Lynah v

Citizens & S. Bank, 136 Ga. 344, 71 S.E. 469, 1911 Ga. LEXIS 533 (1911). The right to maintain an action for any damage done to property assigned while the property is still in the transferee’s possession is a chose in action under O.C.G.A. § 44-12-20. Benjamin-Ozburn Co. v. Morrow Transf. & Storage Co., 13 Ga. App. 636, 79 S.E. 753, 1913 Ga. App. LEXIS 286 (1913). Although a debtor in a bankruptcy proceeding has no vested title or interest in an exemption at the time of the sale or assignment, the debtor has a “chose in action” and a potential right in the nature of a defeasible title. Eibel v. Mechanics Loan & Sav. Co., 52 Ga. App. 349, 183 S.E. 133, 1935 Ga. App. LEXIS 168 (1935). Where interest in an estate remains in the hands of the administrator, the right of an heir at law to have an interest in the estate is a chose in action. Clark v. Baker, 186 Ga. 65, 196 S.E. 750, 1938 Ga. LEXIS 537 (1938). Limited partnership interest. — Financial payments to which a limited partner is entitled pursuant to statute or the partnership/certificate of formation is a chose in action. Prodigy Centers/Atlanta v. T-C Assocs., 269 Ga. 522, 501 S.E.2d 209, 1998 Ga. LEXIS 622 (1998). Debts as choses in action. — The terms “choses in action” and “debts” are used by courts to represent the same thing when viewed from opposite sides; the chose in action is the right of the creditor to be paid, while the debt is the obligation of the debtor to pay. Water Processing Co. v. Toporek, 158 Ga. App. 502, 280 S.E.2d 901, 1981 Ga. App. LEXIS 2274, rev’d, 248 Ga. 597, 285 S.E.2d 21, 1981 Ga. LEXIS 1110 (1981). A debt is a chose in action, for it is personalty which the person to whom the debt is owed has a right of immediate or future possession, and if possession is wrongfully withheld an action may be brought thereon. Anderson v. Burnham, 12 B.R. 286, 1981 Bankr. LEXIS 3524 (Bankr. N.D. Ga. 1981). 159 A judgment, as a debt of record, is encompassed within the definition of a chose in action. Anderson v. Burnham, 12 B.R. 286, 1981 Bankr. LEXIS 3524 (Bankr. N.D. Ga. 1981). A bank deposit is within the definition of a chose in action. Ellenberg v. DeKalb County (In re Maytag Sales & Serv., Inc.), 23 B.R. 384, 1982 Bankr. LEXIS 3257 (Bankr. N.D. Ga. 1982). The proper way to get at a chose in action is by garnishment. Water Processing Co. v. Toporek, 158 Ga. App. 502, 280 S.E.2d 901, 1981 Ga. App. LEXIS 2274, rev’d, 248 Ga. 597, 285 S.E.2d 21, 1981 Ga. LEXIS 1110 (1981). A bankruptcy debtor’s pre-petition claim constituted a chose in action against which a creditor’s judgment lien did not attach because the creditor did not file a pre-petition garnishment action against it. Jankowski v. Dixie Power Sys. (In re Rose Marine, Inc.), 203 B.R. 511, 1996 Bankr. LEXIS 1615 (Bankr. S.D. Ga. 1996). Attorney at law, who has money or other effects belonging to defendant in the attorney’s hands, is subject to garnishment. Water Processing Co. v. Toporek, 158 Ga. App. 502, 280 S.E.2d 901, 1981 Ga. App. LEXIS 2274, rev’d, 248 Ga. 597, 285 S.E.2d 21, 1981 Ga. LEXIS 1110 (1981). Showing of legal title required for recovery of personalty. — When the plaintiff relies on title to recover possession of personal property wrongfully withheld, plaintiff must show a legal title; a mere equitable title will not suffice. Eibel v. Mechanics Loan & Sav. Co., 52 Ga. App. 349, 183 S.E. 133, 1935 Ga. App. LEXIS 168 (1935). Incomplete present existence of subject matter requires potential of future interest. — If the existence of the subject matter of a present transfer of title in an executed sale is not then actual or complete, it must at least be so potential as to amount to a present right in the vendor to a future interest or benefit. Eibel v. Mechanics Loan & Sav. Co., 52 Ga. App. 349, 183 S.E. 133, 1935 Ga. App. LEXIS 168 (1935). Tort liability for subsequent property owners. — While it appears unfair for a municipality to be liable to subsequent adjacent property owners for any preexisting nuisance to their property, the nuisance is a continuing tort and, to the extent that it is a damage to property interests, would be an assignable chose in action which would pass to successors in title. Hammond v. City of Warner Robins, 224 Ga. App. 684, 482 S.E.2d 422, 1997 Ga. App. LEXIS 215 (1997), cert. denied, No. S97C0897, 1997 Ga. LEXIS 556 (Ga. May 30, 1997). Absent potential existence of subject matter, actual future delivery required. — Where the instrument is merely an executory contract to sell, the parties may be bound, even though the subject matter is known to have neither an actual nor a potential existence, provided the agreement is not merely speculative, but contemplates an actual future delivery of the thing bargained for. Eibel v. Mechanics Loan & Sav. Co., 52 Ga. App. 349, 183 S.E. 133, 1935 Ga. App. LEXIS 168 (1935). Determination of validity of “chose in action.” — The validity of a trust of choses in action created by a settlement or other transaction inter vivos is determined by the law of the place where the transaction takes place. Clark v. Baker, 186 Ga. 65, 196 S.E. 750, 1938 Ga. LEXIS 537 (1938). Criminal statute did not authorize private right of action. — O.C.G.A. §§ 44-12-20 and 51-10-1 did not authorize a mortgage borrower to bring a claim against a loan servicer for theft by conversion based on criminal statutes; the criminal statutes did not create a private right of action, and the borrower was limited to a tort claim for conversion. Stroman v. Bank of Am. Corp., 852 F. Supp. 2d 1366, 2012 U.S. Dist. LEXIS 54677 (N.D. Ga. 2012).