2020 Georgia Code
Title 44 - Property
Chapter 14 - Mortgages, Conveyances to Secure Debt, and Liens
Article 7 - Foreclosure
Part 2 - Foreclosure on Mortgages
§ 44-14-184. Defense Against Foreclosure; Verification
When a rule nisi to foreclose a mortgage on real estate has been granted and published or served as required in Code Section 44-14-180, the mortgagor or his special agent or attorney may appear at the time at which the money is directed to be paid and file his objections to the foreclosure of the mortgage and may set up and avail himself of any defense which he might lawfully set up in an ordinary action instituted on the debt or demand secured by the mortgage and which defense shows that the applicant is not entitled to the foreclosure sought or that the amount claimed is not due; provided, however, that the facts of the defense shall be verified by the affidavit of the mortgagor or his special agent or attorney at the time of the filing of the affidavit.
(Laws 1799, Cobb's 1851 Digest, p. 510; Laws 1839, Cobb's 1851 Digest, p. 572; Code 1863, § 3868; Code 1868, § 3888; Code 1873, § 3964; Code 1882, § 3964; Civil Code 1895, § 2746; Civil Code 1910, § 3279; Code 1933, § 67-301.)
Law reviews.- For annual survey of real property law, see 57 Mercer L. Rev. 331 (2005).
JUDICIAL DECISIONSANALYSIS
- General Consideration
- Defenses
An appeal is not the defendant's remedy where a counteraffidavit filed by the defendant to a mortgage foreclosure in a justice's court is dismissed for insufficiency because it sets up no defense to the foreclosure but constitutes a claim of title to the property filed by the defendant personally. Wage Earners' Real Estate Co. v. Gaulden, 43 Ga. App. 702, 159 S.E. 910 (1931).
Cited in Lankford v. Peterson, 20 Ga. App. 147, 92 S.E. 764 (1917); Smith v. Cone, 171 Ga. 697, 156 S.E. 612 (1931); Green v. Spires, 189 Ga. 719, 7 S.E.2d 246 (1940); Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975).
Defenses
Accumulative defenses.
- In a proceeding to foreclose, it is competent for the mortgagor, at the second term, to show cause why the rule absolute should not be granted, that the mortgage debt is usurious, that it is founded upon a gaming consideration, or that it was contracted to compound a felony, or that the mortgage was given under duress or has been released, or to avail any other defense which goes to show that the mortgagee is not "entitled" to a judgment of foreclosure, or, that the amount claimed is not due. Dixon v. Cuyler, 27 Ga. 248 (1859).
Where a defense is purely equitable, a party is not foreclosed from asserting a right, by suffering judgment at law to go against that party by reason of sickness. Clifton v. Livor, 24 Ga. 91 (1858).
Property subject to bankruptcy.
- That mortgaged property is subject to be administered in bankruptcy will not entitle the mortgagor to resist the administration of it by foreclosure and sale under proceedings in the appropriate court of the state. Broach v. Powell, 79 Ga. 79, 3 S.E. 763 (1887).
That the defendant has been adjudged a bankrupt, and the property covered by the mortgage regularly set apart to defendant as defendant's exemption, is not a good plea in bar to the foreclosure of said mortgage, where it is not alleged that the mortgagee proved the lien in the bankrupt court, or that the assignee has interfered in any manner with the mortgage. Cumming v. Clegg, 52 Ga. 605 (1874). See also Hatcher v. Jones, 53 Ga. 208 (1874).
A discharge in bankruptcy is no defense to the foreclosure of a mortgage executed more than four months prior to the filing of the petition in bankruptcy, when the debt secured by the mortgage has not been proved in the bankrupt court. Camp v. Young, 119 Ga. 981, 47 S.E. 560 (1904). See also Evans v. Rounsaville & Bro., 115 Ga. 684, 42 S.E. 100 (1902).
Stay pending bankruptcy determination.
- A plea interposed to a proceeding to foreclose a mortgage on land, that, pending the proceedings to foreclose, the mortgagor was adjudicated a bankrupt, and praying that such proceedings be stayed until the question of the discharge in bankruptcy of the mortgagor is determined, is not good. Carter v. Peoples Nat'l Bank, 109 Ga. 573, 35 S.E. 61 (1900).
Homestead.
- Where a homestead was set apart under the Constitution of 1868, and a mortgage on the homestead property was given in 1898, it was permissible for the defendant to set up the homestead in defense under O.C.G.A. § 44-14-184 to an action to foreclose the mortgage. Ach & Co. v. Milam, 118 Ga. 105, 44 S.E. 870 (1903).
In an action against a mortgagor individually to foreclose a mortgage on land, it is no defense to the foreclosure that after the mortgage was given a part of the land covered by the mortgage had been set apart to the defendant as the head of a family for a homestead. Rathel v. Fort, 134 Ga. 268, 67 S.E. 417 (1910).
Property subjected to support of others.
