STATUTORY NOTICE REQUIREMENTS FORECLOSURE
When a lender seeks to conduct a foreclosure sale of secured property in Georgia, the lender is required to follow a codified procedure for notifying the borrower of its intent to foreclose.
Georgia Code Section 44-14-162.2 requires that a lender notify the borrower, in writing and by registered or certified mail, at least thirty days before it proposes to sell the property at foreclosure. Prior to its 2008 amendment, the Georgia Code required only fifteen days’ notice to the borrower of the lender's intent to foreclose.
The written notice should identify an individual (by name, address, and telephone number) who has authority to negotiate the loan on the lender's behalf and should include a copy of the foreclosure advertisement. The notice should be sent to the property address unless the borrower has designated some other address, in writing, to the lender.
Failure to provide the required notice should lead the court to set aside a foreclosure sale, to refuse to confirm a foreclosure sale, and potentially to hold the lender liable on a claim by the borrower for wrongful foreclosure.
A few keys points from interpretative case law:
- In the event that the property has been sold subject to the lender's security interest, statutory notice should be sent to the current owner of the property encumbered by the debt if the owner is known to the lender. Roylston v. Bank of America, N.A., 290 Ga. App. 556, 660 S.E.2d 412 (2008).
- The required notice is complete upon mailing, whether or not the borrower actually received the notice. McCollum v. Pope, 261 Ga. 835, 411 S.E.2d 874 (1992).
- The notice should be sent to the property address unless another address is designated by the borrower in writing. Georgia courts have held that the notice must be sent to the property address even if the bank knows that the borrower has moved or if the borrower has orally requested that notice be sent to a different address. Colbert v. Branch Banking & Trust Co., 302 Ga. App. 687, 691 S.E.2d 598 (2010); Zeller v. Home Fed. Sav. & Loan Ass'n of Atlanta, 220 Ga. App. 843, 471 S.E.2d 1 (1996).
- A borrower designates another address if he lists another address as his contact address in the loan documents. Colbert v. Branch Banking & Trust Co., 302 Ga. App. 687, 691 S.E.2d 598 (2010). A recent decision held this true even where the borrower listed a nonexistent address in the loan documents. Jackson v. Bank One, 287 Ga. App. 791, 652 S.E.2d 849 (2007).
- The notice requirement does not apply to foreclosure of unimproved property. Stepp v. Farm & Home Life Ins. Co., 222 Ga. App. 257, 474 S.E.2d 108 (1996).