Tuesday, February 24, 2009

Georgia's Non-Judicial Foreclosure Statutes :: Just the Nuts and Bolts

Listed below are the Georgia Statutes relevant to a Non-Judicial Foreclosure. For some reason, I email these out every day or so. So, for those who keep asking for the citations to same, here they are:


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OCGA § 44-14-160. Recording Of Foreclosure And Deed Under Power; Notations Of Sale In Records.

When the holder of a deed to secure debt or a mortgage forecloses the same and sells the real property thereby secured under the laws of this state governing foreclosures and sales under power and the purchaser thereof presents to the clerk of the superior court his deed under power to have the same recorded, the clerk shall write in the margin of the page where the deed to secure debt or mortgage foreclosed upon is recorded the word "foreclosed" and the deed book and page number on which is recorded the deed under power conveying the real property; provided, however, that, in counties where the clerk keeps the records affecting real estate on microfilm, the notation provided for in this Code section shall be made in the same manner in the index or other place where the clerk records transfers and cancellations of deeds to secure debt.

OCGA § 44-14-161. Sales Made On Foreclosure Under Power Of Sale -- When Deficiency Judgment Allowed; Confirmation And Approval; Notice And Hearing; Resale.

(a) When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.

(b) The court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.

(c) The court shall direct that a notice of the hearing shall be given to the debtor at least five days prior thereto; and at the hearing the court shall also pass upon the legality of the notice, advertisement, and regularity of the sale. The court may order a resale of the property for good cause shown.

OCGA § 44-14-162. Sales Made On Foreclosure Under Power Of Sale -- Manner Of Advertisement And Conduct Necessary For Validity.

(a) No sale of real estate under powers contained in mortgages, deeds, or other lien contracts shall be valid unless the sale shall be advertised and conducted at the time and place and in the usual manner of the sheriff's sales in the county in which such real estate or a part thereof is located and unless notice of the sale shall have been given as required by Code Section 44-14-162.2. If the advertisement contains the street address, city, and ZIP Code of the property, such information shall be clearly set out in bold type. In addition to any other matter required to be included in the advertisement of the sale, if the property encumbered by the mortgage, security deed, or lien contract has been transferred or conveyed by the original debtor to a new owner and an assumption by the new owner of the debt secured by said mortgage, security deed, or lien contract has been approved in writing by the secured creditor, then the advertisement should also include a recital of the fact of such transfer or conveyance and the name of the new owner, as long as information regarding any such assumption is readily discernable by the foreclosing creditor. Failure to include such a recital in the advertisement, however, shall not invalidate an otherwise valid foreclosure sale.

(b) The security instrument or assignment thereof vesting the secured creditor with title to the security instrument shall be filed prior to the time of sale in the office of the clerk of the superior court of the county in which the real property is located.
History. Amended by 2008 Ga. Laws 576, OCGA § 1, eff. 5/13/2008.
Amended by 2001 Ga. Laws 266, OCGA § 1, eff. 7/1/2001.

OCGA § 44-14-162.1. Sales Made On Foreclosure Under Power Of Sale -- Mailing Of Notice To Debtor -- "Debtor" Defined.

As used in Code Sections 44-14-162.2 through 44-14-162.4, the term "debtor" means the grantor of the mortgage, security deed, or other lien contract. In the event the property encumbered by the mortgage, security deed, or lien contract has been transferred or conveyed by the original debtor, the term "debtor" shall mean the current owner of the property encumbered by the debt, if the identity of such owner has been made known to and acknowledged by the secured creditor prior to the time the secured creditor is required to give notice pursuant to Code Section 44-14-162.2.

OCGA § 44-14-162.2. Sales Made On Foreclosure Under Power Of Sale -- Mailing Of Notice To Debtor -- Procedure For Mailing Notice.

(a) Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. Such notice shall be in writing, shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor, and shall be sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address or to such other address as the debtor may designate by written notice to the secured creditor. The notice required by this Code section shall be deemed given on the official postmark day or day on which it is received for delivery by a commercial delivery firm. Nothing in this subsection shall be construed to require a secured creditor to negotiate, amend, or modify the terms of a mortgage instrument.

