Burr Alert: Georgia Foreclosure Law in the Wake of Recent Decisions on Residential Mortgage Loans

December 27, 2012

Thousands of wrongful foreclosure lawsuits are filed each year in Georgia against banks, lenders, servicers, foreclosure firms, and other entities involved in the non-judicial foreclosure process for residential mortgage loans.

There has been recent upheaval in Georgia foreclosure law resulting from several key cases decided in 2012. We do not summarize the cases here, but rather seek to analyze their decisions’ impact on Georgia’s non-judicial foreclosure process while we await the Georgia Supreme Court’s response.

Reese v. Provident Funding Associates, LLP, 730 S.E.2d 551, 317 Ga. App. 353 (Ga. Ct. App. July 12, 2012)

In a sharply-divided decision, the majority held, as a matter of first impression, that Georgia’s foreclosure notice statute, O.C.G.A. § 44-14-162.2(a), requires the person or entity conducting a non-judicial foreclosure of a residential mortgage loan to provide the borrower/debtor with a written notice of the foreclosure sale that discloses not only "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" (the language that appears in the statute), but also the identity of the "secured creditor" (not required by the statutory language, but which the majority inferred based on legislative intent). The majority further found that the failure to identify the "secured creditor" in the foreclosure notice renders the notice, and any subsequent foreclosure sale, invalid as a matter of law. The dissenting judges in Reese found that the majority’s holding "amount[ed] to a judicial rewriting of [O.C.G.A. § 44-14-162.2(a)]" to mean that the notice must disclose not only the identity of the person identified in the text of the statute, but the identity of the secured creditor as well.

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