(Laws 1799, Cobb's 1851 Digest, p. 509; Laws 1850, Cobb's 1851 Digest, p. 580; Ga. L. 1851-52, p. 78, § 1; Code 1863, § 3576; Ga. L. 1866, p. 163, § 1; Code 1868, § 3599; Code 1873, § 3647; Code 1882, § 3647; Civil Code 1895, § 5457; Civil Code 1910, § 6062; Code 1933, § 39-1101; Ga. L. 1995, p. 931, § 1; Ga. L. 1998, p. 213, § 1; Ga. L. 1999, p. 6, § 1.)
Law reviews.- For survey article on commercial law, see 44 Mercer L. Rev. 99 (1992). For review of 1998 legislation relating to judicial sales, see 15 Ga. St. U.L. Rev. 177 (1998). For article, "Buying Distressed Commercial Real Estate: What are the Alternatives?," see 16 (No. 4) Ga. St. B.J. 18 (2010). For note discussing procedures governing execution sales and the application of the proceeds of the sales, see 12 Ga. L. Rev. 814 (1978).
JUDICIAL DECISIONS
This section is constitutional, and a foreclosure pursuant to this section does not violate procedural due process rights. National Community Bldrs., Inc. v. Citizens & S. Nat'l Bank, 232 Ga. 594, 207 S.E.2d 510 (1974).
Purpose of section.
- This section was meant to bring about encouragement of newspapers to own their local plant, or the payment of rent to owners of local real estate, or to encourage the employment of citizens or residents of the locality which the newspapers serve, and in turn to bring about patronage of local merchants, schools, churches, and other establishments. Carter v. Land, 174 Ga. 811, 164 S.E. 205 (1932).
Intention of General Assembly was to aid in building up locality to be served by newspaper advertisements. Carter v. Land, 174 Ga. 811, 164 S.E. 205 (1932).
Purpose of legal advertisement is to have adequate notice to parties involved and to public. Georgia Cracker v. Hesters, 193 Ga. 706, 20 S.E.2d 7, answer conformed to, 67 Ga. App. 327, 20 S.E.2d 197 (1942).
It is duty of officers to publish legal advertisements in newspaper published in county. McGinty v. Chambers, 182 Ga. 341, 185 S.E. 513 (1936).
Duty when no newspaper published in county.
- This section requires that if there be no newspaper published in the county, it becomes the sheriff's duty to publish notice in nearest newspaper having the largest or a general circulation in such county. Lamb v. Allen, 50 Ga. 207 (1873).
Liberal construction.
- General Assembly intended that county officers should be held only to substantial compliance with this section which was to be liberally construed. Carter v. Land, 174 Ga. 811, 164 S.E. 205 (1932).
Publishing newspaper, as contemplated by General Assembly with reference to this section, means something more than mere distribution of a newspaper and something more than having it entered at the post office for distribution in the mails. Carter v. Land, 174 Ga. 811, 164 S.E. 205 (1932).
Under O.C.G.A. §§ 9-13-140 and9-13-142, there exists no requirement that a journal or newspaper must in fact be distributed to the public "as a whole" in order for the advertisement to be deemed legally and sufficiently published. Sparti v. Joslin, 230 Ga. App. 346, 496 S.E.2d 490 (1998).
Words "nearest to the county" do not necessarily mean nearest to the county line. Carter v. Land, 174 Ga. 811, 164 S.E. 205 (1932).
Mere nearness to the county line does not necessarily determine that such newspaper is the nearest within the meaning of this section. McGinty v. Chambers, 182 Ga. 341, 185 S.E. 513 (1936).
Newspaper need not be mechanically printed in county the newspaper serves as official organ. Southeastern Newspapers Corp. v. Griffin, 245 Ga. 748, 267 S.E.2d 21 (1980).
As between two or more papers published at county site, the sheriff has discretion of making a selection. Braddy v. Whiteley, 113 Ga. 746, 39 S.E. 317 (1901).
Officers have discretion as to whether the award shall be made to the one having the largest circulation or to the one merely having general circulation. Carter v. Land, 174 Ga. 811, 164 S.E. 205 (1932).
Advertisement was sufficient when published four times at weekly intervals though less than four full weeks intervened between the first publication and the day of sale. Champion Box Co. v. Manatee Crate Co., 75 F.2d 340 (5th Cir. 1935).
