O.C.G.A.
O.C.G.A.

O.C.G.A. § 44-14-162.1 (2019)

Sales made on foreclosure under power of sale - Mailing of notice to debtor - "Debtor" defined

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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Statute text

As used in Code Sections 44-14-162.2 through 44-14-162.4, the term "debtor" means the grantor of the mortgage, security deed, or other lien contract. In the event the property encumbered by the mortgage, security deed, or lien contract has been transferred or conveyed by the original debtor, the term "debtor" shall mean the current owner of the property encumbered by the debt, if the identity of such owner has been made known to and acknowledged by the secured creditor prior to the time the secured creditor is required to give notice pursuant to Code Section 44-14-162.2.

History

(Ga. L. 1981, p. 834, § 2.)

Annotations

Law reviews. - For note, "Opportunity Costs: Nonjudicial Foreclosure and the Subprime Mortgage Crisis in Georgia," see 25 Ga. St. U. L. Rev. 1205 (2009).

JUDICIAL DECISIONS

The definition of "debtor" in O.C.G.A. § 44-162.1 does not apply to O.C.G.A. § 44-14-161. Hill v. Moye, 221 Ga. App. 411, 471 S.E.2d 910 (1996).

Right to notice other than by advertisement. - Only the property owner was entitled to receive any notice of the initiation of foreclosure proceedings other than by advertisement. Breitzman v. Heritage Bank, 180 Ga. App. 171, 348 S.E.2d 713 (1986).

No confirmation where no indication of proper advertising or notification. - Where no evidence appeared in the transcript of the hearing on the confirmation petition tending to indicate either that the sale was properly advertised or that the landowner was properly notified of the sale, the judgment of confirmation must be reversed. Martin v. Federal Land Bank, 173 Ga. App. 142, 325 S.E.2d 787 (1984), aff'd, 254 Ga. 610, 333 S.E.2d 370 (1985).

Notice of foreclosure held sufficient. - Trial court did not err in granting a bank and a law firm summary judgment in a former husband's action alleging that they wrongfully foreclosed on property that the husband obtained from his former wife via a divorce decree because the bank and law firm provided the wife with notice of the impending foreclosure sale as required under the terms of the security deed and O.C.G.A. § 44-14-162.2; because the husband did not obtain any legal interest in the property until the quitclaim deed from his wife was filed, he was not the owner of the property at the time the bank and law firm were required to provide notice of the foreclosure sale. Farris v. First Fin. Bank, 313 Ga. App. 460, 722 S.E.2d 89 (2011).

Requirements for notice to debtor. - Trial court did not err in finding the lending company failed to comply with the foreclosure notice provisions of O.C.G.A. § 44-14-162.2 because the company's attorney failed to offer any reasonable explanation as to why, despite knowing that the debtor was the record owner of the properties, the company only sent the notices to the predecessor in interest, and its agent, and the lending company was not entitled to equitable estoppel despite actual notice to the debtor. DIP Lending I, LLC v. Cleveland Avenue Properties, LLC, 345 Ga. App. 155, 812 S.E.2d 532 (2018).

Damages for wrongful foreclosure without notice. - In a suit brought by a purchaser seeking damages for wrongful foreclosure of certain real property after two foreclosure sales, the trial court erred in granting the second foreclosing bank attorney fees under O.C.G.A. § 9-15-14, based on frivolous litigation, as that second bank had knowledge of the purchaser's acquisition of the property via the first foreclosure, therefore, the purchaser's suit did not lack substantial justification as to the second bank and the second bank's failure to provide proper notice of the sale to the purchaser. Roylston v. Bank of Am., N.A., 290 Ga. App. 556, 660 S.E.2d 412 (2008).

Trial court erred by failing to confirm sale. - Trial court erred by denying a creditor's petition to confirm the foreclosure sale of six townhouses because the sale satisfied applicable notice and advertisement requirements and the uncontradicted evidence showed that the townhouses did sell for at least fair market value. RBC Real Estate Fin., Inc. v. Winmark Homes, Inc., 318 Ga. App. 507, 736 S.E.2d 117 (2012).

