(e) A suggested form for the order authorized under subsection (d) of this Code section is as follows:
"IN THE __________ COURT OF __________ COUNTY
STATE OF GEORGIA
(Style of case) CIVIL ACTION NO. ________________________________________________________________
ORDER
A writ of possession having been issued against the defendant for personal property to be foreclosed upon, it is: ORDERED that the defendant or the party in possession of the property specified in that writ of possession be and that person is hereby directed to turn over to the sheriff, marshal, or constable of __________ County or his lawful deputies, or to any sheriff, marshal, or constable of this state or their lawful deputies, the (describe property), instanter, or advise said officer of the location of the property if same is not in defendant's possession. SO ORDERED, this ______ day of ________________________, ________. __________________________ JUDGE PRESENTED BY: __________________________ Attorney's name and address"
(Code 1933, § 67-704, enacted by Ga. L. 1974, p. 398, § 1; Ga. L. 1978, p. 1705, § 3; Ga. L. 1987, p. 1023, § 4; Ga. L. 1999, p. 81, § 44.)
Law reviews.- For article on this part and personal property foreclosures, see 11 Ga. St. B.J. 230 (1975). For article, "The Civil Jurisdiction of State and Magistrate Courts," see 24 Ga. St. B.J. 29 (1987).
JUDICIAL DECISIONS
The purpose in enacting O.C.G.A. § 44-14-233 was to give defendants who are unrepresented by counsel and who are unschooled in the law an opportunity to state their defenses orally to the court as best they can and to have the substance of their defenses endorsed on the dispossessory warrant, thereby making a record upon which the case may proceed in the trial and appellate courts. Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga. App. 525, 258 S.E.2d 139 (1979).
The Personal Property Foreclosure Act requires the making of a contemporaneous record, and it must be strictly construed and observed. Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga. App. 525, 258 S.E.2d 139 (1979).
Request for jury trial and demand for a court reporter is no "answer" to a petition for a writ of possession. The trial court is therefore mandated by law to issue the writ of possession, which does not amount to a denial of the constitutional right to a jury trial. Banks v. Borg-Warner Acceptance Corp., 168 Ga. App. 46, 308 S.E.2d 54 (1983).
The failure to endorse an answer upon the petition at the time of the hearing is not an amendable defect so as to be cured by judgment or subsequent "supplemental record." Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga. App. 525, 258 S.E.2d 139 (1979).
O.C.G.A. § 44-14-230 et seq. specifically contemplates that under limited circumstances a default judgment is authorized which will fully adjudicate "all of the amount due." Porter v. Midland-Guardian Co., 145 Ga. App. 262, 243 S.E.2d 595, rev'd on other grounds, 242 Ga. 1, 247 S.E.2d 743 (1978).
Default judgment entered prior to seven-day period following the original default is voidable during that seven-day period and may be set aside. However, where the defendant files no answer or other pleadings during that time, a later motion to set aside the judgment comes too late. Steele v. Bank of Dalton, 168 Ga. App. 224, 308 S.E.2d 577 (1983).
Answer untimely.
- In an action for an immediate writ of possession against borrowers who had defaulted, the bank's motion to dismiss the borrowers' answer and counterclaim was properly granted, because the borrowers failed to open the default judgment as a matter of right within seven days, as required by O.C.G.A. § 44-14-233(a) and, thus, the case remained in default. Mathis v. River City Bank, 317 Ga. App. 560, 731 S.E.2d 788 (2012).
There is no provision in O.C.G.A. § 44-14-233 allowing a judgment by default for all of the amount due, together with costs. Spencer v. Taylor, 144 Ga. App. 641, 242 S.E.2d 308 (1978).
Defendant's failure to post bond entitled plaintiff to immediate writ of possession.
- Consulting company sued a store for breach of contract; the store's debt to the company was secured by UCC financing statements on the store's inventory. The company was entitled to an immediate writ of possession because after the suit was filed, the store sold and transferred merchandise subject to the company's security interest without posting bond as required by O.C.G.A. §§ 44-14-234(3) and44-14-237. Deere Park & Assocs. v. C H Furniture Source, LLC, 296 Ga. App. 382, 674 S.E.2d 635 (2009).
Judgment reversed when owner not accorded statutory procedures.
- Trial court improperly issued the court's final judgment without affording the owner the procedures accorded the owner by O.C.G.A. § 44-14-233(c). The earlier hearing did not amount to a trial since it was neither noticed nor understood as such by the parties or the trial court, which issued a ruling only on the interlocutory matter of the registry payments at its conclusion. Ware v. Vanderbilt Mortg. & Fin., Inc., 320 Ga. App. 702, 740 S.E.2d 691 (2013).
Cited in Harper v. First Nat'l Bank, 133 Ga. App. 690, 212 S.E.2d 20 (1975); Greene v. Citizens & S. Bank, 134 Ga. App. 73, 213 S.E.2d 175 (1975); Candler I-20 Properties v. Inn Keepers Supply Co., 137 Ga. App. 94, 222 S.E.2d 881 (1975); Wallace v. Aetna Fin. Co., 137 Ga. App. 580, 224 S.E.2d 517 (1976); Jordan v. F & M Bank, 138 Ga. App. 43, 225 S.E.2d 498 (1976); Bank of S. v. Hammock, 140 Ga. App. 552, 231 S.E.2d 407 (1976); Brock v. GMAC, 140 Ga. App. 526, 231 S.E.2d 524 (1976); Favors v. Vintage Credit Corp., 141 Ga. App. 47, 232 S.E.2d 387 (1977); First Nat'l Bank v. Baker, 142 Ga. App. 870, 237 S.E.2d 233 (1977); Flanders v. Commercial Credit Equip. Corp., 145 Ga. App. 193, 243 S.E.2d 525 (1978); Chapman v. Bank of Cumming, 150 Ga. App. 85, 256 S.E.2d 601 (1979); Grover v. Vintage Credit Corp., 155 Ga. App. 759, 272 S.E.2d 732 (1980); Ward v. Charles D. Hardwick Co., 156 Ga. App. 96, 274 S.E.2d 20 (1980); Jones v. First Carolina Fin. Corp., 158 Ga. App. 818, 282 S.E.2d 364 (1981); Smith v. GMAC, 178 Ga. App. 848, 344 S.E.2d 768 (1986); Hill v. First Community Bank, 180 Ga. App. 772, 350 S.E.2d 486 (1986).