On March 10, 1988, Rogers L. Tucker purchased property in Troup County, Georgia and executed a note secured by a deed in favor of Fulton Fеderal Savings Association (“Fulton Federal”) to partially finance the purchase of the property. The deed was recorded in thе official deed records of the Clerk of the Superior Court of Troup County. In 1989, Fulton Federal was placed in the receivership of thе Federal Deposit Insurance Corporation (“FDIC”), from which NationsBank acquired the property.
On April 26, 1993, Tucker filed a Chapter 13 petitiоn for bankruptcy. The Troup County Tax Commissioner’s Office (“Troup County”) filed a proof of claim in the bankruptcy court. However, without seeking relief from the bankruptcy court, Troup County filed a notice of levy on the property for uncollected property taxes and advertised the property for sale. Troup County sent notification of the levy and sale to Tucker, but not to FDIC, Fulton Federal, or NationsBank. On June 29, 1994, the bankruptcy court dismissed Tucker’s case. Six days later, the Troup County Sheriff sold the property to Lamar McKeen and the deed was recorded by the Clerk of the *47 Superior Court of Troup County.
On February 2, 1995, Tucker filed another petition for Chapter 13 bankruptcy. McKeen did not receive notice of the bankruptcy petition, and proceeded to serve a notice of foreclosure and right to redeem on Tucker in September 1995 and advertised the foreclosure in the local newspaper. McKeen also attempted to mail a notice of foreсlosure and right to redeem to Fulton Federal, which was still listed as a lienholder on the property instead of FDIC or Nations-Bank. Tucker’s second Chapter 13 bankruptcy petition was dismissed on December 4, 1996, and on the same day, Tucker filed a petition for Chapter 7 bankruptcy reliеf. On January 2, 1997, the bankruptcy court granted NationsBank’s loan servicer permission to foreclose on the property. It was then discovеred that the property had been sold to McKeen two and a half years earlier. FDIC then filed a complaint in the Superior Court of Troup County to determine the ownership of the property. The trial court adopted the report of the Special Master finding that thе sale of the property to McKeen was valid, but that McKeen’s foreclosure on the right of redemption was void. In Case No. S01A0085, McKeеn asserts that the trial court erred in ruling that his foreclosure on the right of redemption was void. On cross-appeal, FDIC’s successor in interest, NationsBank, asserts that the trial court erred when it did not declare void the county’s sale of the property to McKeen. We consider first the cross-appeal because only if the judgment survives the cross-appeal will we need to consider the issue raised in the main aрpeal.
Case No. S01X0091
NationsBank argues that Troup County violated the bankruptcy . stay by filing a notice of levy and advertising the property without seeking stay relief from the bankruptcy court and that, as a result, those actions are void. Without a valid notice of levy and advertisement, NationsBank contends, the tax sale did not conform to the statutory requirements of a valid sale under OCGA § 48-2-55, and NationsBank continues to hold a first priority security deed.
Troup County, on the other hand, argues that actions taken in violation of a stay are merely voidable by the creditor or trustee rather than void ab initio and that 28 USC § 1334, which provides that an action to set aside a transfer may not be commenced after the earliest of two years after the transfer or two years from the time the case is closed or dismissed, precluded any action by a creditor, trustee and, consequently, NationsBank. In support of its arguments, Troup County relies on
Cole v. Shoffner,
Therefore, we acknowledge that the general rule in the Eleventh Circuit is that actions taken in violation of an automatic stay are void ab initio, and persuaded of the correctness of that rule, we overrule
Cole,
supra. Filing a notice of levy and advertising the property for sale are actions that are cleаrly stayed during the pendency of a bankruptcy. 11 USC § 362 (a) (4); see
Barnett Bank,
supra;
Washington v. Internal Revenue Svc.,
Troup County argues that the statute of limitation provided for by 11 USC § 549 precludes the bringing of such an action. This argument has no merit because the statute of limitation does not apply to actions brought to challenge a violation of a stay.
Anderson v. Briglevich,
Case No. S01A0085
Case No. S01X0091
Case No. S01A0085
We do not address the argument addressed in the main appeal because it is moot due to our ruling in the cross-appeal and is therefore dismissed. See
Freeman v. Eastern Sav. Bank,
Judgment reversed in Case No. S01X0091. Appeal dismissed in
Case No. S01A0085.
Notes
While this Court is not bound by decisions of the Eleventh Circuit construing federal law, they are persuasive.
Porter v. Food Giant,