(b) The notice required by subsection (a) of this Code section shall be given by mailing or delivering to the debtor a copy of the notice of sale to be submitted to the publisher.
History. Amended by 2008 Ga. Laws 576, OCGA § 2, eff. 5/13/2008.
Amended by 2001 Ga. Laws 370, OCGA § 6, eff. 7/1/2001.

OCGA § 44-14-162.3. Sales Made On Foreclosure Under Power Of Sale -- Mailing Of Notice To Debtor -- Applicability Of Notice Requirement; Waiver Or Release Of Notice Requirement.

(a) The notice requirement of Code Section 44-14-162.2 shall apply only to the exercise of a power of sale of property all or part of which is to be used as a dwelling place by the debtor at the time the mortgage, security deed, or lien contract is entered into.

(b) The notice requirement of Code Section 44-14-162.2 shall apply to all nonjudicial foreclosure sales under a mortgage, security deed, or other lien contract taking place after July 1, 1981, this Code section being procedural and remedial in purpose.

(c) No waiver or release of the notice requirement of Code Section 44-14-162.2 shall be valid when made in or contemporaneously with the security instrument containing the power of nonjudicial foreclosure sale; but, notwithstanding the requirements of Code Sections 44-14-162.1, 44-14-162.2, this Code section, and Code Section 44-14-162.4, a subsequent quitclaim deed in lieu of foreclosure shall be valid and effective as such.
History. Amended by 2002 Ga. Laws 462, OCGA § 44, eff. 4/18/2002.

OCGA § 44-14-162.4. Sales Made On Foreclosure Under Power Of Sale -- Mailing Of Notice To Debtor -- Recitals In Deeds As To Meeting Of Notice Requirement.

All deeds under power shall contain recitals setting forth the giving of notice in compliance with Code Section 44-14-162.2 or a statement of the facts which render the same inapplicable thereto, which facts may include, without limitation, the nonresidential character of the property. The effect of such recitals shall be to protect the validity of the title of any subsequent purchaser in good faith other than the lender.

OCGA § 44-14-163. Vacation Of Certain Judgments Prior To Sale -- Jurisdiction, Power, And Authority.

When a judgment is rendered upon any obligation secured by a deed to secure debt, a bond for title to realty, or a bill of sale to personalty given under Code Section 44-14-60, the court which rendered the judgment shall have the jurisdiction, power, and authority to vacate and set aside the judgment at any time before the sale of the property described in the deed, bond for title, or bill of sale is made upon the motion of the attorney of the plaintiff in execution and of the attorney of the defendant in execution and the payment of the costs. The jurisdiction, power, and authority to vacate and set aside a judgment as provided in this Code section shall extend to a judgment on a purchase-money note, a conditional sale contract where a title is reserved as security or a bond for title is given, a judgment and decree foreclosing a mortgage, and all other cases where it is necessary under Code Section 44-14-210 to reconvey property to the defendant in execution for the purpose of levy and sale.

OCGA § 44-14-164. Vacation Of Certain Judgments Prior To Sale -- Cancellation Of Execution; Invalidation Of Deed Made For Purpose Of Levy And Sale; Notation On Record.

Whenever a judgment is so vacated and set aside, the clerk of the court in which it was rendered shall mark the fi. fa. issued on the judgment "canceled"; and the clerk of the superior court shall enter the same upon the general execution docket and make thereon an appropriate reference to the order vacating the judgment. Whenever a judgment is vacated and set aside as provided in Code Section 44-14-163, any deed reconveying the property to the defendant in fi. fa. for the purpose of levy and sale shall be automatically canceled and rendered null and void by virtue of this Code section; and the clerk of the superior court shall enter on the record of such deed or reconveyance, when recorded, the word "canceled" and shall make an appropriate reference to the order vacating the judgment.

