GA Code § 44-14-530 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 14 - Mortgages, Conveyances to Secure Debt, and Liens|Article 8 - Liens|Part 11 - Foreclosure of Liens on Realty|§ 44-14-530. Manner of Foreclosure; Attachment of Lien; Proceeds of Judicial Sale; Trial of Claim; Damages; Effect of Delivery of Possessions

  Liens on real property which are provided for in this chapter, other than mortgages, shall be foreclosed, when not otherwise provided for, by a compliance with his contract by the person claiming the lien and recording his claim and the commencement of an action therefor according to the provisions and requirements of Code Section 44-14-361.1. In declaring for such debt or claim, the claimant of the lien shall set forth his lien and the premise on which he claims it; and, if the lien is allowed, the verdict of the jury, if tried by a jury, or a decision of the court, if the parties consent to trial by the court without a jury, shall set it forth and the judgment and execution shall be awarded accordingly. All such executions shall, however, be subject to all prior encumbrances.   If any real property on which there is a lien is sold by any process from the courts, the purchaser shall obtain the full title; and the lien shall attach to the proceeds of the sale upon a notice by the party claiming the lien to the officer to hold the money for that purpose until the next session of the superior court. If the claim of lien is disputed by either the plaintiff or the defendant in the process or decree on which the money was raised, an issue shall be ordered and tried as in other cases; and, if it is determined against the claimant, he shall pay such damages, not exceeding 20 percent, as the jury may assess, with interest from the date of the notice to retain, and costs.   The delivery of possession by the person claiming the lien shall not affect his lien.    (Ga. L. 1873, p. 42, § 17; Code 1873, § 1990; Code 1882, § 1990; Civil Code 1895, § 2815; Civil Code 1910, § 3365; Code 1933, § 67-2301; Ga. L. 1982, p. 1144, § 2; Ga. L. 1983, p. 1450, § 3.)   Editor's notes.   - Ga. L. 1982, p. 1144, § 2, which was to have taken effect April 1, 1983, was repealed by Ga. L. 1983, p. 1450, § 4, effective March 31, 1983. However, the 1983 amendment incorporated the revisions contained in the 1982 Act.   JUDICIAL DECISIONS    For a discussion of the need for legislative action to enforce liens, see Lombard v. Trustees of Young Men's Library Ass'n Fund, 73 Ga. 322 (1884).    Lien laws are in derogation of the common law and must be strictly construed. Montford v. Cordell Lumber Co., 147 Ga. App. 720, 250 S.E.2d 173 (1978).   Laborer also has common-law right to sue upon contract.    - The remedy given by O.C.G.A. §§ 44-14-380,44-14-530, and44-14-550 is not exclusive, and does not deprive a laborer of common-law right to sue upon a contract, but is merely cumulative of that right. Jennings v. Lanham, 19 Ga. App. 79, 90 S.E. 1038 (1916).   Function of foreclosure action.   - The function of a foreclosure action is not to establish for the first time when and what materials were furnished for a particular job. It is not an action in personam, when the contractor is not a party. The purpose is merely to absolutely establish a special lien against the property involved, and no general verdict and judgment can be obtained therein against the owner. Ben O'Callaghan Co. v. Schmincke, 376 F. Supp. 1361 (N.D. Ga. 1974).   Nature of actions by materialmen against contractors and owners.   - The initial action by a materialman against the contractor is in personam, the foreclosure action against the owner is strictly in rem. Ben O'Callaghan Co. v. Schmincke, 376 F. Supp. 1361 (N.D. Ga. 1974).   O.C.G.A.    § 44-14-362 must be followed in commencing action on lien. - Where the plaintiff does not commence an action on its lien according to the provisions and requirements of O.C.G.A. § 44-14-361.1, one of the conditions precedent to foreclosing a lien under O.C.G.A. § 44-14-530 is absent and the plaintiff cannot prevail. Ben O'Callaghan Co. v. Schmincke, 376 F. Supp. 1361 (N.D. Ga. 1974).   Mechanic's lien void if O.C.G.A.    § 44-14-530 not strictly followed. - The procedure for asserting a lien on real estate for labor and materials by a mechanic is a statutory right and must be followed strictly to be made available, and when done otherwise, it wants legal sanction and is without legal effect. Peters v. Thompson, 114 Ga. App. 228, 150 S.E.2d 842 (1966).    