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1. INTRODUCTION

Hundreds of foreclosures are filed annually in each County. These consist of several types: Abandoned Motor Vehicles, Mechanics Liens, and Foreclosures on Personal Property (which is property other than land or buildings and fixtures). The process is somewhat complex, and you may prefer to seek the assistance of an attorney, however, here are the steps to follow:

2. PROCEDURES ON FILING LIENS UPON ABANDONED MOTOR VEHICLES, OR ANSWERING A LIEN

Abandoned Motor Vehicles are governed under O.C.G.A. ' 40-11-1 thru '40-11-24. There are a number of steps that must be complied with before someone can file a lien. Trailers and manufactured homes are considered motor vehicles because they have an identifying serial number that has to be registered.

All Abandoned Motor Vehicle filings are considered to be Magistrate Court issues. These pleadings do not have to be filed by attorneys, and all parties can represent themselves in Court.

A. A motor vehicle must have been left with an automobile dealer, repairman, or wrecker service for repair or other reason for a period of thirty days, left unattended on a public street for at least five days, or on private property for at least thirty days. It is then considered abandoned (O.C.G.A. '40-11-1).

B. The moving person, called the Plaintiff, must try to find out who owns the vehicle, if you do not know them. This is done by furnishing the Department of Revenue and the Georgia Bureau of Investigation with the Vehicle Identification Number, the tag number, the fact that the vehicle is abandoned, the date the vehicle became abandoned, and the present location of the vehicle. You request the name and addresses of all owners and lien holders. If you think the vehicle is registered in another state, you must check that states' records. This must be done within thirty (30) days of removal if the Plaintiff is a wrecker service, or within thirty (30) days of the vehicle being left with a repair shop or abandoned on their property.

C. After obtaining the proper information, the Plaintiff must then send the owner(s) and lien holder(s) a notification letter by certified or registered mail advising them of the fact that the vehicle is considered abandoned and will be sold, if not claimed. All cost incurred by you should be paid by the owner or lien holder if they wish to claim it. This mailing must be done within five (5) days of receiving the information from the Department of Revenue and/or Georgia Bureau of Investigation.

D. If the owner of the vehicle is unknown and considered a John Doe, the Plaintiff must place an ad in a newspaper of general circulation within the County containing a full description of the vehicle, location and stating that the vehicle will be sold at a public auction, if not claimed. The ad must run once a week for two consecutive weeks. NOTE: random VIN number checks may be conducted on all vehicles filed with the Court as John Does. If there is a problem a T22-B form is required to be filed with the application for lien as well.

E. If the vehicle is not still not claimed, the Plaintiff must send the owner(s) or lien holder(s) a demand letter by certified mail, return receipt requested, advising them that they are preparing to file a lien on the vehicle and give them ten (10) calendar days to respond.

F. If still no response, the Plaintiff can then file a lien on the vehicle for reasonable removable fees, storage and advertising fees only. You cannot claim repair costs on an abandoned motor vehicle lien. If you want repair costs, you should file a mechanic's lien.

G. Upon filing your lien, if the owner of the vehicle is unknown, and you file it as a "John Doe", you must make sure that a copy of the title search you did is attached to the Court's copy of the lien. A lien can be filed for storage charges, removal fees (if the Plaintiff is a wrecker service or repair shop), and advertising costs. Storage charges for Plaintiffs within the County generally should not exceed $5.00 per day without an express written contract and a hearing on the propriety of the costs. Storage for no more than 365 days can be charged. (O.C.G.A. 40-11-5(1)). Local Court practices vary, but generally the Plaintiff can project storage charges two months into the future when they file a lien. As a Court Order will probably not issue before this date, the Court may feel you are entitled to storage up to the date of final judgment.

H. You must also furnish the Court separate certified mail envelopes that are properly prepared with adequate postage, addressed to the owner(s) and lien holder(s). Return addresses on the envelopes and green receipt cards should be to the specific County Magistrate Court, Abandoned Motor Vehicles Section. The green receipt card must be attached to the back of the envelope and the certified mail sticker on the front. The white part of the sticker should be stapled to the bottom left hand corner, on the backside of the Court?s copy of the lien. "DE" for defendant, and "LE" for lien holder should be written in the bottom right-hand corner of the proper green receipt card attached to the envelope(s).

I. The Court will serve the affidavits by certified mail, using the envelopes you provide. The defendant(s) and/or lien holder(s) have ten (10) days to file an answer from the day they signed for the certified mail. There is a charge for filing an answer to this. Please call the Magistrate Court for the current cost of filing. If a person does not wish to contest the lien, they do not need to respond to it, or they may send the Court a letter stating they have no interest in the vehicle.

