Saffo v. FOXWORTHY, INC.

687 S.E.2d 463, 286 Ga. 284, 2009 Fulton County D. Rep. 3642, 2009 Ga. LEXIS 734
CourtSupreme Court of Georgia
DecidedNovember 23, 2009
DocketS09A0988
StatusPublished
Cited by13 cases

This text of 687 S.E.2d 463 (Saffo v. FOXWORTHY, INC.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Saffo v. FOXWORTHY, INC., 687 S.E.2d 463, 286 Ga. 284, 2009 Fulton County D. Rep. 3642, 2009 Ga. LEXIS 734 (Ga. 2009).

Opinions

NAHMIAS, Justice.

The appellants contend the trial court erred in relying on OCGA § 48-4-47 to dismiss their complaint against the appellees to recover property sold at a tax sale to satisfy unpaid property taxes. OCGA § 48-4-47 provides that once the right of redemption has been foreclosed by the providing of notice to the delinquent taxpayer and the passing of the barment date, the delinquent taxpayer cannot file or maintain suit to invalidate the tax deed without first paying or tendering to the new owner the full redemption amount, which includes the price paid for the property at the tax sale plus taxes, costs, and penalties that escalate with each passing year. The appellants, who are delinquent taxpayers, did not pay or tender the redemption amount before or after filing suit against the new owner to challenge the validity of the tax sale of their residence and the resulting tax deed. The appellants argue that the trial court nevertheless erred in dismissing their complaint, because an exception to the statutory payment or tender requirement applies and because the payment or tender requirement of OCGA § 48-4-47 violates their constitutional due process rights. We reject those arguments and affirm.

1. The delinquent taxpayers, appellants Sallie M. Saffo and her husband, Forrest J. Saffo, purchased the property at issue in 1983. For the next seven years, the property taxes were paid out of an escrow account connected with the mortgage. The Safios knew that they had to pay property taxes and knew that the taxes were no longer being paid from the escrow account after 1990. Nevertheless, from 1991 on, the Safios did not pay property taxes. A tax lien attached to the property, which was later foreclosed, and on February 1, 2000, the Fulton County Sheriff sold the property at a tax sale to the highest bidder, appellee Foxworthy, Inc., for $51,406.88.

Under OCGA § 48-4-40 (1), the Safios had an initial period of 12 months, until February 1, 2001, to redeem the property by paying the redemption amount to Foxworthy. They failed to do so. On February 8, 2001, shortly after the expiration of the initial redemption period, Mr. Saffo met with Foxworthy’s day-to-day manager, appellee Charles L. Wilson III, to ask about redeeming the property. Although the initial 12-month redemption period had expired, the Safios could still redeem the property by paying Foxworthy the redemption amount because Foxworthy had not yet served notice of foreclosure of the right of redemption. Wilson explained the redemption requirements to Mr. Saffo, but the Safios again did not redeem the property.

A little more than a year later, on May 21, 2002, Foxworthy had [285]*285the Sheriff serve the Saffos with a Notice of Foreclosure of Equity of Redemption by personally serving Mr. Saffo at the property. The notice set a barment date of June 20, 2002, and informed the Saffos that the right of redemption would expire and be forever barred on that date. Notice was also given by publication. A year and a half later, the Saffos still had not paid Foxworthy the redemption amount, which by that point had increased to $112,516, and Foxworthy began demanding possession of the premises.

From February through April 2004, Foxworthy and the Saffos unsuccessfully negotiated to resolve the matter. In June 2004, Foxworthy sent the Saffos a formal demand for possession by July 1, 2004. On that date, instead of vacating the property, the Saffos filed suit against Foxworthy and Wilson in the Fulton County Superior Court, alleging various tort claims and seeking injunctive relief to prevent their removal from the residence. Foxworthy answered and counterclaimed to quiet title to the property and to recover damages for conversion and trespass by the Saffos. Wilson answered as well.

In light of the Saffos’ allegations of inadequate notice in 2002, Foxworthy served the Saffos with a second Notice of Foreclosure of Equity of Redemption on November 4, 2004. The barment date specified in the notice was December 28, 2004. Once again, the Saffos failed to redeem the property.

On October 3, 2008, the trial court conducted a hearing on the parties’ cross-motions to dismiss and for summary judgment. On October 14, 2008, the court entered an order finding that the Saffos’ right to redeem the property was permanently barred because the Saffos had not paid or tendered the redemption amount. The court further held that, to the extent the Saffos were arguing that the tax sale must be invalidated because the Sheriff did not comply with the statutory tax sale requirements, their remedy would be an action against the Sheriff, not Foxworthy and Wilson. Accordingly, the trial court granted Foxworthy and Wilson’s motions to dismiss the complaint and for summary judgment, denied the Saffos’ motions to dismiss the counterclaim and for partial summary judgment, and reiterated an earlier order referring Foxworthy’s counterclaim to a special master for a report and recommendation. The Saffos appealed.1

2. The Saffos raise two claims on appeal. First, they argue that the trial court erred in holding that OCGA § 48-4-47 bars their suit challenging the validity of the tax sale and resulting tax deed to Foxworthy. Second, they contend that OCGA § 48-4-47 violates their constitutional right to due process of law. Before addressing the [286]*286Saffos’ specific claims, a review of the relevant statutory scheme is in order.

The article of the Georgia Code governing redemption of property following a tax sale to satisfy unpaid taxes consists of OCGA §§ 48-4-40 to 48-4-48. Following a tax sale, the delinquent taxpayer has the right to redeem the property by paying the amount required for redemption, the redemption price. See OCGA § 48-4-40. The redemption price is the amount paid for the property at the tax sale, as reflected in the tax deed, plus certain other taxes, costs, and penalties that increase as time passes. See OCGA § 48-4-42; Mark Turner Properties, Inc. v. Evans, 274 Ga. 547, 550 (554 SE2d 492) (2001). The effect of redeeming the property is to place title back in the hands of the delinquent taxpayer, see OCGA § 48-4-43, with the tax delinquency resolved.

The delinquent taxpayer has an initial period of 12 months from the date of the tax sale in which to redeem the property. See OCGA § 48-4-40 (1).

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Saffo v. FOXWORTHY, INC.
687 S.E.2d 463 (Supreme Court of Georgia, 2009)

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Bluebook (online)
687 S.E.2d 463, 286 Ga. 284, 2009 Fulton County D. Rep. 3642, 2009 Ga. LEXIS 734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saffo-v-foxworthy-inc-ga-2009.