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Suntrust Bank v. Cowan

Court of Appeals of Georgia, Second Division

February 20, 2018

SUNTRUST BANK
v.
TODD COWAN, AS TAX COMMISSIONER FOR DOUGLAS COUNTY et al.

          MILLER, P. J., DOYLE, P. J., and REESE, J.

          REESE, JUDGE.

         SunTrust 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 and remand.

         The 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.[1] 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.

         On 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.

         The 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, [2] and United Capital Financial of Atlanta v. American Investment Assoc.[3] 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").[4] 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.[5]

         On 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."

         On September 6, 2016, the Supreme Court of Georgia granted a writ of certiorari in DLT List I .[6] 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."

         The 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."

         On 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.

         Whether JMV has a priority interest in the excess funds pursuant to statutory authority is a question of law, which we review de novo.[7] With this guiding principle in mind, we turn now to SunTrust's specific claims of error.

         As an initial matter, the Supreme Court of Georgia issued an opinion in DLT List v. M7VEN Supportive Housing & Dev. Group, ("DLT List II")[8] on May 15, 2017, which affirmed this Court's opinion DLT List I, but under a different rationale.[9] Thus, "a redeeming creditor of a tax sale property does not have a priority lien against excess funds arising from that sale."[10]

         SunTrust 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.

         The Supreme Court of Georgia has declined to "adopt a rule of universal retroactivity in all civil cases."[11] Instead, to determine whether to ...


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