GA Code § 9-13-172.1 (2021)
2021 Georgia Code|Title 9 - Civil Practice|Chapter 13 - Executions and Judicial Sales|Article 7 - Judicial Sales|Part 2 - Conduct and Effect|§ 9-13-172.1. "Eligible Sale" Defined; Recision of Sale; Damages

  As used in this Code section, "eligible sale" means a judicial or nonjudicial sale that was conducted in the usual manner of a sheriff's sale and that was rescinded by the seller within 30 days after the sale but before the deed or deed under power has been delivered to the purchaser.   Upon rescission of an eligible sale, the seller shall return to the purchaser, within five days of the rescission, all bid funds paid by the purchaser.   Where the eligible sale was rescinded due to an automatic stay pursuant to the filing of bankruptcy by a person with an interest in the property, the damages that may be awarded to the purchaser in any civil action shall be limited to the amount of the bid funds tendered at the sale.   Where the eligible sale was rescinded due to:   The statutory requirements for the sale not being fulfilled;   The default leading to the sale being cured prior to the sale; or   The plaintiff in execution and the defendant in execution having agreed prior to the sale to cancel the sale based upon an enforceable promise by the defendant to cure the default,  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; Ga. L. 2021, p. 922, § 9/HB 497.)    The 2021 amendment,  effective May 10, 2021, part of an Act to revise, modernize, and correct the Code, substituted "rescission" for "recision" twice in subsection (b).   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).