PHIPPS, Presiding Judge.
Brina Bay Holdings, LLC ("Brina Bay") filed a money rule petition against Keith Echols ("Echols"), in his capacity as tax commissioner and ex-officio sheriff of Hall County, and Travelers Casualty and Surety Company of America ("Travelers"), as the surety of Echols's bond, to recover excess funds from a tax sale and interest thereon. The trial court granted summary judgment to Echols and Travelers and denied summary judgment to Brina Bay. Brina Bay appeals the trial court's grant of summary judgment to Echols and Travelers. For the reasons that follow, we affirm.
The underlying material facts are not in dispute. On December 1, 2009, Echols sold certain real property in a tax sale to satisfy outstanding ad valorem property tax liens against the property. The tax sale of the property generated more proceeds than necessary to satisfy the tax liens. On that same day, Echols mailed notice of the excess funds to the record owner of the property and to the record holders of liens affecting the property which, at that time, did not include Brina Bay. The record owner of the property submitted to Echols a claim, dated February 26, 2010, for the excess tax sale funds. No one else submitted a claim. One week from that date (on March 5, 2010), Echols issued a check for the excess tax sale funds to the record owner of the property.
On May 6, 2010, Brina Bay became a holder of a lien against the subject property and a creditor, after acquiring two transfers and assignments of liens involving the property. On May 11, 2010, "as the holder of a lien against the subject property and as a creditor pursuant to OCGA § 48-4-43," Brina Bay paid money to redeem the property, and a quitclaim deed of redemption (to the record owner of the property) was recorded in the county's deed books. Thereafter, by letters dated May 18, 2010, Brina Bay submitted claims to Echols pursuant to OCGA § 15-13-3
After a hearing, the trial court found that Echols had fulfilled his obligation to notify those with an interest in the property of the excess tax sale funds, and that only the record owner of the property had made a claim for the funds. The court found that Brina Bay had no interest in the property at the time of the tax sale or at the time notice was sent, and that when Brina Bay thereafter made a claim, Echols no longer had funds to disburse. The court added that since the excess funds already had been disbursed at the time Brina Bay acquired liens on the property, Brina Bay "only took the rights to the property and to collect on the lien, not to the excess funds" from the tax sale.
1. Brina Bay contends that "[b]y virtue of its redemption of the Property, Brina Bay acquired a first-priority lien against the Property and a first-priority claim to the excess tax sale proceeds pursuant to OCGA § 48-4-43."
Brina Bay further asserts that despite the fact that it submitted a demand for the excess proceeds on May 18, 2010 (after the funds had already been paid out), Echols should not have paid the excess tax sale funds to the record owner of the property because, at the time, there were at least three unsatisfied liens against the record owner of the property and the property itself "that represented higher-priority claims to the excess proceeds than any claim" held by the record owner of the property. Thus, Brina Bay contends, Echols must pay it (Brina Bay) the full amount of the excess funds. Brina Bay does not point to any violation of law by Echols, but asserts that Echols was authorized to interplead the excess funds, but did not.
OCGA § 48-4-5(a) governs the payment of excess funds after a tax sale, and it pertinently provides:
OCGA § 48-4-5(b) authorizes, but does not require, the tax commissioner, sheriff, or other officer to file an interpleader action for the payment of the amount of such excess tax sale funds: "The tax commissioner, tax collector, sheriff, or other officer may file, when deemed necessary, an interpleader action in superior court for the payment of the amount of such excess funds."
It is uncontroverted that at the time of the tax sale, at the time Echols notified the record owner of the property and record lien holders of the excess tax sale funds, and at the time Echols paid the excess tax sale funds to the record owner of the property, Brina Bay had no recorded lien or interest in the property. Echols acted in accordance with his statutory obligation to give "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
Brina Bay's reliance on American Investment Assoc.
"Where money is in the hands of an officer, he may pay it over to the plaintiff by whose process it was raised, unless other claimants deposit their liens with him...."
It is uncontroverted that at the time Brina Bay made demand, Echols no longer had any of the excess tax sale money. Thus, it was not by neglect or refusal that Echols did not pay the excess funds to Brina Bay. On the contrary, Echols showed good cause why hi; did not pay Brina Bay the excess funds— because he had already paid them to the record owner of the property, the only party who had filed a claim for the funds. Therefore, the undisputed facts, viewed in the light most favorable to Brina Bay, authorized the trial court's grant of summary judgment to Echols.
2. Brina Bay contends that the trial court erred in granting summary judgment
Judgment affirmed.
ANDREWS, J., concurs.
McFADDEN, J., concurs specially.
McFADDEN, Judge, concurring specially.
I cannot fully join Division 1 of the majority opinion, because I believe that the appeal should be resolved under the plain language of OCGA § 15-13-3. I concur in Division 2 and in the judgment.
Brina Bay brought its money rule action against Echols pursuant to OCGA § 15-13-3. Pertinent to this appeal, that Code section applies when a sheriff "fails, upon application, to pay to the proper person or his attorney any money he may have in his hands which he may have collected by virtue of his office." (Emphasis supplied.) OCGA § 15-13-3(a). It is undisputed that Echols, as ex-officio sheriff, had no money in his hands collected by virtue of his office in connection with the tax sale either when Brina Bay applied for the excess tax sale funds or when Brina Bay obtained its interest in the property.
Accordingly, Brina Bay has no claim pursuant to OCGA § 15-13-3 under the plain language of that Code section. Because Brina Bay articulates no other basis for its claim, I believe that this is dispositive of the appeal. I therefore see no need to address, in this case, the propriety of Echols's earlier decision to distribute the excess tax sale funds or the merits of Brina Bay's assertion that Echols's actions amounted to improperly paying a claimant who was first in time rather than first in priority.