 (1913); Langford v. Baekus, 14 Ga. App. 300, 80 S.E. 723 (1914); Valdosta, M. & W.R.R. v. Citizens Bank, 14 Ga. App. 329, 80 S.E. 913 (1914); Cowart v. Bush, 142 Ga. 48, 82 S.E. 441 (1914); Bennett v. Gilmer, 15 Ga. App. 650, 84 S.E. 151 (1915); Royal v. Edinburgh-American Land Mtg. Co., 143 Ga. 347, 85 S.E. 190 (1915); MacDonald v. Ware & Harper, 17 Ga. App. 450, 87 S.E. 679 (1916); Pendleton v. Valdosta Bank & Trust Co., 17 Ga. App. 711, 88 S.E. 211 (1916); Lewis v. Phillips-Boyd Publishing Co., 18 Ga. App. 181, 89 S.E. 177 (1916); Finch v. Cox, 18 Ga. App. 284, 89 S.E. 459 (1916); Glennville Bank v. Deal, 146 Ga. 217, 90 S.E. 958 (1916); Bacon v. Hanesley, 19 Ga. App. 69, 90 S.E. 1033 (1916); Wimberly v. Lumpkin Home Mixture Co., 19 Ga. App. 809, 92 S.E. 286 (1917); Laurens Cotton Co. v. American Trust & Banking Co., 20 Ga. App. 348, 93 S.E. 43 (1917); Millen Hotel Co. v. First Nat'l Bank, 20 Ga. App. 701, 93 S.E. 253 (1917); Wimberly v. Ocmulgee Guano Co., 21 Ga. App. 270, 94 S.E. 288 (1917); Marietta Fertilizer Co. v. Benton, 21 Ga. App. 466, 94 S.E. 657 (1917); F & M Bank v. Alford, 21 Ga. App. 546, 94 S.E. 818 (1918); Fisher v. Shands, 24 Ga. App. 743, 102 S.E. 190 (1920); Morrison v. Fidelity & Deposit Co., 150 Ga. 54, 102 S.E. 354 (1920); Lang v. Hall, 25 Ga. App. 118, 102 S.E. 877 (1920); Chamlee v. Austin, 150 Ga. 279, 103 S.E. 490 (1920); Simmons Lumber Co. v. Toccoa Furn. Co., 26 Ga. App. 758, 107 S.E. 340 (1921); Pannell v. Stark, 27 Ga. App. 104, 107 S.E. 496 (1921); Watters & Co. v. O'Neill, 151 Ga. 680, 108 S.E. 35 (1921); Turner v. Peacock, 153 Ga. 870, 113 S.E. 585 (1922); White v. Chambers, 29 Ga. App. 482, 116 S.E. 26 (1923); Southeast Ga. Land Co. v. Rogers, 157 Ga. 763, 122 S.E. 221 (1924); Perry v. John Hancock Mut. Life Ins. Co., 2 F.2d 250 (5th Cir. 1924); Russell v. Life Ins. Co., 34 Ga. App. 640, 130 S.E. 689 (1925); Bank of Lumpkin v. Farmers' State Bank, 35 Ga. App. 340, 133 S.E. 307 (1926); Equitable Life Assurance Soc'y v. Pattillo, 37 Ga. App. 398, 140 S.E. 403 (1927); Meyer v. Hiatt, 40 Ga. App. 583, 150 S.E. 567 (1929); Manry v. Phoenix Mut. Life Ins. Co., 42 Ga. App. 31, 156 S.E. 271 (1930); Kitchens v. Molton, 172 Ga. 690, 158 S.E. 570 (1931); Franklin Mtg. Co. v. McDuffie, 43 Ga. App. 604, 159 S.E. 599 (1931); Oliver v. Lane, 46 Ga. App. 136, 167 S.E. 116 (1932); Adams v. F & M Bank, 47 Ga. App. 420, 170 S.E. 704 (1933); Varner v. Darien Bank, 48 Ga. App. 298, 172 S.E. 651 (1934); Darden v. Federal Reserve Bank, 48 Ga. App. 685, 173 S.E. 227 (1934); Smith v. Bukofzer, 180 Ga. 209, 178 S.E. 641 (1935); Goldin v. Federal Intermediate Credit Bank, 50 Ga. App. 790, 179 S.E. 291 (1935); Nelson v. National Life & Accident Ins. Co., 51 Ga. App. 684, 181 S.E. 202 (1935); Jackson v. Massachusetts Mut. Life Ins. Co., 183 Ga. 659, 189 S.E. 243 (1936); Byrd v. Equitable Life Assurance Soc'y, 185 Ga. 628, 196 S.E. 63 (1938); Oliver v. Wayne, 58 Ga. App. 787, 199 S.E. 841 (1938); Millers Nat'l Ins. Co. v. Hatcher, 194 Ga. 449, 22 S.E.2d 99 (1942); Hill v. Mobley, 81 Ga. App. 522, 59 S.E.2d 263 (1950); Dupree v. Blankenship, 83 Ga. App. 664, 64 S.E.2d 457 (1951); Stone v. Colonial Credit Co., 93 Ga. App. 348, 91 S.E.2d 835 (1956); First Fed. Sav. & Loan Ass'n v. Norwood Realty Co., 212 Ga. 524, 93 S.E.2d 763 (1956); Great Am. Indem. Co. v. Beverly, 150 F. Supp. 134 (M.D. Ga. 1956); Moore v. Trailmobile, Inc., 94 Ga. App. 892, 96 S.E.2d 529 (1957); Holland v. Sterling, 214 Ga. 583, 105 S.E.2d 894 (1958); Young v. John Deere Plow Co., 102 Ga. App. 132, 115 S.E.2d 770 (1960); Howard v. Jones Motor Co., 104 Ga. App. 440, 121 S.E.2d 915 (1961); Hopkins v. West Publishing Co., 106 Ga. App. 596, 127 S.E.2d 849 (1962); Woods v. State, 109 Ga. App. 225, 136 S.E.2d 18 (1964); Cullens v. Sterling Disct. Corp., 110 Ga. App. 372, 138 S.E.2d 623 (1964); Spivey v. Commercial Credit Equip. Corp., 112 Ga. App. 316, 145 S.E.2d 68 (1965); M.B. Dale, Inc. v. Dawson County Bank, 112 Ga. App. 560, 145 S.E.2d 619 (1965); Wood v. Noland Credit Co., 113 Ga. App. 749, 149 S.E.2d 720 (1966); Palmer Tire Co. v. L & H Acceptance Corp., 114 Ga. App. 314, 151 S.E.2d 178 (1966); Glaze v. Fulton Nat'l Bank, 114 Ga. App. 291, 151 S.E.2d 478 (1966); Hartsfield Co. No. 3, Inc. v. Williams, 114 Ga. App. 547, 151 S.E.2d 908 (1966); Belt v. Georgia Bank & Trust Co., 115 Ga. App. 545, 154 S.E.2d 764 (1967); Hudgins v. Pure Oil Co., 115 Ga. App. 543, 154 S.E.2d 768 (1967); Camilla Loan Co. v. Sheffield, 116 Ga. App. 626, 158 S.E.2d 698 (1967); Free for All Missionary Baptist Church, Inc. v. Gresham, 116 Ga. App. 767, 159 S.E.2d 183 (1967); Pierce v. Culverson, 384 F.2d 368 (5th Cir. 1967); Godfrey v. Farm & Resort Realty Co., 117 Ga. App. 129, 159 S.E.2d 465 (1968); Sullivan Enters., Inc. v. Stockton, 224 Ga. 357, 162 S.E.2d 396 (1968); Sullivan Enters., Inc. v. Stockton, 118 Ga. App. 542, 164 S.E.2d 336 (1968); Franco v. Bank of Forest Park, 118 Ga. App. 700, 165 S.E.2d 593 (1968); Ghitter v. Edge, 118 Ga. App. 750, 165 S.E.2d 598 (1968); Complete AAA Mfg. Corp., v. Citizens & S. Nat'l Bank, 119 Ga. App. 450, 167 S.E.2d 734 (1969); Singleton v. Rary, 119 Ga. App. 559, 167 S.E.2d 740 (1969); Tankersley v. Security Nat'l Corp., 122 Ga. App. 129, 176 S.E.2d 274 (1970); Cohan v. Flanders, 315 F. Supp. 1046 (S.D. Ga. 1970); General Tire & Rubber Co. v. Solomon, 124 Ga. App. 308, 183 S.E.2d 573 (1971); Edgar v. Edgar Casket Co., 125 Ga. App. 389, 187 S.E.2d 925 (1972); Turner v. Bank of Zebulon, 128 Ga. App. 404, 196 S.E.2d 668 (1973); Twisdale v. Georgia R.R. Bank & Trust Co., 129 Ga. App. 18, 198 S.E.2d 396 (1973); Lanier v. Romm, 131 Ga. App. 531, 206 S.E.2d 588 (1974); King v. Paramount Enters., Inc., 131 Ga. App. 707, 206 S.E.2d 604 (1974); Carter v. Harrell, 132 Ga. App. 148, 207 S.E.2d 648 (1974); Doyal v. Ben O'Callaghan Co., 132 Ga. App. 336, 208 S.E.2d 136 (1974); Interstate Fin. Corp. v. Appel, 134 Ga. App. 407, 215 S.E.2d 19 (1975); Robinson-Shamburger, Inc. v. Tenney, 135 Ga. App. 131, 217 S.E.2d 184 (1975); Moore v. Wachovia Mtg. Co., 138 Ga. App. 646, 226 S.E.2d 812 (1976); Douglas v. Dixie Fin. Corp., 139 Ga. App. 251, 228 S.E.2d 144 (1976); Cel-Ko Bldrs. & Developers, Inc. v. BX Corp., 140 Ga. App. 501, 231 S.E.2d 361 (1976); Burgess v. Clermont Properties, Inc., 141 Ga. App. 112, 232 S.E.2d 627 (1977); New House Prods., Inc. v. Commercial Plastics & Supply Corp., 141 Ga. App. 199, 233 S.E.2d 45 (1977); Carter v. Jenkins, 143 Ga. App. 42, 237 S.E.2d 440 (1977); Bennett v. Adel Banking Co., 144 Ga. App. 282, 241 S.E.2d 23 (1977)
Bagwell v. Sportsman Camping Ctrs. of Am., Inc., 144 Ga. App. 486, 241 S.E.2d 602 (1978); Alexander v. Askin Squire Corp., 144 Ga. App. 662, 242 S.E.2d 324 (1978); Childs v. Liberty Loan Corp., 144 Ga. App. 715, 242 S.E.2d 354 (1978); Parnell v. Etowah Bank, 144 Ga. App. 794, 242 S.E.2d 487 (1978); C & S Nat'l Bank v. Burden, 145 Ga. App. 402, 244 S.E.2d 244 (1978); Roddy Sturdivant Enters., Inc. v. National Adv. Co., 145 Ga. App. 706, 244 S.E.2d 648 (1978); Crestlawn Mem. Park v. Scott, 146 Ga. App. 715, 247 S.E.2d 175 (1978); Spencer v. Taylor, 147 Ga. App. 566, 249 S.E.2d 367 (1978); Reese v. Robins Fed. Credit Union, 150 Ga. App. 1, 256 S.E.2d 604 (1979); Pippin v. Brigadier Indus. Corp., 150 Ga. App. 401, 258 S.E.2d 18 (1979); Oliver v. Citizens DeKalb Bank, 150 Ga. App. 437, 258 S.E.2d 204 (1979); Buddy's Appliance Ctr., Inc. v. Amana Refrigeration, Inc., 151 Ga. App. 268, 259 S.E.2d 673 (1979); Browning v. Rewis, 152 Ga. App. 45, 262 S.E.2d 174 (1979); Kennedy v. Brand Banking Co., 245 Ga. 496, 266 S.E.2d 154 (1980); Brown v. Leasing Int'l, Inc., 154 Ga. App. 616, 269 S.E.2d 106 (1980); Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867 (1980); Fife v. Anderson Realty Brokers, Inc., 155 Ga. App. 475, 271 S.E.2d 9 (1980); United Rentals Sys. v. Safeco Ins. Co., 156 Ga. App. 63, 273 S.E.2d 868 (1980); ITT Indus. Credit Corp. v. Scarboro, 7 Bankr. 609 (Bankr. M.D. Ga. 1980); Alewine v. City Council, 505 F. Supp. 880 (S.D. Ga. 1981); International Harvester Credit Corp. v. Clenny, 505 F. Supp. 983 (M.D. Ga. 1981); Horne v. Drachman, 247 Ga. 802, 280 S.E.2d 338 (1981); Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 280 S.E.2d 842 (1981); Eiberger v. West, 247 Ga. 767, 281 S.E.2d 148 (1981); Willett Lincoln-Mercury, Inc. v. Larson, 158 Ga. App. 540, 281 S.E.2d 297 (1981); Charter Medical Mgt. Co. v. Ware Manor, Inc., 159 Ga. App. 378, 283 S.E.2d 330 (1981); Sims' Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga. 1981); Morris v. Ivey, 10 Bankr. 230 (Bankr. N.D. Ga. 1981); ITT Indus. Credit Co. v. Scarboro, 13 Bankr. 439 (M.D. Ga. 1981); Merritt v. First State Bank, 162 Ga. App. 15, 289 S.E.2d 547 (1982); Thurmond v. Georgia R.R. Bank & Trust Co., 162 Ga. App. 245, 290 S.E.2d 126 (1982); Sawyer v. Citizens & S. Nat'l Bank, 164 Ga. App. 177, 296 S.E.2d 134 (1982); Clements v. HFC, 165 Ga. App. 220, 299 S.E.2d 916 (1983); Bulman v. First Nat'l Bank, 165 Ga. App. 843, 303 S.E.2d 29 (1983); Crockett v. Shafer, 166 Ga. App. 453, 304 S.E.2d 405 (1983); Dozier v. Wallace, 169 Ga. App. 126, 311 S.E.2d 839 (1983); Leavell v. Bank of Commerce, 169 Ga. App. 626, 314 S.E.2d 678 (1984); Stinson v. Georgia Dep't of Human Resources Credit Union, 171 Ga. App. 303, 319 S.E.2d 508 (1984); Wood v. Chatham Eng'g & Constr. Co., 173 Ga. App. 289, 326 S.E.2d 8 (1985); Eways v. Georgia R.R. Bank, 806 F.2d 991 (11th Cir. 1986); In re Royal, 75 Bankr. 50 (Bankr. S.D. Ga. 1987); In re Cunningham, 79 Bankr. 92 (Bankr. N.D. Ga. 1987); Bargas v. Rice, 82 Bankr. 623 (Bankr. S.D. Ga. 1987); Karr v. Ryback, 186 Ga. App. 842, 368 S.E.2d 799 (1988); In re Curtis, 83 Bankr. 853 (Bankr. S.D. Ga. 1988); Bruce v. Wal-Mart Stores, Inc., 699 F. Supp. 905 (N.D. Ga. 1988); Security Pac. Bus. Fin., Inc. v. Lichirie Ventures-Godby Plaza, Ltd., 703 F. Supp. 936 (N.D. Ga. 1989); Ewald v. Security Pac. Credit Corp., 190 Ga. App. 615, 379 S.E.2d 569 (1989); Adams v. D & D Leasing Co., 191 Ga. App. 121, 381 S.E.2d 94 (1989); Oviedo v. Connecticut Nat'l Bank, 194 Ga. App. 626, 391 S.E.2d 417 (1990); Resolution Trust Corp. v. Dismuke, 746 F. Supp. 104 (N.D. Ga. 1990); Hershiser v. Yorkshire Condominium Ass'n, 201 Ga. App. 185, 410 S.E.2d 455 (1991); Goodrum v. Ensign Bank, 202 Ga. App. 53, 413 S.E.2d 230 (1991); Cessna Fin. Corp. v. Wall, 876 F. Supp. 273 (M.D. Ga. 1994); Mullis v. Shaheen, 217 Ga. App. 277, 456 S.E.2d 764 (1995); Acuff v. Proctor, 267 Ga. 85, 475 S.E.2d 616 (1996); Welzel v. Advocate Realty Invs., LLC (In re Welzel), 275 F.3d 1308 (11th Cir. 2001); AKA Mgmt. v. Branch Banking & Trust Co., 275 Ga. App. 615, 621 S.E.2d 576 (2005); Citibank (South Dakota), N.A. v. Han (In re Han), Bankr. (Bankr. N.D. Ga. Aug. 8, 2005); SunTrust Bank v. Hightower, 291 Ga. App. 62, 660 S.E.2d 745 (2008); Liberty Lending Servs. v. Canada, 293 Ga. App. 731, 668 S.E.2d 3 (2008); Anglin v. Moore, 332 Ga. App. 346, 771 S.E.2d 525 (2015).