Cited in TKW Partners, LLC v. Archer Capital Fund, L.P., 302 Ga. App. 443, 691 S.E.2d 300 (2010).

Notes of Decisions
Cited in 23 cases (1 in the last 5 years), 1984–2025 · leading case: Roylston v. Bank of Am., N.A., 660 S.E.2d 412 (Ga. Ct. App. 2008).
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Roylston v. Bank of Am., N.A., 660 S.E.2d 412 (Ga. Ct. App. 2008). · cites it 6× “In turn, OCGA § 44-14-162.1 defines the debtor who is entitled to such written notice of the foreclosure and pertinently provides that [i]n the event the property encumbered by the mortgage, security deed, or lien contract has been transferred or conveyed by the original debtor,…”
Ray v. Atkins, 421 S.E.2d 317 (Ga. Ct. App. 1992). · cites it 10× “’ OCGA § 44-14-162.1. This notice requirement, however, applies ‘only to the exercise of a power of sale of property all or part of which is to be used as a dwelling place by the debtor at the time the mortgage, security deed, or lien contract is entered into.”
TKW Partners, LLC v. Archer Capital Fund, L.P., 691 S.E.2d 300 (Ga. Ct. App. 2010). · cites it 6× “’ ” 4 Thus, a trial court should not confirm a sale under power if there is no evidence that the debtor, within the meaning of OCGA § 44-14-162.1, was properly notified of the sale in accordance with the statutory requirements.”
PNC Bank, Nat'l Ass'n v. Smith, 785 S.E.2d 505 (Ga. 2016). · cites it 4× “…creditor prior to the time the secured creditor is required to give notice pursuant to Code Section 44-14-162.2. OCGA § 44-14-162.1. Ultimately, the codifiers made Sections 1 and 2 of the 1935 Act into OCGA §§ 44-14-161 and 44-14-162, and Sections 3 to 6 into OCGA §§…”
You v. JP Morgan Chase Bank, N.A., 743 S.E.2d 428 (Ga. 2013). · cites it 2× “” See OCGA § 44-14-162.1. The term “secured creditor” was introduced into the statute in 1981 when the provisions requiring notice to the debtor were first enacted.”
Dickens v. Calhoun First Nat'l Bank, 398 S.E.2d 814 (Ga. Ct. App. 1990). · cites it 16× “" OCGA § 44-14-162.1. This notice requirement, however, applies "only to the exercise of a power of sale of property all or part of which is to be used as a dwelling place by the debtor at the time the mortgage, security deed, or lien contract is entered into.”
Farris v. First Fin. Bank, 722 S.E.2d 89 (Ga. Ct. App. 2011). · cites it 8× “2 based on the fact that Farris was not a debtor, as defined by OCGA § 44-14-162.1, who was entitled to notice.”
Parks v. Bank of New York, 614 S.E.2d 63 (Ga. 2005). · cites it 4× “The statute merely provides the mechanism for giving notice to the debtor, as defined in OCGA § 44-14-162.1, of the foreclosure under power of sale.”
Martin v. Fed. Land Bank, 325 S.E.2d 787 (Ga. Ct. App. 1984). · cites it 12× “Deen, P. J., Pope, Sognier, and Beasley, JJ.”
Wright v. Barnett Mortg. Co., 485 S.E.2d 583 (Ga. Ct. App. 1997). · cites it 4× “" Notice of initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract "shall be in writing and shall be sent by registered or certified mail, return receipt requested, to the property address or to such other address *586 as the…”
Ikomoni v. Bank of Am., N.A., 769 S.E.2d 527 (Ga. Ct. App. 2015). · cites it 2× “On the contrary, within the framework of the complaint, he may be able to introduce evidence supporting his allegations, including that the bank acknowledged his ownership of the property, which he used as a dwelling place, so that he was entitled to notice under OCGA §…”
Hill v. Moye, 471 S.E.2d 910 (Ga. Ct. App. 1996). · cites it 2× “Plaintiffs argue defendants were not debtors because they did not meet the definition of debtor found in OCGA § 44-14-162.1. But that section, by its own language, does not apply to § 44-14-161.”
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