In Georgia, almost all foreclosures are non-judicial, which means the mortgage company does not need to take you to court in order to foreclose.
First Tuesday of the Month. Foreclosure sales in Georgia occur on the first Tuesday of each month on the courthouse steps between the hours of 10:00 AM and 4:00 PM.
30-Day Letter. For most mortgages, notice must be sent to the borrower no less than 30 days before the foreclosure sale date by certified or registered or overnight mail.
4-Week Legal Ad. The foreclosure sale must be advertised in the local legal newspaper once a week, four consecutive weeks prior to the scheduled foreclosure sale date. The notice must include the name, address, and telephone number of the individual or entity who has the full authority to negotiate, amend, and modify all terms of the mortgage.
How can a scheduled foreclosure sale be stopped?
Pay up the arrearage. In most cases, the mortgage company will accept payment of the arrears (and not the full balance due) to stop the foreclosure. Get written confirmation from the mortgage company or foreclosing lawyer that the scheduled foreclosure sale has been cancelled.
Work out a payment arrangement with the mortgage company. The payment arrangement might be a repayment plan, forbearance agreement, loan modification, time for a senior homeowner to pay off the mortgage using the proceeds of a reverse mortgage, or time to sell the home. Get written confirmation from the mortgage company or foreclosing lawyer that the scheduled foreclosure sale has been cancelled.
Sell the home prior to the foreclosure sale. Get an experienced real estate agent. If you have equity, do a "full" sale so that the sale proceeds will pay off the mortgage loan(s) in full, pay the real estate agent commission, and pay you the remaining proceeds. Beware of "short" sales (selling for an amount less than the mortgage balance). Potential problems with a short sale include either (1) being sued for the deficiency amount, or (2) facing potential income tax implications (seek advice from a certified tax specialist about possible exclusions or exemptions from income tax liability).
Enter into a deed in lieu of foreclosure. Consider this option when there is no equity in the home.
Negotiate cash for keys and a move out date. Make sure the exchange is even, and releases you from all liability on the mortgage loan. Otherwise, you could possibly (1) be sued for the deficiency amount (if the mortgage balance exceeds the value of the home), or (2) face potential income tax implications (seek advice from a certified tax specialist about possible exclusions or exemptions from income tax liability).
File bankruptcy before the foreclosure sale and notify the foreclosing lawyer. The bankruptcy may involve a repayment plan to catch up the arrears, a plan to obtain a loan modification, a plan to pay off the mortgage using the proceeds of a reverse mortgage (for seniors), or a plan to sell the home. If you have legal claims arising out of the mortgage loan, you should raise such claims in the context of the bankruptcy. Because bankruptcy law is complex, retain an attorney to represent you.
File a lawsuit in superior court and obtain a temporary restraining order stopping the scheduled foreclosure sale. If you believe you have legal claims arising out of the mortgage loan or scheduled foreclosure sale, talk with a lawyer immediately, especially given the complexities of mortgage and foreclosure law. Potential barriers to a TRO include the tender and bond requirements.
What if a foreclosure sale has already taken place?
After a foreclosure sale, you no longer own the home and the purchaser can file a dispossessory warrant if you fail to vacate after demand to do so. The purchaser at the foreclosure sale is typically the mortgage company but may be an investor.
The post-foreclosure dispossessory process is as follows:
The county marshals may serve you with the dispossessory warrant by posting the warrant on the front door of your home.
Once you have been served, you have seven (7) days to file an answer in court.
Generally, a trial in court is scheduled about a week or so after the answer is filed.
If the judge rules against you, the judge will give you seven (7) days to move.
If you remain in the property after the deadline given by the judge, the county marshals could come at any time without warning and remove you and your family from the property and put all of your belongings out on the street.
Note: If you do not file a timely answer or do not attend the court hearing, the process speeds up and the judge may allow the eviction to proceed without prior notice to you.
Cash for Keys?
In some cases, the buyer at the foreclosure sale may offer cash-for-keys, which typically requires that you move out all of the family belongings and leave the home in broom-clean condition by a certain date. Consider this option if you realistically can comply with the written terms by the deadline provided.
If you believe you have legal claims for wrongful foreclosure, talk with a lawyer immediately. If your goal is to remain in the home, your lawyer will need to act quickly.
Watch out for foreclosure rescue scams!
False savior asks for money to stop the foreclosure, to get a loan mod, and/or to file bankruptcy, but does little or nothing, takes the money and disappears.
False savior offers to lend funds to the homeowner to catch up the arrearage, but tricks the homeowners into transferring the deed over to the crook.
False savior promises to buy but never pays for the home, and either has the homeowner stay in the property under an onerous lease-purchase contract, or the homeowner moves out and the mortgage remains in her name and on her credit report.
Where can you go for legal help?
Home Defense Program, Atlanta Legal Aid Society, (404) 817-7520
Senior Legal Hotline (for seniors age 60 and older), (404) 657-9915 or 1-888-257-9519
Atlanta Bar Lawyer Referral Service, (404) 521-0777
Prepared by the Home Defense Program, Atlanta Legal Aid Society, Inc., May 31, 2012.
GeorgiaLegalAid.org’s mission is to help low-income people navigate the complexities of the court system at the most vulnerable times in their lives through self-help resources when they don’t have access to a lawyer.