Conditions Precedent to Recovery of Attorney's Fees
Failure to comply with law renders attorney fees provided for in note or contract uncollectable. Dunlap v. Citizens & S. DeKalb Bank, 134 Ga. App. 893, 216 S.E.2d 651 (1975).
Bank that filed a claim against an LLC's Chapter 11 bankruptcy estate, seeking payment of principal and interest the bank was owed on a debt the LLC guaranteed, was not allowed to recover attorneys fees the bank incurred pre-petition to collect the debt because the bank did not give the LLC notice under O.C.G.A. § 13-1-11 that the debt was in default and that the bank would be pursuing collection action. Southside, LLC v. Suntrust Bank (In re Southside, LLC), 520 Bankr. 914 (Bankr. N.D. Ga. 2014).
Liability for attorney's fees contingent upon full compliance with conditions precedent stated in law. Adair Realty & Loan Co. v. Williams Bros. Lumber Co., 112 Ga. App. 16, 143 S.E.2d 577 (1965); Holt v. Rickett, 143 Ga. App. 337, 238 S.E.2d 706 (1977); Citizens & S. Nat'l Bank v. Bougas, 149 Ga. App. 722, 256 S.E.2d 37 (1979); Mills v. East Side Investors, 7 Bankr. 515 (N.D. Ga. 1980), aff'd, 694 F.2d 242 (11th Cir. 1982), superseded by statute as stated in Welzel v. Advocate Realty Invs., LLC (In re Welzel), 245 F.3d 1283 (11th Cir. Ga. 2001).
Section makes enforcement of provision for attorney's fees contingent on creditors giving written notice that debtor can avoid added expense of attorney's fees by paying principal and interest then due within ten days of receipt of notice. United States v. Hattaway, 488 F.2d 55 (5th Cir. 1974).
Contingency must be met prior to payment of attorney's fees.
- Under contract to pay attorney's fees if note or other obligation is collected by or through attorney, only contingent liability is created for payment of attorney's fees, and no liability for payment of such fees can or will arise until such time as contingency which is condition precedent to collection of such fees has been fully complied with, and collection made by attorney at law. Strickland v. Williams, 215 Ga. 175, 109 S.E.2d 761 (1959).
If conditions of law complied with, attorney's fees treated as parts of principal debt rather than as penalty. Morgan v. Kiser & Co., 105 Ga. 104, 31 S.E. 45 (1898); Royal v. Edinburgh-American Land Mtg. Co., 143 Ga. 347, 85 S.E. 190 (1915).
Since a loan servicer did not comply with an O.C.G.A. § 13-1-11 requirement of giving notice of a borrower's (a Chapter 13 debtor) right to avoid attorney fees in mortgage foreclosure proceedings by paying the principal and interest of the loan in full within 10 days, the servicer could not recover attorney fees under 11 U.S.C. §§ 502 and 506(b). Clark v. Wash. Mut. Home Loans (In re Clark), 299 Bankr. 694 (Bankr. S.D. Ga. 2003).
Conditions precedent to collection of attorney's fees include notice to debtor that collection be made by attorney at law, that debt has matured, that contract included an obligation to pay attorney's fees, and that required ten-days notice has been given and period has expired without payment of principal and interest in full. GECC v. Brooks, 242 Ga. 109, 249 S.E.2d 596 (1978).
Conditions precedent to recovery of attorney's fees under paragraph (a)(3) are: that collection be made by an attorney at law, that debt has matured, that contract included obligation to pay attorney's fees and that required ten-days notice has been given and the ten-day period has expired without payment of principal and interest in full; there must be full compliance with these conditions before a creditor may collect attorney's fees. Fidelity Nat'l Bank v. Walsey, 7 Bankr. 779 (Bankr. N.D. Ga. 1980).
Under O.C.G.A. § 13-1-11, the conditions precedent to recovery of contractual attorney's fees are: (1) the contract must include an obligation to pay attorney's fees; (2) the debt must have matured; (3) notice must be given to the debtor informing the debtor that the debtor has ten days within receipt to pay the debt in order to avoid attorney's fees; (4) the ten-day period must expire without payment of principal and interest in full; and (5) the debt must be collected by or through an attorney-at-law. Specialty Inv. Corp. v. Village Apt. Assocs., 9 Bankr. 211 (Bankr. N.D. Ga. 1981).
Notification and opportunity to tender the amount due seem to be the basic requirements contemplated by paragraph (a)(3) of O.C.G.A. § 13-1-11. Carlos v. Murphy Whse. Co., 166 Ga. App. 406, 304 S.E.2d 439 (1983).
Contractual obligations for the payment of attorney fees representing 15 percent of the indebtedness owed are valid and enforceable where the contract contains such a provision, the debt has matured, notice was given the debtor that the debtor has 10 days to pay the debt, the 20-day period has expired, and the debt is collected by or through an attorney. Dickens v. Calhoun First Nat'l Bank, 197 Ga. App. 517, 398 S.E.2d 814 (1990).
Because all defendants received notice of the bank's intent to enforce the "Collection Costs and Attorney's Fees" provision of a delinquent note and were given ten days to pay in full, the bank was entitled to attorney's fees and costs as allowed under O.C.G.A. § 13-1-11 in the amount of 15% of the total principal and accrued interest as of the date of judgment. Bank of Ozarks v. Kingsland Hospitality, LLC, F. Supp. 2d (S.D. Ga. Oct. 5, 2012).
Actual collection of debt is one condition precedent in paragraph (a)(3) to enforcement of contractual provisions for payment of attorney's fees. Fidelity Nat'l Bank v. Walsey, 7 Bankr. 779 (Bankr. N.D. Ga. 1980).
Before contractual attorney's fees may be recovered, the debt must be collected by or through an attorney-at-law. Specialty Inv. Corp. v. Village Apt. Assocs., 9 Bankr. 211 (Bankr. N.D. Ga. 1981).
Actual collection of an indebtedness is not required. O.C.G.A. § 13-1-11 simply requires that the creditor place the matter in the hands of an attorney and that the attorney subsequently take action to enforce the debt. Specialty Inv. Corp. v. Village Apt. Assocs., 9 Bankr. 211 (Bankr. N.D. Ga. 1981).
Attorney fees are only collectable where debt is collected by or through an attorney. Citizens & S. Nat'l Bank v. Bougas, 149 Ga. App. 722, 256 S.E.2d 37 (1979), rev'd in part on other grounds, 245 Ga. 412, 265 S.E.2d 562 (1980).
Collection by or through an attorney.
- Notes were "collected by or through an attorney" within the meaning of O.C.G.A. § 13-1-11 so as to entitle creditors to attorney fees where debtors did not pay within the required ten days, a nonjudicial foreclosure proceeding was instituted and pursued by the creditors until the debtors' filing of bankruptcy, and a consent decree in a proceeding between the creditors and the debtors for the sequestration of rents provided for the full amount of the principal due as well as interest. Mills v. East Side Investors, 694 F.2d 242 (11th Cir. 1982), rehearing denied, 702 F.2d 214 (11th Cir. 1983), superseded by statute as stated in Welzel v. Advocate Realty Invs., LLC (In re Welzel), 245 F.3d 1283 (11th Cir. Ga. 2001).
Reduction in balance owing by sale is not "by and through an attorney after maturity".
- Where the balance owing at the time of default is reduced by the sale of collateral, that reduction was not collected "by and through an attorney after maturity" within the meaning of O.C.G.A. § 13-1-11 and is not to be included in the amount of deficiency upon which the attorney fees are based. David v. ITT Diversified Credit Corp., 174 Ga. App. 910, 332 S.E.2d 8 (1985).
Nonjudicial foreclosure stayed in bankruptcy meets collection requirement.- The initiation of a nonjudicial foreclosure which is later stayed when the debtor files for bankruptcy satisfies the collection requirement. Specialty Inv. Corp. v. Village Apt. Assocs., 9 Bankr. 211 (Bankr. N.D. Ga. 1981).
Both stipulation for attorney's fees and compliance with statutory requirements prerequisite to recovery.
- Promise to pay attorney's fees may not of itself be sufficient to entitle plaintiff to a judgment therefor, but without such promise, fees could not be recovered in suit on note. With promise, fees may be collected upon compliance with statutory conditions. Browne v. Edwards, 122 Ga. 277, 50 S.E. 110 (1905).
Section inapplicable absent preexisting agreement to pay attorney's fees.
- Like Ga. L. 1935, p. 381, § 2 (see O.C.G.A. § 44-14-162), regulating sales under powers in security deeds, former Code 1933, § 20-506 (see O.C.G.A. § 13-1-11) did not come into play in absence of preexisting agreement between parties to pay attorney's fees upon note or other evidence of indebtedness. Global Indus., Inc. v. Harris, 376 F. Supp. 1379 (N.D. Ga. 1974).
Promissory notes authorizing attorney fees when note is collected by and through attorney are valid, enforceable, and collectible. Camacho v. First S. Homeowners Co., 160 Ga. App. 491, 287 S.E.2d 327 (1981).
Attorney fees recoverable where provided for in note and where proper notice given.
- When note provides for payment of attorney's fees and proper notice of intention to sue is given as required by law, the attorney fees are recoverable. Harrison v. Harrison, 208 Ga. 70, 65 S.E.2d 173 (1951).
Demand letter not requesting attorney fees.
- Trial court erred in awarding attorney fees because plaintiff's demand letter contained absolutely no reference to the attorney fees provision in the promissory note or to any claim for attorney fees. Quintanilla v. Rathur, 227 Ga. App. 788, 490 S.E.2d 471 (1997).
