By: E. Carson Lange
A previous post discussed the non-judicial foreclosure procedure used in Georgia. This post discusses the steps that a Florida bank doing business in Georgia, or with clients owning property in Georgia, must take to obtain a deficiency judgment against the debtor.
A power-of-sale foreclosure is truly non-judicial; the procedure does not contemplate any involvement of a judge or clerk, to “approve” the sale or otherwise. That is, unless the bank wishes to pursue a deficiency judgment. A deficiency action in Georgia is not non-judicial and actually comprises two court proceedings.
The first of these is to obtain an order confirming the sale.
To do so, the bank must file a “Report of Sale and Petition for Confirmation” within 30 days of the sale. The Report and Petition must be filed with a judge of the superior court of the county in which the sale took place. It is important to note that the Report and Petition should be submitted to the judge personally, rather than simply filed with the clerk. Courts have found that submitting to the judge’s secretary in chambers is sufficient, but it is a good idea to call chambers well ahead of the 30-day deadline in order to determine the judge’s availability and preferred method of submission.
The Report and Petition should address the particulars of notice, publishing, and the sale itself. It should aver that the Notice of Sale was provided to the debtor and published in accordance with applicable statutes, that the sale was conducted in accordance with applicable statutes, and that the sale brought the fair market value of the property.
The Report and Petition does not need to be served on the debtor.
Concurrently with the Report and Petition, the bank should also submit a proposed order setting a hearing on the Report and Petition. The subsequent order must be personally served on the debtor, together with any other party that may be liable for the debt, at least 5 days before the scheduled hearing. Note that the order setting a hearing must emanate from the judge, rather than the bank or its counsel.