While former Code 1933, § 39-1101 (see now O.C.G.A. § 9-13-140) required publications weekly, for four weeks, former Code 1933, § 39-1102 (see now O.C.G.A. § 9-13-140) made it clear that a publication on any day of each of the four weeks preceding the sale is sufficient, regardless of the number of days between the date of the first publication and the sale. Champion Box Co. v. Manatee Crate Co., 75 F.2d 340 (5th Cir. 1935).
Required weekly publication for four weeks is complied with by the insertion of the advertisement in each of the four calendar weeks preceding that in which the sale was had, although 28 days did not elapse between the date of the first insertion and the date of the sale. Heist v. Dunlap & Co., 193 Ga. 462, 18 S.E.2d 837 (1942).
Sunday advertisement is void. Sawyer v. Cargile, 72 Ga. 290 (1884).
Naming parties unnecessary in sale under power in security deed.
- As there is no plaintiff or defendant in sale under power contained in security deed, it is not necessary to name parties in the legal advertisement. Nor does the law require the advertisement to name the persons in possession. Southern Mut. Inv. Corp. v. Thornton, 131 Ga. App. 765, 206 S.E.2d 846 (1974).
Sale is valid, notwithstanding omission to advertise sale as required by this section, but the sheriff is liable to make good any loss happening to anyone interested, occasioned by the omission to advertise. Brooks v. Rooney, 11 Ga. 423 (1852); Johnson v. Reese, 28 Ga. 353 (1859).
Failure to advertise as required by this section is an irregularity which would not affect the purchaser not shown to have had knowledge of the defect. Ryals v. Lindsay, 176 Ga. 7, 167 S.E. 284 (1932).
Sale not absolutely void because of failure to advertise four weeks.
- Alleged failure to advertise the four weeks immediately preceding the sale pursuant to O.C.G.A. § 9-13-141 would not render the sale absolutely void. Stripling v. F & M Bank, 175 Ga. App. 75, 332 S.E.2d 373 (1985).
Property description was adequate.
- Foreclosure advertisement's description of the property contained a correct legal description of the property, although the advertisement did not match the incorrect legal description in the deed to secure debt; therefore, the advertisement met the minimum legal requirements prescribed by O.C.G.A. § 9-13-140(a). Yellow Creek Invs., LLC v. Multibank 2009-1 CRE Venture, LLC, 329 Ga. App. 577, 765 S.E.2d 728 (2014).
Innocent purchaser was not chargeable with sheriff's neglect to advertise as required by former Code 1933, § 39-1101 (see now O.C.G.A. § 9-13-140); the purchaser was only required to see, pursuant to former Code 1933, § 39-1311 (see now O.C.G.A. § 9-13-168), that the officer had authority to sell, and that the officer was apparently proceeding under the prescribed forms, and the title of such an innocent purchaser was not affected by the sheriff's failure to advertise the sale. Dooley v. Bohannon, 191 Ga. 7, 11 S.E.2d 188 (1940).
Sale by consent of creditors, not advertised, though at public outcry, is not sheriff's sale. Davis v. Collier & Beers, 13 Ga. 485 (1853).
Advertisement published in newspaper is best original evidence of existence of legal advertisement under the levy, and unless accounted for, a copy is not admissible. Southwestern R.R. v. Papot, 67 Ga. 675 (1881). See also Schley v. Lyon, 6 Ga. 530 (1849).
Amount of debt is not required in the advertisement and so a misstatement or overstatement of the debt does not render the advertisement legally defective. Southeast Timberlands, Inc. v. Security Nat'l Bank, 220 Ga. App. 359, 469 S.E.2d 454 (1996).
Defects in an advertisement will prevent confirmation only if the factfinder determines those defects "chilled" bidding and caused an inadequate selling price. Southeast Timberlands, Inc. v. Security Nat'l Bank, 220 Ga. App. 359, 469 S.E.2d 454 (1996).
Contention that contents of advertisement interfered with sale.
- There was sufficient evidence to support the trial court's finding that the advertisement of foreclosure did not have a chilling effect on the sale of the property when, even though the advertisement contained an error, there was evidence that there were parties in addition to the purchasing bank present at the foreclosure sale and the appellant's appraisal witness testified that the witness encountered no difficulty in locating the property using the description in the legal advertisement. Oates v. Sea Island Bank, 172 Ga. App. 178, 322 S.E.2d 291 (1984).
