                                   WHOLE COURT

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                  November 10, 2015




In the Court of Appeals of Georgia
 A15A1485. DLT LIST, LLC et al. v. M7VEN SUPPORTIVE DO-072
     HOUSING & DEVELOPMENT GROUP.

      DOYLE, Chief Judge.

      The instant case arises from an equitable interpleader action filed following the

tax sale of certain real property in Carroll County, Georgia, by Vickie Bearden, in her

capacity as Tax Commissioner of the County, in order to disburse excess tax-sale

funds totaling $105,188.91. The trial court awarded the excess funds to M7VEN

SUPPORTIVE HOUSING & DEVELOPMENT GROUP (“M7”), finding that M7

was the only interest holder able to make a claim on the funds at the time of the sale.

Design Acquisition, LLC (“Design”), and DLT List, LLC, now appeal,1 arguing that

      1
        Although the Appellants’ brief purports to include Marshall Jones as an
appellant, the record does not show that Jones has appeared before the trial court or
this Court or that the attorney representing Design and DLT List made an entry of
appearance on behalf of Jones.
the trial court erred by (1) failing to provide them with notice and a hearing; (2)

awarding M7 the excess funds; and (3) determining that Bearden was not authorized

to file an interpleader action. For the reasons that follow, we affirm.

      The record shows that on June 3, 2014, based on M7’s failure to pay certain

taxes on two properties, Bearden conducted tax sales of the properties, which DLT

List purchased for $55,000 per property. On June 6, 2014, Bearden notified M7,

Farooq Ijaz Cheema, Ameris Bank, DLT List, and Marshall Jones of excess funds. On

July 14, 2014, M7 filed with Bearden a certificate of authorization to receive the

excess funds, including August 18, 2014 certificates of title listing DLT List as owner

of the properties subject to M7’s right of redemption. None of the other parties made

a claim to the funds. On July 28, 2015, DLT List filed its tax deeds for each property

in the property records of Carroll County.

      Based on its ownership of a Fulton County fieri facias as evidence of its status

as a lien holder against M7,2 Design redeemed from DLT List the Carroll County


      2
        M7 had also failed to pay taxes in 2013 on Fulton County property, which
resulted in the issuance of a writ of fieri facias against both M7 and its Fulton County
property. The Fulton County fieri facias, which does not appear to have been recorded
in the Carroll County general execution docket, was purchased for $1,395.55 by
InVesta Services of Georgia on January 15, 2014. On September 10, 2014, Design,
purchased the Fulton County fieri facias from InVesta.

                                           2
properties for the statutory redemption amounts of $66,000 each on September 22,

2014; DLT List then issued Quit Claims of Redemption to M7 for both properties as

required pursuant to OCGA § 48-4-44. On October 27, 2014, Design filed a

declaratory judgment action,3 claiming entitlement to the excess funds based on its

redemption of the Carroll County properties.

      On November 14, 2014, Bearden filed the equitable interpleader petition at

issue here, listing M7 as the owner of the properties at the time of the tax sales and

as a respondent to the petition. Bearden also listed Cheema, Ameris Bank, DLT List,

and Jones as respondents with potential interests in the petition.4 DLT List, M7, and

Ameris Bank acknowledged service of the action.

      In December 2014, M7 responded to the action, contending that Bearden

should have released the excess funds to it because (1) Cheema’s lien had been

extinguished by a previous foreclosure of the properties, barring him from any claim

to the excess funds; (2) Ameris Bank had conveyed any interests in the properties to

M7 prior to the tax sales, barring it from any claim to the excess funds; (3) DLT List

      3
        Design named M7 and Bearden as respondents in its declaratory judgment
action; Bearden was served on November 6, 2014.
      4
       Cheema and Ameris at one time held liens on the property, while DLT List
and Jones were listed as purchasers of the properties at the June 3 tax sales.

                                          3
was the tax sale purchaser and was, therefore, not entitled to the excess funds; and (4)

Jones was not listed anywhere in the chains of titles of the properties and had no

claim to the funds.

      On January 21, 2015, DLT List filed a Motion to Dismiss or Consolidate the

equitable interpleader action with Design’s declaratory judgment action.5 That same

day, Design filed a Consent Motion to Intervene in the interpleader action.

      After a telephonic hearing on January 27, 2015 (a transcript for which does not

appear in the record), the trial court allowed the parties to brief the issue of rights to

the excess funds.6 On February 6, 2015, Design filed documents in response to this

telephonic hearing supporting the position it argued to the superior court.7 Thereafter,

the trial court issued an order finding that because M7 was the only claimant to

respond or have an interest in or title to the properties at the time Bearden issued the



      5
        DLT List claimed it had not been served with the equitable interpleader
action; however, an acknowledgment of service by DLT List was filed in the court
on December 1, 2014.
      6
       Design admits that its motion to intervene was granted during the telephonic
conference. A hearing had been held on January 15, 2015; however, no ruling was
made at that hearing.
      7
        Although M7 contends that it filed a letter brief, such document does not
appear in the record before this Court.