Denial of a builder's motion for partial summary judgment on a lien foreclosure claim was proper as a contract was a condition precedent to foreclosing a lien under O.C.G.A. § 44-14-530(a) and a fact issue remained as to whether there was a contract or that the parties assented to the contract. Dan J. Sheehan Co. v. Fairlawn on Jones Homeowners Ass'n, 312 Ga. App. 787, 720 S.E.2d 259 (2011).   Section inapplicable unless property sold and lien transferred to proceeds.    - O.C.G.A. § 44-14-530 has no application to the original foreclosure of the lien against the owner but only to cases where the property has been sold, the lien transferred to the proceeds, and the lien claimant files to claim to the proceeds. Bankston v. Smith, 134 Ga. App. 882, 216 S.E.2d 634 (1975), rev'd on other grounds, 236 Ga. 92, 222 S.E.2d 375 (1976).   Absent rule nisi, mortgage foreclosure action fails.    - Where there is a total absence of a rule nisi in a mortgage foreclosure, the action fails, and the mere filing of the petition will not suffice to authorize the action to be treated as commenced and pending. York v. Edwards, 52 Ga. App. 388, 183 S.E. 339 (1936).   Laborer need not describe property specifically.    - That a laborer desires to claim a general lien on all the property of the employer and is unable to describe such property specifically, does not prevent the laborer from asserting a lien and enforcing it as such. The laborer need not do an impossible thing. Love v. Cox, 68 Ga. 269 (1881).    Laborer may enforce a lien on employer's personalty and realty in separate actions. Love v. Cox, 68 Ga. 269 (1881).   Where sale proceeds stand in lieu of property sold lienholders must assert lien against proceeds.    - Where liens are being asserted against real estate, and the property is ordered sold by the trial judge, with the proviso that the funds shall stand in lieu of the real estate, neither of the lienholders may thereafter assert a lien against the real estate, but must proceed against the funds derived from such sale. Parker v. Cherokee Bldg. Supply Co., 207 Ga. 710, 64 S.E.2d 51 (1951).    No affidavit is required to file or foreclose a lien against real estate. Southwire Co. v. Metal Equip. Co., 129 Ga. App. 49, 198 S.E.2d 687, cert. denied, 414 U.S. 1092, 94 S. Ct. 723, 38 L. Ed. 2d 550 (1973).   Laborer's lien must be under section not affidavit.    - A laborer's lien upon realty can only be foreclosed by action under O.C.G.A. § 44-14-530, not by affidavit. Allred v. Haile, 84 Ga. 570, 10 S.E. 1095 (1890).   Foreclosure proceedings for condominium assessments distinct from other lien proceedings.    - It is clear that the foreclosure proceedings set forth in O.C.G.A. § 44-3-109 are simplified, and distinct from the proceedings for the creation and enforcement of other types of liens. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135, 253 S.E.2d 813 (1979).   Condominium foreclosure need not meet standards for mechanics' liens.    - O.C.G.A. § 44-3-109 does not require procedural compliance with O.C.G.A. § 44-14-530 which provides for the enforcement of mechanics' liens. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135, 253 S.E.2d 813 (1979).   Assessment foreclosure proceedings resemble other real property lien proceedings in superior court.    - The sole requirements for creation of the lien for assessments are contained in O.C.G.A. § 44-3-109, and it is only the actual foreclosure proceedings which must be in the same manner as other liens for the improvement of real property. Thus, the judgment and execution of the lien must be entered by the appropriate superior court. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135, 253 S.E.2d 813 (1979).   Proceeding to foreclose attorney's lien upon real property.    - A proceeding to foreclose an attorney's lien upon real property is to be brought as is a proceeding to foreclose a mortgage upon land. The process is a rule nisi issued by the court, and not a process issued by the clerk as in ordinary cases. York v. Edwards, 52 Ga. App. 388, 183 S.E. 339 (1936).    County court has jurisdiction to render a judgment foreclosing a mechanics' lien on realty where the amount is within its jurisdiction. Wheatley v. Blalock, 82 Ga. 406, 9 S.E. 168 (1889).   Action enjoining foreclosure must be brought where defendant resides.    - An action to enjoin a foreclosure under a power of sale must be brought in the county where the defendant resides. Nylen v. Barbaris, 232 Ga. 79, 205 S.E.2d 303 (1974).   Any writing importing assertion of lien is sufficient notice.    - Any writing importing an assertion of a lien, which comes to the hands of an officer at or before the sale, is a sufficient notice to hold up the money, if the purpose of a more regular and direct notice is accomplished. Loudon v. Coleman, 59 Ga. 653 (1877).   Correction of mere irregularities in process or service.    - Where valid process has been issued with a suit setting out a cause of action, and there has been no sufficient service through no fault or laches of the plaintiff or plaintiff's attorney, the judge may by order provide for the correction of any mere irregularity in the process or service; and after the perfection of service, even though subsequent to the return term, such service will relate to the date of the filing of the petition, which will be treated as the time of commencement of the suit. York v. Edwards, 52 Ga. App. 388, 183 S.E. 339 (1936).   Service of uncertified copy of rule nisi not void.    - In the service of a rule nisi issued by the judge in proceedings to foreclose an attorney's lien on land, analogous to a rule nisi in mortgage foreclosure proceedings, the service of an ordinary copy instead of a certified copy of the rule nisi, especially when in effect so provided in the rule nisi, does not render the service and proceedings void. York v. Edwards, 52 Ga. App. 388, 183 S.E. 339 (1936).   Service may be corrected.    - Although service of a certified copy of the rule nisi is the better practice, the service of an uncertified copy is at most an irregularity, and if properly corrected when objected to, under an amendatory order taken during the return term of the original rule nisi requiring service of certified copies of the original rule nisi and the amendatory order, the amended proceedings are not subject to the motion to dismiss. The subsequent service relates back to the original petition when filed within the period of the statute of limitations, and the proceedings are not barred by the statute. York v. Edwards, 52 Ga. App. 388, 183 S.E. 339 (1936).   Judgment where no jury must follow same requirements.    - When in a proceeding under O.C.G.A. § 44-14-530, the judge awards judgment without a jury, the judgment so awarded should contain all that the verdict, of which it is a substitute, should show. J.S. Schofield & Son v. Stout, Mills & Temple, 59 Ga. 537 (1877).   When judgment conclusive as to defendant's right to assert lien against property.    - Where the court had jurisdiction of the parties and of the subject matter, and the issue was before the court as to whether or not the property should be sold, and the judgment directing the sale of proceed, with the funds to stand in lieu of the property, has not been reversed, vacated, or set aside, that judgment is conclusive on the right of the defendant to thereafter undertake to assert a lien against the property. Parker v. Cherokee Bldg. Supply Co., 207 Ga. 710, 64 S.E.2d 51 (1951).   Materialman's lien inchoate until judgment perfects it.    - The lien provided for in favor of a materialman is not absolute, but must be completed, made good, or perfected in accordance with the provisions of O.C.G.A. § 44-14-361.1. It is only inchoate or incipient until a judgment finally perfects it. Carter-Moss Lumber Co. v. Short, 66 Ga. App. 330, 18 S.E.2d 61 (1941).   Failure to perfect voids lien.    - Before the rendition of a judgment in favor of a materialman's lien claimant the claimed lien is only inchoate, and the failure of the claimant to perfect the lien as provided by O.C.G.A. § 44-14-361.1 vitiates it, not only as against third persons, but as against the claimant. Carter-Moss Lumber Co. v. Short, 66 Ga. App. 330, 18 S.E.2d 61 (1941).   Verdict creating lien is prerequisite to judgment and execution thereon.    - O.C.G.A. § 44-14-530 requires that the jury specifically render a verdict creating a lien before judgment and execution may be awarded thereon. Montford v. Cordell Lumber Co., 147 Ga. App. 720, 250 S.E.2d 173 (1978).   Judgment void if no jury verdict.    - Where there appears in the record no jury verdict setting forth the claim of lien, there is nothing upon which judgment and execution may be awarded accordingly. Therefore, the judgment of a trial court in which a lien is created is void. Montford v. Cordell Lumber Co., 147 Ga. App. 720, 250 S.E.2d 173 (1978).   