- Where property has been mortgaged, which is subject to the support of the mother of the mortgagors during her natural life, and proceedings are instituted to foreclose by the mortgagees, there is no good legal or equitable ground why the mortgages should not be foreclosed, as between the mortgagors and mortgagees. Colquitt & Baggs v. Tarver, 45 Ga. 631 (1872).
That the land covered by a mortgage lien had been set apart to the widow of the mortgagor as a year's support, over objections filed by the mortgagee, constituted no defense to the foreclosure of the mortgage. Derrick v. Sams, 98 Ga. 397, 25 S.E. 509, 58 Am. St. R. 309 (1896).
Lack of title in deceased owner.
- Where a person executed a mortgage upon certain property, that person's administrator is estopped, in an action brought to foreclose the mortgage, to plead want of title in intestate at the time the mortgage was executed. Carter & Woolfolk v. Jackson, 115 Ga. 676, 42 S.E. 46 (1902).
Forgery of deed in vendor's title.
- To the foreclosure of a mortgage on land for the purchase money thereof, it was no defense that one of the deeds in the vendor's title appeared on its face to be a forgery; there being no allegation that the vendor warranted the title to the vendee, nor that there was fraud in the transaction, nor that any of the purchase money had been paid. O'Neal v. Carmichael, 84 Ga. 511, 11 S.E. 352 (1890).
Trust property mortgaged.
- In a proceeding to foreclose a mortgage on real estate, the mortgagor cannot set up as a defense against the mortgagee, that the property so mortgaged was trust property, and that the mortgagor had no right to mortgage it. Boisclair v. Jones, 36 Ga. 499 (1867).
A plea of not indebted, though supplemented by the allegation that the mortgage "was obtained by fraud on the part of the plaintiff," without alleging the particular fraudulent acts relied upon to defeat a recovery, is not such an issuable defense as prevents the granting of a rule absolute. Woods v. Roberts, 97 Ga. 254, 22 S.E. 986 (1895).
Debt not due.
- In view of O.C.G.A. § 44-14-184 a plea which denied that the debt was due, and alleged want of consideration and fraud in the procurement of the draft to secure which the mortgage was made, should not have been dismissed on demurrer (now motion to dismiss). Hall v. Davis, 73 Ga. 101 (1884).
Fraud in procurement of draft.
- See Hall v. Davis, 73 Ga. 101 (1884).
Usury.
- Upon a rule to foreclose a mortgage, the mortgagor may show, by way of defense, that the contract upon which it was given was usurious. Bailey v. Lumpkin, 1 Ga. 392 (1846).
Payment.
- A mortgage on land given to secure the payment of promissory notes cannot, after they have been paid, be foreclosed. Ryan v. Rice, 109 Ga. 448, 34 S.E. 569 (1899).
A general allegation in an answer, that the mortgagee has paid $50.00 or $60.00 for which no credit has been given, and that the mortgagee is unable to give the sum or date of each payment, without alleging to whom, or when, or where such payments were made, is subject to demurrer (now motion to dismiss). Montgomery v. King, 125 Ga. 388, 54 S.E. 135 (1906).
Payment as jury question.
- Whether the consideration for which a mortgage is alleged to have been executed, is bona fide, or merely colorable to defraud creditors, or so inadequate as to constitute a badge of fraud, is a question of fact for the jury. Williams v. C. & G.H. Kelsey & Halsted, 6 Ga. 365 (1849).
Holder's title to note invalid.
- The proceedings were instituted to foreclose a mortgage, in the name of the original mortgagee, for the use of certain persons to whom it was alleged that the security notes had been transferred, and no effort was made to cut off any defense which the mortgagor might have, a mere denial that the title to the notes was in the usees, and an allegation that they held such notes only as securities, did not furnish any valid defense to the foreclosure. Montgomery v. King, 125 Ga. 388, 54 S.E. 135 (1906).
Setoff.
- A mortgagor may plead damages arising from a breach of an independent contract, as a setoff in bar of a proceeding to foreclose a mortgage on land, under O.C.G.A. § 44-14-184. Mahone v. Elliott, 141 Ga. 214, 80 S.E. 713 (1914). See also Alston v. J.W. Wheatley & Co., 47 Ga. 646 (1873).
In a proceeding to foreclose a chattel mortgage, the mortgagor is not entitled to plead the defense of setoff in such a summary proceeding, since this defense is not one which goes to the justice of plaintiff's demand. Glass v. Adams, 44 Ga. App. 437, 161 S.E. 630 (1931).
Judgment improperly rendered.
- A petition filed by the defendant to set aside and vacate a judgment of foreclosure improperly rendered, and to enjoin the sale of defendant's property under a levy of the execution issued thereon, was not subject to a general demurrer (now motion to dismiss) in view of O.C.G.A. § 44-14-184. Walton v. Wilkinson Bolton Co., 158 Ga. 13, 123 S.E. 103 (1924).
