Motion,Ex Parte: Penny and Avi, LLC VS Irvin J. Johnson, solely in his capacity as Tax CommissionerEt Al

On September 09, 2022 a Motion,Ex Parte was filed involving a dispute between Penny And Avi, Llc, and Brown, Terry L, Grainger, Richard, Irvin J. Johnson, Solely In His Capacity As Tax Commissioner, Somerset Condominium Association, Inc, for Real Property in the District Court of DeKalb County.

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IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA

PENNY AND AVI, LLC, *
*
Petitioner, * CIVIL ACTION FILE NO:
*
v. * 22CV7940
*
IRVIN J. JOHNSON, solely *
in his official capacity as Tax Commissioner *
of DeKalb County; *
*
*
Respondent, *
*
v. * 6009 Regent Manor
*
TERRY L. BROWN; Any & All Parties *
claiming interest in the excess proceeds *
generated from the September 7, 2021 *
tax sale for property located at *
6009 Regent Manor, *
Parcel ID Number 16 088 04 107. *
*
Third Party Respondents. *
*

MOTION TO ADD PARTY RESPONDENTS

COMES NOW, IRVIN J. JOHNSON, solely in his official capacity as Tax Commissioner

of DeKalb County (“Tax Commissioner”) and files this Motion requesting that an Order be entered

by the Court allowing the Tax Commissioner to add Terry L. Brown; Richard Grainger; Somerset

Condominium Association, Inc.; and Any and All Parties claiming interest in the excess proceeds

generated from the September 7, 2021 tax sale for the property located at 6009 Regent Manor,

DeKalb County, Georgia with Tax Parcel Identification Number 16 088 04 107 as Respondents,

and in support hereof, shows the Court as follows:
1.

Petitioner filed a Petition for Money Rule in regards to excess funds from the September

7, 2021 tax sale for the property located at 6009 Regent Manor, DeKalb County, Georgia with Tax

Parcel Identification Number 16 088 04 107.

Respondent Irvin J. Johnson, DeKalb County Tax Commissioner filed an answer and

Counterclaim for Interpleader in the action.

Respondents Terry L. Brown; and Any and All Parties claiming interest in the excess

proceeds generated from the September 7, 2021 tax sale for the property located at 6009 Regent

Manor, DeKalb County, Georgia with Tax Parcel Identification Number 16 088 04 107 were

identified as interested parties and included in Respondent Irvin J. Johnson’s Counterclaim.

Respondent Irvin J. Johnson commissioned a title report to identify all interested parties

to ensure correct and accurate service upon all parties.

Subsequent to the filing of Respondent Irvin J. Johnson’s Counterclaim, a title report for

the subject property was delivered which indicates Richard Grainger and Somerset Condominium

Association, Inc. may also have claim to excess proceeds generated from the September 7, 2021

tax sale of the property.

Therefore, Respondent Irvin J. Johnson wishes to add Terry L. Brown; Richard Grainger;

Somerset Condominium Association, Inc; and Any and All Parties claiming interest in the excess
proceeds generated from the September 7, 2021 tax sale for the property located at 6009 Regent

Manor, DeKalb County, Georgia with Tax Parcel Identification Number 16 088 04 107, as

respondents in the instant action because these parties may have legitimate interests in the Excess

Proceeds.

ARUGMENT AND CITATION OF AUTHORITY

O.C.G.A. § 9-11-21 provides in part that “{p}arties may be dropped or added by order of

the court on motion of any party or of its own initiative at any stage of the action and on such terms

as are just.” In addition, it is well established that the adding and dropping of parties is within the

discretion of the court. Humble Oil & Ref. Co., v. Fulcher, 128 Ga. App. 606, 197 S.E.2d 416

(1973).

Attached hereto as Exhibit “A” is a true and correct copy of the Certified Title Report

obtained by Respondent Irvin J. Johnson evidencing interested parties.

WHEREFORE, Petitioner moves this Court to enter an Order adding Terry L. Brown;

Richard Grainger; Somerset Condominium Association, Inc; and Any and All Parties claiming

interest in the excess proceeds generated from the September 7, 2021 tax sale for the property

located at 6009 Regent Manor, DeKalb County, Georgia with Tax Parcel Identification Number

16 088 04 107 in the above-styled civil action.

Respectfully submitted, this ____ 28th October
day of __________, 2022.

