GA Code § 44-14-234 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 14 - Mortgages, Conveyances to Secure Debt, and Liens|Article 7 - Foreclosure|Part 4 - Foreclosures on Personalty|Subpart 1 - In General|§ 44-14-234. Payment Into Court; Issuance of Writ; Possession and Disposition of Property Pending Resolution; Disposition of Payments

 In any foreclosure action, the defendant shall comply with the following provisions:    Where the issue of the right of possession cannot be finally determined within two weeks from the date of service of the copy of the summons, the defendant shall be required to pay into the registry of the trial court:   All past due amounts which are admitted to be due and for which there are no allegations of defenses or claims which, if proven, would offset said amounts alleged past due; and   All amounts of unaccelerated payments which become due after the issuance of the summons as said amounts of payments become due;  provided, however, that, in lieu of the payments, the defendant shall be allowed to submit a receipt to the court indicating that the payments have been made to the secured creditor. In the event that the amount of the payments actually due or to become due is in controversy, the court shall determine the amount to be paid into the court in the same manner as provided in paragraph (2) of this Code section;      If the plaintiff and the defendant disagree as to the amounts actually due or to become due, the court shall set a hearing date to determine the amount to be paid into the court. At the hearing, the parties may submit to the court any evidence of the amounts actually due or to become due, including any security agreement and evidence of any claims or defenses arising out of the same transaction, for the purpose of establishing the actual amount of the payments to be paid into the registry of the court;   After the date of the service of the summons as provided in Code Section 44-14-232, the defendant shall not transfer, remove, or convey the secured property without posting bond as provided in Code Section 44-14-237;   If the defendant fails to comply with any provision of this Code section to the detriment of the plaintiff, the court shall issue a writ of possession. The issuance of a writ of possession shall not affect the merits of the case but shall only affect the right to possession pending a final decision on the merits; and   The court shall order the clerk of the court to pay to the plaintiff the amounts paid into the registry of the court as the payments are made; provided, however, that, if the defendant claims that he is entitled to all or a part of the funds and such claim is an issue of controversy in the litigation, the court shall order the clerk to pay to the plaintiff without delay only that portion of the funds to which the defendant has made no claim in the proceedings. That part of the funds which is a matter of controversy in the litigation shall remain in the registry of the court until a final determination of the issues.    (Code 1933, § 67-705, enacted by Ga. L. 1974, p. 398, § 1; Ga. L. 1982, p. 3, § 44; Ga. L. 1987, p. 1023, § 5.)   Law reviews.   - For article on this part and personal property foreclosures, see 11 Ga. St. B.J. 230 (1975). For article surveying Georgia cases dealing with commercial law from June 1977 through May 1978, see 30 Mercer L. Rev. 15 (1978).   JUDICIAL DECISIONS    A writ of possession issued under O.C.G.A. § 44-14-234(4) is interlocutory in character. Greene v. Citizens & S. Bank, 134 Ga. App. 73, 213 S.E.2d 175 (1975).    The trial judge is not authorized to issue a writ of possession pursuant to the provisions of O.C.G.A. § 44-14-234(4) where the defendants set forth several bases for relief and as a matter of law the pleadings do not reveal the absence of any defense. Jordan v. F & M Bank, 138 Ga. App. 43, 225 S.E.2d 498 (1976).   Appellate procedure.    - Since appeal to a writ of possession is not based on a final judgment, an appellant must follow the provisions of O.C.G.A. § 5-6-34 for an interlocutory appeal. Dein v. Citizens Jewelry Co., 145 Ga. App. 118, 243 S.E.2d 286 (1978).    An order entered pursuant to O.C.G.A. § 44-14-234 is not final and thus a direct appeal from such order will not lie. Foskey v. Bank of Alapaha, 147 Ga. App. 541, 249 S.E.2d 346 (1978); Cavender v. First Nat'l Bank, 173 Ga. App. 660, 327 S.E.2d 789 (1985).    Defendants are not required to make payments into the registry of the court where the defendants set forth several bases for denying the relief, and, as a matter of law, the pleadings do not reveal the absence of any defense. Jordan v. F & M Bank, 138 Ga. App. 43, 225 S.E.2d 498 (1976).    The defendant is not required to pay into the registry of the court disputed past due amounts or accelerated payments. Such issues must be resolved on trial and not on a hearing purportedly under O.C.G.A. § 44-14-234. Smalls v. Harrison, 150 Ga. App. 473, 258 S.E.2d 227 (1979); Cavender v. First Nat'l Bank, 173 Ga. App. 660, 327 S.E.2d 789 (1985).   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).   Evidence of past due amounts.    - At an evidentiary hearing under O.C.G.A. § 44-14-234 the trial judge only determines the amounts actually to become due. As to amounts past due no procedure for a hearing is provided. Thus, as the Appeals Court construes the Act, no evidence of past due amounts should be considered and the trial judge should only determine whether there are allegations of defenses or claims which would offset amounts alleged past due. Foskey v. Bank of Alapaha, 147 Ga. App. 541, 249 S.E.2d 346 (1978).   Complaint moot on appeal.    - Complaint on appeal concerning the issuance of writ of possession and a court order requiring the defendant to pay sums of money into the court's registry pursuant to O.C.G.A. § 44-14-234 was rendered moot by the entry of a final decision in trial court. Dein v. Citizens Jewelry Co., 149 Ga. App. 340, 254 S.E.2d 403 (1979).   Funds improperly disbursed.    - Where appellants' initial complaint disputed only part of the funds paid into the registry, in subsequent amendments to their complaint, appellants asserted additional defenses to the disbursement of any of the moneys which had been paid into the registry, the court improperly disbursed the registry funds prior to a final determination of the issues still in controversy. Daniel v. Roby, 151 Ga. App. 486, 260 S.E.2d 397 (1979).    Where a petition for writ of possession is premature at the time of a first judgment in a case, if evidence and inferences show that at the time of the rendition of a second order, defendant is in default, the petition at the time of the second hearing and order still has viability and is not subject to dismissal for being premature. Good Housekeeping Shops v. Hines, 150 Ga. App. 240, 257 S.E.2d 205 (1979).    Cited in Candler I-20 Properties v. Inn Keepers Supply Co., 137 Ga. App. 94, 222 S.E.2d 881 (1975); Bank of S. v. Hammock, 140 Ga. App. 552, 231 S.E.2d 407 (1976); Coppage v. Mellon Bank, 142 Ga. App. 12, 234 S.E.2d 824 (1977); Ford Motor Credit Co. v. Mells, 155 Ga. App. 202, 270 S.E.2d 372 (1980); 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); Barnett v. First Fed. Sav. & Loan Ass'n, 169 Ga. App. 396, 313 S.E.2d 115 (1984); Smith v. GMAC, 178 Ga. App. 848, 344 S.E.2d 768 (1986); Deutz-Allis Credit Corp. v. Phillips, 183 Ga. App. 760, 360 S.E.2d 29 (1987); Robenolt v. Chrysler Fin. Servs. Corp., 201 Ga. App. 168, 410 S.E.2d 365 (1991); Roberts v. Windsor Credit Servs., 301 Ga. App. 393, 687 S.E.2d 647 (2009).   RESEARCH REFERENCES   C.J.S.   - 14 C.J.S., Chattel Mortgages, §§ 407-409.   ALR.    - Chattel mortgage on property consumable in use, 49 A.L.R. 1495.    Purchase by pledgee of subject of pledge, 76 A.L.R. 705; 37 A.L.R.2d 1381.    Right of mortgagee lawfully in possession, or one entitled to his rights, to retain possession until debt is paid, although debt or right to foreclose is barred by limitation, 115 A.L.R. 339.