Friday, November 18, 2016

Showdown on “Excess Funds” from Tax Sales Is Headed to the Georgia Supreme Court


Hugh C. Wood, Esq.


Which entity is entitled to the excess funds from a tax sale?  We shall know (with legal certainty) in a few months.

The Georgia Supreme Court has accepted certiorari of a Georgia Court of Appeals case that will settle or resolve which creditor (or the owner) has the priority of claim to the “excess funds” that are generated from a tax sale.  [1]

In the most simplistic terms the appeal concerns, who is entitled to the claim the excess funds?   Is it the owner of the property who lost the property at tax sale and/or the first mortgage holder entitled to the excess proceeds?  Or, is the redeeming creditor (after the tax sale) first in line to claim the excess proceeds?   

This confusing question is set to be resolved (finally) by the supreme court.   A long time ago, those of us who worked this area of the law just assumed (perhaps inartfully) that the owner or the holder of the first security deed on the property was first in line and entitled to the excess proceeds.    [2]

As this method of investing (buying tax sale property) continued to mature (and accelerated after the real estate crash of 2008 - 2011) very real disputes began to arise concerning which entity was entitled to claim the excess proceeds that remained after a forced tax sale on the courthouse steps.  Did the owner have a priority claim to the funds?   Did the bank which held the legal title (the first security deed) and to whom the owner was indebted have a priority claim to the excess funds?   Or, in creditor redemption, did the redeeming creditor have both title to the property and the first priority claim to the excess proceeds? 

This continuing uncertainty to the ownership (by priority) to the excess funds caused the Georgia General Assembly to enact the Interpleader statute for this issue in 2006.  OCGA § 48-4-5.  [3]
The outcome of this pending writ of certiorari [1] is going to establish a bright line for priority of claims to excess funds.   If the case on appeal is upheld, then the date of the tax sale and priority established on the day of the tax sale becomes “the date,” from which all claims are established.  If the case on appeal is overturned, then Wester, infra, and United Capital, infra, will be reinstated and a redeeming creditor will have a priority claim to the excess funds. 

Both sides have sound policy arguments on appeal.  [4] [5]  While I personally think the “super lien,” is somewhat harsh to the defaulted owner (because it allows the loss of the property, the shortening of the potential one (1) year right to redeem and the loss of the excess proceeds), the interpretations of the statute by Wester [6] and United Capital [7] are both logical and sound.   However, I welcome a supreme court decision that will settle and resolve this muddy corpus of claims to excess funds in tax redemption cases.

We will know in a few months whether the date of the tax sale is “the” date by which practitioners are to calculate all priority claims to excess funds.  Or, we will learn whether we are to go back to the Wester [6] and United Capital [7] methods of calculation. 


Hugh Wood, Esq.
Wood & Meredith, LLP
3756 LaVista Road
Suite 250
Atlanta (Tucker), GA 30084
www.woodandmeredith.com
hwood@woodandmeredith.com
www.hughwood.blogspot.com
Phone: 404-633-4100
Fax: 404-633-0068



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Endnotes:

[1]

“Did the Court of Appeals err in its determination that a redeeming creditor after a tax sale does not have a first priority claim on excess tax funds? See Wester v. United Capital Financial of Atlanta, LLC, 282 Ga. App. 392 (638 SE2d 779) (2006) and United Capital Financial of Atlanta v. American Investment Assoc., 302 Ga. App. 400 (691 SE2d 272) (2010).” Grant of Cert on September 16, 2016 in DLT List, LLC et al. v. M7ven Supportive Housing & Development Group, 335 Ga.App. 318, 779 S.E.2d 436 (2015). 

[2]

[E]xcess funds shall be distributed by the superior court to the intended parties, including the owner, as their interests appear and in the order of priority in which their interests exist.   OCGA § 48-4-5(b).

