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Judicial foreclosure available: Yes
Non-Judicial foreclosure available: Yes
Preferred Method
Non judicial foreclosure through the power of sale
clause in a deed of trust, mortgage or Georgia security deed is preferred.
Judicial Foreclosure
Judicial foreclosure may be done by filing a petition in
Superior Court describing the case, the amount of money owed and the property
to be foreclosed. Upon the filing of the petition, the court will grant a
"rule" directing that the unpaid principal, interest and costs be paid to the
court. The rule must be published two times per month for two months. As an
alternative to publication, the notice can be served on the borrower, the
borrower’s agent, or the borrower’s attorney, at least 30 days before
the money has to be paid in court.
Non-judicial Foreclosure
Although Georgia permits non-judicial foreclosure, such
as sale are in derogation of common law, and therefore, the lender can only
foreclose if the terms and conditions of the loan documents are strictly
observed.
Preliminary Notices
No sale is value unless the sale is advertised and
conducted at the usual time, place and manner in which sheriff’s sales are
conducted in the county in which the real estate is located.
Mailing
A foreclosure notice must be mailed certified mil,
return receipt requested to the debtor no later than 15 days prior to the date
of the foreclosure sale. The time period begins the day the letter is
postmarked. The notice must be mailed to the address given to the lender by
written notice from the borrower. No waiver or release of the rights to notice
is valid if it was signed at the same time as the original loan papers;
however, a quit claim deed conveying title voluntarily in lieu of foreclosure
is valid.
Advertising
The notice must be published once a week for four weeks
proceeding the foreclosure day. Notice must be published in the newspaper in
the county where the sheriff’s sale are normally advertised.
Sale Procedures
The sale itself must be make by public auction on the
first Tuesday of the month between 10:00 am and 4:00 p.m. at the
courthouse.
Deficiency
Under Georgia law, a non judicial foreclosure cannot, by
itself, serve as the basis to pursue a borrower for a deficiency. In order to
obtain a deficiency judgment, a lender must report the sale to the Superior
Court of the county in which the property is located and seek confirmation and
approval of the sale within 30 days after the sale.
Confirmation and Approval of Sale, A Prerequisite to
a Deficiency
The court must hold a hearing before confirming or
approving the sale. The borrower must be given notice at least five days before
the hearing. The borrower must ordinarily be served personally with the notice,
although service by mail can be recognized if the borrower failed to allege
non-receipt of the notice. Before the court can issue an order confirming and
approving the sale, the court will require evidence that the foreclosure sale
price was at least equal to the market value of the property. If it was not,
then the court may not confirm or approve the sale. Also, at the hearing, the
court will pass judgment on the legality of the notice, advertisement and
"regularity" of the foreclosure sale. The court may order a new sale of the
property for good cause. |
