MOXIE CAPITAL, LLC v. DELMONT 21, LLC
A21A1574
Ga. Ct. App.Feb 4, 2022Background
- In Nov. 2017 Delmont purchased tax deeds to two Atlanta parcels and published foreclosure notices of the right to redeem. The redemption deadline was November 20, 2018.
- On November 19, 2018 (the last day to redeem) Moxie purchased fee simple title from the prior owner and immediately sought payoff figures from Delmont’s manager. Calls/texts began ~1:55 p.m.; a returned call at 2:03 p.m. went unanswered.
- Moxie delivered two personal (uncertified) checks drawn on a non-party’s account to Delmont’s manager’s home that evening; Delmont returned them as legally insufficient.
- Moxie sued to quiet title and alleged Delmont obstructed redemption; a special master held hearings, found Moxie’s personal-check tender insufficient and that Delmont did not act in bad faith, and recommended judgment for Delmont. The superior court adopted the report and awarded Delmont fee simple title.
- Moxie appealed, arguing (1) personal checks constitute “lawful money” under OCGA §§ 48-4-42/48-4-44(c), (2) a tax-deed holder has a duty to cooperate in redemption or else is estopped, and (3) genuine fact issues exist about Delmont’s alleged obstruction/waiver. The Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Moxie) | Defendant's Argument (Delmont) | Held |
|---|---|---|---|
| Whether a tender by personal (uncertified) check satisfies the statutory requirement that redemption be paid in “lawful money of the United States.” | Personal checks qualify as lawful money because the statutes don’t define the term to exclude checks. | "Lawful money" means immediately available funds; personal checks are negotiable instruments and not immediate payment—cash or certified checks required. | Held: Personal checks are not "lawful money" for redemption; cash or certified/checks that assign funds are required. |
| Whether OCGA § 48-4-44(c)’s “cash or certified check” language should be read narrowly so as to allow other forms of tender for redemption. | § 48-4-44(c) is a limited rule for immediate deed execution and should not control the meaning of “lawful money” in § 48-4-42(d). | § 48-4-44(c) defines what constitutes acceptable immediate tender under the redemption scheme; read together the statutes require cash or certified checks. | Held: § 48-4-44(c) informs § 48-4-42(d); together they require cash or certified checks (i.e., immediately available funds). |
| Whether a tax-deed holder’s bad-faith conduct (or refusal to cooperate) can excuse an imperfect tender. | Delmont’s failure to timely communicate and its alleged obstruction prevented Moxie from obtaining certified funds and should excuse strict-form tender. | Delmont did not act in bad faith; Moxie delayed until the last afternoon and failed to make reasonable arrangements; refusal/avoidance doctrine inapplicable here. | Held: Court did not reach a broad rule but found on these facts Delmont did not act in bad faith; no excuse for deficient tender. |
| Whether factual issues exist about waiver/obstruction that preclude judgment. | There are genuine disputes whether Delmont’s conduct waived the form-of-tender requirement or dispensed with legal tender. | The special master’s factual findings (Moxie waited too late, failed to answer returned call, timely delivered personal checks) are supported; no waiver. | Held: Special master’s factual findings were not clearly erroneous; no material factual dispute that would overturn judgment. |
Key Cases Cited
- Forrester v. Lowe, 192 Ga. 469 (Ga. 1941) (tender must be actual payment, not mere promise)
- McEachern v. Industrial Life & Health Ins. Co., 51 Ga. App. 422 (Ga. Ct. App. 1935) (checks are not payment until paid; offer of a check is not a strictly good tender)
- Weldon v. Trust Co. Bank, 231 Ga. App. 458 (Ga. Ct. App. 1998) (certified checks operate as assignment of funds and differ from ordinary personal checks)
- Upchurch v. Chaney, 280 Ga. 891 (Ga. 2006) (redemption requires immediately available funds rather than a promise of future payment)
- Mark Turner Properties v. Evans, 274 Ga. 547 (Ga. 2001) (a purchaser’s affirmative refusal to accept payment can dispense with the formalities of tender)
- Reliance Equities, LLC v. Lanier 5, LLC, 299 Ga. 891 (Ga. 2016) (statutory construction principles: give plain meaning and read provisions in context)
- Southerland v. Bradshaw, 252 Ga. 294 (Ga. 1984) (mailing certified funds to a post office box before the deadline can satisfy redemption procedure)
- McGregor v. River Pond Farm, LLC, 312 Ga. App. 652 (Ga. Ct. App. 2011) (appellate review of special master findings: adopt unless clearly erroneous)