Proper demand notice had to be in writing, to the party sought to be held on the obligation, after maturity, to state that the provisions relative to payment of attorney fees in addition to principal and interest would be enforced, and to state that the party had 10 days from the receipt of such notice to pay the principal and interest without the attorney fees. Trust Assoc. v. Snead, 253 Ga. App. 475, 559 S.E.2d 502 (2002).
Trial court properly granted the lender summary judgment and awarded the lender attorney fees pursuant to O.C.G.A. § 13-1-11 in a mortgage foreclosure action because the borrower failed to satisfy the matured principal and interest due on the delinquent payments within 10 days of any of the demand letters; consequently, after the expiration of 10 days, the borrower's total obligation included the matured principal and interest obligation as well as attorney fees under § 13-1-11. Austin v. Bank of Am., N.A., 293 Ga. 42, 743 S.E.2d 399 (2013).
Contract for attorney's fees nullified by payment in full within ten days after notice is given; no provision is made as to when, with relation to bringing of suit, notice must be given to be effective. Camilla Cotton Oil Co. v. Spencer Kellogg & Sons, 257 F.2d 162 (5th Cir. 1958).
Tender necessary to avoid attorney's fees.
- Tender means tender of principal, interest, and costs. Tender of principal and interest conditioned upon plaintiff paying costs is insufficient to avoid paying attorney's fees where plaintiff complies with law. Donovan v. Hogan, 8 Ga. App. 754, 70 S.E. 153 (1911).
Hearing not required when statutory formula used.
- Where the amount of attorney fees to be awarded is subject to computation by using either without variance, or by substantially complying with, the unambiguous statutory formula of paragraph (a)(2) O.C.G.A. § 13-1-11, a hearing is not required merely to effect this computation. Woods v. General Elec. Credit Auto Lease, Inc., 187 Ga. App. 57, 369 S.E.2d 334 (1988).
Award of fees in arbitration of promissory note not required.
- Where it was undisputed that a party complied with the statutory conditions of O.C.G.A. § 13-1-11(a), the trial court's failure to award separate attorney fees in connection with arbitration of a promissory note did not constitute reversible error; in the absence of evidence to the contrary, the trial court deemed that the attorney fees awarded by the arbitration panel were sufficient to compensate the party for all issues pursued in the party's complaint. Phillips v. TermNet of N.M., Inc., 260 Ga. App. 645, 580 S.E.2d 544 (2003).
Amount of judgment is determinative for direct appeal.
- Appellate court properly dismissed an attorney's direct appeal in a case wherein the attorney sued a client for attorney fees as the judgment the attorney recovered was one for damages in an amount under $10,000, and as such, it was subject to appeal as a matter of discretion under O.C.G.A. § 5-6-35(a)(6), rather than of right. The failure of the attorney to recover on the claims of prejudgment interest or attorney fees did not transform the judgment into a finding on liability adverse to the attorney so as to render appeal of the matter outside the ambit of § 5-6-35(a)(6). Cooney v. Burnham, 283 Ga. 134, 657 S.E.2d 239 (2008).
Application
Applicable to obligation to pay attorney's fees embodied in mortgage.
- Obligation to pay attorney's fees, embodied in mortgage is collectable in same manner as if the obligation were contained in note or other evidence of indebtedness. Sheffield v. Bainbridge Oil Co., 3 Ga. App. 200, 59 S.E. 725 (1907).
When section complied with, obligation of deed to secure debt includes attorney's fees.
- If holder complies with section's requirement, liability for attorney's fees becomes a part of indebtedness, and obligation of deed given to secure original debt extends to and includes attorney's fees. Consequently, one entitled to special lien for purchase money upon described real estate is entitled also to lien for amount of any attorney's fees to which debtor may be legally subject. Guarantee Trust & Banking Co. v. American Nat'l Bank, 15 Ga. App. 778, 84 S.E. 222 (1915).
If suit on note barred, claim for attorney fees also barred.
- As recovery on a second promissory note was barred by the creditor's failure to seek judicial confirmation under O.C.G.A. § 44-14-161(a) of the foreclosure sale associated with the first note, the creditor was not entitled to attorney fees under O.C.G.A. § 13-1-11(a). Iwan Renovations, Inc. v. N. Atlanta Nat'l Bank, 296 Ga. App. 125, 673 S.E.2d 632 (2009).
Requirements of section applicable where collection sought by process of attachment. Walton v. Hines, 40 Ga. App. 757, 151 S.E. 558 (1930).
Endorsers are liable for attorney fees. Riverside Milling & Power Co. v. Bank of Cartersville, 141 Ga. 578, 81 S.E. 892 (1914).
Guaranty contracts are within scope of statute. FDIC v. Willis, 497 F. Supp. 272 (S.D. Ga. 1980).
National bank may recover attorney fees on note made to the bank. Young v. First Nat'l Bank, 22 Ga. App. 58, 95 S.E. 381 (1918).
Credit card processor's suit to collect losses.
- Trial court improperly calculated attorney fees and expenses under O.C.G.A. § 13-1-11 since there was no evidence of a note or other indebtedness involved in the credit card processor's suit to collect losses under an indemnity agreement with the bank's predecessor. Colonial Bank v. Boulder Bankcard Processing, Inc., 254 Ga. App. 686, 563 S.E.2d 492 (2002).
Debt collection suit involving credit card.
- In a debt collection suit, a bank was properly granted summary judgment against a credit cardholder because, despite the cardholder signing the cardholder agreement while part of a corporation, the agreement clearly provided that the credit cardholder was individually and personally liable for the outstanding debt and the bank had provided the requisite notice for the collection of attorney fees. Grot v. Capital One Bank (USA), N. A., 317 Ga. App. 786, 732 S.E.2d 305 (2012).
Provision of lease agreement enforceable.
- A provision in a lease agreement providing for recovery of attorney fees in any action brought to enforce any term, covenant, or condition of the lease was enforceable under O.C.G.A. § 13-1-11. Georgia Color Farms, Inc. v. K.K.L., Ltd. Partnership, 234 Ga. App. 849, 507 S.E.2d 817 (1998).
Failure of landlord to give notice under O.C.G.A. § 13-1-11 did not preclude the grant of attorneys fees because the plain terms of the lease authorized the award of attorneys fees, expenses, and costs. Ins. Indus. Consultants, Inc. v. Essex Invs., Inc., 249 Ga. App. 837, 549 S.E.2d 788 (2001).
O.C.G.A. § 13-1-11(a) did not apply in a lessor's suit against a lessee, and instead, the attorney's fee provisions of the lease applied; although the lessor sought to recover rent due, the lessor also sought a declaration as to the enforceability of an exclusivity clause in the lease, which would have allowed the lessee to terminate the lease or to pay a reduced rent if the lessee was not found to have waived the enforceability of the exclusivity clause. Cascade Crossing II, LLC v. Radioshack Corp., 446 F. Supp. 2d 1348 (N.D. Ga. 2006).
In a lessor's action to enforce the provisions of a commercial lease pursuant to O.C.G.A. § 13-1-11, because a lessee's predecessor-in-interest failed to strictly comply with a cancellation option in the lease, and time was of the essence, the trial court erred in ruling otherwise, resulting in an expiration of the option due to the failure to timely exercise the option; thus, on remand the lessor was entitled to summary judgment on the lessor's possession claim and to the past rent due under the lease for the term sought. Piedmont Ctr. 15, LLC v. Aquent, Inc., 286 Ga. App. 673, 649 S.E.2d 733 (2007), cert. denied, 2007 Ga. LEXIS 749 (Ga. 2007).
Trial court did not err in awarding attorney fees and expenses to landlords because the landlords prevailed in a tenant's breach of contract action; pursuant to the tenant's lease agreement, the "prevailing party" in any litigation to enforce a right or collect sums due under the lease could recover reasonable attorney fees and litigation expenses, and the trial court awarded fees and expenses after concluding that the landlords were the prevailing parties. Office Depot, Inc. v. Dist. at Howell Mill, LLC, 309 Ga. App. 525, 710 S.E.2d 685 (2011).
Applies to commercial lease.
- O.C.G.A. § 13-1-11 applies to a commercial lease and limits the award of attorney's fees recoverable by the landlord where past due rent is recovered and the only other relief is declaratory and governs the future enforceability or amount of the tenant's rent obligation. RadioShack Corp. v. Cascade Crossing II, LLC, 282 Ga. 841, 653 S.E.2d 680 (2007).
Statutory cap on attorneys' fees in O.C.G.A. § 13-1-11 applied so as to cap a lessor's attorneys' fees in a suit seeking a declaration as to the enforceability of part of a commercial lease agreement and to recover back rent, and thus, the lessor, as the prevailing party, was not able to recover the larger sum of attorneys' fees that were provided for in the lease agreement. Cascade Crossing II, LLC v. Radioshack Corp., 534 F.3d 1375 (11th Cir. 2008).
Term "evidence of indebtedness" in O.C.G.A. § 13-1-11 applied to a commercial lease and limited the landlord's recovery of attorney's fees, even though the lease provided that the landlord was entitled to recover all attorney's fees incurred, and the landlord in this case had a contingency fee agreement with the landlord's counsel. Best v. CB Decatur Court, LLC, 324 Ga. App. 403, 750 S.E.2d 716 (2013).
Executor empowered to borrow money may stipulate for payment of attorney's fees.
- Power of executor to borrow money implies power to secure the money by note, stipulating for payment of attorney fees. Fletcher v. American Trust & Banking Co., 111 Ga. 300, 36 S.E. 767, 78 Am. St. R. 164 (1900).
Guaranty contract is evidence of indebtedness. Goldstein v. Ipswich Hosiery Co., 104 Ga. App. 500, 122 S.E.2d 339 (1961).
It is immaterial that agreement to pay attorney's fees was in deed and not note; for the law applies to any obligation, in note or elsewhere, to pay upon note attorney's fees in addition to stipulated rate of interest. Demere v. Germania Bank, 116 Ga. 317, 42 S.E. 488 (1902).
Provision for attorney's fees in guaranty contract enforceable upon giving required notice.
- When undertaking of guarantor is to pay for goods sold by creditor to debtor to extent of specified sum, and in addition to pay ten percent on indebtedness as attorney's fees in event of suit, amount stipulated as attorney's fees is recoverable from guarantor on giving statutory notice. Sheppard v. Daniel Miller Co., 7 Ga. App. 760, 68 S.E. 451 (1910), later appeal, 11 Ga. App. 514, 75 S.E. 907 (1912).
When notice required by O.C.G.A. § 13-1-11 was given and the amount of attorney fees was calculated solely on the principal amount due on the note at the time of default and suit for collection against two guarantors, calculation of the attorney fees was unaffected by any subsequent payments made by one of the guarantors under a settlement agreement. Groover v. Commercial Bancorp, 220 Ga. App. 13, 467 S.E.2d 355 (1996).
Decedent's estate liable for attorney's fees for collection of decedent's note where proper notice given.
- When provision for payment of attorney's fees is included in note given by decedent, the decedent's estate may be made liable therefor in suit thereon against administrator in which such fees are claimed, after notice of claim has been served as is prescribed by statute. Harris v. Powers, 129 Ga. 74, 58 S.E. 1038, 12 Ann. Cas. 475 (1907); Story v. Wolff, 21 Ga. App. 727, 94 S.E. 899 (1918); Penick Supply Co. v. Anderson, 23 Ga. App. 244, 97 S.E. 889 (1919).
Liability for attorney's fees where property sold under power of sale.
- See Cochran v. Bank of Hancock County, 118 Ga. App. 100, 162 S.E.2d 765 (1968).
Negotiability of note not affected by provision for recovery of attorney's fees.
- Promissory note containing words of negotiability is negotiable notwithstanding agreement in note to pay all costs of collection including ten percent attorney's fees. Stapleton v. Louisville Banking Co., 95 Ga. 802, 23 S.E. 81 (1895); Jones v. Crawford, 107 Ga. 318, 33 S.E. 51, 45 L.R.A. 105 (1899).
Defendants admitted unpaid notes, guaranty of payment, and notice of claimed attorney fees by reason of an unclaimed certified letter addressed to the maker of the notes at a post office box, the maker having admitted having received notice from the U.S. Postal Service that the maker had a certified letter to pick up. Worth v. Alma Exch. Bank & Trust, 171 Ga. App. 748, 320 S.E.2d 816 (1984).
Obligation mature upon exercise of right to accelerate.
- Where a lease contains clause allowing for acceleration of rent upon lessee's default, lessee's obligation is matured within meaning of law when lessor demands full payment of all rents. Kasum Communications, Inc. v. CPI N. Druid Co., 135 Ga. App. 314, 217 S.E.2d 492 (1975).
Creditor's waiver of right to recover attorney's fees.
- As such attorney's fees as are recoverable are in nature of liquidated damages which inure to benefit of plaintiff, and not for benefit of plaintiff's attorney, plaintiff who has given required notice may waive right to recover fees by settling with defendant in full, or by accepting payments thereon from defendant, under agreement or understanding not to insist on liability created by notice or by failing to plead such notice. Rylee v. Bank of Statham, 7 Ga. App. 489, 67 S.E. 383 (1910).
Debtor's insolvency under state law does not prohibit rendering of judgment for attorney's fees. Security Mtg. Co. v. Powers, 278 U.S. 149, 49 S. Ct. 84, 73 L. Ed. 236 (1928) (decided under prior bankruptcy law).
