the damages that may be awarded to the purchaser in any civil action shall be limited solely to the amount of the bid funds tendered at the sale plus interest on the funds at the rate of 18 percent annually, calculated daily. Notwithstanding any other provision of law, specific performance shall not be a remedy available under this Code section.
(Code 1981, §9-13-172.1, enacted by Ga. L. 2003, p. 413, § 1.)
Code Commission notes.- Pursuant to Code Section 28-9-5, in 2003, "usual" was substituted for "ususal" in subsection (a).
Law reviews.- For survey article on real property law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 397 (2003). For annual survey on real property, see 64 Mercer L. Rev. 255 (2012).
JUDICIAL DECISIONS
Legislative intent.
- Legislature intended with O.C.G.A. § 9-13-172.1 to create a mechanism to give homeowners every opportunity to cure a default and avoid the harmful and disturbing effects of foreclosure because there is an unquestionable impact by the statute on homeowners of property in foreclosure who, prior to sale, cure the default or enter into agreements to cure the default. JIG Real Estate, LLC v. Countrywide Home Loans, Inc., 289 Ga. 488, 712 S.E.2d 820 (2011).
Statute not unconstitutionally vague.
- Trial court did not err by upholding the constitutionality of O.C.G.A. § 9-13-172.1 because the purchaser completely failed to carry the purchaser's burden of showing that § 9-13-172.1 was unconstitutionally vague in any of the statute's applications; persons of common intelligence would have no difficulty understanding that § 9-13-172.1 in and of itself authorizes rescission of an eligible sale due to the occurrence of the bankruptcy stay in § 9-13-172.1(c) or one of the three situations set forth in § 9-13-172.1(d). JIG Real Estate, LLC v. Countrywide Home Loans, Inc., 289 Ga. 488, 712 S.E.2d 820 (2011).
Statute authorized rescission of eligible sale.
- Trial court did not err by finding that the holder of the deed to secure debt on mortgagors' property was authorized to and properly did rescind a foreclosure sale to a purchaser because O.C.G.A. § 9-13-172.1 authorized under clearly defined circumstances the rescission of an eligible sale. JIG Real Estate, LLC v. Countrywide Home Loans, Inc., 289 Ga. 488, 712 S.E.2d 820 (2011).
Rescission of sale due to lack of actual notice to interested parties.
- In a judicial foreclosure sale held after a tax sale and redemption, the super lien holder's failure to give actual notice of the sale to the record owner and two lienholders justified the trial court's setting aside the sale under O.C.G.A. § 9-13-172; the disappointed buyer from that sale had no interest in the property and lacked standing to ask the court to confirm or set aside a second sale. Ga. Home Appraisers, Inc. v. Trintec Portfolio Servs., LLC, 349 Ga. App. 356, 825 S.E.2d 833 (2019).
No documentary proof of rescission required.
- In an action for specific performance, the grant of the seller's motion to dismiss was upheld because O.C.G.A. § 9-13-172.1 did not require the seller of the two properties purchased at a foreclosure sale to provide the buyer with reasonable documentary proof evidencing that a qualifying event under subsection (d) of the statute occurred to rescind the buyer's purchase. Najarian Capital, LLC v. Fannie Mae Two Cases, 354 Ga. App. 159, 840 S.E.2d 500 (2020).
Application.
- Rescission provisions of O.C.G.A. § 9-13-172.1, by their terms, allow a foreclosing lender to rescind a foreclosure sale and the memorandum of sale simply memorializes certain aspects of the foreclosure sale, thus, rescinding the foreclosure sale also rescinds the memorandum of sale. Stowers v. Branch Banking & Trust Co., 317 Ga. App. 893, 731 S.E.2d 367 (2012).