Upon a statement of the facts under oath, any person holding a security interest on personal property and wishing to foreclose the security interest may petition, by affidavit, either in person or by his or her agent or attorney in fact or at law, for a writ of possession. Such affidavit shall be made pursuant to the requirements of Code Section 9-10-113 and forwarded with the petition to the appropriate judge, magistrate, or clerk in the county where the debtor may reside or where the secured property is located.
(Code 1933, § 67-702, enacted by Ga. L. 1974, p. 398, § 1; Ga. L. 1975, p. 1213, § 1; Ga. L. 1978, p. 1705, § 1; Ga. L. 1983, p. 884, § 4-1; Ga. L. 1987, p. 1023, § 2; Ga. L. 2002, p. 630, § 3.)
The 2002 amendment, effective July 1, 2002, inserted "or her" and substituted ". Such affidavit shall be made pursuant to the requirements of Code Section 9-10-113" for "before any judge of the superior court, any magistrate, any judge of any other court having jurisdiction over such proceedings, or any clerk of any such court within the county where the debtor may reside or where the secured property is located. If the person holding the security interest is not a resident of the county where the debtor resides or where the secured property is located, any oath required by this Code section may be made before a judge of any court of record within this state" near the middle.
Law reviews.- For article on this part and personal property foreclosures, see 11 Ga. St. B.J. 230 (1975).
JUDICIAL DECISIONS
Venue.
- An action under O.C.G.A. § 44-14-231 is not a "civil action" within the meaning of Ga. Const. 1983, Art. VI, Sec. II, Para. VI, and thus venue is proper in a county other than that of the defendant's residence. McClintock v. Wellington Trade, Inc., 252 Ga. 563, 315 S.E.2d 428 (1984).
An action pursuant to O.C.G.A. § 44-14-231 is not limited to proceeding only against a debtor who is in possession of the property, but contemplates that the defendant may be someone who is in possession of the property other than the debtor. Camilla Cotton Oil Co. v. C.I.T. Corp., 143 Ga. App. 840, 240 S.E.2d 212 (1977); Sylvester Motor & Tractor Co. v. Farmers Bank, 153 Ga. App. 614, 266 S.E.2d 293 (1980).
Rights determined.
- Like writ of possession, writ of immediate possession, whether upheld or dissolved, determines only right to possession pending final decision on merits. Ward v. Charles D. Hardwick Co., 156 Ga. App. 96, 274 S.E.2d 20 (1980).
Judicial immunity for magistrate judge.- Given that, in Georgia, issuance of writs of possession is delegated to magistrates by Georgia law, the debtor's complaint against the magistrate judge was subject to dismissal for failure to state a claim because the magistrate judge was acting as an arm of the state and was therefore entitled to Eleventh Amendment immunity; the judge was also acting within the judge's judicial capacity and therefore entitled to judicial immunity. Singleton v. Yoder's Storage Bldgs., LLC (In re Singleton), Bankr. (Bankr. S.D. Ga. Sept. 20, 2017).
Oath administered by unauthorized person.
- Where oath made before notary public and not by party authorized to issue summons, all subsequent proceedings were nugatory. Jordan v. Ford Motor Credit Co., 141 Ga. App. 280, 233 S.E.2d 256 (1977).
Amendable defect.
- Where a party seeking to foreclose a security interest in personal property sues out a writ of possession based on a petition not under oath, in violation of O.C.G.A. § 44-14-231, the failure is an amendable defect under O.C.G.A. §§ 9-11-1 through9-11-132 and does not render the proceedings void. C.E. Morgan Bldg. Prods., Inc. v. Safe-Lite Mfg., Inc., 244 Ga. 475, 260 S.E.2d 870 (1979).
Failure to raise timely objection.
- Where the parties went to trial on the merits of the plaintiff's petition for writ of possession seeking to foreclose security interest in personal property, without the defendant's raising any objection concerning the plaintiff's failure to verify the petition until appeal, the objection came too late. C.E. Morgan Bldg. Prods., Inc. v. Safe-Lite Mfg., Inc., 244 Ga. 475, 260 S.E.2d 870 (1979).
Court cannot command return of property, dispensing with levy on secured property.
- O.C.G.A. § 44-14-231 authorizes a court having jurisdiction to grant a writ of possession to secured property; it does not authorize a state court judge to command affirmatively that the defendant return the property and thus allow a plaintiff to dispense with a levy made on the secured property. Ponderosa Granite Co. v. First Nat'l Bank, 173 Ga. App. 105, 325 S.E.2d 591 (1984).
Default judgments.
- O.C.G.A. § 44-14-269 deals with petitions for immediate writ of possession and is inapplicable to a proceeding dealing with a petition for a writ of possession under O.C.G.A. § 44-14-231. Spencer v. Taylor, 144 Ga. App. 641, 242 S.E.2d 308 (1978).
Res judicata and collateral estoppel did not apply.
- Trial court did not err in ruling for a creditor in the creditor's action against a debtor pursuant to O.C.G.A. § 44-14-231 to foreclose on personal property and to recover monies lent and unpaid because the doctrines of res judicata and collateral estoppel did not apply when the merits of the creditor's claims for foreclosure and monies lent had not been previously adjudicated by a court of competent jurisdiction; the issue before an administrative law judge (ALJ) in the Office of State Administrative Hearings was limited to whether the Georgia Department of Revenue acted properly in cancelling the creditor's certificate of title to a vehicle, and the issue of the debtor's failure to pay the debtor's debt to the creditor was not an issue litigated and decided in the administrative proceeding. Allen v. Santana, 303 Ga. App. 844, 695 S.E.2d 314 (2010).
Cited in Bouldin v. Haverty Furn. Cos., 136 Ga. App. 30, 220 S.E.2d 48 (1975); Wallace v. Aetna Fin. Co., 137 Ga. App. 580, 224 S.E.2d 517 (1976); Bank of S. v. Hammock, 140 Ga. App. 552, 231 S.E.2d 407 (1976); Coppage v. Mellon Bank, 150 Ga. App. 92, 256 S.E.2d 671 (1979); Grover v. Vintage Credit Corp., 155 Ga. App. 759, 272 S.E.2d 732 (1980); Citizens & S. Nat'l Bank v. Abbott, 158 Ga. App. 651, 281 S.E.2d 625 (1981); Barnett v. First Fed. Sav. & Loan Ass'n, 169 Ga. App. 396, 313 S.E.2d 115 (1984); Grant v. GECC, 764 F.2d 1404 (11th Cir. 1985); Bledsoe v. Central Ga. Prod. Credit Ass'n, 180 Ga. App. 598, 349 S.E.2d 821 (1986); Deere Park & Assocs. v. C H Furniture Source, LLC, 296 Ga. App. 382, 674 S.E.2d 635 (2009).
OPINIONS OF THE ATTORNEY GENERAL
A justice of the peace may only honor applications for writs of possession as provided by O.C.G.A. § 44-14-230 et seq. when the amount in controversy does not exceed $200.00. 1974 Op. Att'y Gen. No. U74-104.