In last March's edition of this newsletter, we discussed the Supreme Court of Georgia's decision in PNC Bank, National Association v. Smith, in which the Court held that compliance with O.C.G.A. § 44-14-161 "is a condition precedent to the lender's ability to pursue a guarantor for a deficiency after a foreclosure has been conducted, but a guarantor retains the contractual ability to waive the condition precedent requirement."¹

In other words, the Supreme Court has made it clear with its ruling in PNC Bank that the confirmation requirement can be waived. Two recent decisions by the Georgia Court of Appeals have followed PNC Bank, affirming the grant of summary judgment by lower courts on the issue that a lender has the right to pursue its guarantors for a post-foreclosure sale deficiency balance, notwithstanding the results of the foreclosure sales were not confirmed, based upon the contractual waivers in the operative guaranty agreements. Additionally, the United States District Court for the Northern District of Georgia has recently followed PNC Bank in granting summary judgment to a lender on a post-foreclosure deficiency balance where confirmation had been previously denied.

Download the full article, "Burr Alert: "Alakazam"(or not): No Magic Language Necessary for Confirmation Waivers as Georgia Courts Continue to Allow Deficiency Suits Against Guarantors in the Absence or Denial of Confirmation" by Erich N. Durlacher and Kelly E. Waits.