Recovery of attorney's fees not affected by appointment of receiver after notice to debtor.
- Plaintiff's right to recover attorney's fees not affected by fact that, after service of notice, a court of equity appointed receivers who took possession of debtor's assets; nor is it necessary that receivers be thereafter served with statutory notice in order to fix liability for attorney's fees. Guarantee Trust & Banking Co. v. American Nat'l Bank, 15 Ga. App. 778, 84 S.E. 222 (1915).
Limitation on fees found in paragraph (a)(2) of O.C.G.A. § 13-1-11 is inapplicable to action enforcing condominium association's right to lien for assessments. Wehunt v. Wren's Cross of Atlanta Condominium Ass'n, 175 Ga. App. 70, 332 S.E.2d 368 (1985).
Record supported award of attorney's fees. See Ale-8-One of Am., Inc. v. Graphicolor Servs., Inc., 166 Ga. App. 506, 305 S.E.2d 14 (1983).
Appellate court erred in denying creditor's request for attorney fees based on its speculation that an arbitration award for the creditor on its action to recover on a promissory note that the debtor had executed in the creditor's favor contained a sufficient amount to cover an attorney fee award. The creditor was entitled to recover attorney fees under O.C.G.A. § 13-1-11 because the creditor fulfilled all of the conditions for recovering attorney fees under that statute, and, thus, the courts did not have the discretion to not award those fees once the creditor had made a claim for the fees. TermNet Merch. Servs. v. Phillips, 277 Ga. 342, 588 S.E.2d 745 (2003).
Insurer's right to attorney fees in counterclaim to insured's suit.
- Insurer, who pursuant to insurance policy purchased mortgage on land covered by policy, would not be entitled to attorney fees in counterclaim to insured's suit to recover for fire loss if insurer's failure to pay insured's claim was wrongful. State Farm Fire & Cas. Co. v. Jenkins, 167 Ga. App. 4, 305 S.E.2d 801, cert. vacated, 251 Ga. 596, 310 S.E.2d 232 (1983).
Provisions held not in conflict.
- Where a note provided for financing at 101/2 percent interest per annum, "together with the Base Charge and with all costs of collection including 15 percent as attorneys fees if collected by law or through an attorney at law. . .," and also provided for "enforcement of rights under any of the collateral, including reasonable attorney's fees and legal expenses," the two provisions were not in conflict. In a suit not brought to enforce rights of collateral, but to collect the debt due on the note, the award of attorney fees equal to 15 percent of the amount owed was not erroneous. Dedousis v. First Nat'l Bank, 181 Ga. App. 425, 352 S.E.2d 577 (1986).
Where a guaranty contract provided that a guarantor pay reasonable attorney fees actually incurred, and also stipulated that 15% of the total amount due on the note and remaining unpaid was to be deemed the "reasonable attorney fees," the two clauses were not ambiguous when construed together, and the recovery of attorney fees not in excess of 15% of the principal and interest owed on a note was properly granted. Rodgers v. First Union Nat'l Bank, 220 Ga. App. 821, 470 S.E.2d 246 (1996).
Attorney fees not recoverable in tort claim for conversion.
- Because O.C.G.A. § 13-1-11 did not authorize the recovery of attorney's fees in any tort claim and the timber company that did the cutting was not a party to and did not sign either the deed to secure debt, the original promissory note, or any of the subsequent loan agreements, the trial court erred when the court instructed the jury as to the provisions for attorney fees under O.C.G.A. § 13-1-11, but not when the court instructed the jury to consider whether to award the plaintiff reasonable attorney fees, to which the plaintiff was entitled under the timber conversion statute, O.C.G.A. § 51-12-51(a). AgSouth Farm Credit, ACA v. Gowen Timber Co., 336 Ga. App. 581, 784 S.E.2d 913 (2016).
Section inapplicable since contract not note or evidence of indebtedness.
- Trial court did not err in awarding attorney fees related to an attorney's collection efforts because, in the personal services contract at issue, the attorney agreed to perform services for a doctor and the doctor agreed to compensate the attorney for those services; however, the trial court's default judgment order erroneously awarded attorney fees pursuant to the provisions of O.C.G.A. § 13-1-11(a), and because the contract was not a note or other evidence of indebtedness, § 13-1-11 was inapplicable. Vaughters v. Outlaw, 293 Ga. App. 620, 668 S.E.2d 13 (2008).
No double recovery shown for separate and distinct liability findings.
- Award of attorney fees under both O.C.G.A. §§ 13-1-11 and § 13-6-11 for bad faith, stubborn litigiousness, or causing unnecessary trouble and expense, did not constitute an impermissible double recovery because the bases for the findings of liability were separate and distinct: one defendant's contractual liability under the promissory note and the other defendant's tort liability or equitable obligation meant the defendants were not designated to be joint tortfeasors. Bloom v. Camp, 336 Ga. App. 891, 785 S.E.2d 573 (2016).
Jury decisions.
- Under O.C.G.A. § 13-1-11, a lender was entitled to attorney fees for redeeming the collateral securing a note; also, borrowers' testimony that the borrowers never received letters containing O.C.G.A. § 13-1-11 language, despite proffered evidence that such letters were mailed, created a jury question, and the trial court erred in directing a verdict for the borrowers. Lovell v. Thomas, 279 Ga. App. 696, 632 S.E.2d 456 (2006).
Award vacated.
- Trial court award of attorney fees under O.C.G.A. § 13-6-11 to a bank was reversed on appeal since the appellate court determined that summary judgment should not have been granted to the bank as a result of genuine issues of fact existing as to the interpretation of the contract at issue. DJ Mortg., LLC v. Synovus Bank, 325 Ga. App. 382, 750 S.E.2d 797 (2013).
Calculation of Attorney's FeesGenerally, attorney entitled to disbursements necessary in carrying out object of attorney's employment. Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788 (S.D. Ga. 1978), aff'd, 620 F.2d 508 (5th Cir. 1980).
If attorney's fees are not recoverable, neither are expenses of counsel. Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788 (S.D. Ga. 1978), aff'd, 620 F.2d 508 (5th Cir. 1980).
Attorney's fees not chargeable on theory that the fees are costs independent of 15 percent maximum attorney's fees allowed under note or security deed. Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788 (S.D. Ga. 1978), aff'd, 620 F.2d 508 (5th Cir. 1980).
Fifteen percent award improper when note provided for payment of fees actually incurred.
- In a lender's assignee's suit against borrowers on a promissory note, because the note provided that the borrowers agreed to pay "any fee you incur" in collection, and there was no evidence as to the actual amount of attorney fees the assignee incurred in collecting the note, the trial court erred in granting the assignee 15 percent fees under O.C.G.A. § 13-1-11. Hamilton State Bank v. Kelly Capital Invs., LLC, 335 Ga. App. 252, 779 S.E.2d 757 (2015).
Attorney's fees recoverable for obtaining judgment on note are incurred by time judgment is entered. Claude A. Hinton, Jr., Inc. v. Institutional Investors Trust, 133 Ga. App. 364, 211 S.E.2d 169 (1974).
Attorney's fees amount to stipulated percent on principal and interest of note. Morgan v. Kiser & Co., 105 Ga. 104, 31 S.E. 45 (1898); Hamilton v. Rogers, 126 Ga. 27, 54 S.E. 926 (1906); Underwood v. Savannah Chem. Co., 18 Ga. App. 194, 89 S.E. 154 (1916).
Valid unconditional continuous tender stops running of interest. Bank of Early v. Broun, 156 Ga. App. 445, 274 S.E.2d 802 (1980).
Absent unambiguous acceleration provision, attorney's fees are recoverable only with respect to past-due installments.
- Where, at time of written notice of intention to collect attorney fees only five of 12 installments had fallen due, and where contract did not contain unambiguous acceleration provision, plaintiff was entitled to attorney fees only with respect to the five past due installments. Considine Co. v. Turner Communications Corp., 155 Ga. App. 911, 273 S.E.2d 652 (1980).
Amount of attorney's fees recoverable based on sum actually recovered.
- Plaintiff entitled to recover attorney's fees on amount recovered, notwithstanding such recovery may be less than amount claimed to be due in suit. Harris v. Powers, 129 Ga. 74, 58 S.E. 1038, 12 Ann. Cas. 475 (1907); Livingston Bros. v. Salter, 6 Ga. App. 377, 65 S.E. 60 (1909); Smith v. Baker, 137 Ga. 298, 72 S.E. 1093 (1911).
Contract for fees.
- Trial court erred in awarding, in a claim based on a contract which provided for payment of attorney fees without specifying any percentage, $14,349 for attorney fees on a total contract claim of $102,833. Ahmad v. Excell Petroleum, Inc., 276 Ga. App. 167, 623 S.E.2d 6 (2005).
Trial court did not err in granting a mortgagee summary judgment in an action following a foreclosure sale on the issue of attorney's fees because there were no genuine issues of material fact as to the amount of attorney fees owed; because the agreement to pay attorney fees of 15 percent of the principal and interest was enforceable, the amount to be awarded was only a matter of mathematical calculation. Cmty. Marketplace Props., LLC v. Suntrust Bank, 303 Ga. App. 403, 693 S.E.2d 602 (2010).
In a lender's suit to enforce personal guaranties, the guarantor pointed to no evidence to create a genuine fact dispute as to the amount due, and the lender was entitled to attorney's fees based on the attorney's fees provision in the floorplans. Nissan Motor Acceptance Corp. v. Sowega Motors, Inc., F. Supp. 2d (M.D. Ga. Sept. 11, 2012).
Language in a promissory note entitled the holder to recover 15 percent of the principal plus interest as attorney's fees: the note provided that the debtor was required to pay "that amount," which included the "costs of collection" and "15 percent of the principal plus accrued interest fees." The phrase "that amount" did not limit the award to only those costs actually incurred. First Citizens Bank & Trust Co. v. River Walk Farm, L.P., 591 Fed. Appx. 590 (11th Cir. Aug. 18, 2015)(Unpublished).
If contract provides for reasonable attorney's fees, amount to be calculated under statutory provisions. Carter v. Whatley, 97 Ga. App. 10, 101 S.E.2d 899 (1958).
Since a note provided for attorney's fees of 15 percent if the note were placed in the hands of an attorney for collection but also provided for "reasonable attorney's fees" if the note were not paid at maturity, the note would be construed to provide that attorney fees would be awarded in the amount of 15 percent of the principal and interest owed. Davenport v. Nance, 194 Ga. App. 313, 390 S.E.2d 281 (1990).
When agreement provides only for 15 percent ceiling on attorney's fees, paragraph (2) determines amount.
- When attorney fees provision placed 15 percent limit on attorney fees, but did not provide for attorney's fees in some specific percent, attorney fees must be determined in accordance with paragraph (2) of this section. Lakeview Memory Gardens, Inc. v. National Bank & Trust Co., 155 Ga. App. 478, 271 S.E.2d 219 (1980) (see O.C.G.A. § 13-1-11).
Trial court's grant of a default judgment to the appellee on the issue of the appellant's liability on a promissory note was upheld but the trial court's award of damages, interest, and attorney fees to the appellee was vacated because material conflicts in the pleadings existed that had to be resolved before the trial court could calculate the value of the stock on the day the appellee submitted the June Conversion Notice and could award that amount as damages. Pure Hospitality Solutions, Inc. v. Canouse, 347 Ga. App. 592, 820 S.E.2d 434 (2018).
Attorney fees award of 15 percent of principal plus interest proper.
- There was no error in the attorney fees award because the note provided that attorney fees could be collected at the rate of 15 percent of the principal plus interest; that amount was within the statutory range; and the company and the guarantor failed to argue that the fee award was subject to a reasonableness standard prior to the judgment. John C. Wilson Co. v. Regions Bank, 352 Ga. App. 624, 834 S.E.2d 610 (2019).
Hearing not required when statutory formula used.
- Where the amount of attorney fees to be awarded is subject to computation by using either without variance, or by substantially complying with, the unambiguous statutory formula of paragraph (a)(2) of O.C.G.A. § 13-1-11, a hearing is not required merely to effect this computation. Woods v. General Elec. Credit Auto Lease, Inc., 187 Ga. App. 57, 369 S.E.2d 334 (1988).
Debtor cannot lessen liability by showing actual attorney's fees were less than percent stipulated.
- Where note provided for ten percent attorney's fees, defendant cannot lessen the defendant's liability by setting up fact that plaintiff actually contracted with the plaintiff's attorney for a less sum. Bank of Lumpkin v. Farmers' State Bank, 35 Ga. App. 340, 133 S.E. 307 (1926).
Fees to homeowners' association.
- Trial court's award of attorney fees in a foreclosure action was affirmed because O.C.G.A. § 13-1-11 did not apply here to limit the attorney fees award; thus, the trial court did not err in awarding reasonable attorney fees pursuant to the declaration governing the homeowners' association. Northside Bank v. Mountainbrook of Bartow County Homeowners Ass'n, 338 Ga. App. 126, 789 S.E.2d 378 (2016).
Trial court erred in failing to reduce attorney fees awarded by jury.
