§ 52-7-74 — Procedure for foreclosure

Georgia § 52-7-74

• Jurisdiction: Georgia
• Title: 52

Text

All liens acquired under Code Section 52-7-73 shall be foreclosed as follows: (1) Any proceeding to foreclose a lien on an abandoned vessel must be instituted within one year from the time the lien is recorded or is asserted by retention; (2) The person desiring to foreclose a lien on an abandoned vessel shall, by certified or registered mail or statutory overnight delivery, make a demand upon the owner for the payment of the reasonable fees for removal and storage plus the costs of any advertisement. Such written demand shall include an itemized statement of all charges. No such written demand shall be required if the identity of the owner cannot be ascertained and the notice requirements of subsection (g) of Code Section 52-7-71 have been complied with; (3) (A) If, within ten days of delivery to the appropriate address of the written demand required by paragraph (2) of this Code section, the owner of the abandoned vessel fails to respond to such demand or refuses to pay, or if the owner of the abandoned vessel cannot be ascertained, the person removing or storing the abandoned vessel may foreclose such lien. The person asserting such lien may move to foreclose by making an affidavit to a court of competent jurisdiction showing all facts necessary to constitute such lien and the amount claimed to be due. Such affidavit shall aver that the notice requirements of Code Section 52-7-71 have been complied with, and such affidavit shall also aver that a demand for payment has been made and refused or that the identity of the owner cannot be ascertained. The person foreclosing shall verify the statement by oath or affirmation and shall affix his signature thereto. (B) Regardless of the court in which the affidavit required by this paragraph is filed, the fee for filing such affidavit shall be $5.00 per vessel upon which a lien is asserted; (4) (A) Upon such affidavit's being filed, the lien claimant shall give the clerk or judge of the court the address, if known, of the owner, lessor, lessee, security interest holders, and lienholders of the abandoned vessel. The clerk or judge of the court shall serve notice upon such owner, lessor, lessee, security interest holders, and lienholders of the abandoned vessel of a right to a hearing to determine if reasonable cause exists to believe that a valid debt exists; that such hearing must be petitioned for within ten days after receipt of such notice; and that, if no petition for such hearing is filed within the time allowed, the lien will conclusively be deemed a valid one and foreclosure thereof allowed. (B) Any notice required by this paragraph shall be by certified mail or statutory overnight delivery or, if the owner, lessor, lessee, security interest holder, or lienholder is unknown, by posting such notice at the county courthouse in such place where other public notices are posted; (5) If a petition for a probable cause hearing is filed within the time allowed, the court shall set such a hearing within ten days of filing of the petition. If, at the hearing, the court determines that reasonable cause exists to believe that a valid debt exists, then the person asserting the lien shall retain possession of the vessel or the court shall obtain possession of the vessel, as ordered by the court. The owner-debtor may obtain possession of the vessel by giving bond and security in the amount determined to be probably due and costs of the action; (6) Within five days of the probable cause hearing, a party defendant must petition the court for a full hearing on the validity of the debt if a further determination of the validity of the debt is desired. If no such petition is filed, the lien for the amount determined reasonably due shall conclusively be deemed a valid one and foreclosure thereof allowed. If such a petition is filed, the court shall set a full hearing thereon within 15 days of the filing of the petition. Upon the filing of such petition by a party defendant, neither the prosecuting lienholder nor the court may sell the vessel, although possession of the vessel may be retained; (7) If, after a full hearing, the court finds that a valid debt exists, then the court shall authorize foreclosure upon and sale of the vessel subject to the lien to satisfy the debt if such debt is not otherwise immediately paid; (8) If the court finds the actions of the person asserting the lien in retaining possession of the vessel were not taken in good faith, then the court, in its discretion, may award damages to the owner, any party which has been deprived of the rightful use of the vessel, or the lessee due to the deprivation of the use of the vessel; and (9) If no petition for a hearing is filed, or if, after a full hearing, the court determines that a valid debt exists, the court shall issue an order authorizing the sale of such vessel. However, the holder of a security interest in or a lien on the vessel, other than the holder of a lien created by Code Section 52-7-73 , shall have the right, in the order of priority of such security interest or lien, to pay the debt and court costs. If the holder of a security interest or lien does so pay the debt and court costs, such person shall have the right to possession of the vessel, and that person's security interest in or lien on such vessel shall be increased by the amount so paid. A court order shall be issued to this effect, and in this instance there shall not be a sale of the vessel.