The Georgia Supreme Court rendered a long-anticipated decision on May 20 related to foreclosure procedure in Georgia. The case arose as a result of a recent split of authority in Georgia as to whether a party seeking to exercise the power of sale provision in a security deed must also hold or have a beneficial interest in the underlying promissory note underlying the security deed. Borrowers had been making an argument commonly referred to as “produce the Note”, in which they argued that unless a holder of a security deed also held the underlying promissory note, they could not lawfully exercise the right to non-judicially foreclose on the property subject to the security deed. Continue reading
Establishment of Georgia Business Court
House Bill 239
A BILL to be entitled an Act to amend Title 15 of the O.C.G.A., relating to courts, so as to establish the Georgia Business Court pursuant to the Constitution of this state; to provide for law assistants and other employees; to amend Code Section 45-7-4 of the O.C.G.A., relating to here general provisions regarding salaries and fees, so as to designate a salary for the judge of the Georgia Business Court; to amend Title 5 of the O.C.G.A., relating to appeal and error, so as to make conforming changes regarding appeals; to amend Chapter 4 of Title 9, Title 23, and Code Section 33-39-21 of the O.C.G.A., relating to declaratory judgments, equity, and equitable relief relative to insurance, respectively, so as to make conforming changes regarding equity; to provide for related matters; to repeal conflicting laws; and for other purposes.
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Tenant Protection Law: Effective July 2019
House Bill 346
A bill to be entitled an Act to amend Article 1 of Chapter 7 of Title 44 of the Official Code of Georgia Annotated, relating to landlord and tenant generally, so as to prohibit retaliation by a landlord against a tenant for taking certain actions; to provide for circumstances that are not considered retaliation here; to provide for remedies; to provide for related matters; to repeal conflicting laws; and for other purposes.
Pending Changes in Bankruptcy Forms:
Many of the official Bankruptcy Forms will be replaced with revised versions effective December 1, 2015. Mortgage creditors will be required to use a new Mortgage Proof of Claim Attachment (Official Form 410A) for claims filed after December 1, 2015 and secured by a security interest in the debtor’s principal residence. The new attachment includes the following changes: Continue reading
Douglas v. Troy Bank & Trust Company
In yet another case decided by the Alabama Court of Civil Appeals on August 24, 2012, the Court rejected the common argument often made by borrowers that a foreclosing lender must produce the original promissory note. In the case of Douglas v. Troy Bank & Trust Company, an ejectment action arose following a non-judicial foreclosure by the Bank. The borrowers asserted that the Court did not have subject-matter jurisdiction because the Bank was not a “holder in due course” of the Note or the mortgage nor had the Bank produced the original “wet-ink signature” promissory note and mortgage. The trial court entered judgment in favor of the Bank and the borrowers appealed to the Alabama Court of Civil Appeals. In upholding the judgment of the trial court, the Court of Appeals details the findings of courts in other jurisdictions as to this issue in finding that these “show me the note” arguments lack merit under Alabama law.
Wendel C. White v. Citibank
The Superior Court of Gwinnett County, Georgia has recently ruled on another wrongful foreclosure case dealing with the assignment of a security deed by Mortgage Electronic Registration Systems (MERS) to the foreclosing secured party. The Court held that Georgia law is clear that as the nominee of the originating lender, MERS had the ability and legal authority to transfer and assign the security deed. The Court further held that the borrower lacked standing to challenge the assignment from MERS because he was not a party to the contract. The case is Wendel C. White v. Citibank, N.A., et al., Superior Court of Gwinnett County, 11-A-10818-8.