- Trial court erred in failing to reduce the amount of attorney fees a jury awarded a lessor pursuant to O.C.G.A. § 13-1-11 because the jury found that lessees owed $103,954 in unpaid rent under the lease contract and awarded the lessor $67,734 in attorney fees, but under § 13-1-11(a)(1), the maximum recovery under the lease, where the principal owing had been found to be $103,954, was limited to 15 percent of that amount, or $15,593. Level One Contact, Inc. v. BJL Enters., LLC, 305 Ga. App. 78, 699 S.E.2d 89 (2010).
Improper calculation.
- Because a trust, as holder of a promissory note and deed to secure a debt owed by a husband and a wife, presented uncontroverted evidence of the amount of interest accrued on the unpaid principal balance as of the day after the last payment made until the day before trial began, and the reasonable attorney fees awarded did not match the amount the trust was entitled to under O.C.G.A. § 13-1-11(a)(2), the amount the trial court awarded as to both were reversed. Toombs v. Meyer M. Cardin Living Trust #2, 279 Ga. App. 682, 632 S.E.2d 410 (2006).
Calculation proper.
- Amount of attorney fees awarded to a business seller was permissible under O.C.G.A. § 13-1-11, which applied when a promissory note provided for reasonable attorney fees without giving a specific percentage. The trial court awarded attorney fees of $13,259.75, which was 15 percent of $500 plus 10 percent of $131,847.54, the judgment plus prejudgment interest. A & B Blind & Drapery Co. v. B & B Glass & Storefronts, Inc., 298 Ga. App. 210, 679 S.E.2d 782 (2009).
Bankruptcy Proceedings
Section 506(b) of Bankruptcy Code preempts O.C.G.A. § 13-1-11. - See First Fed. Sav. & Loan Ass'n v. Standard Bldg. Assocs., 85 Bankr. 644 (Bankr. N.D. Ga. 1988); Welzel v. Advocate Realty Invs., LLC (In re Welzel), 255 F.3d 1266 (11th Cir. 2001).
Bankruptcy does not affect vested attorney fees.- The filing of a petition for reorganization under Chapter XII (11 U.S.C. § 1201 et seq.) of the Bankruptcy Act does not diminish the debtor's obligation to pay attorney fees if vested when the petition is filed. Mills v. East Side Investors, 702 F.2d 214 (11th Cir. 1983).
Attorney's fees not lien where debt is cured and reinstated in bankruptcy.
- Statutory attorney's fees, as contemplated by O.C.G.A. § 13-1-11, do not become a lien against secured property where a default on an underlying obligation is cured and reinstated pursuant to provisions of the Bankruptcy Code (11 U.S.C.). Midland Mut. Life Ins. Co. v. Masnorth Corp., 28 Bankr. 892 (Bankr. N.D. Ga. 1983).
Where a mortgage debt is cured and reinstated, the debt is not mature within the meaning of O.C.G.A. § 13-1-11 and statutory attorney's fees do not attach as a lien against the subject property. Midland Mut. Life Ins. Co. v. Masnorth Corp., 36 Bankr. 335 (Bankr. N.D. Ga. 1984).
Cure and reinstatement in a Chapter 11 (11 U.S.C. § 1201 et seq.) bankruptcy proceeding return the parties to a point in time prior to the default and acceleration and remove any claim for Georgia statutory attorney's fees on the accelerated debt. In re Centre Court Apts., Ltd., 85 Bankr. 651 (Bankr. N.D. Ga. 1988).
Perfection of right to fees constitutes preference.
- A creditor's act of perfecting the creditor's right to fees under O.C.G.A. § 13-1-11 constituted a preference subject to avoidance in bankruptcy under 11 U.S.C. § 547(b). Homestead Partners, Ltd. v. Condor One, Inc., 200 Bankr. 274 (Bankr. N.D. Ga. 1996).
Applicability of section to Chapter 13 bankruptcy plan.- To allow attorney's fees sought by a creditor would effectively destroy success of debtor's Chapter 13 (11 U.S.C. § 1301 et seq.) bankruptcy plan resulting in denial of debtor's "fresh start." To allow such a windfall would also eliminate any possibility of payment of one hundred cents on the dollar under the plan to other creditors. Overriding equitable principles require that attorney's fees be denied in such circumstances, particularly in light of fact that such would amount to a windfall, would deny debtor a fresh start, and would be detrimental to other creditors. Burns v. Home Fed. Sav. & Loan Ass'n, 16 Bankr. 757 (Bankr. M.D. Ga. 1982).
Bankruptcy court's conclusion that appellee debtors did not file the debtor's bankruptcy actions in bad faith was not an abuse of discretion because: (1) it was not a single asset case; (2) the case was not just a dispute between appellant creditor and appellees; (3) appellees did not have employees; and (4) at the time of filing, appellees were each in financial distress and filed for bankruptcy for the legitimate purposes of preserving equity and allowing for an orderly distribution of the debtor's property to creditors. Contrary to appellant's argument, appellees did not file for bankruptcy solely to avoid paying statutory attorney's fees pursuant to O.C.G.A. § 13-1-11. First Bank of Ga. v. Lamb (In re Lamb), F. Supp. 2d (S.D. Ga. May 29, 2012).
Bankruptcy court deferred ruling on the creditor's request for attorney's fee because, although the cardholder agreement provided for payment of the creditor's attorney fees and costs, there was no evidence that the creditor complied with the requirements of O.C.G.A. § 13-1-11(a)(3). Fleet Credit Card Servs., L.P. v. Kendrick (In re Kendrick), 314 Bankr. 468 (Bankr. N.D. Ga. 2004).
Failure to show right to attorney's fees.- In bankruptcy proceedings, creditor failed to show at trial that the ten-day letter giving notice of intent to enforce the attorney's fees provision in loan documents was sent and therefore failed to show that the creditor's right to attorney's fees was vested when the bankruptcy case was filed. Chrysler Credit Corp. v. Smith, 143 Bankr. 284 (Bankr. M.D. Ga. 1992).
When a creditor was granted summary judgment on the creditor's complaint to determine dischargeability of a debt owed by a debtor who had filed for bankruptcy, yet there was no evidence that the creditor had complied with O.C.G.A. § 13-1-11(a)(3), the creditor was given 30 days to file proof of the creditor's compliance; failure to file such proof would result in denial of the creditor's request for attorney's fees and costs. Fleet Credit Card Servs., L.P. v. Kendrick (In re Kendrick), 314 Bankr. 468 (Bankr. N.D. Ga. 2004).
In an action in which a creditor successfully brought an action of nondischargeability of certain credit card debt against a Chapter 7 debtor, the creditor was not entitled to attorney fees under the terms of the cardholder agreement unless it provided evidence that it had complied with the terms of O.C.G.A. § 13-1-11(a)(3), which required 10 days written notice to debtor of the amount due and creditor's intent to enforce the contractual attorney fee provision. FDS Nat'l Bank v. Alam (In re Alam), Bankr. (Bankr. N.D. Ga. Feb. 28, 2005).
Because an over-secured creditor's claim for attorney's fees was unenforceable against the debtor under O.C.G.A. § 13-1-11, as the creditor did not satisfy the notice requirements, then its claim for attorney's fees was not allowed under 11 U.S.C. § 502(b)(1) and could not be part of its secured claim under 11 U.S.C. § 506(b). In light of the disallowance under 11 U.S.C. § 502(b)(1), it was unnecessary to determine whether the fees were reasonable, and it was unnecessary to decide whether the "hanging paragraph" of 11 U.S.C. § 1325(a) precluded an over-secured creditor from recovering attorney's fees under 11 U.S.C. § 506(b). Southeastern Bank v. McCarty (In re McCarty), Bankr. (Bankr. S.D. Ga. Sept. 20, 2007).
Over-secured creditor was not entitled to attorney fees from a bankruptcy debtor since the creditor failed to comply with the state-law requirement to provide notice of the creditor's intent to enforce the attorney fees provision in its contract with the debtor and, thus, the creditor's claim to attorney fees was unenforceable under applicable non-bankruptcy law. In re Snow, Bankr. (Bankr. S.D. Ga. Aug. 25, 2005)(Unpublished).
Attorney's fees award despite failing to comply with notice.
- Oversecured creditor was entitled to an award of post-petition attorney fees under 11 U.S.C. § 506(b) even when the creditor failed to comply with the notice requirements of O.C.G.A. § 13-1-11 because the contractually set attorney's fees did not have to pass through the two-step inquiry of 11 U.S.C. §§ 502 and 506. JP Morgan Chase Bank v. ELL 11, LLC, 414 Bankr. 881 (M.D. Ga. 2008).
Over-secured creditor whose claim had been allowed under 11 U.S.C. § 502 could recover reasonable attorney's fees incurred post-petition to protect and enforce the creditor's claim, pursuant to 11 U.S.C. § 506(b), because the fees were provided for in an underlying security agreement and the 10-day notice requirement of O.C.G.A. § 13-1-11 did not apply to a claim for fees under 11 U.S.C. § 506 of the United States Bankruptcy Code. In re Amron Techs., Inc., 376 Bankr. 49 (Bankr. M.D. Ga. 2007).
Creditor's mailing of a ten-day letter pursuant to O.C.G.A. § 13-1-11 constituted a preferential transfer under the Bankruptcy Code. Condor One, Inc. v. Homestead Partners, Ltd., 201 Bankr. 1014 (Bankr. N.D. Ga. 1996).
Notice
1. In General
Purpose of notice requirement.
- One purpose of legislature, in providing that debtor should have ten days' notice of creditor's intention to sue the debtor, was to give debtor opportunity of paying note, and thus relieving the debtor of attorney's fees and costs. Edenfield v. Bank of Millen, 7 Ga. App. 645, 67 S.E. 896 (1910).
Legislative purpose of notice required by paragraph (a)(3) is that before obligation for attorney's fees, somewhat in nature of a penalty, can be enforced, defendant must be given notice that the defendant is about to be sued, so that the defendant might avoid both expense of attorney's fees and trouble, inconvenience, and costs of litigation itself. Such purpose could not be served by giving of notice after resort to legal proceeding has already been taken, and costs accrued. Walton v. Hines, 40 Ga. App. 757, 151 S.E. 558 (1930).
Purpose of notice requirement of paragraph (a)(3) of this section is to allow debtor to pay principal and interest on contract within ten days from receipt of notice and relieve the debtor of liability to pay attorney's fees. Dixie Constr. Co. v. Griffin, 104 Ga. App. 457, 121 S.E.2d 926 (1961); Gresham v. Rogers, 147 Ga. App. 189, 248 S.E.2d 225 (1978) (see O.C.G.A. § 13-1-11).
Paragraph (a)(3) of this section is clearly intended to require creditor to give debtor opportunity to meet the debtor's obligation without incurring additional expense in form of attorney fees. New House Prods., Inc. v. Commercial Plastics & Supply Corp., 141 Ga. App. 199, 233 S.E.2d 45 (1977); General Elec. Credit Corp. v. Brooks, 242 Ga. 109, 249 S.E.2d 596 (1978) (see O.C.G.A. § 13-1-11).
Purpose of provision that refusal to accept notice is equivalent to notice.
- Provision providing that refusal to accept notice shall be equivalent of such notice was intended to limit ability of debtor to thwart by avoidance creditor's attempt to enforce the creditor's lawful remedies. New House Prods., Inc. v. Commercial Plastics & Supply Corp., 141 Ga. App. 199, 233 S.E.2d 45 (1977).
Obligation regarding attorney's fees is perfected at the expiration of ten days from service of the notice under O.C.G.A. § 13-1-11. Bulman v. First Nat'l Bank, 165 Ga. App. 843, 303 S.E.2d 29 (1983).
Notice applies only to attorney fees and collection of principal, interest and cost upon debt is in no way conditioned upon it. Donovan v. Hogan, 8 Ga. App. 754, 70 S.E. 153 (1911).
Attaching note or evidence of indebtedness to pleading.
- A creditor may comply with the notice requirements of paragraph (a)(3) of O.C.G.A. § 13-1-11 by attaching a copy of the note or evidence of indebtedness to the pleading. Third Century, Inc. v. Morgan, 187 Ga. App. 718, 371 S.E.2d 262 (1988).
Required statutory notice cannot be waived. Miller v. Jackson, 49 Ga. App. 309, 175 S.E. 409 (1934).
Attempt to waive notice of no effect.
- Where promissory note contains obligation to pay attorney's fees, statutory notice which plaintiff is required to give to defendant as condition precedent to plaintiff's right to recover attorney's fees cannot be waived in notice, and an attempt to waive notice is unenforceable and of no effect. Miller v. Roberts, 9 Ga. App. 511, 71 S.E. 927 (1911).
If plaintiff fails to give proper notice, recovery of attorney's fees is unauthorized. Walton v. Johnson, 213 Ga. 108, 97 S.E.2d 310 (1957).
In an adversary case in which a creditor moved for the entry of a default judgment and sought attorney's fees and costs, while the contract between the creditor and the debtor might provide for payment of the creditor's attorneys' fees and costs, there was no evidence that the creditor complied with the notice requirements of O.C.G.A. § 13-1-11(a)(3). Springleaf Fin. Servs. v. Warner (In re Warner), Bankr. (Bankr. N.D. Ga. Apr. 30, 2013).
Deficiencies should be challenged at trial level.