                                            4
excess funds notification in June 2014, Bearden should have issued the funds to M7

within a reasonable time after submission of its claim. This appeal followed.

      1. Relying on this Court’s previous decisions in Wester v. United Capital

Finance of Atlanta, LLC,8 and United Capital Finance of Atlanta v. American

Investment Assoc.,9 Design contends that the trial court erred by awarding M7 the

excess funds because Design’s status as redeemer of the property gave it first priority

to the excess funds. Because we determine that Wester and United Capital were

wrongly decided as to this issue, we hereby disapprove of those cases and affirm the

trial court’s award of the excess funds to M7.

      Pursuant to OCGA § 48-4-1, if a property owner fails to pay county property

taxes, the county may issue a writ of fieri facias and conduct a sale of the property to

satisfy the unpaid taxes. The “tax [sale] deed vests the purchaser with a defeasible

(and, incidentally, taxable) fee interest in the property,” which continues for a one-

year period during which time “the delinquent taxpayer or any other party holding an

interest in or lien on the property may redeem the property by paying to the tax sale




      8
          282 Ga. App. 392 (638 SE2d 779) (2006).
      9
          302 Ga. App. 400 (691 SE2d 272) (2010).

                                           5
purchaser the purchase price plus any taxes paid and interest.”10 Otherwise, if no one

redeems the property, all the liens and ownership interests in the property existing

prior to the tax sale are swept away at the close of the year, leaving the tax-sale

purchaser with clear title to the property11; essentially, the tax-sale purchaser becomes

the fee simple owner of the property while the prior lien-holders and owner have no

remaining interest in the property.12 On the other hand, if the prior owner or a lien-

holder (or other creditor of the owner) does redeem the property from the tax-sale

purchaser, then the tax-sale purchaser quit claims the property back to the original

owner, and any lien-holders at the time of the sale that have not been fully paid

(through excess funds or another method) retain their pre-sale liens on the property.13

Under this scenario, the redeeming creditor receives a priority lien for the redemption

price of the property, which puts this lien ahead of any of the remaining prior liens.14


      10
        Nat. Tax Funding, LP v. Harpagon Co., 277 Ga. 41, 42-43 (1) (586 SE2d
235) (2003).
      11
         See id. at 43 (2). The tax-sale purchaser must follow applicable procedures
to foreclose the redemption period. See OCGA § 48-4-45.
      12
           See id. at 44-45 (3).
      13
           See id.
      14
           See id. at 42-43 (1).

                                           6
      At times, a tax sale will generate additional funds than necessary to satisfy the

tax lien for which the land was levied and sold. In those instances, OCGA § 48-4-5

(a) explains the process for payment of excess tax sale proceeds:

      [i]f there are any excess funds after paying taxes, costs, and all expenses
      of a sale made by the tax commissioner, tax collector, or sheriff, or other
      officer holding excess funds, the officer selling the property shall give
      written notice of such excess funds to the record owner of the property
      at the time of the tax sale and to the record owner of each security deed
      affecting the property and to all other parties having any recorded
      equity interest or claim in such property at the time of the tax sale.
      Such notice shall be sent by first-class mail within 30 days after the tax
      sale. The notice shall contain a description of the land sold, the date
      sold, the name and address of the tax sale purchaser, the total sale price,
      and the amount of excess funds collected and held by the tax
      commissioner, tax collector, sheriff, or other officer. The notice shall
      state that the excess funds are available for distribution to the owner or
      owners as their interests appear in the order of priority in which their
      interests exist.15


      15
         (Emphasis supplied.) In 2002, OCGA § 48-4-5 was amended from “[i]f there
is any excess after paying taxes, costs, and all expenses of a sale, it shall be
immediately paid to the person authorized to receive the excess,” to state that “[i]f
there is any excess after paying taxes, costs, and all expenses of a sale, the tax
commissioner or tax collector may file an interpleader action in superior court for the
payment of the amount of such excess. Such excess shall be distributed by the
superior court to intended parties, including the owner as their interest appears and
in the order of priority in which their interest exists.” The current Code section was