J. In order to sell the vehicle after an Order has been issued the Plaintiff must place an ad in a newspaper of general circulation within the County listing the vehicle by description. The date and place of the public auction must be in the ad and must run once a week for two weeks.

K. If the vehicle sells, you should give the buyer a notarized Bill of Sale. The buyer brings this Bill of Sale to the Court and the Court prepares a certified copy of the Order allowing the sale.

L. After the sale, the Plaintiff must furnish the Court with copies of all Bills of Sale, with case number and dollar amount the vehicle sold for. If the vehicle sells for more than the amount you claimed on your affidavit, you must pay the difference to the Court. This must be done within thirty days, and no personal checks are accepted.

M. All overages are held in the registry of the Court for a year (O.C.G.A.40-11-8 (1)). However, if a defendant or lien holder wishes to claim them, the Court will pay them out upon proof of prior ownership. If the vehicle was towed at the request of a City or the County, upon their application, the Court will pay the overages to them after a year. Overages from private filings may be paid over to the County treasury.

3. HOW TO FILE OR ANSWER A MECHANIC'S LIEN

A repair shop files mechanic's liens when a vehicle has been left with them for repair and not picked up. A Mechanics Lien is filed in the Superior Court.

A. A Vehicle must have been left by the owner/lessee/authority of the owner/lessee for repairs and subsequently unclaimed.

B. The mechanic/repair shop must do a title search to determine if there is a lien holder or security interest holder. Furnishing the Department of Revenue and Georgia Bureau of Investigation with the Vehicle Identification Number and the license number does this. If you think the vehicle is registered in another state, you must check that state's records.

C. All parties must be notified by certified or registered mail, return receipt requested, of the fact that the vehicle has been left with you for repair and unclaimed. Anyone wishing to claim the vehicle has ten (10) days to pay the bill or surrender the title. Proof of such notice must be furnished to the Court when the lien is filed.

D. If the owner, or lien holder/security interest holder fails to comply, a lien can then be filed.

E. You must attach a copy of the work order authorizing the repair to the Court's copy of the affidavit, when filing. All parties, if in the jurisdiction of the court, will be notified of the lien. They have five days from the date of service to contest the lien.

F. If any party is outside the jurisdiction of the court, the burden of establishing proper service rests upon the mechanic or repair shop.

G. If an answer is filed, a probable cause hearing will be set to determine the validity of the debt.

H. If an answer is not filed, an order may issue on the sixth (6th) day following the sale of the vehicle, free and clear of all other liens, to satisfy the debt.

I. If you have further questions or need more assistance, you should consult with an attorney.

J. For more in-depth information on filing Mechanic's Liens, please see O.C.G.A 40-3-52 thru 40-3-54.

4. HOW TO FILE OR ANSWER A PERSONAL PROPERTY FORECLOSURE

Personal property foreclosures are filed on cars, household items, or "movable" items. If the value of the item you are foreclosing on is less than $15,000.00, you may file it as a Magistrate Court case. If it is over that amount, it must be filed in the State Court.

A. A Personal Property Foreclosure may be filed if you have a contract retaining title, commercial contract, Vehicle Title, security agreement, or lease.

B. You may either file in the County where the property is located, or where the debtor/person in possession resides. If you file in the County where the property is located, you must have the debtor/person in possession served by the Marshal or Sheriff in that County.

C. You cannot get a money judgment on a Personal Property Foreclosure. You will only get the return of the property.

D. You must provide the Court with three copies of the material you are basing your Foreclosure upon. Please call the Magistrate Court for current cost of filing. A Personal Property Foreclosure must be sworn to in the presence of a Court Clerk. Your signature cannot be notarized.

E. The debtor/person in possession has seven (7) days to file a response to the Foreclosure, and another seven (7) to open up default, making a total of fourteen (14) days. A Writ of Possession cannot issue before the fifteenth (15th) day. If the debtor/person in possession files an answer, a probable cause hearing will be set. You will be notified of the date.

F. If no response is made, you may apply for a Writ of Possession on the fifteenth (15th) day.

G. The Writ will be sent to the Marshal for levying upon, who will notify you when he is ready to seize the property. There is a charge for levying. Check with the Marshal or Sheriff?s office to find out this charge.

H. If the property is located in another County, you may get a certified copy of the Writ of Possession, and take it to the Marshal or Sheriff in that County.

I. For more in-depth information on filing Personal Property Foreclosures, please see O.C.G.A. '44-14-230 thru '44-14-303.

This information is only a general summary. There are exceptions to these rules and by filing an action to take away someone's property and not following the rules, you may be liable for their damages. It is strongly encouraged that you consult an attorney to be advised of your exact legal rights.