MILLER, P. J., DOYLE, P. J., and REESE, J.
Bank ("SunTrust") appeals the trial court's
order disbursing excess tax sale funds in this interpleader
action. SunTrust asserts that the trial court erred in
finding that J. Michael Vince, LLC ("JMV") had a
priority interest in the excess funds and disbursing those
funds to JMV. For the reasons set forth, infra, we reverse
record shows that on October 12, 2011, SunTrust obtained a
security deed in the amount of $246, 535.26 on the real
property located at 1000 Landon Drive Douglasville ("the
Property"), granted by Regina Jordan. On March 3, 2015,
Douglas County conducted a tax sale of the Property. ACS
Burton, LLC purchased the Property at the tax sale. On April
1, 2015, the Mirror Lake Community Association, Inc.
("the MLCA") executed and recorded a notice of lien
on the Property in the amount of $1, 237.19. The record
contains a document dated April 14, 2015, appearing to assign
the MLCA lien on the Property to JMV.
April 15, 2015, a redemption quitclaim deed from ACS Burton,
LLC and in favor of Regina Jordan was recorded in Douglas
County. In June 2015, the Douglas County Tax Commissioner
filed an interpleader action in the Superior Court of Douglas
County stating that the Property sold for "$165, 000,
leaving excess funds in the amount of $152, 232.58" and
deposited the excess funds into the court's registry.
Both SunTrust and JMV timely filed answers to the
interpleader seeking the excess funds and claiming first
priority lienholder status.
trial court, on October 26, 2015, issued a "Final
Order" awarding the Douglas County Tax Commissioner $1,
240 in attorney fees and the remaining excess funds totaling
$150, 992.58 to JMV. The trial court explicitly relied on
Wester v. United Capital Financial of Atlanta,
United Capital Financial of Atlanta v. American
Investment Assoc. as controlling legal authority. Just two
weeks later, however, this Court unanimously overruled
Wester and United Capital in DLT List
v. M7VEN Supportive, ("DLT List
I"). This Court held that as to excess tax sale
funds, a redeeming creditor can only make a claim for the
funds in the amount of the pre-tax sale lien that gave it the
right to redeem.
April 29, 2016, SunTrust filed a motion to set aside the
"Final Order, " because the bank never received the
"entered order." Pursuant to OCGA § 9-11-60
(g), the trial court vacated the "Final Order" on
May 12, 2016. SunTrust filed a motion to compel JMV to return
the excess funds to the court's registry, and JMV filed a
motion to reinstate the "Final Order."
September 6, 2016, the Supreme Court of Georgia granted a
writ of certiorari in DLT List I . On September 14,
2016, JMV moved the trial court to stay the proceedings until
the Supreme Court of Georgia ruled on DLT List I,
acknowledging that "that decision may directly affect
the outcome of the instant matter."
trial court held a hearing to address the three motions.
After the hearing, the trial court issued an order, dated
September 26, 2016: (1) granting SunTrust's motion to
compel payment of the excess funds into the registry of the
trial court or post a bond; (2) granting JMV's motion to
stay the proceedings until the Supreme Court of Georgia ruled
in DLT List I; and (3) denying JMV's motion to
reinstate the "Final Order."
January 24, 2017, JMV filed a motion seeking to dismiss the
entire case or alternatively reinstate the "Final Order,
" informing the trial court that it had already spent
the excess funds "in the ordinary course [of business]
without any information on SunTrust's concerns." The
trial court denied the motion to dismiss the action but
granted JMV's request to re-enter the "Final
Order." This appeal followed.
JMV has a priority interest in the excess funds pursuant to
statutory authority is a question of law, which we review de
novo. With this guiding principle in mind, we
turn now to SunTrust's specific claims of error.
initial matter, the Supreme Court of Georgia issued an
opinion in DLT List v. M7VEN Supportive Housing &
Dev. Group, ("DLT List
II") on May 15, 2017, which affirmed this
Court's opinion DLT List I, but under a
different rationale. Thus, "a redeeming creditor of a tax
sale property does not have a priority lien against excess
funds arising from that sale."
asserts that the trial court erred in finding that JMV had a
priority interest in the excess funds. We agree and therefore
reverse the judgment and remand this case.
Supreme Court of Georgia has declined to "adopt a rule
of universal retroactivity in all civil
cases." Instead, to determine whether to ...