Setting aside void judgment is not error.    - Where no proof was offered in support of the lien and no verdict of the jury was had thereon, there is nothing upon which the judgment and execution could be "awarded accordingly." Subsequent judgment and execution are, respectively, illegally entered and issued, and the trial court does not err in setting aside the judgment and directing the clerk to mark the execution issued thereon canceled of record. Peters v. Thompson, 114 Ga. App. 228, 150 S.E.2d 842 (1966).   Verdict cannot designate amount if not specified in petition.    - Where a petition contains only a prayer that a lien be set up and established, a verdict finding a designated amount in the plaintiff's favor is unauthorized. Ryals v. Smith, 102 Ga. 768, 29 S.E. 968 (1898). But see Spirides v. Victory Lumber Co., 76 Ga. App. 78, 45 S.E.2d 65 (1947).   Where verdict gives full amount claimed, jury presumably finds for lien.    - While it is true that the purpose of a foreclosure suit is to establish a special lien against the property involved, and no general verdict and judgment can be obtained therein against the owner, the better practice in such cases is for the verdict to show a distinct finding by the jury that the plaintiff is entitled to a lien and to a given amount. But where, in such a proceeding, the verdict was for the full amount claimed, it could have no other construction than that the jury intended to find in favor of the lien claimed. Spirides v. Victory Lumber Co., 76 Ga. App. 78, 45 S.E.2d 65 (1947). But see Ryals v. Smith, 102 Ga. 768, 29 S.E. 968 (1898).   Judge may order sale to proceed although judgment vacated.    - Although property is advertised for sale under a judgment which is later vacated and set aside, the trial judge has authority to order that the sale proceed as advertised and that the funds be held in lieu of the property. Parker v. Cherokee Bldg. Supply Co., 207 Ga. 710, 64 S.E.2d 51 (1951).    Purchaser at such sale obtains full title. Parker v. Cherokee Bldg. Supply Co., 207 Ga. 710, 64 S.E.2d 51 (1951).   Dormancy of judgment on materialman's lien.    - A judgment perfecting a claimed lien of a materialman is within O.C.G.A. § 9-12-60, providing that a judgment shall become dormant under circumstances therein named. Carter-Moss Lumber Co. v. Short, 66 Ga. App. 330, 18 S.E.2d 61 (1941).    Trial court erred in granting summary judgment to the lumber company in the company's suit against the property owner to foreclose on a materialman's lien to recover the price of materials sold to the contractor and used to construct the owner's home because the dormancy statute barred foreclosure on the lien more than seven years after the lien was perfected because, when the lumber company failed to take action on the default judgment against the contractor, and the judgment became unenforceable at the end of seven years, the lien was no longer valid and there was nothing to foreclose upon. Lang v. Brand-Vaughan Lumber Co., Inc., 339 Ga. App. 710, 792 S.E.2d 461 (2016).    Cited in Farmers' Loan & Trust Co. v. Candler, 87 Ga. 241, 13 S.E. 560 (1891); East Atlanta Bank v. Limbert, 191 Ga. 486, 12 S.E.2d 865 (1940); Davis v. Akins, 85 Ga. App. 364, 69 S.E.2d 791 (1952); Rogers v. Johnson, 116 Ga. App. 295, 157 S.E.2d 48 (1967); Adair Mtg. Co. v. Allied Concrete Enters., Inc., 241 Ga. 121, 243 S.E.2d 888 (1978); Country Greens Village One Owner's Ass'n v. Meyers, 158 Ga. App. 609, 281 S.E.2d 346 (1981); Murray v. Chulak, 250 Ga. 765, 300 S.E.2d 493 (1983); Caldwell v. Loeb, 742 F. Supp. 650 (N.D. Ga. 1990).   RESEARCH REFERENCES   Am. Jur. 2d.   - 51 Am. Jur. 2d, Liens, § 79 et seq.   C.J.S.   - 53 C.J.S., Liens, § 29 et seq.   ALR.    - Right of purchaser at foreclosure sale to have taxes paid out of proceeds, 43 A.L.R. 100.    Vendor's remedy by foreclosure of contract for sale of real property, 77 A.L.R. 270.    Interest subject to a homestead right in others as subject to lien of judgment or to attachment or execution, 122 A.L.R. 1150.    Constitutional validity of statute providing for in rem or summary foreclosure of delinquent tax liens on real property, 160 A.L.R. 1026.   Demand for or submission to arbitration as affecting enforcement of mechanic's lien, 73 A.L.R.3d 1042.   Judgment lien or levy of execution on one joint tenant's share or interest as severing joint tenancy, 51 A.L.R.4th 906.