Georgia’s 30-Day Foreclosure Notice: What It Must Say and What to Check

In Georgia, a home can be sold at foreclosure without a judge ever looking at the file. The security deed most homeowners signed at closing gives the lender a power of sale, and the lender exercises it on the courthouse steps. The one document the law requires the foreclosing party to send the homeowner before that happens is a written notice, mailed at least 30 days before the sale date (O.C.G.A. § 44-14-162.2).

Most people who receive that letter read it as a countdown. It is also where the foreclosing side commits in writing to who holds authority over the loan, and the attorney’s letter that usually travels with it commits to an amount. Those statements can be checked against the public record and against the loan’s own payment history, and the 30 days are the window to do it.

When the 30 days start

The notice is treated as given on the day of the official postmark, or the day a commercial delivery company receives it for delivery. The clock runs from the postmark, so a letter that sat at the post office for a week has already used a week of the 30 days. The first thing to write down is the postmark date on the envelope, and the next is the sale date printed in the notice.

What the notice has to contain

Georgia’s statute sets four requirements for the letter itself:

1. It is in writing, states that proceedings to exercise the power of sale have begun, and goes out no later than 30 days before the proposed sale.
2. It names the party with full authority to negotiate, amend and modify all terms of the mortgage, with that party’s name, address and telephone number.
3. It travels by registered or certified mail, or statutory overnight delivery, with return receipt requested. First-class mail alone does not meet the statute.
4. It goes to the property address, or to another address you designated to the lender in writing. It must include a copy of the notice of sale that the foreclosing party submits to the newspaper.

The second requirement carries the most weight. In You v. JP Morgan Chase Bank (2013), Georgia’s Supreme Court held that the holder of the security deed can foreclose without holding the promissory note, and that the notice must identify the individual or entity with full authority to negotiate, amend and modify the loan’s terms. The notice does not have to name the secured creditor (summary of the ruling). In most files the party named is the servicer. Its name should match your monthly statements, and the party advertising the sale should match the last assignment recorded in your county.

The statute also says the creditor is not required to negotiate or modify the loan because it sent the notice. The statute leaves the decision to use that authority with the party named.

The notice often arrives with a second letter from the lender’s attorney. Under O.C.G.A. § 13-1-11, that letter gives you ten days from receipt to pay the principal and interest owed without also owing the attorney’s fees the security deed allows. Keep it with the notice, because it shows the amount the foreclosing party claimed on that date.

How the sale has to be advertised and held

A power of sale is valid only when the sale is advertised and held the way sheriff’s sales are in the county where the property sits (O.C.G.A. § 44-14-162). In practice that means:

• The notice of sale runs in the county’s legal newspaper once a week for the four weeks before the sale.
• If the advertisement gives the property’s street address, city and ZIP code, they appear in bold type.
• The sale happens at the county courthouse on the first Tuesday of the month, between 10 a.m. and 4 p.m. When that Tuesday is New Year’s Day or July 4, the sale moves to Wednesday (Nolo).

One more requirement in the same statute matters for every loan that has been sold. The security deed, or the assignment that put it in the foreclosing party’s hands, has to be filed with the clerk of the superior court in your county before the sale. A loan that passed through several companies should show a recorded assignment trail that ends with the party now advertising the sale. A gap in that trail is a filing defect under the statute. An assignment signed and recorded in the days before the sale meets the filing deadline, and its signer, signing date and notary block are worth comparing with the assignments recorded before it.

What to check in the 30 days

The notice, the newspaper advertisement and the county record together describe the sale the foreclosing party intends to hold. Each of these checks compares what it has said against what the record shows.

