White Props. Invs., LLC v. Dip Lending I, LLC.

366 Ga.App. 242

881 S.E.2d 706

WHITE PROPERTIES INVESTMENTS, LLC

v.DIP LENDING I, LLC.

A22A1197

Court of Appeals of Georgia.

November 29, 2022

Amelia Terry Phillips, Phillips Law, Atlanta, for Appellant.

Jimmy Charles Luke II, Martin Bagwell Luke, Atlanta, for Appellee.

Phipps, Senior Appellate Judge.

This is a quiet title dispute over which party rightfully owns a piece of property in East Point—DIP Lending I, LLC, which claims it acquired title by foreclosing on a security deed assigned to it by the Federal Deposit Insurance Corporation ("FDIC"); or White Properties Investments, LLC, which claims it redeemed the property after a tax sale. The trial court adopted a special master report finding in favor of DIP, and White Properties appeals. Because DIP's security deed reverted back to the grantor before DIP foreclosed, we reverse.

The relevant facts are undisputed. In May 2009, ATA Properties, Inc., acquired the property at 2879 Harlan Drive by limited warranty deed. In June 2009, ATA borrowed $50,000 from The Blackstone Equities Group, Inc., using the property as collateral, and executed a purchase money security deed in favor of Blackstone. The security deed reflected a maturity date of July 1, 2010, and was signed by ATA's president, Tony White, under seal. Shortly thereafter, Blackstone assigned its interest in the security deed to Rockbridge Commercial Bank. In December 2009, Rockbridge failed, and the FDIC was appointed as its receiver. In early 2015, the FDIC assigned the security deed to DIP.

Meanwhile, in May 2010, ATA transferred the property to Harlan Dr, LLC, which—according to DIP—was owned by Tony White. Property taxes went unpaid, and the local government recorded multiple tax liens on the property from 2009 to 2012. In May 2014, the Fulton County Sheriff conducted a tax sale of the property to satisfy the tax liens. Cleveland Avenue Properties, LLC, another entity affiliated with Tony White, was the highest bidder, at $31,000, and received a tax deed to the property. In June 2014, Cleveland Avenue Properties, LLC, executed a redemption quitclaim deed conveying its interest in the property back to Harlan Dr, LLC. The deed indicated that White Properties had paid the redemption amount.

In August 2014, White Properties brought an action in Fulton County Superior Court seeking judicial foreclosure and to quiet title to the property. The trial court in that case ruled that the tax sale was void under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, 12 USC § 1825 (b), because the FDIC had not given written consent to the sale. Accordingly, the court granted summary judgment in favor of DIP. White Properties appealed, but we affirmed the trial court in an unpublished opinion, White Properties Investments, LLC v. City of East Point , 348 Ga. App. XXIII (Case No. A18A1603) (Jan. 28, 2019) (unpublished).

In 2015, DIP sued Tony White, White Properties, and others for breach of contract and other claims arising from the defendants’ alleged failure to repay the 2008 secured loan at issue in this case, as well as multiple other loans. The complaint asserted claims for judicial foreclosure and to quiet title to the property at issue here.¹ In March 2019, however, DIP dismissed that case without prejudice. Thereafter, in April 2019, DIP proceeded with non-judicial foreclosure by exercising the power of sale in the 2009 security deed and purchasing the property at the sale.

In May 2020, DIP brought this action against White Properties, Fulton County, and others, seeking to quiet title to the property. DIP alleged that "White Properties’ redemption of the Property was void, and the Redemption Quitclaim Deed ... was void" and that, instead, DIP was the rightful owner pursuant to its foreclosure of the security deed. The trial court appointed a special master to hear the petition. In pre-hearing briefing, White Properties argued, among other things, that DIP's security deed was no longer enforceable at the time of the foreclosure because it had reverted back to the grantor under OCGA § 44-14-80.

Following a hearing, the special master filed a report and recommendation concluding that the 2014 tax sale was void and that DIP obtained fee simple title to the property through its April 2019 foreclosure, subject to various tax liens. The special master rejected White Properties's argument that the security deed had reverted back to the grantor. The special master recommended that the trial court enter a judgment declaring, in relevant part, that DIP owned the property in fee simple and that the redemption quitclaim deed was void. The special master also recommended, as a matter of equity, that DIP be ordered to reimburse White Properties for the tax liens it paid off in connection with the tax sale. The trial court adopted the findings of the special master and entered judgment in accordance with the recommendations. White Properties appeals.