Borrower's admission that the foreclosure notice complied with the minimum statutory requirements did not preclude the borrower's bid-chilling claim. LSREF2 Baron, LLC v. Alexander SRP Apts., LLC, 15 F. Supp. 3d 1295 (N.D. Ga. 2013).
Lifting of automatic stay provisions of Bankruptcy Code not stated.
- Fact that the advertisement did not state that the automatic stay provisions of the Bankruptcy Code had been lifted with respect to the debtor's property did not tend to "chill" the sale of the property. Shingler v. Coastal Plain Prod. Credit Ass'n, 180 Ga. App. 539, 349 S.E.2d 785 (1986).
Tax sale of property proper.
- Trial court properly granted summary judgment to the purchaser of real estate in a quiet title action that involved the taxpayer's home and the taxpayer's failure to pay the property taxes on the property as the property was properly levied upon and no question of fact remained that the sheriff officially seized the property. Further, the affidavits of the civil process coordinator at the time of the tax sale, and the coordinator's successor, were properly admitted into evidence as such affidavits fell within the business records exception to the rule against hearsay. Davis v. Harpagon Co., LLC, 283 Ga. 539, 661 S.E.2d 545 (2008).
Damages for wrongful foreclosure.
- In a suit brought by a purchaser seeking damages for wrongful foreclosure of certain real property after two foreclosure sales, the trial court erred in granting the second foreclosing bank attorney fees under O.C.G.A. § 9-15-14, based on frivolous litigation since the second bank had knowledge of the purchaser's acquisition of the property via the first foreclosure, therefore, the purchaser's suit did not lack substantial justification as to the second bank and the second's bank failure to provide proper notice of the sale to the purchaser. Roylston v. Bank of Am., N.A., 290 Ga. App. 556, 660 S.E.2d 412 (2008).
Wrongful foreclosure claim sufficiently pled.
- Trial court erred by dismissing the mortgagors' complaint for wrongful foreclosure because, construed in the light most favorable to the mortgagors, the complaint sufficiently alleged that the bank owed obligations to the mortgagors under the security deed and that the bank breached those contractual obligations by going forward with the foreclosure sale despite the error in the published foreclosure advertisements. Racette v. Bank of Am., N.A., 318 Ga. App. 171, 733 S.E.2d 457 (2012).
Foreclosure advertisement sufficient as to real property only.
- Advertisement which a bank published when the bank sold a bowling alley at a foreclosure sale, which provided a metes and bounds description of the property, was sufficient under O.C.G.A. §§ 9-13-40 and44-14-162 to foreclose on and convey title only to the real property, and a trial was required to determine the amount of money the bank had to turn over to a Chapter 7 debtor's bankruptcy estate under 11 U.S.C. § 542 because the bank improperly sold the debtor's personal property. The court found that the court could not determine on summary judgment whether bowling alley lanes and pin setters the bank sold were fixtures or personal property and the court ordered the parties to present evidence on that issue at trial. Lubin v. Ga. Commerce Bank (In re Southern Bowling, Inc.), Bankr. (Bankr. N.D. Ga. Oct. 8, 2010).
Foreclosure advertisement sufficient.
- Foreclosure sale advertisement of a condominium development was sufficient although the advertisement did not note that several units in the development had been sold prior to the foreclosure. The description of the property was correct in itself and the excepted units were identified on the courthouse steps at the time of the sale. Dan Woodley Cmtys., Inc. v. Suntrust Bank, 310 Ga. App. 656, 714 S.E.2d 145 (2011).
Superior court did not err in finding that a lender's advertisement of a nonjudicial foreclosure sale properly included a description of the property in accordance with O.C.G.A. § 9-13-140(a) because the legal description in the advertisement was identical to the description in the security deed by which the lender took the lender's interest from a construction company and guarantors; thus, there was no discrepancy between the two, and the advertisement properly reflected the interest taken under the deed and available at the foreclosure sale. Diplomat Constr., Inc. v. State Bank of Tex., 314 Ga. App. 889, 726 S.E.2d 140 (2012).
Trial court erred in denying the appellants' summary judgment motion on the appellee's claim for wrongful foreclosure because, in the advertisement of the nonjudicial foreclosure sale, the typographical error in the property description of the advertisement that mistakenly described the district in which the property resided did not render the foreclosure sale void as the advertisement accurately reflected the property's district for two of the four weeks it ran; each published advertisement contained an otherwise accurate description of the property; and the error did not have any chilling effect on the bidding process or cause an inadequate selling price. Wells Fargo Bank, N.A. v. Molina-Salas, 332 Ga. App. 641, 774 S.E.2d 712 (2015).