[3]

OCGA § 48-4-5. Payment of Excess [Interpleader]
(a)  If there are any excess funds after paying taxes, costs, and all expenses of a sale made by the tax commissioner, tax collector, or sheriff, or other officer holding excess funds, the officer selling the property shall give written notice of such excess funds to the record owner of the property at the time of the tax sale and to the record owner of each security deed affecting the property and to all other parties having any recorded equity interest or claim in such property at the time of the tax sale. Such notice shall be sent by first-class mail within 30 days after the tax sale. The notice shall contain a description of the land sold, the date sold, the name and address of the tax sale purchaser, the total sale price, and the amount of excess funds collected and held by the tax commissioner, tax collector, sheriff, or other officer. The notice shall state that the excess funds are available for distribution to the owner or owners as their interests appear in the order of priority in which their interests exist.
(b)  The tax commissioner, tax collector, sheriff, or other officer may file, when deemed necessary, an interpleader action in superior court for the payment of the amount of such excess funds. Such excess funds shall be distributed by the superior court to the intended parties, including the owner, as their interests appear and in the order of priority in which their interests exist. The cost of litigation of such an interpleader action, including reasonable attorney's fees, shall be paid from the excess funds upon order of the court.
(c)  After five years have elapsed from the tax sale date, the tax commissioner, tax collector, sheriff, or other officer holding excess funds shall pay over to the department any excess unclaimed funds and for which no action or proceeding is pending in a claim for payment. Once excess funds are placed in the possession of the department, only a court order from an interpleader action filed in the county where the tax sale occurred, by the claimant for the funds, shall serve as justification for release of the funds.

[4]

Brief of Appellant.  Design Acquisition, LLC



[5]

Brief of Appellee.  M7ven Supportive Housing & Development Group, Inc.     



[6]

Wester v. United Capital Financial of Atlanta, LLC, 282 Ga. App. 392, 638 S.E.2d 779 (2006).

[Copyright material removed]
Attorneys and Law Firms
**779 Thomas C. Sanders, for appellant.
**780 Mason B. Rountree, William T. Cable, Jr., Willie C. Carouthers, Vinson, Talley, Richardson & Cable, for appellee.
Opinion
BLACKBURN, Presiding Judge.
*392 In this interpleader action to distribute excess funds ($73,275.15) received by the county from a tax sale of certain real property, Thomas A. Wester as a judgment lienholder on the property appeals summary judgment granted to a fellow lienholder (United Capital Financial of Atlanta, LLC), who for $97,200 had redeemed the property from the tax sale. Wester argues that because his judgment lien on the property was prior in time to the judgment lien of United Capital, he should be entitled to the excess funds before any are distributed to United Capital. We hold that as the redeemer of the property, United Capital is entitled to the excess funds to the extent of its redemption payment before any other entity or interest. Accordingly, we affirm summary judgment in favor of United Capital.
Summary judgment is only proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.1 A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp.2
The undisputed facts show that in February 2000 in Paulding County Superior Court, Wester obtained a judgment against a Paulding County real property owner and had a writ of fi. fa. in the amount of $59,508.95 entered on the county general execution docket. Another creditor of the property owner obtained a judgment in May 2000 (a subsequent term of court) and had a writ of fi. fa. in the amount of $5,135.53 entered on the county general execution docket at that time. This later judgment and fi. fa. were subsequently assigned to United Capital.