OCGA § 44-14-165. Vacation Of Certain Judgments Prior To Sale -- Effect.
When a judgment is vacated and set aside as provided by Code Sections 44-14-163 and 44-14-164, the obligation upon which the judgment was rendered, as well as the deed, bond for title, bill of sale securing the same, and other instruments mentioned in Code Section 44-14-163, shall be fully restored in all respects to their original status which existed prior to the commencement of the action in which the judgment was rendered; and thereafter the instruments shall be for all purposes whatsoever legally of force and effect as if an action had not been instituted and a judgment had not been obtained on the obligation.

END

38 comments:

Anonymous said...

Does a bank have to confirm a sale after a forclosure, or do they only confirm when they intend to issue a 1099 for the difference in the sale price and the loan amount or when they are getting a deficiency judgement to sue the debtor for the total loan amount? Can they do both?
Thanks...

Hugh Wood said...

In Georgia a bank (well the forclosing lender -- it could be an individual) has 30 days to seek a deficiency or it is barred. [Contrast TX which is 3 years and (I think) MI which is 6 years]. In this market, most Banks pass on deficiencies.

To have a good and valid foreclosure, they do not need to "confirm," the sale. To chase the borrower for the deficiency, they must file the deficiency suit and get a deficiency judgment.

Anonymous said...

Thanks for your information. By "To chase the borrower for the deficiency" do you mean that the lender is automatically planning a lawsuit to sue for us for the difference or could they be filing the deficiency just to be able to issue us a 1099? Do banks usually get the confirmation they seek? We have received notice of a deficiency suit on a home that we built but could not sell for two years. We can no longer afford the interest payments so the bank forclosed and purchased the house for $375,000.00 Our builder's loan was for $429,000.00. We think the house is worth more than they paid for it.
Do I need to attend this hearing? Should I have a lawyer? I am stressed because I have never been in a sitution like this before. Thanks...

Anonymous said...

Hugh:

What do you consider the definition of "secured creditor" is in § 44-14-162.

Is a servicer a secured creditor?

Is M.E.R.S a secured creditor?

Thanks for your insight!

Anonymous said...

I meant § 44-14-162.2

Hugh Wood said...

If I understand your question, and I may not (seriously), the "lender," would be the Secured Creditor. Technically (hypertechnically) only the Lender has the right to bring the foreclosure action; it may be the lender by sale, etc. For example, say, Citibank funds at closing; later they sell the loan to Wells Fargo who later sells it to Countrwide and it goes into complete default when Countrywide is the Owner. Assume Aurora Loan Servicing or someone services the loan for Countrywide. Who is the "secured party?" Well Aurora has a power of attorney to bring the action and MERS, if they are in the picture, stand around holding a nominee assignment, but the secured party should be Countywide. Assuming the sale and assignemnt transfer is complete between Citi, then Wells Fargo then Countrywide, only Countrywide would be authorized to foreclose. Under the hypo you pose, neither Citi, nor WF, nor Aurora nor MERS could list in their own name (and yes my answer is contrary to the industry standard of MERS listing in its own name). One of these days MERS is going to get badly burned by the Georgia Supreme Court or the 11th Cir Court of Appeals for lack of standing. But, hey time and new legislation, may change the landscape on this/these issues.

Anonymous said...

Hugh:

I agree with your analysis and I respect your opinion.

I also believe sooner rather than later MERS will be challenged for lack of standing.

Anonymous said...

In a MERS loan, MERS is specifically named as the "grantee" under the Security Deed. I would think the specifically-denominated "grantee" of a recorded instrument in Georgia most certainly has requisite standing to exercise foreclosure rights under that instrument. The plaintiff's bar may have drunk the Kool-Aid on this one...

Anonymous said...

Interesting...I respectfully disagree.

As far as I know MERS is not a lender and has never loaned a penny.

How can MERS allege the note to be in default? The MERS process works rather smoothly due to our non-judicial state.

However once challenged in a courtroom the MERS system can be appropriately dissected.

The Supreme Court of Arkansas just ruled last week on this issue against MERS.

Anonymous said...

Not sure I'd trust the creator of this blog...it's not "forelosure"...gotta spell it right first before claiming to know what it is.

Michael said...

Hugh:

Are you familiar with the following code section?