1. White Properties argues that DIP's foreclosure of the security deed was invalid because, under OCGA § 44-14-80 (a) (1) ’s seven-year reversionary period, the deed reverted back to the grantor before the foreclosure. The special master disagreed, finding that OCGA § 9-3-23 ’s 20-year statute of limitation for actions on sealed instruments controlled over OCGA § 44-14-80 (a) (1) ’s shorter reversionary period. White Properties contends that in reaching this interpretation, the special master overlooked the principle that a specific statute controls over a more general one. See, e.g., Moosa Co., LLC v. Commr. of Ga. Dept. of Revenue , 353 Ga. App. 429, 432, 838 S.E.2d 108 (2020) ("for purposes of statutory interpretation, a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent in the relevant statutory text") (citation and punctuation omitted). DIP maintains that White Properties waived its statutory specificity argument by not raising it in a timely fashion below, but DIP does not challenge the merits of the argument. Applying de novo review,² we conclude that the special master's analysis was erroneous for a different reason—because the reversionary statute has a different function than, and is unaffected by, statutes of limitation.

OCGA § 9-3-23 provides that "[a]ctions upon bonds or other instruments under seal shall be brought within 20 years after the right of action has accrued. No instrument shall be considered under seal unless so recited in the body of the instrument." Here, the security deed recited that it "has been duly executed and sealed by Grantor," and the word "Seal" appears after the signature of the grantor's president. Thus, the security deed is a sealed instrument for the purpose of OCGA § 9-3-23. See Perkins v. M & M Office Holdings, LLC , 303 Ga. App. 770, 772, 695 S.E.2d 82 (2010) (contractual amendments were sealed instruments "because they contain[ed] the requisite recital and ‘SEAL’ [was] printed by the parties’ signatures"). The deed was executed on June 19, 2009. Accordingly, if OCGA § 9-3-23 governs, then the statute of limitation will not run until sometime after June 19, 2029.

Georgia's security deed reversion statute, OCGA § 44-14-80, provides a "default reversionary period for real property conveyed to secure a debt [of] seven years from the debt's maturity date[.]" Griggs v. Miller , 363 Ga. App. 82, 85 (2), 870 S.E.2d 578 (2022) (citation and punctuation omitted). Specifically,

[t]itle to real property conveyed to secure a debt or debts shall revert to the grantor or his or her heirs, personal representatives, successors, and assigns at the expiration of seven years from the maturity of the debt or debts or the maturity of the last installment thereof as stated or fixed in the record of the conveyance[.]

OCGA § 44-14-80 (a) (1). Foreclosure on the property by an action or exercise of the power of sale will prevent the reversion "if started prior to reversion of title" and "completed without delay chargeable to the grantee or the grantee's ... assigns." OCGA § 44-14-80 (a) (3). After title reverts to the grantor, however,

[n]o action to foreclose and no action to recover property under a conveyance of real property to secure debt shall be commenced and no power contained in or conferred by a conveyance of real property to secure debt shall be exercised.

OCGA § 44-14-83. See also Bell v. Freeport Title & Guar. , 355 Ga. App. 94, 98 (2) (a), 842 S.E.2d 565 (2020) ("if title has reverted to the grantor under [ OCGA § 44-14-80 (a) (1) ], all actions to foreclose upon and to recover the property are barred") (citation and punctuation omitted). The security deed at issue here had a maturity date of July 1, 2010. Thus, if OCGA § 44-14-80 (a) (1) governs, the security deed reverted to the grantor on July 1, 2017, seven years after the maturity date and nearly two years before DIP foreclosed on the deed.

The special master found, and our research has yielded, no authority directly addressing the relationship between OCGA §§ 9-3-23 and 44-14-80 (a) (1). Nevertheless, the special master concluded that the former controls over the latter in this case, giving DIP a 20-year time limit to exercise its rights under the security deed. The special master noted that while the statutory forerunner of OCGA § 9-3-23 dates back to the 1800s, OCGA § 44-14-80 ’s predecessor was enacted more recently, in the 1940s. See Williams v. O'Connor , 208 Ga. 39, 40 (1), 64 S.E.2d 890 (1951) (discussing predecessor of OCGA § 44-14-80 ); Milledge v. Gardner , 29 Ga. 700, 703-704 (1860) (discussing predecessor of OCGA § 9-3-23 ). Relying on the presumption that the legislature enacts statutes with full knowledge of existing law, such that newer statutes must be construed in harmony with existing law, see, e.g., In re Declaration of Judicial Emergency , 358 Ga. App. 48, 52 (1), 853 S.E.2d 366 (2020), the special master reasoned:

The reversion statute being silent as to its effect on deeds under seal, the two

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