To collect past due taxes, the Paulding County tax commissioner sold the real property at a tax sale in February 2005 for $81,000 to a tax sale purchaser. United Capital paid $97,200 to the tax sale purchaser to redeem the property, resulting in the tax sale purchaser conveying the property back to the property owner in a properly recorded quitclaim deed. After satisfying the tax debt, the tax commissioner had $73,275.15 left over from the tax sale, which the tax commissioner interpleaded into Paulding County Superior Court, *393 naming the property owner, Wester, and United Capital as defendants. Wester and United Capital both moved for summary judgment.3 Denying Wester's motion, the court granted United Capital summary judgment and ordered that the funds in the court registry be paid to United Capital, giving rise to this appeal.
OCGA § 48-4-5 governs the distribution of excess funds from a tax sale. Subsection (b) provides that the tax commissioner may file an interpleader action in superior court for the payment of the amount of such excess funds and instructs that “[s]uch excess funds shall be distributed by the superior court to the intended parties, including the owner, as their interests appear and in the order of priority in which their interests exist.” If the only interests of Wester and United Capital were as judgment lienholders, then the timing of the obtaining and recording of those liens would be dispositive in determining their relative rights to the funds. Cf. NationsBank, N.A. v. Gibbons4 (“the relative position of judgment liens is determined by seniority; an older Georgia judgment has priority over a newer judgment”).
But United Capital's primary interest in this matter is its status as the redeemer of the property. OCGA § 48-4-43 provides:   When property has been redeemed, the effect of the redemption shall be to put the **781 title conveyed by the tax sale back into the defendant in fi. fa., subject to all liens existing at the time of the tax sale. If the redemption has been made by any creditor of the defendant or by any person having any interest in the property, the amount expended by the creditor or person interested shall constitute a first lien on the property and, if the quitclaim deed provided for in Code Section 48-4-44 is recorded as required by law, shall be repaid prior to any other claims upon the property.
Thus, in its status as redeemer of the property, United Capital has a first lien on the property in the amount of the $97,200 it paid to redeem the property (which lien is in addition to its more subordinate judgment lien for $5,135.53), which first lien “shall be repaid prior to any other claims upon the property.” Id. As stated by the Supreme Court of Georgia in Nat. Tax Funding v. Harpagon Co.,5 “[i]f a creditor of the original taxpayer redeems the property, the amount paid by the *394 redeeming creditor becomes a first lien on the property. The redeeming creditor then has first priority to repayment-a ‘super-lien’ for the redemption price.” Wester's assertion that United Capital is only entitled to priority on the real property per se and not on the excess funds is without foundation. United Capital's right to repayment, whether from the excess tax sale funds or from any foreclosure it may pursue on the property, takes priority over any other claims on the property.
Accordingly, the trial court properly held that United Capital's interest as the redeeming creditor took priority over Wester's and the property owner's interests and that therefore United Capital should be granted summary judgment. Because the amount of United Capital's interest exceeded the amount held in the registry of the court, the trial court correctly ordered that the entire amount be paid to United Capital.
Judgment affirmed.
MIKELL and ADAMS, JJ., concur.
All Citations
282 Ga.App. 392, 638 S.E.2d 779, 06 FCDR 3399
Footnotes
1OCGA § 9-11-56(c).
2Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997).
3Due to a bankruptcy consent order with the property owner arising out of the property owner's bankruptcy, Wester asked that the first $21,200 be paid to the property owner as an exempt asset and that Wester receive the remainder.
4NationsBank, N.A. v. Gibbons, 226 Ga.App. 610, 611, 487 S.E.2d 417 (1997).
5Nat. Tax Funding v. Harpagon Co., 277 Ga. 41, 42(1), 586 S.E.2d 235 (2003).

