COMMUNITY RENEWAL AND REDEMPTION v. Nix
288 Ga. 439
| Ga. | 2011Background
- DeKalb County sold the property for tax delinquency in Dec 1993; DeKalb conveyed to Nix in Feb 1999 after no other bidders.
- CRR quitclaimed its interest to the property in Jan 2003 and sought to redeem under OCGA § 48-4-42 by tendering redemption.
- Nix refused the tender; CRR filed suit to compel redemption and cancel the tax deed; trial court granted summary judgment for Nix.
- On appeal, this Court reversed summary judgment and remanded; after remand, the trial court dismissed the case for CRR’s failure to tender to BOA (Bank of America).
- BOA held a security deed on the property; CRR did not tender to BOA before filing suit; BOA’s interest was later cancelled in 2009 when Nix’s debt was paid in full.
- This Court affirmed the dismissal, holding tender must be made to the proper party before filing suit and that CRR’s pre-suit and post-suit tenders failed to meet this requirement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is tender required to redeem after a tax sale even without notice of foreclosure? | CRR argues § 48-4-47 is inapplicable because no foreclosure notice occurred. | Nix contends tender is still required under § 48-4-40 and related case law. | Tender required; notice status does not excuse tender requirement. |
| Must tender be made to the bank holding a security deed rather than to the purchaser? | CRR tendered to Nix; argued it suffices to tender to the purchaser. | Tender must be to BOA (the secured party) before suit. | Tender to the proper party (BOA) was required and pre-suit; failure bars suit. |
| Did pre-suit tender to BOA occur, and does it affect viability of the redemption action? | CRR initially tendered to Nix; later tendered to BOA after adding BOA as party. | Tenders to Nix and to BOA long after formal tender requirements failed to satisfy law. | Pre-suit tender to the proper party was not made; action barred. |
| Does absence of statutorily required foreclosure notice bar or toll tender requirements? | CRR argues § 48-4-47 is not triggered without notice. | Tender requirements apply regardless of notice; must be to the proper party. | Not dispositive; tender to proper party still required pre-suit. |
Key Cases Cited
- Mark Turner Properties v. Evans, 274 Ga. 547 (2001) (tender must be paid to the proper payee for redemption)
- Machen v. Wolande Management Group, 271 Ga. 163 (1999) (tender must be made prior to action; continuous unless waived)
- Forrester v. Lowe, 192 Ga. 469 (1941) (tender before court proceedings; objective to compensate owner)
- Durham v. Crawford, 196 Ga. 381 (1943) (tender ineffective if made during pendency of suit)
- Herrington v. Old South Investment Co., 222 Ga. 428 (1966) (tender to the holder under the security deed; proper party to receive redemption funds)
- Ewing v. City of Atlanta, 281 Ga. 652 (2007) (motion to dismiss proper where plaintiff not entitled to relief)