1. The dates. Count from the postmark to the sale date. Confirm the sale falls on a first Tuesday and that the advertisement ran in the four weeks before it.
2. The delivery. Look at how the letter came. Registered, certified or statutory overnight delivery with a return receipt is what the statute requires, sent to the property or to an address you gave the lender in writing.
3. The name. The party named as having full authority should match the servicer on your monthly statement, and the party advertising the sale should match the last recorded assignment. When either pair does not match, put the question to the servicer in writing.
4. The assignments. Search the real estate records of the superior court clerk in your county for your security deed and every assignment recorded after it. Georgia’s clerks share an online index through the GSCCCA, and every clerk’s office has public terminals. The last recorded assignment should run to the party foreclosing.
5. The amount. Ask the servicer in writing for a payoff statement and a reinstatement figure. Federal rules require a servicer to send an accurate payoff statement within seven business days of a written request. For a loan in foreclosure the rule allows a longer reasonable time, so make the request the day the notice arrives. No federal deadline applies to the reinstatement figure, so date that request and keep a copy. Compare both figures with your payment history, line by line: payments received, late fees, inspection and property preservation charges, attorney’s fees and escrow advances.

Put errors on the record before the sale

When the record shows a mistake, a written notice of error under federal servicing rules requires the servicer to respond on a clock. It must acknowledge the notice within five business days. For most errors, including fees, credited payments and escrow, it must correct the error or explain why there is none within 30 business days, which it can extend once by 15. For a payoff statement error the deadline is seven business days. For an error claiming the servicer moved toward the sale in violation of the loss mitigation rules, it must respond before the sale or within 30 business days, whichever comes first, when the notice arrives more than seven business days before the sale (12 CFR 1024.35). For 60 days after a notice of error about a payment, the servicer may not report adverse information about that payment to a credit bureau.

Federal rules also limit when a servicer may hold a sale while a complete loss mitigation application is pending (12 CFR 1024.41). Whether that limit applies turns on dates, the servicer’s size and the application history, and the servicer’s own file records each of those facts. Serv’s review documents what the servicer’s records show about when your application arrived and how it was handled.

Send every notice by certified mail with a return receipt, to the address the servicer designates for errors and information requests. That address is usually on the monthly statement or the servicer’s website, and it is often different from the payment address.

Check the numbers before you agree to a new payment

With a sale date on the calendar, the servicer will often present a modification or a repayment plan. Both start from the servicer’s figure for what you owe. A modification typically rolls the past-due amount, including escrow shortages and the advances the servicer paid on your behalf, into a new principal balance. If that past-due amount includes a payment that was never credited, a fee that was never owed, or an escrow analysis built on the wrong tax bill, the modification turns the mistake into principal you pay interest on for the life of the loan.

Some modification and repayment agreements also include language releasing the claims you have against the servicer. Errors discovered after you sign become harder to raise, and the record that would have proved them stops mattering to anyone but you.

A homeowner who has examined the payment history and put the errors on the record has the servicer’s written answers in the file, each one delivered on a deadline. Any offer the servicer makes carries its own written acceptance deadline, often 7 or 14 days. Request the payment history and send the notice of error inside that window, and have the servicer’s figures examined before the deadline runs, so the decision rests on an amount someone has checked.

Send Serv the record

Serv Inc. examines the records behind a foreclosure: the payment history, the payoff and reinstatement figures, the escrow account, the fees and advances, the assignment chain and the servicer’s compliance with federal servicing rules. Upload the notice, your recent mortgage statements and any payoff or reinstatement letter through the free analysis. Serv reviews the documents and tells you what they establish about the amount, the party foreclosing and the servicer’s compliance, and what they leave unproven.

If you are already working with a HUD-approved housing counseling agency, you can ask the agency to refer your file to Serv Inc. by name for the servicer compliance review.

Request the payment history and payoff statement the day the notice arrives, write down the postmark date, and send every question to the servicer in writing at its designated error address.

This article is general information and is not legal advice.

Sources

• O.C.G.A. § 44-14-162.2, notice to debtor
• O.C.G.A. § 44-14-162, advertisement, conduct and filing
• O.C.G.A. § 13-1-11, attorney's fees notice
• Georgia foreclosure laws and procedures (Nolo)
• Summary of You v. JP Morgan Chase Bank (Ga. 2013)
• 12 CFR 1024.35, error resolution
• 12 CFR 1024.41, loss mitigation
• Payoff statement deadline under 12 CFR 1026.36 (Nolo)