Georgia state statutes regulate foreclosures on real property within the state. A foreclosure action allows a lender to seize and sell property in which it has a security interest, if the loan involved is defaulted on by the debtor. Usually the taking of the property is the full consequence. However, state law also allows the lender to sue the debtor for monetary damages in certain circumstances.
Georgia Foreclosure
State law allows lenders to use a power of sale clause in either the mortgage or trust deed document. This allows a lender who is defaulted on by the debtor to take nonjudiciary foreclosure action. This action involves no court proceeding and is faster and cheaper for the lender than a formal judiciary foreclosure action. The law requires specific notice and procedural steps be followed for a nonjudiciary foreclosure to be valid. The lender's remedy is limited to seizing and selling the foreclosed property. If the lender wants money directly from the debtor, he has to sue the debtor in a court action.
Deficiency Judgment
One basis for a foreclosing creditor to sue the debtor is to obtain a deficiency judgment. This happens when the foreclosed property is sold by the lender and the amount of money realized from the sale is less than the amount owed on the loan. The difference between the loan amount and sales price is called a deficiency. The lender must sue the debtor in a formal court action to secure a deficiency judgment and must comply with state legal regulations to do so.
Confirmation of Sale
The lender seeking a deficiency judgment must first ask for a confirmation of the sale by the court within 30 days after the sale takes place. Failure to meet this time requirement permanently blocks the lender from seeking a deficiency judgment. A hearing is required for the confirmation and the debtor has to be served with a notice of the hearing at least five days in advance. The debtor is allowed to be at the hearing and present evidence. The court will not confirm the sale if it determines that the property was sold for less than fair market value or if the required foreclosure regulations were not properly followed. If the court does not confirm the sale, a deficiency judgment can not be obtained.
Defaulted Loan Judgment
If the sale is confirmed by the court, the lender must then file and win a suit against the debtor to receive a deficiency judgment award. This judgment can be enforced against the debtor by the lender seizing and/or selling other assets of the debtor. A second mortgage lender of a property foreclosed on by a first mortgage lender, can directly sue the debtor for the defaulted loan amount of the second mortgage, without needing a sales confirmation. However, state law usually does not allow this if the same lender holds both the first and second mortgage. A debtor filing for bankruptcy before the issuing of any kind of judgment will preclude the awarding of a judgment.
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