[7]

United Capital Financial of Atlanta v. American Investment Assoc., 302 Ga. App. 400, 691 S.E.2d 272 (2010).
[copyright material removed]
Attorneys and Law Firms
**273 Richard C. Bellows, for appellant.
Michael A. Petersen, for appellee.
Opinion
DOYLE, Judge.
*400 United Capital Financial of Atlanta, LLC, and American Investment Associates, Inc., asserted competing claims to the excess funds from the tax sale of certain property belonging to David W. Fletcher. Following a bench trial, the trial court awarded the excess funds to American Investment. United Capital appeals, and we reverse because United Capital, as the creditor who redeemed Fletcher's property from the purchaser at the tax sale, held a first priority lien *401 against the property.
The record shows that Keith Echols, in his capacity as tax commissioner for Hall County, filed a complaint for interpleader against Fletcher, Consolidated Lien Services, LLC, United Capital, and others alleging that certain property belonging to Fletcher had been sold on October 2, 2007, for the purpose of paying Hall County and State of Georgia property taxes for the year 2006. According to the complaint, the property was sold to Consolidated Lien for $21,100, leaving an excess of $20,495.61 after payment of overdue taxes, penalties, interest, and costs of sale. The complaint further showed that United Capital redeemed the property from Consolidated Lien for the redemption amount of $25,320, and that Consolidated Lien then conveyed the property back to Fletcher through a quitclaim deed.
United Capital and American Investment each filed a claim for the excess funds. In light of the conflicting claims to the funds, the tax commissioner paid the excess funds into the registry of the court and prayed that the court order the defendants to interplead the action. Following a bench trial, the trial court awarded the excess funds to American Investment, and United Capital appeals.
“In a bench trial[,] the court sits as the trier of fact[,] and his findings shall not be set aside unless clearly erroneous.... However, the court's judgment in a non-jury trial will be reversed where it is apparent that it rests on erroneous reasoning or on an **274 erroneous legal theory.”1 United Capital did not file a transcript of the trial. “[A]bsent a transcript, we must presume that the trial court's findings of fact are correct.”2
As applicable to this appeal, the trial court found that    United Capital ... became a creditor of ... Fletcher via an assignment of a debt for $71.00 from Dynamic Recovery Services, a collection agency, on the day of the tax sale. United Capital ... had never obtained a judgment or a lien for this debt by the time it redeemed the property.
Further, Defendant American Investment ... obtained a judgment against ... Fletcher on March 12, 1992 for $6,669.87 plus interest, and Writ of Fi. Fa. was issued on July 14, 1992. The *402 amount due pursuant to this judgment as of October 2, 2007, the date of the tax sale, was $29,000.23.
1. After a tax sale, if there are any excess funds after paying taxes, costs, and expenses of the sale, the tax commissioner is authorized to file an interpleader action in superior court for payment of such excess funds, which “shall be distributed by the superior court to the intended parties, including the owner, as their interests appear and in the order of priority in which their interests exist.”3 The trial court awarded the excess funds to American Investment in this case because its judgment was first in time and because United Capital failed to establish a first lien under OCGA § 48–4–43. United Capital contends that the trial court erroneously construed other statutes to deny it the first priority lien established by OCGA § 48–4–43, contrary to controlling authority legislative intent, and principles of equity. We agree that the trial court misapplied OCGA § 48–4–43.
OCGA §§ 48–4–40 through 48–4–48 address the redemption of property sold for taxes. Pursuant to OCGA § 48–4–40, if property is sold under an execution issued for the collection of state and certain local taxes, “the defendant in fi. fa. or any person having any right, title, or interest in or lien upon such property may redeem the property from the sale....” “If the property is redeemed, the tax sale is essentially rescinded and a quitclaim deed is executed by the tax sale purchaser back to the owner of the property at the time of levy and sale.”4 OCGA § 48–4–43 provides that if the redemption has been made by “any creditor of the defendant or by any person having any interest in the property,” then the amount expended by the creditor or interested person constitutes a first lien on the property, and “shall be repaid prior to any other claims upon the property,” so long as the quitclaim deed to the defendant in fi. fa. is recorded as required by law.5
We have previously analyzed the first or “super-lien”6 established by OCGA § 48–4–43 in the context of competing claims to excess funds from a tax sale. In Wester v. United Capital Financial of Atlanta7 we concluded that, notwithstanding the general rule that the timing of the obtaining and recording of judgment liens is *403 dispositive in determining competing lienholders' rights,8 the appellee's status as the redeemer of the property afforded it a first priority lien in the amount it paid to redeem the property.9 Accordingly, we found that the trial court correctly directed that the excess funds held in the registry of the court be paid to the **275 redeeming creditor.10 United Capital argues that Wester controls here.