§ 44-14-64. Transfers of deeds to secure debt

(a) All transfers of deeds to secure debt shall be in writing; shall be signed by the grantee or, if the deed has been previously transferred, by the last transferee; and shall be witnessed as required for deeds.

Does this not fly in the face of the MERS Paperless System?

There are exemptions for true creditors and loan servicers, however these would not apply to MERS.

Hugh Wood said...

In Response to Michael: I hear you, but how do you overcome the language in the same statute? "Failure to comply with this provision shall not be a defense to any foreclosure or grounds to set aside any foreclosure of any deed to secure debt."

And, how do you overcome the exceptions to transfer spelled out at OCGA Sec. 44-14-64(d)(1)-(3)?

Michael said...

Hugh:

§ 44-14-64. Transfers of deeds to secure debt

(g) A transfer of a deed to secure debt shall not be recorded unless it includes the mailing address of the last transferee thereof. Failure to comply with this provision shall not be a defense to any foreclosure or grounds to set aside any foreclosure of any deed to secure debt.

My reading of section G leads me to believe the language "Failure to comply with this provision shall not be a defense to any foreclosure or grounds to set aside any foreclosure of any deed to secure debt" is only applicable to section G.

And, how do you overcome the exceptions to transfer spelled out at OCGA Sec. 44-14-64(d)(1)-(3)?

The relevant section reads " by a financial institution having deposits insured by an agency of the federal government or a transfer by a lender who regularly purchases or services residential real estate loans aggregating a minimum of $1 million secured by a first deed to secure debt encumbering real estate improved or to be improved by the construction thereon of one to four family dwelling units, where the transferor retains the right to service or supervise the servicing of the deed or interest therein, need not be recorded if:"

So to qualify for the exemption one must satisfy one of the two requirements below.

1. Have deposits insured by a agency of the Federal Government

2. lender who regularly purchases or services residential real estate loans aggregating a minimum of $1 million secured by a first deed to secure debt.

Judicial estoppel would prevent MERS from pleading they are a lender or servicer and MERS certainly does not have deposits insured by a Federal Agency.

Therefore MERS is required to record every transfor on their paperless system that is between entities that do not qualify for the exemptions previously stated.

If my theory is correct then most if not all MERS Security Deeds are lacking an assignment or two that is not recorded in violation of the statute and the last recorded MERS assignment has the legal effect of transferring nothing.

What do you think?

joyful said...

Joyful
Home 123 funded (2yrs ago)MERS is nominee/mortgagee. later we are paying New Century and then later the service is transfer to America's servicing. 1 month ago MERS(as assignor) assigns the mortgage to Bank National Trust as Indenture trustee for New Century(bankrupt, subprime).
Who is the party of interest. I am kind of confused.Help

Hugh Wood said...

To Joyful: Good Question. I happen to know from private litigation that New Century has sold/auctioned (whatever) all of its Georgia Properties and those properties are no longer subject to the Stay in Bankruptcy in Delaware. B/c GA does not have a place to challenge the Real Party in Interest, you will either have to file suit first (a very expensive proposition) or suffer the consequenses. Even in the prefiling the parties can't show they are current. If you go into BK, you may be able to raise the issue in opposition to a Lift the Stay Motion. HCW

joyful said...

Hugh
Thank you
Mid 2006 it got sold to America's Servicing claim - does it make any difference.

Don Schultz said...

I understand that in Georgia the lender has 30 days following a foreclosure to go after the borrower for a dificiency.

Does this 30 day time limit apply to the bank going after a personal guarantor as well? Or is the bank not subject to the 30 day time limit when pursuing a deficiency judgment against a guarantor?

Denise said...

Hugh,

What GA statues are there for homeowner defense in Foreclosure? For the life of me I am trying to figure this thing out. I filed Chapter 7 and asked my atty to oppose the relief from Stay and they ignored me. should aty's represent their clients best interest pro bono or not? Now I am working on filing "adversary proceeding" in BK court. Please share caselaw for Standing and any cases/rulings/judgements known in GA on behalf of the homeowner. Anything I can use in Georgia BK civil court?