/s/ Ethan P. Pham
Ethan P. Pham
ethan@npattorney.com
Georgia State Bar No. 221681
NGUYEN & PHAM, LLC
5430 Jimmy Carter Blvd.
Suite 202; 2nd Floor
Norcross, GA 30093
(770) 685-7561 (telephone)
(770) 685-7564 (facsimile)
EXHIBIT “A”
6075 BARFIELD RD NE ∙ SUITE 119 ∙ SANDY SPRINGS, GA 30328
404-214-0190 ∙ FAX 404-978-1604 ∙ WWW.AUGUSTATITLE.COM

Date: October 20, 2022
File No.: 87924
To: Nguyen & Pham, LLC
Client File No.: 6009 Regent Manor #16‐088‐04‐107
RTV: Terry L. Brown subject to the interest of Cecil Grant

Re: 6009 Regent Manor, Lithonia, #16‐088‐04‐107

I N V O I C E

AMOUNT DUE $515.00

Please make payment to Augusta Title, Inc. at the above‐referenced address and include Augusta Title, Inc. File No.
87924 or copy of this invoice for proper credit to your account. Payment is due upon receipt. Amounts not paid
within Thirty Days may be subject to a late fee of 10%. Please be advised that payment due is not contingent upon
closing and therefore, payment is due even if transaction does not close.

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CERTIFICATE OF TITLE
DATE: October 20, 2022

EXAMINED: September 29, 2022, @ 8:00 a.m.

FILE NO: 87924

RTV: Terry L. Brown subject to the interest of Cecil Grant

ADDRESS: 6009 Regent Manor, Lithonia, #16‐088‐04‐107

After careful examination of the records of the hereinafter stated County and State, as properly
indexed, the undersigned does hereby certify to Nguyen & Pham, LLC that good and
merchantable fee simple title to the real estate described in Schedule “A” hereof, subject to the
exceptions, objections, and liens set forth in Schedule “B” hereof, vests in:

TERRY L. BROWN SUBJECT TO THE INTEREST OF CECIL GRANT

by virtue of that certain General Warranty Deed from Richard Grainger, to Terry L. Brown, dated
May 8, 2012, filed for record May 15, 2012, recorded at Deed Book 23033, Page 374, DeKalb,
County, Georgia Records.

Subject to Tax Deed from Irvin J. Johnson, as Tax Commissioner & Ex Officio Sheriff of DeKalb
County, Georgia, to Cecil Grant, dated September 7, 2021, filed for record October 8, 2021,
recorded at Deed Book 29795, Page 390, DeKalb County, Georgia Records; as affected by Initial
Attorney Certification of Barment filed by John Coleman, Esq., filed for record September 19,
2022, recorded at Deed Book 30570, Page 648, DeKalb County, Georgia Records.

SCHEDULE A

SEE EXHIBIT “A” ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE
FOR A COMPLETE LEGAL DESCRIPTION.

CONTINUED . . .

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. . . CONTINUED

Agent File No. 87924

SCHEDULE B

1. MORTGAGES, DEED TO SECURE DEBT, AND OTHER VENDORS LIENS:

A) Deed to Secure Debt from Terry L. Brown, to Richard Grainger, dated May 8, 2012,
filed for record May 15, 2012, recorded at Deed Book 23033, Page 371, DeKalb
County, Georgia Records, in the original principal amount of $36,000.00.

B) Writ of Fieri Facias, in the case styled, State of Georgia, DeKalb County, v. Terry L.
Brown, dated December 31, 2018, filed for record January 14, 2019, recorded at
Lien Book 2126, Page 149, DeKalb County, Georgia Records, in the original amount
of $269.40 plus penalty and costs; Levied July 9, 2021, for Tax Sale; sold September
7, 2021, at Ex‐Officio Sheriff’s Tax Sale to: Cecil Grant, filed for record September
24, 2021, recorded at Lien Book 2430, Page 335, aforesaid records.

C) Writ of Fieri Facias, in the case styled, State of Georgia, DeKalb County, v. Terry L.
Brown, dated December 31, 2019, filed for record January 15, 2020, recorded at
Lien Book 2257, Page 405, DeKalb County, Georgia Records, in the original amount
of $270.72 plus penalty and costs; Levied July 9, 2021, for Tax Sale; sold September
7, 2021, at Ex‐Officio Sheriff’s Tax Sale to: Cecil Grant, filed for record September
24, 2021, recorded at Lien Book 2430, Page 336, aforesaid records.