Unlike the appellee in Wester, United Capital was not a lienholder with respect to the property at the time of the redemption, nor did the trial court find it had any other interest in the property. The trial court found United Capital's lack of a lien or interest in the property controlled for purposes of OCGA § 48–4–43, concluding that “the statutory scheme seems to be that a judgment[ ] or lienholder may redeem the property to create a super-lien, not that merely any creditor of the taxpayer may redeem the property to create a super-lien,” and that United Capital, as a creditor without a lien, had not otherwise satisfied the condition of OCGA § 48–4–41 contemplating a sale of the property after redemption under a judgment in favor of the creditor.
“Laws of this state governing the right to redeem are to be construed liberally and most favorably to persons allowed by the statute to redeem.”11 Under OCGA § 48–4–43, the first priority lien for the redemption price arises as to “any creditor of the defendant [in fi. fa.]” who redeems the property. The trial court found as a matter of fact that United Capital was Fletcher's creditor. “Well-established principles of statutory construction require that the literal meaning of the words of a statute must be followed unless the result is an absurdity, contradiction, or such an inconvenience that it is clear that the legislature must have intended something else.”12 It follows that, based on a literal interpretation of the statute, United Capital had a first lien for the amounts expended for the redemption.
There are some apparent inconsistencies in the statutory scheme, but we conclude that none requires a reinterpretation of the literal language of OCGA § 48–4–43. Notably, OCGA § 48–4–40 suggests that the only persons who may redeem property sold in a tax sale include “the defendant in fi. fa. or any person having any right, title, or interest in or lien upon such property,” which would appear to exclude a creditor without a lien, right, title, or interest in the property from exercising a right of redemption. Nevertheless, and *404 pretermitting whether it was required to do so, the purchaser at the tax sale permitted United Capital to redeem the property, which the purchaser quitclaimed back to Fletcher. By virtue of OCGA § 48–4–41, which contemplates the redemption of a creditor without a lien, and OCGA § 48–4–43, which governs the effect of a redemption, including that by “any creditor,” the law necessarily allowed United Capital to redeem the property.
As between OCGA §§ 48–4–41 and 48–4–43, OCGA § 48–4–41 provides that “[i]f the property is redeemed by a creditor of the defendant in fi. fa. who has no lien,” the creditor has a claim against the property for the amounts advanced to redeem the property if “[t]here is any sale of the property after the redemption under a judgment in favor of the creditor.” OCGA § 48–4–41 does not address, however, the priority of this claim and whether it constitutes a separate lien, which are matters addressed by OCGA § 48–4–43. There is not such an absurdity, contradiction, or inconvenience in the application of OCGA § 48–4–43, as written, to require us to interpret “any creditor” to mean other than what it says. It follows that the effect of the redemption was to return title to the property to Fletcher, subject to all liens existing at the time of the tax sale,13 but that United Capital had a first priority lien for the amounts it expended to redeem the property. Under Wester, the first priority of United Capital's lien entitled it, as the redeeming creditor, to priority over American **276 Investment in the distribution of the excess funds to the extent of the redemption price.14
2. American Investment contends that the trial court erred in holding that United Capital became Fletcher's creditor via an assignment of a debt from Dynamic Recovery Services. But American Investment did not assert its claim of error through a cross-appeal. Further, its claim is not supported by reference to the record, but by the argument that United Capital failed to present certain evidence at trial, notwithstanding the lack of a transcript before this court.15 Viewing American Investment's claim as material to the claims of error asserted by United Capital, and thus reviewable notwithstanding the lack of a cross-appeal,16 American Investment *405 nevertheless does not present any basis for this court to find that the trial court erred in its finding that United Capital was Fletcher's creditor.
Judgment reversed.
BLACKBURN, P.J., and ADAMS, J., concur.
All Citations
302 Ga.App. 400, 691 S.E.2d 272, 10 FCDR 480
Footnotes
1(Citation and punctuation omitted.) CRS Sirrine v. Dravo Corp., 213 Ga.App. 710, 721(4), 445 S.E.2d 782 (1994).
2State of Ga. v. Davis, 292 Ga.App. 387, 389, 665 S.E.2d 350 (2008). The lack of a transcript is not fatal to the appeal because at issue are questions of law. Vance v. Vance, 246 Ga. 456, 459(4), 271 S.E.2d 853 (1980).
3OCGA § 48–4–5.
4Nat. Tax Funding v. Harpagon Co., 277 Ga. 41, 42(1), 586 S.E.2d 235 (2003).
5OCGA §§ 48–4–43; 48–4–44. The trial court found that in this case the quitclaim deed was recorded as required by law.
6Nat. Tax Funding, 277 Ga. at 42(1), 586 S.E.2d 235.
7282 Ga.App. 392, 638 S.E.2d 779 (2006).
8See OCGA § 48–4–5.
9Wester, 282 Ga.App. at 393, 638 S.E.2d 779.
10Id. at 394, 638 S.E.2d 779.
11Dixon v. Conway, 262 Ga. 709, 710, 425 S.E.2d 651 (1993).
12(Citation and punctuation omitted.) Effingham County Bd. of Tax Assessors v. Samwilka, Inc., 278 Ga.App. 521, 522, 629 S.E.2d 501 (2006).
13See OCGA § 48–4–43 (“When property has been redeemed, the effect of the redemption shall be to put the title conveyed by the tax sale back into the defendant in fi. fa., subject to all liens existing at the time of the tax sale.”).
14See Wester, 282 Ga.App. at 393–394, 638 S.E.2d 779.
15See Davis, 292 Ga.App. at 389, 665 S.E.2d 350 (trial court's findings of fact presumed correct in absence of a transcript).
16See Brady v. Elevator Specialists, 287 Ga.App. 304, 306, 653 S.E.2d 59 (2007) (“[A] ruling that becomes material to an enumeration of error urged by an appellant may be considered by the appellate court without the necessity of a cross-appeal.”) (punctuation omitted).


END

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