I know this will help others who are in GA, fighting to keep shelter for their families, make informaed decisions kowing possible defense for their situation.

Chipmunk said...

Hugh
My husband borrowed money from a mortgage broker for a refi. The broker had borrowed money to lend to my husband from his bank.When the note went into default the broker started the foreclosure process. We discovered by chance that our broker had reassigned the note and deed to secure debt to his bank the same day he had made my husband the loan. Can he legally foreclose or does the bank holding title have to do it?

Hugh Wood said...

To Chipmumk: Probably the "Broker" can foreclose. Check the Assignment on www.gsccca.org Assuming a proper assignment (which I suspect exists) then, yes, he/they/the bank can foreclose. Hugh Wood

Chipmunk said...

Thanks. I checked the title. It appears by book and page that he just refiled a copy of the original assignment made to the bank. Nothing new showing assignment to him.

Chipmunk said...

Oops, book and page number was on original deed to secure debt document

Network Jones said...

American Servicing Corp is trying to foreclose on a loan that was originally created by Allison Mortgage. There is not any filing showing the transfer to ASC or who the "investor" is for the current loan. ( I can’t do a loan mod because the 'investor' prohibits it. I heard that GMAC might be the investor.)

Does this violate 44-14-162(b) ?

Brian said...

Mr. Wood:

In order to send a 1099 to a borrower for forgiven debt based on a foreclosure, does the lender first have to confirm the foreclosure sale in order to determine that fair market value was received at the foreclosure sale? If not, can the borrower challenge the fair market value listed in the 1099? Thank you for your consideration.

Brian

Hugh Wood said...

In Response to "Brian"

From the IRS:

The Mortgage Forgiveness Debt Relief Act and Debt Cancellation If you owe a debt to someone else and they cancel or forgive that debt, the canceled amount may be taxable.

The Mortgage Debt Relief Act of 2007 generally allows taxpayers to exclude income from the discharge of debt on their principal residence. Debt reduced through mortgage restructuring, as well as mortgage debt forgiven in connection with a foreclosure, qualifies for the relief.

This provision applies to debt forgiven in calendar years 2007 through 2012. Up to $2 million of forgiven debt is eligible for this exclusion ($1 million if married filing separately). The exclusion does not apply if the discharge is due to services performed for the lender or any other reason not directly related to a decline in the home’s value or the taxpayer’s financial condition.

More information, including detailed examples can be found in Publication 4681, Canceled Debts, Foreclosures, Repossessions, and Abandonments. Also see IRS news release IR-2008-17.

The following are the most commonly asked questions and answers about The Mortgage Forgiveness Debt Relief Act and debt cancellation:

What is Cancellation of Debt?
If you borrow money from a commercial lender and the lender later cancels or forgives the debt, you may have to include the cancelled amount in income for tax purposes, depending on the circumstances. When you borrowed the money you were not required to include the loan proceeds in income because you had an obligation to repay the lender. When that obligation is subsequently forgiven, the amount you received as loan proceeds is normally reportable as income because you no longer have an obligation to repay the lender. The lender is usually required to report the amount of the canceled debt to you and the IRS on a Form 1099-C, Cancellation of Debt.

Are there any publications I can read for more information?
Yes.
(1) Publication 4681, Canceled Debts, Foreclosures, Repossessions, and Abandonments (for Individuals) is new and addresses in a single document the tax consequences of cancellation of debt issues.

(2) See the IRS news release IR-2008-17 with additional questions and answers on IRS.gov.

Hugh Wood

greg said...

mr wood.i foreclosed on a property in dec of 2010.and the property was sold to the bank on the courthouse steps.it is now march i have not received a deficiency on the property.but i did find out that within 30days of the sale the banks attorney filed paper work stating they foreclosed.and now i am getting a notice that there is a confirmation notice hearing on the foreclosure.so my question is.i thought the bank had 30 days from sale of property to file a deficiency.or because they filed paper work within 30 days of the sale.it keeps the option of a deficiency after the comfirmation hearing.it is very confusing because there are so many conflicting answers to this.could they have given me a deficiency notice without the confirmation hearing.so now its 3 months since i foreclosed.i did receive form 1099A.sorry if i confused you in this statement.would like to no your opinion.has to much time passed for a deffi,,judgement..greg

Hugh Wood said...