D) Writ of Fieri Facias, in the case styled, State of Georgia, DeKalb County, v. Terry L.
Brown, dated December 31, 2020, filed for record January 15, 2021, recorded at
Lien Book 2374, Page 399, DeKalb County, Georgia Records, in the original amount
of $314.32 plus penalty and costs; Levied July 9, 2021, for Tax Sale; sold September
7, 2021, at Ex‐Officio Sheriff’s Tax Sale to: Cecil Grant, filed for record September
24, 2021, recorded at Lien Book 2430, Page 337, aforesaid records.

E) Notice of Statutory Lien filed by Somerset Condominium Association, Inc., filed
against Terry L. Brown, dated December 12, 2019, filed for record December 19,
2019, recorded at Lien Book 2247, Page 123, DeKalb County, Georgia Records, in
the original amount of $13,952.60.

CONTINUED . . .

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. . . CONTINUED

Agent File No. 87924

2. TAXES AND SPECIAL ASSESSMENTS:

A) No certification is given for outstanding taxes. For informational purposes only.

Note: 2022 state and county taxes paid September 22, 2022, in the amount of
$520.44. Map Reference No. 16‐088‐04‐107. NOTE: City of Stonecrest
taxes billed with county taxes.

Please call 404‐378‐4475 for DeKalb County water information.

NOTE: A Tax Sale exist on digest for this parcel.

3. OTHER LIENS, OBJECTIONS AND DEFECTS.

A) Rights of parties in possession, if any, other than the owner.

B) The exact location of boundary lines, unrecorded easements, possible
encroachments and other facts or conditions which would be disclosed by an
accurate survey and inspection of property, unpaid utility bills and assessments,
possible liens of architects, laborers or materialmen for improvement of the
property, not filed for record at the effective date hereof, and rights, if any, of
persons who may be in possession under claims not appearing of record; and
Federal bankruptcy proceedings.

C) Restrictions, easements and all questions arising out of zoning laws, ordinances or
regulations.

D) Other Objections and Defects: Other liens of record and any objections or defects
not disclosed herein that are shown of record but are not shown during the
effective dates herein. (If title is in any way based on tax title deed, foreclosure,
or final decree, set out facts fully in separate letter to General Agent or Home
Office for ruling.)

CONTINUED . . .

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. . . CONTINUED

Agent File No. 87924

E) Minerals of whatsoever kind, subsurface and surface substances, including but not
limited to kaolin, coal, lignite, oil, gas, uranium, clay, rock, sand and gravel in, on,
under and that may be produced from the Land, together with all rights, privileges,
and immunities relating thereto whether or not listed in Schedule B. The Company
makes no representation as to the present ownership of any such interests.

F) General or special taxes and assessments required to be paid in the year 2020 and
subsequent years, not yet due and payable. No insurance is afforded for
additional taxes and/or penalties resulting from any reassessment of subject
property.

G) Taxes of special assessments, which are not shown as existing liens by public
records, including, but not limited to water bills and sanitary bills.

H) Rights of redemption in any owner, lienholder, or other party in interest due to
the foreclosure sale of the land by virtue of that certain Tax Deed from Irvin J.
Johnson, as Tax Commissioner & Ex Officio Sheriff of DeKalb County, Georgia, to
Cecil Grant, dated September 7, 2021, filed for record October 8, 2021, recorded
at Deed Book 29795, Page 390, DeKalb County, Georgia Records; as affected by
Initial Attorney Certification of Barment filed by John Coleman, Esq., filed for
record September 19, 2022, recorded at Deed Book 30570, Page 648, DeKalb
County, Georgia Records.

I) Right of any party interest to sue or petition to have set aside, modified or contest
the foreclosure sale or the deed pursuant thereto through which title to the land
insured is derived.

CONTINUED . . .

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. . . CONTINUED

Agent File No. 87924

J) Defects, liens, encumbrances, adverse claims or other matters, if any created, first
appearing in the public records or attaching subsequent to the effective date
hereof but prior to the date proposed Insured acquires for value of record the
estate or interest or mortgage thereon covered by this Commitment:

a) Which are created, suffered, assumed or agreed to by one or more of the
insureds or the holder of the mortgage;
b) Which result in no loss to the insured;
c) Which do not result in the invalidity or potential invalidity of any judicial
or non‐judicial foreclosure of the Mortgage;
d) Known to the insured or the holder of the Mortgage at Date of Policy and
not disclosed to the Company in writing; or
e) Which are released, satisfied, or unenforceable.

K) Protective Covenants, dated October 3, 1972, recorded at Deed Book 2891, Page
321, DeKalb County, Georgia Records, as may be amended from time to time.

