IN THE MAGISTRATE COURT OF GWINNETT COUNTY

THE STATE OF GEORGIA

MOTION AND DECLARATION TO VACATE JUDGMENT

            NOW COMES, the Defendant SANG LEE, prays this Honorable Court to vacate the renewal of FIERI FACIAS filed within Seven (7) years from the default judgment was ordered against Defendant on September 14, 2012.

1. Relief requested.

The Defendant moves the court for an order vacating the judgment entered in the above-mentioned action 12-M-18640 and declare any enforcement of the writ of                                         FIERI FACIAS “dormant” until the motion can be heard.

• Statement of facts and issues.

This motion is based on the following grounds:

1. Creditor’s failure to notify the Debtor properly about THE HEARING, especially about the renewal of the lien.
2. The default judgment was entered even though Defendant had never had any               notice about the hearing.
3. Defendant never had any fair chance to defend himself.

STATEMENT OF FACTS AND ISSUES.

            After 7 years, the Creditor filed the revival on January 14, 2019, prior to the expiration day on September 14, 2019. While CREDITOR’s judgment is good for seven years, they must take certain action before the expiration of seven years to keep their judgment enforceable.

            On January 14, 2019

, 8 months prior to the last day of 7 years, there was no record that CREDITOR served a petition to renew the Default Judgment and its respective FIFA pursuant to OCGA § 9-12-60 et seq. CREDITOR failed

to meet the procedural requirements of OCGA § 9-12-63.

LEGAL ARGUMENTS

1. The Creditor’s Petition violated OCGA § 9-12-63. It was not signed by the Clerk of the Court.

            According to OCGA § 9-12-63, “[a] Petition to revive a dormant judgment in the courts must issue from and be returnable to the court of the county in which the judgment was obtained. It shall be directed to all and singular the sheriffs of this state and shall be signed by the clerk of such court who shall make out copies thereof. (Emphasis added).     According to OCGA § 18-3-31, “[i]n all cases it shall be the duty of the officer levying attachments to levy them in the order in which they come into his hands, and it shall be his duty to enter upon the same the year, month, day, and hour on which he made the levy. The house was never recorded. Where the levy is upon land, the attachment must be entered on the execution or attachment docket by the clerk of the superior court in order to be good against third persons acting in good faith and without actual notice.

            In the instant action, there was a signature by Deputy Sheriff on Creditor’s Petition, but there was no signature by the Clerk. The provision expressly requires the Court Clerk to Sign the Petition, but not to affix a stamp.

1. The Creditor did not send Defendant a copy of the Petition.

             “[a]t the time of filing of record of his claim of lien, the Creditor shall send a copy of the claim of lien by registered or certified mail or statutory overnight delivery to the owner …” O.C.G.A. 44-14-361.1(a)(2) (emphasis added).  Further, “no later than two (2) business days after the date the claim of lien is filed of record, the Creditor shall send a true and accurate copy of the claim of lien by registered or certified mail or statutory overnight delivery to the owner of the property or if the owners address cannot be found, the contractor as the agent of the owner.” Id. (Emphasis added).

            “To make good the liens specified in … [O.C.G.A. §] 44-14-361, they must be created and declared in accordance with the following provisions, and on failure of any of them the lien shall not be effective or enforceable: (1) A substantial compliance by the party claiming the lien with his contract… (2) The filing for record of his claim of lien within three months after the completion of the work . . . (3) The commencement of an action for the recovery of the amount of the party’s claim… In addition, … the party claiming the lien shall file a notice with the clerk of the superior court of the county wherein the subject lien was filed…” O.C.G.A. § 44-14-361.1(a)(1), (2), (3) (emphases added); see also, e.g., Palmer v. Duncan Wholesale, Inc., 262 Ga. 28, 29-30, 413 S.E.2d 437, 438-39 (1992); Calhoun/Johnson Co. v. Houston Family Trust No. 1, 236 Ga. App. 793, 795, 513 S.E.2d 759, 761 (1999); Ragsdale v. Chiu (In re Harbor Club, L.P.), 185 B.R. 959, 963 (Bankr.N.D.Ga. 1995) (noting O.C.G.A. § 44-14-361.1(a)(3)’s “mandatory procedure” for providing notice).

            Creditors filed a claim of lien on or after March 31, 2009 and failed to send a copy of the claim of lien to the owner or contractor via certified mail (registered mail or statutory overnight delivery) within two (2) business days of filing.Besides, the Creditor had time to travel to the post office that day but failed to do so, and consequently killed the lien. As a result, Creditor failed to send a copy of the lien at the time of filing. Accordingly, the lien is INVALID.

1. Creditor’s Notice of Suit failed to adhere to the required standards.

      Once the party filing the lien has successfully filed suit, there is one final step to perfecting his or her lien: preparing and filing a notice of suit. The notice of suit must be filed in the county where the property is located, be signed under oath, and recite certain required information. If the notice of suit is not filed or does not contain all the required information, the lien becomes invalid.

            As set forth in O.C.G.A. 44-14-361.1(a)(3) and (4), a notice of suit must contain the following information to be valid: (1) the name of the correct property owner; (2) a legal description of the property liened; (3) the deed book and page number of the lien; and (4) the name of the party who filed suit, where they filed suit, the style of the suit filed, the number of the suit filed, and the date the suit was filed.

Besides, the new lien statute (effective March 31, 2009) changes the time period for filing the notice from fourteen (14) days to thirty (30) days, October 14, 2012.

            In the instant action, the notice of suit is invalid because at least one of the above requirements was not performed.

CONCLUSION

            For the reasons stated herein, Defendant respectfully requests that the Court enter an Order vacating the renewal of FIERI FACIAS, and any such other relief as the Court deems just and equitable.

Respectfully submitted,

CERTIFICATE OF MAILING

Defendant affirms that a copy of the above was served upon the Plaintiff to this action by electronic and/or U.S. mail to her respective address as stated below:

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