THE TENDER PROCESS; STATUTORY AND CASE LAW AUTHORITY

The tender process is supported by many Georgia case and statutes. Below is a
brief summary of the cases and statutes supporting the tender process.
OGCA 13-4-24 provides that [A] tender properly made may be equivalent to
performance. The tender must be certain and unconditional, except for a receipt in
full or delivery of the obligation, and may be made by an agent and to an agent
authorized to receive. The tender must be in full payment of the specific debt, and
not in part, and may be made at any time before trial.
The language in OCGA 13-4-24 was relied upon by the Georgia Court of Appeals
in Lanier v. Romm, 131 Ga. App. 531(1974). The Court in Lanier stated that a
valid tender may be coupled with a demand for the promissory note
Lanier fully supports the tender process and the destruction of the lenders security
interest in the property. Under the provisions of Code section 20-1105, the
borrowers were legally correct in coupling their cash tender with a demand for the
surrender of the promissory note and cancellation of the loan deed because Code
section provides that a tender must be unconditional except for a receipt in full or
delivery of the obligation. As was said by our court in Headnote 4 of Howard
Piano Co. v. Glover, 7 Ga. App. 548, 67 S.E. 277: a tender of money is not
vitiated by being coupled with a demand for a receipt for the amount paid, or, if the
indebtedness be represented by a writing, by being coupled with a demand for the
writing, if extinguished by the payment.
This is in accord with Bourquin v. Bourquin, 120 Ga. 115, 47 S.E. 639, where
beginning at page 119 there is an explanation by the Supreme Court in these
words: (W)here a creditor refuses to accept a proper tender, the claim in not
extinguished, nor is the debtor harmed by the refusal, He still has his money. He
may lend it or use it in business. If, however, he wishes to stop the running of
interest or to prevent the accrual of costs, he must keep the tender good. Civil Code
1895 section 3728. But where the creditor has collateral, mortgage or other form of
security upon the property of the debtor, the failure to accept a lawful tender
discharges the lien which was intended to secure payment. When it has
accomplished its purpose, it ought not longer to be effective against him who has
done all required by the law or the contract to cancel the mortgage or to regain
possession of the pledge. The debtor offers the money for the twofold purpose of
paying his debt and redeeming his property. The creditor, by refusing to accept,
does not forfeit his right to the thing tendered (money), but he does lose all
collateral benefits or securities. Tiffany v. St. John, 5 Lans. 153 (5N.Y. [131 Ga.
App. 536] 314); McCalla v. Cark 55 Ga. 53.
That earlier decision of McCalla v. Clark cited in Bourquin states in its opening
words that Tender of the debtterminates the creditors right to retain possession
of a pledge held as collateral security.
In Bates v. JP Morgan Chase Bank, N.D. Ga. Order on Motion to Dismiss), No.
4:12-CV-43 (Aug. 27, 2012) the United States District Court ruled that under the
terms of the security deed, if a borrower defaults and the lender accelerates the
debt, the borrower has a right to be reinstated if [he] tenders a payment sufficient
to bring his account current. Similarly in Lanier v. Mandeville Mills,183 Ga. 716
(1936), the Georgia Supreme Court stated that where the creditor has collateral,
mortgage or other form of security upon the property of the debtor, the failure to
accept a lawful tender discharges the lien which was intended to secure payment.
When it has accomplished its purpose, it ought not longer be effective against him
who has done all required by the law or the contract to cancel the mortgage or to
regain possession of the pledge. The debtor offers the money for the twofold
purpose of paying his debt and redeeming his property.
In Heath v. Miller, 205 Ga. 699, 701(1949) the Georgia Supreme Court
acknowledged that one who makes a tender may demand the return of the
obligation, which is the promissory note. The Miller Court ruled that The only
legal conditions which may be attached to a valid tender are either a receipt for full
payment or a surrender of the obligation.