Preservation for review.
- Property owner's claim that a foreclosure advertisement did not comply with O.C.G.A. §§ 9-13-140(a) and44-14-162 was waived on appeal due to the owner's failure to comply with Ga. Ct. App. R. 25(a)(1); the owner did not show how the enumeration of error was preserved for review and the owner did not provide any relevant citation to the record to show that the claim of error was raised below. White Oak Homes, Inc. v. Cmty. Bank & Trust, 314 Ga. App. 502, 724 S.E.2d 810 (2012), cert. denied, No. S12C1120, 2012 Ga. LEXIS 671 (Ga. 2012).
Trial court erred by failing to confirm sale.
- Trial court erred by denying a creditor's petition to confirm the foreclosure sale of six townhouses because the sale satisfied applicable notice and advertisement requirements and the uncontradicted evidence showed that the townhouses did sell for at least fair market value. RBC Real Estate Fin., Inc. v. Winmark Homes, Inc., 318 Ga. App. 507, 736 S.E.2d 117 (2012).
Cited in Patterson v. Lemon, 50 Ga. 231 (1873); Williams & Co. v. Hart, 65 Ga. 201 (1880); Dollar v. Wind, 135 Ga. 760, 70 S.E. 335 (1911); Hill v. Kitchens, 39 Ga. App. 789, 148 S.E. 754 (1929); Bush v. Growers' Fin. Corp., 176 Ga. 99, 167 S.E. 105 (1932); Smith v. Associated Mtg. Cos., 186 Ga. 121, 197 S.E. 222 (1938); Zugar v. Scarbrough, 186 Ga. 310, 197 S.E. 854 (1938); Georgia Cracker v. Hesters, 193 Ga. 706, 20 S.E.2d 7 (1942); Sellers v. Johnson, 207 Ga. 644, 63 S.E.2d 904 (1951); Moore v. Heard, 213 Ga. 711, 101 S.E.2d 92 (1957); Reed v. Southland Publishing Co., 222 Ga. 523, 150 S.E.2d 817 (1966); Law v. USDA, 366 F. Supp. 1233 (N.D. Ga. 1973); Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975); Oglethorpe Co. v. United States, 558 F.2d 590 (Ct. Cl. 1977); Shantha v. West Ga. Nat'l Bank, 145 Ga. App. 712, 244 S.E.2d 643 (1978); Williams v. Athens Newspapers, Inc., 241 Ga. 274, 244 S.E.2d 822 (1978); Wachovia Mtg. Co. v. DeKalb County, 241 Ga. 416, 246 S.E.2d 183 (1978); Five Dee Ranch Corp. v. Federal Land Bank, 148 Ga. App. 734, 252 S.E.2d 662 (1979); Sanders v. State, 151 Ga. App. 590, 260 S.E.2d 504 (1979); Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980); Community Newspapers, Inc. v. Baker, 198 Ga. App. 680, 402 S.E.2d 545 (1991); Howser Mill Homes, LLC v. Branch Banking & Trust Co., 318 Ga. App. 148, 733 S.E.2d 441 (2012).
OPINIONS OF THE ATTORNEY GENERALCounty commissioner must publish official tax levy in currently constituted county official organ. 1948-49 Op. Att'y Gen. p. 470.
Newspaper may be mechanically printed outside county.
- Bona fide county newspaper which was otherwise qualified under former Code 1933, §§ 39-1101 through 1103 and 1107 (see now O.C.G.A. §§ 9-13-140 and9-13-142) may be chosen as the official organ of the county even if the newspaper was mechanically printed outside of the county. 1973 Op. Att'y Gen. No. U73-15.
RESEARCH REFERENCES
Am. Jur. 2d.
- 47 Am. Jur. 2d, Judicial Sales, § 59 et seq.
15A Am. Jur. Pleading and Practice Forms, Judgments, § 521. 15A Am. Jur. Pleading and Practice Forms, Judicial Sales, § 12.
C.J.S.- 50A C.J.S., Judicial Sales, § 14 et seq.
ALR.
- Necessity that newspaper be published in English language to satisfy requirements regarding publication of legal or official notice, 90 A.L.R. 500.
What constitutes newspaper of "general circulation" within meaning of state statutes requiring publication of official notices and the like in such newspaper, 24 A.L.R.4th 822.