- It is incumbent on defendant to challenge any deficiencies in the letter sent in ostensible compliance with O.C.G.A. § 13-1-11 on the trial level. Dedousis v. First Nat'l Bank, 181 Ga. App. 425, 352 S.E.2d 577 (1986).
Lien for attorney's fees not valid until notice and opportunity to pay have been provided. Security Nat'l Bank v. Cotton, 513 F.2d 546 (5th Cir. 1975).
One seeking attorney's fees must prove compliance with notice requirement.
- Attorney's fees, for which provision is made in promissory note, are not collectable unless it is alleged and proved that after maturity holder of note notified person sought to be bound thereon that the person had ten days from receipt of such notice to pay principal and interest without attorney's fees. Harrison v. Arrendale, 113 Ga. App. 118, 147 S.E.2d 356 (1966).
Assuming notice set out in pleadings was proper, where appellant made no attempt to introduce notice into evidence, there was no proof of notice, and therefore, no valid claim for attorney fees. Union Commerce Leasing Corp. v. Beef 'N Burgundy, Inc., 155 Ga. App. 257, 270 S.E.2d 696 (1980).
Burden is on entity seeking to collect attorney fees on note in default to prove that all conditions of section have been met. Citizens & S. Nat'l Bank v. Bougas, 149 Ga. App. 722, 256 S.E.2d 37 (1979), rev'd in part on other grounds, 245 Ga. 412, 265 S.E.2d 562 (1980).
Claimant's right to collect attorney's fees did not vest and the debtor was not entitled to an administrative expense priority under 11 U.S.C. § 503(b)(1)(A) because the claimant did not give the debtor ten days notice that the claimant intended to enforce a provision for attorney's fees in an assumed lease, as required under O.C.G.A. § 13-1-11. In re Sanjeev & Rajeev, Inc., 411 Bankr. 480 (Bankr. S.D. Ga. 2008).
Judicial notice.
- Court could take judicial notice that the exhibit purported to be a notice of intent to seek attorney fees under paragraph (a)(3) of O.C.G.A. § 13-1-11 and was filed on a particular date; however, judicial notice could not be taken that the attached notice was, in fact, what it purported to be, notice given in compliance with paragraph (a)(3). NationsBank v. Tucker, 231 Ga. App. 622, 500 S.E.2d 378 (1998).
Notice not required for service agreements.
- Because agreements to perform accounting and other administrative services were service agreements, the provider was under no duty to notify the recipients of the provider's intention to seek attorney fees under the contracts because O.C.G.A. § 13-1-11(a)(3)'s notice provision did not apply to service agreements. Sovereign Healthcare v. Mariner Health Care Mgmt. Co., 329 Ga. App. 782, 766 S.E.2d 172 (2014).
2. Who May Give and Receive Notice
Under paragraph (a)(3) of this section, notice may be given by creditor or the creditor's attorney. Citizens & S. Nat'l Bank v. Bougas, 149 Ga. App. 722, 256 S.E.2d 37 (1979), rev'd in part on other grounds, Citizens & S. Nat'l Bank v. Bougas, 245 Ga. 412, 265 S.E.2d 562 (1980) (see O.C.G.A. § 13-1-11).
Notice under paragraph (a)(3) of O.C.G.A.
§ 13-1-11 may be given to debtor's attorney of record. - Ten-day notice requirement necessary to enforcement of provisions for payment of attorney fees in addition to principal and interest in notes and other instruments may be complied with by proper statutory notice to debtor's attorney of record. Farnan v. National Bank, 142 Ga. App. 777, 236 S.E.2d 923 (1977).
Notice to obligor's authorized attorney is equivalent of notice to obligor. Dunlap v. Citizens & S. DeKalb Bank, 134 Ga. App. 893, 216 S.E.2d 651 (1975).
Bank becomes holder upon assignment of note.
- Where promissory note was assigned by holder to a bank as security for a loan, the bank was "holder" under O.C.G.A. § 13-1-11 and notice to the debtor from the original holder was insufficient to fulfill the requirements of paragraph (a)(3). Krapf v. Wiles, 252 Ga. 452, 314 S.E.2d 656 (1984).
3. Persons Entitled to Notice
Notice requirement inapplicable where third party independently assumes obligation to pay attorney's fees.
- Notice does not apply when the creditor, not having taken from principal debtor any obligation to pay attorney's fees, makes distinct and separate contract with third person, that if the creditor will extend credit to the debtor, and if the creditor has to expend any sum in collecting the indebtedness, the third person will repay to creditor amount so expended. Oliver Typewriter Co. v. Fielder, 7 Ga. App. 525, 67 S.E. 210 (1910) (decided under prior law).
Guarantors who endorse note entitled to required notice.
- Notwithstanding technical distinctions between guarantors and sureties, where guarantors of note did endorse the note, the law requires that the guarantors be given notice that attorney fees will be assessed if principal and interest are not paid within statutory ten-day period. Broun v. Bank of Early, 243 Ga. 319, 253 S.E.2d 755 (1979).
Notice to maker not prerequisite to recovery from endorsers who were given notice.
- Fact that maker of note payable to and endorsed by maker was not given notice or sued with other endorsers was no reason why judgment for attorney's fees should not be rendered against those endorsers who were served with such notice and sued. Crawford v. Citizens & S. Bank, 20 Ga. App. 576, 93 S.E. 173 (1917).
Notice of default and intention to collect attorney's fees puts trustee on notice. National Acceptance Co. v. Zusmann, 379 F.2d 351 (5th Cir.), cert. denied, 389 U.S. 975, 88 S. Ct. 478, 19 L. Ed. 2d 469 (1967).
Notice required to enforce attorney's fee provision in deed to secure debt.
- Such obligation in deed to secure debt is unenforceable, unless notice required by section is given, and suit is brought to enforce debt secured. Moultrie Banking Co. v. Mobley, 170 Ga. 402, 152 S.E. 903 (1930).
Provision in security deed in respect to collection of attorney's fees does not dispense with the notice required by paragraph (a)(3) to collect such fees. Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788 (S.D. Ga. 1978), aff'd, 620 F.2d 508 (5th Cir. 1980).
Later grantee.
- Where later grantee was neither the maker nor an endorser of the promissory note originally executed and there was no evidence that the grantee or any other party ever assumed the obligation to complete the payments due under the terms of the note or was otherwise liable on the underlying obligation, grantee was not a party sought to be held liable on the note to whom notice of creditor's intention to seek attorney's fees on default of note should have been sent. Pendergrast v. Ewing, 158 Ga. App. 5, 279 S.E.2d 233 (1981).
Proper notice not rendered ineffective by amending suit to change plaintiff.
- Notice is sufficient which names owner of equitable interest as holder even though suit is later amended and owner of legal title is made plaintiff. Gelders v. Kennedy, 9 Ga. App. 389, 71 S.E. 503 (1911).
Where notice indicates that suit is to be brought by holder, it is not rendered ineffectual by amendment naming assignor as plaintiff, suing for use of holder. Toole v. Cook, 15 Ga. App. 133, 82 S.E. 772 (1914).
All claimants to fund should stand on parity as to defect in notice of intent to collect attorney's fees. Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788 (S.D. Ga. 1978), aff'd, 620 F.2d 508 (5th Cir. 1980).
Expenses of claims under surety bonds.
- Claim by surety against indemnitors of surety bonds issued by surety for attorney fees which related to expenses incurred as a result of claims under surety bonds, rather than attorney fees relating to enforcement of an indemnity agreement, did not fall within the notice requirements of O.C.G.A. § 13-1-11. Rhodes v. Amwest Sur. Ins. Co., 207 Ga. App. 441, 428 S.E.2d 581 (1993).
4. Timing of Notice
Section affords maker ten days to pay before suit may be filed.
- Law requires that notice give opportunity to maker to pay amount due during period of ten days before expiration of which suit may not be filed. Murdock Acceptance Corp. v. Wagnon, 587 F.2d 764 (5th Cir. 1979).
Ga. L. 1967, p. 226, §§ 5 and 6 (see O.C.G.A.9-11-6(e)) was inapplicable to computations of time periods under former Code 1933, § 20-506 (see O.C.G.A. § 13-1-11). Ten-day period required was to be counted from day of receipt. Calvert Fire Ins. Co. v. Environs Dev. Corp., 601 F.2d 851 (5th Cir. 1979).
Failure to give notice before commencement of action does not preclude recovery of attorneys' fees. One In All Corp. v. Fulton Nat'l Bank, 108 Ga. App. 142, 132 S.E.2d 116 (1963); McInvale v. Walter E. Heller & Co., 116 Ga. App. 71, 156 S.E.2d 371 (1967).
Separate notice in writing after maturity required.
- Trial court erred by awarding the creditors attorney fees pursuant to a promissory note because the debt instruments themselves, including the promissory note, the note modification, and the personal guarantee did not satisfy the notice requirement of O.C.G.A. § 13-1-11(a)(3); the statute plainly requires a separate notice in writing after maturity. Core LaVista, LLC v. Cumming, 308 Ga. App. 791, 709 S.E.2d 336 (2011).
Notice not required if loan not in default and not matured.- Mortgage lender's failure to comply with the required 10-day letter did not preclude the lender from recovering attorneys' fees disclosed pursuant to Fed. R. Bankr. P. 3002.1 because the mortgage debt at issue was not in default and had not matured. Trudelle v. PHH Mortg. Corp. (In re Trudelle), Bankr. (Bankr. S.D. Ga. Sept. 29, 2017).
Notice may be given after filing suit, but at least ten days before judgment.
- Whether attorney fees are claimed in suit originally, or by amendment, notice may be given after filing of suit so long as defendant is given ten days within which to pay and avoid fees prior to taking of any judgment therefor. Candler v. Orkin, 129 Ga. App. 721, 200 S.E.2d 909 (1973).
Notice of right to pay principal and interest within ten days to avoid obligation of attorney's fees may be given after filing of suit so long as defendant is given ten days within which to pay and avoid fees prior to taking of judgment for those fees. Swindell v. Georgia State Dep't of Educ., 138 Ga. App. 57, 225 S.E.2d 503 (1976).
Notice of intent to enforce the attorney's fee provisions in a promissory note does not comply with O.C.G.A. § 13-1-11 when the notice is sent after the entry of judgment in the suit on the note. Kauka Farms, Inc. v. Scott, 256 Ga. 642, 352 S.E.2d 373 (1987).
Effect of stay in bankruptcy on sending of demand letter.
- In event that automatic stay prevents creditor from sending demand letter to debtor as required by paragraph (a)(3) of O.C.G.A. § 13-1-11, attorney's fees are not perfected, and therefore do not become part of a creditor's secured claim. Anderson v. First Nat'l Bank, 28 Bankr. 231 (Bankr. N.D. Ga. 1983).
Bank did not have an allowable claim for the bank's contractual attorney fees in a bankruptcy case because the bank did not provide the debtor with the 10-day notice prior to the petition date; any effort to perfect the right to receive contractual attorney fees would have violated the automatic stay. However, because the allowance of fees under bankruptcy law was applied without reference to state law, the bank was entitled to reasonable fees, even if the contractual provision providing for such was unenforceable under state law. In re Putnal, Bankr. (Bankr. M.D. Ga. Nov. 12, 2013).
5. Content and Form of Notice
Notice must disclose holder.
- Statutory notice given for purpose of fixing liability for attorney's fees must disclose holder of note in whose behalf payment is demanded. Notice which does not expressly state or otherwise disclose who is holder of note upon which attorney's fees are sought to be recovered is insufficient to be basis of judgment for attorney's fees. Edenfield v. Bank of Millen, 7 Ga. App. 645, 67 S.E. 896 (1910); Gelders v. Kennedy, 9 Ga. App. 389, 71 S.E. 503 (1911); Elders v. Kennedy, 17 Ga. App. 463, 87 S.E. 701 (1916).
Failure to state name of holder in notice not an amendable defect. Baskins v. Valdosta Bank & Trust Co., 5 Ga. App. 600, 63 S.E. 648 (1909); Gelders v. Kennedy, 9 Ga. App. 389, 71 S.E. 503 (1911); Carey v. Wyatt, 17 Ga. App. 517, 87 S.E. 770 (1916).
One whose name is signed to notice is presumptively holder of note; and if suit thereafter be brought in that person's name, collection of attorney's fees cannot be defeated merely because notice did not expressly name holder of note. It is otherwise if suit be brought in name of one neither expressly nor impliedly named in notice as holder of note. Aycock v. Tillman, 14 Ga. App. 80, 80 S.E. 301 (1913); Reeves v. Lasseter, 29 Ga. App. 490, 115 S.E. 925 (1923).
Notice must be made in holder's name by holder, agent, or attorney. Reeves v. Lasseter, 29 Ga. App. 490, 115 S.E. 925 (1923).
Notice sufficiently indicating holder.
- Notice signed by S. as attorney for B., in whose behalf suit was subsequently brought sufficiently indicated holder of note. Phelps v. Belle Isle, 29 Ga. App. 571, 116 S.E. 217 (1923).
Notice must state contract upon which it is based. Rylee v. Bank of Statham, 7 Ga. App. 489, 67 S.E. 383 (1910).
Complaint provided sufficient notice despite deficient letter.
