Green v. COHUTTA BANKING COMPANY

156 Ga. App. 292 (1980) 274 S.E.2d 688

GREEN et al.
v.
COHUTTA BANKING COMPANY.

60814.

Court of Appeals of Georgia.

Submitted October 9, 1980. Decided October 30, 1980.

J. W. Yarbrough, for appellants.

William W. Keith, III, Henry Tharpe, for appellee.

BANKE, Judge.

The appellants sought damages from the appellee bank for failure to cancel a deed to secure debt after the underlying indebtedness had allegedly been satisfied and for libel for placing foreclosure notices in the newspaper accusing them of having defaulted on the indebtedness. The appellants did not own any interest in the property in question, as prior to the alleged satisfaction of the indebtedness they sold their interest to a third party, who assumed liability for it. This appeal is from an order granting summary judgment to the bank. Held:

1. Code Ann. § 67-2902 imposes upon the holder of a deed to secure debt an obligation to transmit either to the grantor or to the clerk of the superior court where the deed is recorded, within 45 days of the date of full payment of the indebtedness, "a legally sufficient satisfaction or cancellation to authorize and direct the said clerk or clerks to cancel such instrument of record." The penalty for failure to comply with this obligation is $200 plus actual damages. However, liability does not arise "unless and until written demand for said transmittal as provided herein is made."No such a demand was ever made in this case. Thus, even assuming arguendo that a person would have standing under this Code section to make a claim for damages with respect to land to which he does not have title, it is clear that the appellants do not have a valid claim for relief.

2. We similarly find no basis for a libel action. The offending language from the advertisement is as follows: "Default having been made in payment on a certain promissory note as evidenced and secured by a warranty deed to secure debt executed and delivered by [the appellants]... and said debt having been assumed by James G. Hawkins as per the terms of a certain warranty deed from [the appellants] to James G. Hawkins ..." The appellants' assertions to the contrary notwithstanding this language does not accuse them of defaulting on the indebtedness.

Judgment affirmed. McMurray, P. J., and Smith, J., concur.