To Greg: I gather you were forclosed on in Dec of 2010. The Bank filed within 30 days, but the hearing is now in March 2011 on the deficency. There is somelaw against the bank. However, I have always considered that the bank's filing within 30 days preserves the Def. Judgment hearing.

Anonymous said...

Hugh,
Can the bank that holds a HELOC that was used to purchase a house come after me with a deficiency judgement?
If so, what is the likelihood of this happening nowadays?

Hugh Wood said...

Reply to HELOC. Yes. Unknown without more facts. I will say that the lost HELOC is somewhat less likely than either the 1st or 2nd chasing you (it is much like a 2nd).

Anonymous said...

I am not in foreclosure do I have legal standing to challenge MERS standing to act as a corporate fiduciary (Grantee) in my Security?, I you answer yes, do I have to prove that I've been harmed due to MERS illegal act and how would such harm be proved?

Anonymous said...

I am not in foreclosure do I have legal standing to challenge MERS standing to act as a corporate fiduciary (Grantee) in my Security Deed?, If you answer yes, do I have to prove that I've been harmed due to MERS illegal act and how would such harm be proved?

Anonymous said...

How often have you seen banks like Citibank suing for default judgement a homeowner who has a income of less than 50K?

Emeka Ohuche said...

Hugh, I have 3 questions regarding Fannie Mae's involvement as the investor / loan purchaser. 1. Fannie Mae claims that it can give the servicing company - in my case Bank of America the right to foreclose. If indeed Fannie Mae is the secured creditor, is this true under Georgia Law? 2. Also, if Fannie Mae is the Note Holder and Bank of America holds the security deed and Bank of America is able to foreclose, will this be akin to Fannie Mae selling its secured interest to Bank of America seeing that Bank of America is the holder of the security deed but has no rights to the note? 3. Finally, is it true that if a party sells the note and retains the security deed, then forecloses on the security deed - that the debt has become unsecured? I have been looking for evidence of what happens when the note and security deed are separated at the time of foreclosure

Hugh Wood said...

Most of your questions are answered on Fannie Mae (FNMA) website. Go see: http://www.fanniemae.com/resources/file/debt/pdf/debt_library.pdf Federal law trumps Georgia law, if Federal law speaks to the issue in question. See, federal preemption. 1. If either one owns the Security Deed (SD) then yes, either directly or by assignment. 2. Yes, apparently according to federal law. Though, I have my doubts about the stated “facts.” 3. Hypertechnically, no. Go read about FNMA’s right to strip, sell strips, sell note(s), etc. And, the SD holder can always go back (assuming the Foreclosure has not occurred and combine them). GA has one of the shorted confirmation action times (30 days). If there is a foreclosure striped from the note and no confirmation, I would challenge the Note holder on extinguishment. It is a grey area in the law; sorry, need more facts. But, as always, if you are not behind on your payments, the creditor cannot foreclose or call the note.

Anonymous said...

Hugh, my rental allegedly foreclosed June 2011,and tenant paid the servicer rent and until 12/2012. The house is still in my name at the County Records office. I am concern of liability and want to know if there are steps I can take to get the house back?

Hugh Wood said...

As to post of January 25, 2013, I cannot answer the question w/o looking at the land title. email me the DP/page of the security deed and the county and maybe I can answer your question. hughwood@mindspring.com

You wrote: Anonymous said...

Hugh, my rental allegedly foreclosed June 2011,and tenant paid the servicer rent and until 12/2012. The house is still in my name at the County Records office. I am concern of liability and want to know if there are steps I can take to get the house back?

Anonymous said...

Hugh,

After the Court has confirmed the foreclosure, how long does the bank have to file a suit to collect the deficiency?

Thanks.

Anonymous said...

Does GA require a physical presence within the state to act as the foreclosing trustee?