- Notwithstanding the deficient notice in the creditor's notice-of-default letter, the separate notice in the complaint satisfied the dictates of O.C.G.A. § 13-1-11(a)(3) as it provided notice of the creditor's intention to enforce the provisions of the promissory note and stated that the debtor would have to pay attorney fees if the principal and interest were not paid within 10 days of receipt of the complaint. Lockwood v. FDIC, 330 Ga. App. 513, 767 S.E.2d 829 (2014).
Notice by letter may suffice.
- Notice by letter of claim for attorney fees is sufficient, if letter conveys such notice as is required by law and is timely received by defendant. Cook v. Hightower & Co., 13 Ga. App. 309, 79 S.E. 165 (1913).
Notice may be signed with typewriter. Blackwell v. Persons, 30 Ga. App. 52, 116 S.E. 554 (1923).
Difference between amount demanded and that found due.
- The notice was sufficient to satisfy the requirements of paragraph (a)(3) of O.C.G.A. § 13-1-11 even though the evidence ultimately established that the amount demanded was less than the exact amount determined to be due by the jury. Carlos v. Murphy Whse. Co., 166 Ga. App. 406, 304 S.E.2d 439 (1983).
Commercial account due and payable.
- In a case brought under the Perishable Agricultural Commodities Act, 1930 (PACA), 7 U.S.C. § 499(a) et seq., in which: (1) a produce company's president had defalcated within the meaning of the law on the president's trust duties; (2) the president was personally liable to a produce wholesaler in the amount of the company's PACA trust for the president's failures as trustee; (3) the wholesaler's invoices provided for interest on unpaid accounts at the rate of one and one-half percent per month; and (4) the invoices provided that the customer must pay the attorney fees and costs incurred in the collection of all past due invoices, in its grant of summary judgment in favor of the wholesaler, the district court awarded the wholesaler the principal amount that was owed; in addition, pursuant to O.C.G.A. § 13-1-11, the wholesaler was entitled to attorney fees and under O.C.G.A. § 7-4-16 it was entitled to interest payments at the rate stated on the invoices. Cee Bee Produce, Inc. v. Tucker, F. Supp. 2d (M.D. Ga. Sept. 12, 2007).
Paragraph (a)(3) of O.C.G.A. § 13-1-11 does not require disclosure of the amount of principal and interest the debtor must pay to avoid the assessment of attorney fees. Associates Com. Corp. v. Storey, 192 Ga. App. 199, 384 S.E.2d 265 (1989).
Notice alleging note's face value plus interest, but not exact amount owing, is valid.
- Where notice of attorney's fees alleges face value of note in question plus interest, fact that exact amount owing is not also stated does not invalidate the notice. Shier v. Price, 152 Ga. App. 593, 263 S.E.2d 466 (1979); Rohm & Haas Co. v. Gainesville Paint & Supply Co., 225 Ga. App. 441, 483 S.E.2d 888 (1997).
Notice effective although providing for 15 percent, while contract provides for ten percent attorney's fees.
- Fact that notice states that contract provides for 15 percent attorney's fees instead of ten percent as actually provided for in contract does not destroy efficacy of notice for simple reason that only amount provided in contract under 15 percent could be recovered and compliance with notice by debtor would absolve debtor of obligation to pay fees whatever percentage was. Dixie Constr. Co. v. Griffin, 104 Ga. App. 457, 121 S.E.2d 926 (1961).
Notice not stating date of note not defective where receipt admitted and debtor not misled.
- Notice was not defective for failure to set forth date of note where receipt of notice was admitted and where there was only one note or instrument executed and where recipient could not possibly have been misled or prejudiced because date of note was not stated, since in response to notice recipient tendered amount recipient claimed to be due within ten-day period from notice's receipt. Aultman v. T.F. Taylor Fertilizer Works, Inc., 125 Ga. App. 398, 188 S.E.2d 157 (1972).
A notice allowing more than ten days from receipt of the notice certainly complies with the intended meaning of paragraph (a)(3) of O.C.G.A. § 13-1-11. Talmadge v. Respess, 224 Ga. App. 768, 482 S.E.2d 709 (1997).
Complaint provided sufficient notice.- After a restaurant operator stopped making rent payments and the plaintiff sued the defendant for rent payments, re-letting costs, accrued interest, and attorneys' fees under a guaranty agreement, the plaintiff's complaint satisfied the notice requirements for attorneys' fees, but attorneys' fees needed to be recalculated on remand. ND Props. v. BLRG Rest. Grp., Inc., 649 Fed. Appx. 861 (11th Cir. 2016)(Unpublished).
Inadequate, misleading, and insufficient notice.
- Trial court erred by awarding the creditors attorney fees pursuant to a promissory note because the creditors failed to provide the debtor and the guarantor sufficient and timely notice of the creditors intent to pursue such fees, as required by O.C.G.A. § 13-1-11(a)(3); the demand letters did not satisfy the requirement because the letters did not state that the guarantor could avoid the guarantor's obligation to pay attorney fees by curing the guarantor's default within ten days of the notice, as required by the statute, and the complaint itself did not satisfy the notice requirement because the complaint incorporated a deficient demand letter, which did not cure the letter's lack of notice, and rather than notifying the guarantor that the guarantor had an opportunity to avoid paying attorney fees by timely curing the default, the complaint stated the opposite, i.e., that the creditors were entitled to recover reasonably incurred attorneys' fees. Core LaVista, LLC v. Cumming, 308 Ga. App. 791, 709 S.E.2d 336 (2011).
Language in a landlord's complaint asserting that notice of intent to collect attorney's fees under O.C.G.A. § 13-1-11 had been given to the tenant was not only insufficient to notify the tenant that the tenant had an opportunity to avoid paying attorney fees by timely curing the default, but the notice actually stated the opposite, i.e., that the landlord was entitled to the attorney's fees; therefore, the notice was inadequate. Best v. CB Decatur Court, LLC, 324 Ga. App. 403, 750 S.E.2d 716 (2013).
6. Substantial Compliance
Substantial compliance with notice requirement is condition precedent to collection of attorney fees. Kennedy v. Brand Banking Co., 152 Ga. App. 47, 262 S.E.2d 177 (1979), aff'd and modified on other grounds, 245 Ga. 496, 266 S.E.2d 154 (1980).
By the terms of O.C.G.A. § 13-1-11(a), compliance with that Code section is a statutory prerequisite to collecting an otherwise valid obligation to pay attorney fees incurred in the collection on a note; if the debtor cures the debt in compliance with the requisite ten-day notice period, then the obligation to pay the attorney's fees shall be void and no court shall enforce the agreement, O.C.G.A. § 13-1-11(a)(3), which is true as a matter of statutory law, regardless of whether the parties agreed to such a ten-day grace period and, therefore, O.C.G.A. § 13-1-11(a)(3) creates a mandatory condition precedent to the debtor's obligation to pay attorney fees expended by the lender while collecting on a note. Core LaVista, LLC v. Cumming, 308 Ga. App. 791, 709 S.E.2d 336 (2011).
Substantial compliance with section is all that is required. GECC v. Brooks, 242 Ga. 109, 249 S.E.2d 596 (1978); Gorlin v. First Nat'l Bank, 150 Ga. App. 637, 258 S.E.2d 290 (1979); Shier v. Price, 152 Ga. App. 593, 263 S.E.2d 466 (1979); Williams v. First Bank & Trust Co., 154 Ga. App. 879, 269 S.E.2d 923 (1980).
When there is actual compliance as to all matters of substance, mere technicalities of form or variations in mode of expression should not be given stature of noncompliance. GECC v. Brooks, 242 Ga. 109, 249 S.E.2d 596 (1978); Gorlin v. First Nat'l Bank, 150 Ga. App. 637, 258 S.E.2d 290 (1979).
Substantial compliance with the notice provisions of O.C.G.A. § 13-1-11 is sufficient to fulfill the notice requirement. Specialty Inv. Corp. v. Village Apt. Assocs., 9 Bankr. 211 (Bankr. N.D. Ga. 1981).
A literal compliance with the language of paragraph (a)(3) of O.C.G.A. § 13-1-11 is not required; only a substantial compliance is demanded. Carlos v. Murphy Whse. Co., 166 Ga. App. 406, 304 S.E.2d 439 (1983); Palace Indus., Inc. v. Craig, 177 Ga. App. 338, 339 S.E.2d 313 (1985); Upshaw v. Southern Whsle. Flooring Co., 197 Ga. App. 511, 398 S.E.2d 749 (1990).
Failure to meet exact requirements of law will result in disallowance of attorney fees. Farnan v. National Bank, 142 Ga. App. 777, 236 S.E.2d 923 (1977), disapproved, GECC v. Brooks, 242 Ga. 109, 249 S.E.2d 596 (1978).
Failure to comply exactly with notice provisions of law requires disallowance of attorney's fees. Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788 (S.D. Ga. 1978), aff'd, 620 F.2d 508 (5th Cir. 1980).
Notice of intent and further demand for attorney's fees in petition substantially complied with section.
- Where debtor is given notice of intention to collect attorney, and further demand for attorney fees is incorporated in petition, notice substantially meets requirements of law. GECC v. Brooks, 242 Ga. 109, 249 S.E.2d 596 (1978).
Construction of phraseology.
- Although phraseology of pleading may have given rise to construction that no attorney fees would be sought if payment of note was delayed for at least ten days, such an interpretation was patently absurd, and was clearly due to a typographical error which could not reasonably have misled anyone; consequently, the notice constituted a sufficient compliance with the requirements of paragraph (a)(3) of O.C.G.A. § 13-1-11. Turner Adv. Co. v. Prakas, 164 Ga. App. 788, 298 S.E.2d 553 (1982).
Notice requiring payment within ten days of date of notice materially varies from requirements.
- Notice that in order to avoid attorney fees, principal and interest must be paid within ten days from date of letter rather than within ten days from date of receipt thereof, is a material variance from statutory requirements and does not constitute substantial compliance with statutory provisions. Gorlin v. First Nat'l Bank, 150 Ga. App. 637, 258 S.E.2d 290 (1979).
Notice stating only intent to file suit and demand attorney's fees insufficient.
- When debtor is not advised that the debtor may avoid attorney fees by paying principal and interest within ten days of receipt of notice, and is merely advised of creditor's intention to file suit and demand attorney fees, notice is insufficient. GECC v. Brooks, 242 Ga. 109, 249 S.E.2d 596 (1978).
Summons with copy of note attached not notice under section.
- When plaintiff in suit on note serves maker with summons which has copy of note providing for attorney fees attached, such summons does not constitute notice under the statutes and fees sued for are not part of principal amount in ascertaining jurisdictional amount for justice court. Godfree & Dellinger v. Brooks, 126 Ga. 627, 55 S.E. 938 (1906).
Landlord's complaint against tenants.
- When recovery of attorney fees was provided for in a lease, but nothing in the landlord's complaint warned the tenants that the tenants had 10 days from receipt of notice to pay the sum owed and avoid attorney fees, a directed verdict for the tenants on the issue of attorney's fees was mandated. Derbyshire v. United Bldrs. Supplies, Inc., 194 Ga. App. 840, 392 S.E.2d 37 (1990).
Landlord's correspondence and pleadings did not substantially comply with the requirement of O.C.G.A. § 13-1-11(a)(3) that it give the tenant it was suing notice the tenant could pay the principal and interest claimed within 10 days from the notice without being liable for attorney fees; thus, the landlord was not entitled to attorney fees from the tenant. Logistics Int'l, Inc. v. RACO/Melaver, LLC, 257 Ga. App. 879, 572 S.E.2d 388 (2002).
Sufficient notice given.
- Trial court did not err in determining that a creditor gave a debtor and guarantors sufficient notice of the creditor's intention to seek the attorney fees provided by a promissory note and security deed if the creditor used an attorney to collect the indebtedness because the notice sent to the debtor and guarantors referenced O.C.G.A. § 13-11-1, provided notice that the creditor intended to conduct a foreclosure sale, and stated that proceeds of the foreclosure sale would be applied to the creditor's attorney fees as provided in the note and security deed; the notice also explicitly stated that the debtor had ten days from the debtor's receipt of the notice within which to pay principal and interest without incurring any liability for attorney fees. Cmty. Marketplace Props., LLC v. Suntrust Bank, 303 Ga. App. 403, 693 S.E.2d 602 (2010).
Trial court did not err in granting a corporation's motion for summary judgment on the corporation's claim for attorney fees under O.C.G.A. § 13-1-11 on the damages a jury awarded the corporation in the corporation's suit against a textile company for anticipatory breach of contract because there was no genuine issue of material fact as to whether the demand letter the corporation issued to the textile company was defective under § 13-1-11 since the demand letter substantially complied with § 13-1-11 by setting forth the face value of the unpaid debt obligation, $2 million, even if the corporation ultimately could recover somewhat less than that amount after a jury calculated the present value; the textile company's full payment obligations have matured, and upon the textile company's anticipatory breach of the parties' agreement, the corporation was entitled to issue a demand for the face value of the total remaining unpaid debt, $2 million, prior to the entry of judgment on the indebtedness. Textile Rubber & Chem. Co. v. Thermo-Flex Techs., Inc., 308 Ga. App. 89, 706 S.E.2d 728 (2011).
Illustration of notice adequately meeting requirements of paragraph (a)(3).