                                          7
      This statute looks to the owner and lien holders prior to the tax sale, and tax-

sale purchasers have no claim to the excess funds based on their post-sale

ownership.16 Previous iterations of this statute were interpreted to mean that the

excess funds should be distributed to the owner of the property if no lien-holder

existed at the time of the tax sale, or to any lien-holders (in addition to the owner) if

the lien-holders had a valid interest arising prior to the tax sale.17




implemented in 2006.
      16
        See Barrett v. Marathon Investment Corp., 268 Ga. App. 196, 198-199 (1)
(601 SE2d 516) (2004) (purchase of property at tax sale did not entitle post-sale
owner to any interest in the excess tax funds generated from that sale).
      17
         See, e.g., Simmons v. May, 53 Ga. App. 454, 456 (186 SE 441) (1936) (“[if]
one who creates a lien upon his property as security for debt thereafter permits the
same to sell for delinquent taxes accruing after the creation of the lien, by which sale
the security is lost to the lienee, the lienee is entitled to any excess remaining in the
hands of the tax authorities, after payment of the taxes, costs and expenses of sale;
and as against the lienee[,] the lienor has no right to this excess, even were the
security returned for taxation and assessed in the name of the lienor by reason of a
statute directing the excess from any tax sale to be ‘paid to the person authorized to
receive the same.’”) (citations omitted) (pre-2002 statute). See also Barrett, 268 Ga.
App. at 198-199 (1) & (2) (holding that an owner of property at the time of a tax sale
may sell or deed his right to the excess sale proceeds after the tax sale is completed)
(pre-2002 statute); Ga. Lien Svcs. v. Barrett, 272 Ga. App. 656 (613 SE2d 180)
(2005) (same, but holding that the owner failed to validly transfer rights to excess
funds).

                                            8
      Thus, after a tax sale occurs, the officer holding the excess sale funds provides

notice within 30 days of the sale to the recorded owners and interest holders, and then

distributes those excess funds to the persons holding interests in the property at the

time of the tax sale, such as the owner or owners or any lien holders.

      In this case, at the time of the tax sale, M7 was the owner and there were no

recorded liens on the property . Thus, the trial court properly determined that Bearden

should have dispersed the excess funds to M7. Design, as the redeeming creditor,

claims that its first priority lien — obtained several months after the tax sale —

entitles it to the proceeds pursuant to Wester and United Capital. Wester18 and its

progeny, however, without explanation incorrectly expanded the holding of Nat. Tax

Funding to mean that the redeeming creditor could both redeem the property and

receive excess funds from the tax sale to pay for the priority lien created by the

redemption.19 Instead, Nat. Tax Funding held that “following a tax sale, the holder of

a . . . lien has two options — it may either file a claim to collect against any proceeds



      18
           282 Ga. App. at 392.
      19
        See id. at 393-394. See also United Capital Finance of Atlanta, 302 Ga. App.
at 402-403 (1). To the extent that Brina Bay Holdings, LLC v. Echols, 314 Ga. App.
242 (723 SE2d 533) (2012), also follows this holding, we note that this case is
physical precedent only.

                                           9
from the sale,20 or it may assert its rights following the tax sale via a statutory claim

for redemption, in which case it obtains a first priority lien on the property, which it

may then enforce by levy and sale.”21 Accordingly, to the extent that Wester and its

progeny hold that the redeeming creditor has a first priority claim on the excess tax

funds for the amount paid to redeem the property, they are hereby overruled.22

      2. To the extent that Design contends that it did not receive due process, that

claim is without merit. The record shows that the trial court held a telephonic

conference in which Design’s attorney participated, and the court allowed the parties

to brief the issue after that conference. Design fails to show that it was not afforded

an opportunity to present all its arguments to the trial court.



      20
       See, e.g., Scott v. Vesta Holdings I, LLC, 275 Ga. App. 196, 201 (1) (620
SE2d 447) (2005).
      21
           (Emphasis supplied.) Nat. Tax Funding, LP, 277 Ga. at 44 (3).
      22
          As the assignee of InVesta Services’s pre-tax sale lien, Design may have
been able to make a claim for excess tax funds for the amount of its Fulton County
tax lien ($1,395.55) with the remainder of the excess funds going to M7. See Barrett,
268 Ga. App. at 198-199 (1) & (2). We note that Design did not make such a claim
for this amount from Bearden, it did not request excess funds in this amount from the
trial court, and it did not raise this claim in its brief before this Court. Accordingly,
any such claim to entitlement to this amount from the excess funds is not properly
before this Court. See McLeod v. Robbins Assn., 260 Ga. App. 347, 348 (1) (579
SE2d 748) (2003).

                                           10
      3. Lastly, Design argues that the trial court erred by finding that Bearden did

not have discretion to file the interpleader action. No order, however, indicates that

the trial court made any such holding.23 What the trial court found instead was that

at the point in time in which Bearden filed the action, it was not necessary because

she should have paid the M7 claim (or filed an equitable interpleader) some four

months earlier. Accordingly, this argument is without merit.

      Judgment affirmed. Andrews, P. J., Barnes, P. J., Ellington, P. J., Phipps, P.

J., Miller, Dillard, McFadden, Boggs, Ray, Branch, and McMillian, JJ., concur.




      23
          We note that OCGA § 48-4-5 (b) states that if necessary “[t]he . . . [tax]
officer may file an interpleader action in superior court for the payment of the amount
of such excess funds. Such excess funds shall be distributed by the superior court to
the intended parties, including the owner, as their interests appear and in the order of
priority in which their interests exist.”

                                          11