NOTE: Provides for Mandatory Homeowners Association.

L) Easement in favor of Georgia Power Company dated October 1, 1929, recorded at
Deed Book 320, Page 294, aforesaid records.

M) Easement in favor of Georgia Power Company, dated October 8, 1929, recorded
at Deed Book 320, page 296, aforesaid records.

N) Easement in favor of Georgia Power Company, dated April 17, 1946, recorded at
Deed Book 649, Page 488, aforesaid records.

O) Easement in favor of Georgia Power Company dated January 2, 1962, recorded at
Deed Book 1735, Page 548, aforesaid records.

P) Easement from Roy T. Summers to Georgia Power Company, dated March 31,
1972, filed for record April 14, 1972, recorded at Deed Book 2801, Page 177,
aforesaid records.

CONTINUED . . .

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. . . CONTINUED

Agent File No. 87924

Q) Easement from Roy T. Summers to DeKalb County, dated December 8, 1971, filed
for record February 11, 1972, recorded at Deed Book 2771, Page 169, aforesaid
records.

R) Easement Agreement between Roy T. Summers and Somerset Association of
Residence Owners, dated October 17, 1972, recorded at Deed Book 2899, Page
16, and at Deed Book 2909, Page 62, aforesaid records.

S) Easement Agreement between Roy T. Summers and Somerset Association of
Residence Owners, dated May 15, 1973, recorded at Deed Book 3004, Page 480,
aforesaid records.

T) All matters disclosed on Plat of Survey recorded at Condominium Plat Book 2, Page
37, aforesaid records.

THIS TITLE REPORT IS CERTIFIED FROM
AUGUST 2, 1971, AT 9:00 A.M., THROUGH SEPTEMBER 15, 2022, AT 8:00 A.M.

SAM F. MAGUIRE, JR.,
ATTORNEY AT LAW
AUGUSTA TITLE, INC.

This Certification contains an electronic signature which assures the same force and effect as an original
signature. Authentication of said signature may be obtained upon request.

Augusta Title, Inc. provides this title report in Certificate format, however, does not make any guarantee
regarding scrivener's errors or errors in the county records and all parties are strongly urged to thoroughly
review the documents provided and the legal descriptions for accuracy.

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Agent File No. 87924

Exhibit "A"

All that tract or parcel of land lying and being a part (known as Residence No. 6009 Regent Manor
of Somerset, DeKalb County, Georgia, and more specifically hereinafter described) of those lands
in Land Lot 88 of the 16th District of DeKalb County, Georgia, the whole of such part of those lands
having been subjected to the Condominium for the ownership (under provisions of the Act of the
General Assembly of the State of Georgia approved April 12, 1963, Georgia Laws 1963 Pages 561
through 575, as heretofore amended, and the same may hereafter be amended for time to time)
by Declaration of Somerset recorded in Deed Book 2891, Page 321, on October 3, 1972, DeKalb
County Records. The precise property herein conveyed is identified and more particularly
described in said Declaration, or in recorded amendments thereto, and in the Phase Two Site
Plan dated May 8, 1973, and recorded at Apartment or Condominium Plat Book 2, Page 37,
DeKalb County Records, as Residence No. 6009 Regent Manor of Somerset, together with all of
the appurtenances thereto, the description as contained in the above mentioned Declaration or
amendment and Phase Two Site Plan (and revised or supplemental Plans) being expressly by
reference incorporated herein and made a part hereof. The interest herein conveyed includes,
without limiting the generality of the foregoing, the percentage undivided interest in the
common areas and facilities of the Condominium known as Somerset computed in accordance
with paragraph VILD of the aforesaid Declaration and as the percentage undivided interest may
change from time to time in accordance with the Declaration. The initial percentage undivided
interest as computed as aforesaid is .9375% and covered floor area in the Residence herein
conveyed for purposes of the formula in the Declaration to determine such percentage interest
is on One Thousand Five Hundred Thirteen. (1,513)

The use for which the residence is intended and the restrictions on its use are as set forth in the
Declaration. This conveyance is made subject, however, to all of the provisions and covenants of
said Declaration, which provisions and covenants are herein incorporated by reference and which
the Grantee assumes and agrees to observe and perform and be bound by.

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Case Info

Judge

Jackson, Asha F. Track Judge’s New Case

Case No.

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Document Filed Date

October 28, 2022

Case Filing Date

September 09, 2022

County

Parties

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