- See Gresham v. Rogers, 147 Ga. App. 189, 248 S.E.2d 225 (1978); Albany Prod. Credit Ass'n v. Sizemore, 175 Ga. App. 826, 334 S.E.2d 872 (1985); Clark v. GMAC, 185 Ga. App. 130, 363 S.E.2d 813 (1987); Dalcor Mgt., Inc. v. Sewer Rooter, Inc., 205 Ga. App. 681, 423 S.E.2d 419 (1992); S & A Indus. v. Bank Atlanta, 247 Ga. App. 377, 543 S.E.2d 743 (2000).
Illustration of notice inadequate under section.
- See Adair Realty & Loan Co. v. Williams Bros. Lumber Co., 112 Ga. App. 16, 143 S.E.2d 577 (1965); Turk's Memory Chapel, Inc. v. Toccoa Casket Co., 134 Ga. App. 71, 213 S.E.2d 174 (1975); Sockwell v. Pettus, 139 Ga. App. 311, 228 S.E.2d 343 (1976); Professional Cleaners v. Phenix Supply Co., 201 Ga. App. 634, 411 S.E.2d 781 (1991).
7. Pleadings
Stipulation in note for attorney's fees must be alleged.
- Where from the petition in a suit on a note it does not appear that it contained any provision relative to the collection of attorney's fees, attorney's fees cannot be recovered, although plaintiff served defendant with notice of plaintiff's intention to bring suit upon note. Browder-Manget Co. v. West End Bank, 143 Ga. 736, 85 S.E. 881 (1915).
One seeking recovery of attorney fees must allege and prove proper notice.
- By terms of section, attorney's fees, for which provision is made in promissory note, are not collectible unless it be alleged and proved that after maturity, holder of note notified person sought to be bound thereon that the person had ten days from receipt of such notice to pay principal and interest without attorney's fees. Walton v. Johnson, 213 Ga. 108, 97 S.E.2d 310 (1957).
Attorney's fee lien filed after commencement of bankruptcy proceedings does not give debtor opportunity to pay, and enforcement would frustrate and be inconsistent with bankruptcy reorganization proceedings. Security Nat'l Bank v. Cotton, 513 F.2d 546 (5th Cir. 1975).
One seeking recovery of attorney's fees must allege giving of notice after maturity.
- Where suit upon contract seeking to recover attorney's fees does not affirmatively allege that notice of attorney's fees was given after maturity, recovery of attorney's fees is authorized. Dailey v. First Nat'l Bank, 114 Ga. App. 248, 150 S.E.2d 847 (1966).
Giving of notice must be alleged, and if denied, proved at trial.
- Before attorney's fees can be recovered on note it must be alleged in pleadings that statutory notice has been given; and such allegation, if denied, must be proved on trial. Heard v. Tappan & Merritt, 116 Ga. 930, 43 S.E. 375 (1903); Pritchard v. McCrary, 122 Ga. 606, 50 S.E. 366 (1905).
Before attorney's fees can be recovered on promissory note, it must be alleged in petition that statutory notice to claim attorney's fees has been given to maker, and such allegation, if denied, must be proved at trial. Jones v. Lawman, 56 Ga. App. 764, 194 S.E. 416 (1937).
Suit not treated as for attorney fees where petition silent as to notice of intent to sue, though the petition prays for recovery of such fees. McDonald v. Ware & Harper, 17 Ga. App. 450, 87 S.E. 679 (1916).
It is unnecessary to aver how notice served.
- Where it is averred that notice required by law in order to bind defendant with liability for attorney's fees has been served, it is not necessary that it should appear how it was served. Proof must disclose this. Cook v. Hightower & Co., 13 Ga. App. 309, 79 S.E. 165 (1913).
It is not necessary that copy of notice be attached to petition. Youmans v. Moore, 13 Ga. App. 119, 78 S.E. 862 (1913); Reeves v. Gower, 14 Ga. App. 293, 80 S.E. 699 (1914); McNatt v. Citizens & S. Bank, 20 Ga. App. 755, 93 S.E. 271 (1917).
Plea denying liability for attorney's fees is good though not under oath, since contract is to that extent conditional. O'Kelly v. Welch, 18 Ga. App. 157, 89 S.E. 76 (1916).
Unsworn answer by defendant, denying that statutory notice was given, is sufficient as to attorney's fees claimed. Walker v. Wood, 14 Ga. App. 29, 79 S.E. 905 (1913).
If answer admits receipt of notice, plaintiff need not introduce proof of notice.
- When defendant's answer admits receipt of notice required by law in normal course of mail, it is not necessary that plaintiff introduce evidence on trial to prove that alleged notice was in fact given. Newby v. Armour Agrl. Chem. Co., 119 Ga. App. 650, 168 S.E.2d 652 (1969).
Failure to deny notice equivalent to admission of notice.
- Defendant's statement in plea that defendant had no recollection of notice alleged by plaintiff to have been given is an admission of notice. Branch v. Johnson, 9 Ga. App. 699, 71 S.E. 1123 (1911).
When petition alleges giving of required notice, defendant's failure to answer is implied admission.
- When petition recites giving of statutory notice for collection of attorney's fees, and case is in default, judge may, without further proof than admission implied by failure of defendant to answer, direct a verdict in favor of plaintiff for amount sued for. Ivey v. Payne, 8 Ga. App. 760, 70 S.E. 140 (1911); Valdosta, M. & W.R.R. v. Citizens Bank, 14 Ga. App. 329, 80 S.E. 913 (1914); Sirmans v. Flosom & Tillman Hdwe. Co., 18 Ga. App. 586, 89 S.E. 1103 (1916); Anderson v. King, 19 Ga. App. 471, 91 S.E. 788 (1917).
One seeking recovery of attorney's fees bears burden of showing valid notice.
- Burden is on plaintiff to show valid notice to defendant that attorney's fees as provided by note would be claimed. Walton v. Johnson, 213 Ga. 108, 97 S.E.2d 310 (1957).
When a creditor was not entitled to a default judgment in the creditor's lawsuit alleging that the debtor's credit card debt was non-dischargeable under 11 U.S.C. § 523(a)(2)(A) because the complaint did not contain sufficient factual allegations showing fraud, false pretenses, or false representations by the debtor as to the credit card debt, the creditor was also not entitled to default judgment on the creditor's claim for attorneys' fees because the complaint did not show that the creditor gave 10 days written notice of the creditor's intent to enforce the credit card's attorneys' fees provision as required by O.C.G.A. § 13-1-11(a)(3). Am. Express Centurion Bank v. McGloster (In re McGloster), Bankr. (Bankr. N.D. Ga. Apr. 30, 2013).
8. Evidentiary IssuesBurden is on plaintiff to prove notice was sent in compliance with paragraph (a)(3). Murdock Acceptance Corp. v. Wagnon, 587 F.2d 764 (5th Cir. 1979).
Testimony that notices were sent and acknowledged, without showing as to contents, inadmissible.
- Mere general testimony of attorney of plaintiff that the attorney made out and mailed notices to all parties, and several of the parties acknowledged receiving the notices, without any showing as to contents of notices, or how the notices were directed or that the notices were stamped, was inadmissible. Shaw v. Probasco, 139 Ga. 481, 77 S.E. 577 (1913).
Admissibility of parol evidence in connection with notice.
- It is error to allow parol evidence as to contents of written notice of claim for attorney's fees, or to refuse, upon proper motion, to exclude such parol evidence, where defendant has not been served with notice to produce, nor any other attempt been made to show loss or destruction of original notice. Sheffield v. Bainbridge Oil Co., 3 Ga. App. 200, 59 S.E. 725 (1907); Lightfoot v. Head & Cain, 27 Ga. App. 148, 107 S.E. 609 (1921).
Role of jury and judge.
- Verdict of jury or finding of fact by judge sitting as jury is necessary before plaintiff is entitled to judgment for attorney's fees. Valdosta, M. & W.R.R. v. Citizens Bank, 14 Ga. App. 329, 80 S.E. 913 (1914).
When no jury has been demanded judgment should be couched in such language as to indicate that judge, sitting as jury, has found that written notice of suit has been given as required by law. Valdosta, M. & W.R.R. v. Citizens Bank, 14 Ga. App. 329, 80 S.E. 913 (1914); Elders v. Kennedy, 17 Ga. App. 463, 87 S.E. 701 (1916).
Default judgment for attorney's fees must rest upon proof or implied admission of notice.
- Where suit is in default, it is error to enter judgment for attorney's fees unless judge sitting as jury relies either upon testimony introduced on trial, or by admission implied by failure of defendant to answer, for proof of service of notice. Turner v. Bank of Maysville, 13 Ga. App. 547, 79 S.E. 180 (1913).
Admission, by default, of plaintiff's averment of proper notice, is sufficient proof of notice. State Mut. Life Ins. Co. v. Jacobs, 36 Ga. App. 731, 137 S.E. 905 (1927).
Calling upon defendant to produce original, alleged notice at trial is proper proof.
- Where holder set forth copy of notice alleged to have been mailed to defendant, and called upon defendant to produce original notice, and it was admitted by defendant's counsel in open court that notice was received, objection to this proof of service was without merit. Hudson v. James, 150 Ga. 337, 103 S.E. 816 (1920).
Production of notice for attorney's fees in response to notice to produce is a circumstance which, when taken in connection with other testimony, is sufficient to authorize inference that defendant received statutory notice for attorney's fees required by law. Edenfield v. Youmans, 38 Ga. App. 584, 144 S.E. 671 (1928).
Questions of fact remained to be determined.
- Grant of summary judgment to the creditors was reversed because questions of fact existed as to whether one creditor's failure to confirm the foreclosure sale barred the claims asserted by it and the other creditor as well as a question of fact existed as to whether all of the debts at issue, including the 2004 loan, were owed to a single creditor and were given for the same purpose. Bryant v. Optima Int'l, 339 Ga. App. 696, 792 S.E.2d 489 (2016).
ADVISORY OPINIONS OF THE STATE BAR
Fee sharing with lay organizations.
- Fee sharing between a lawyer and a lay organization is not prohibited where the lay organization is the client. Adv. Op. No. 88-2 (Nov. 10, 1988).
RESEARCH REFERENCES
Am. Jur. 2d.
- 1 Am. Jur. 2d, Actions, §§ 12, 14, 20. 17 Am. Jur. 2d, Contracts, §§ 308 et seq., 313, 317, 318.
Reasonableness of Contingent Fee in Personal Injury Actions, 30 POF2d 197.
C.J.S.- 17 C.J.S., Contracts, §§ 1, 12, 76, 81, 112, 114. 17A C.J.S., Contracts, §§ 519, 520, 530.
ALR.
- Liability of infant for attorney's services in personal-injury actions, 7 A.L.R. 1011.
Agreement for contingent fee as assignment of interest in judgment, 19 A.L.R. 399.
Agreement that attorney shall receive part of land involved in litigation as within statute of frauds, 21 A.L.R. 352.
Lien of attorney on public fund or property, 24 A.L.R. 933.
Amount or basis of recovery by attorney who takes case on contingent fee, where client discontinues, settles, or compromises, 40 A.L.R. 1529.
Interest on claim for legal services, 52 A.L.R. 197.
Validity of statutory provision for attorneys' fees, 90 A.L.R. 530.
Means of enforcing or making effective attorney's retaining lien, 111 A.L.R. 487.
Expenses incurred by attorney as affecting amount of his compensation under contingent fee contract, 116 A.L.R. 1244.
Right of attorney to set off claim for unrelated services against client's claim for money collected, 173 A.L.R. 429.
Validity of provision in promissory note or other evidence of indebtedness for payment, as attorneys' fees, expenses, and costs of collection, of specified percentage of note, 17 A.L.R.2d 288.
Recovery of attorneys' fees provided for in bill, note, or similar evidence of indebtedness, as affected by opposing party's recovery, 41 A.L.R.2d 677.
Contractual provision for attorney's fees as including allowance for services rendered upon appellate review, 52 A.L.R.2d 863.
Measure or basis of attorney's recovery on express contract fixing noncontingent fees, where he is discharged without cause or fault on his part, 54 A.L.R.2d 604.
What constitutes acceptance or ratification of, or acquiescence in, services rendered by attorney so as to raise implied promise to pay reasonable value thereof, 78 A.L.R.2d 318.
What constitutes "trial," "final trial," or "final hearing" under statute authorizing allowance of attorneys' fees as costs on such proceeding, 100 A.L.R.2d 397.
Necessity of introducing evidence to show reasonableness of attorney's fees where promissory note provides for such fees, 18 A.L.R.3d 733.
Time from which interest begins to run on fee or disbursements owed by client to attorney, 29 A.L.R.3d 824.
Allowance of attorneys' fees in shipper's action against carrier for loss of, or damage to, interstate shipment, 37 A.L.R.3d 1125.
Amount of attorneys' compensation in matters involving real estate, 58 A.L.R.3d 201.
Validity, construction, and effect of contract providing for contingent fee to defendant's attorney, 9 A.L.R.4th 191.
Validity of statute establishing contingent fee scale for attorneys representing parties in medical malpractice actions, 12 A.L.R.4th 23.
Excessiveness or adequacy of attorneys' fees in matters involving real estate - modern cases, 10 A.L.R.5th 448.
Excessiveness or inadequacy of attorney's fees in matters involving commercial and general business activities, 23 A.L.R.5th 241.