Equal protection.

- Since no meaningful government involvement to constitute state action is involved, any contention that O.C.G.A. § 44-14-162 violates the equal protection or due process provisions of the Constitution is without merit. Coffey Enters. Realty & Dev. Co. v. Holmes, 233 Ga. 937, 213 S.E.2d 882 (1975).

No state action.

- A creditor's power of sale is derived from the parties' contractual undertaking rather than from O.C.G.A. § 44-14-162. Therefore, the mere enactment and enforcement of that section does not itself constitute state action. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).

O.C.G.A. § 44-14-162 is unconstitutional as to pre-existing contracts where the security deed contains contradictory provisions as to sale on default. Atlantic Loan Co. v. Peterson, 181 Ga. 266, 182 S.E. 15 (1935); Gentry v. Hibbler-Barnes Co., 113 Ga. App. 1, 147 S.E.2d 31 (1966).

O.C.G.A. § 44-14-162, unlike the personal property foreclosure Acts, does not itself create any rights in creditors. Law v. USDA, 366 F. Supp. 1233 (N.D. Ga. 1973); Global Indus., Inc. v. Harris, 376 F. Supp. 1379 (N.D. Ga. 1974).

Protects consumer interests.

- O.C.G.A. § 44-14-162 provides minimal requirements for the exercise of any contractual power of sale contained in security instruments. In this sense, it may be deemed protective of consumer interests. Law v. USDA, 366 F. Supp. 1233 (N.D. Ga. 1973); Global Indus., Inc. v. Harris, 376 F. Supp. 1379 (N.D. Ga. 1974).

Power of sale contractual.

- O.C.G.A. § 44-14-162 regulates the manner in which foreclosure sales under powers contained in security deeds are conducted; but, the creditor's power of sale is derived from the parties' contractual undertaking rather than from that section. Global Indus., Inc. v. Harris, 376 F. Supp. 1379 (N.D. Ga. 1974).

O.C.G.A. § 44-14-162 does not come into operation unless there already exists a power of sale contained in a deed to secure debt, mortgage, or other lien contract. It does not direct that a power of sale be employed; it merely specifies the minimal procedures to be employed once the parties have entered into a contractual relation. Law v. USDA, 366 F. Supp. 1233 (N.D. Ga. 1973); Global Indus., Inc. v. Harris, 376 F. Supp. 1379 (N.D. Ga. 1974).

Section does not authorize such sales.

- O.C.G.A. § 44-14-162 merely regulates the manner in which foreclosure sales under powers contained in security deeds are conducted and does not even directly authorize such sales. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).

Issues of standing and assignment not relevant.

- Property owner's claim that a bank was not a real party in interest was not relevant to a confirmation proceeding pursuant to O.C.G.A. § 44-14-162 as the matter was commenced in accordance with O.C.G.A. § 44-14-161(a) by the person instituting the foreclosure proceedings; issues of standing and assignment were irrelevant to the confirmation proceeding. White Oak Homes, Inc. v. Cmty. Bank & Trust, 314 Ga. App. 502, 724 S.E.2d 810 (2012), cert. denied, No. S12C1120, 2012 Ga. LEXIS 671 (Ga. 2012).

Inclusion of nonjudicial foreclosure in deed.

- O.C.G.A. § 44-14-162 does govern the exercise of private powers of sale, but it does not require the inclusion of nonjudicial foreclosure in a deed to secure debt or a mortgage. Roberts v. Cameron-Brown Co., 556 F.2d 356 (5th Cir. 1977).

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).

Assignment recorded after notice of sale.

- Because Georgia law requires only that the foreclosing entity record the security deed prior to the time of sale, that the assignment was recorded after the notice of sale under power was first published did not affect the trustee's authority to foreclose on the property after recordation. Phillips v. Ocwen Loan Servicing, F. Supp. 2d (N.D. Ga. Sept. 12, 2014).

Preservation for review.

- Property owner's claim that a foreclosure advertisement did not comply with O.C.G.A. §§ 9-13-140(a) and44-14-162 was waived on appeal due to the owner's failure to comply with Ga. Ct. App. R. 25(a)(1); the owner did not show how the enumeration of error was preserved for review, and it did not provide any relevant citation to the record to show that the claim of error was raised below. White Oak Homes, Inc. v. Cmty. Bank & Trust, 314 Ga. App. 502, 724 S.E.2d 810 (2012), cert. denied, No. S12C1120, 2012 Ga. LEXIS 671 (Ga. 2012).

Resale of property when first sale invalid.

- Trial court did not err in allowing a bank to resell property because the first foreclosure sale was invalid and, therefore, inoperative, and the bank cured the invalidity by conducting a second foreclosure; when the lender is also the purchaser at an invalid sale the lender can treat the sale as void and resell the property in the manner that the lender should have sold the property in the first place. Duke Galish, LLC v. SouthCrest Bank, 314 Ga. App. 801, 726 S.E.2d 54 (2012).

Trial court did not err in allowing a bank to resell property because the borrower did not show that the bank acted in bad faith during the foreclosure process; the bank undertook to remedy the defect in the first foreclosure sale by dismissing the action to confirm the sale and by proceeding to foreclose again, after the assignment had been recorded. Duke Galish, LLC v. SouthCrest Bank, 314 Ga. App. 801, 726 S.E.2d 54 (2012).

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).

Borrowers lacked standing to challenge assignment of security deed.

- In a wrongful foreclosure action, the district court did not err in concluding that the borrowers lacked standing to challenge the assignment of the security deed because, even though the assignment allegedly contained a patent defect in attestation, they were not parties to the assignment and had demonstrated no other right to challenge it. Haynes v. McCalla Raymer LLC, 793 F.3d 1246 (11th Cir. 2015).

Cited in Smith v. Associated Mtg. Cos., 186 Ga. 121, 197 S.E. 222 (1938); Giordano v. Stubbs, 228 Ga. 75, 184 S.E.2d 165 (1971); Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238 (1972); First Nat'l Bank & Trust Co. v. Kunes, 128 Ga. App. 565, 197 S.E.2d 446 (1973); First Nat'l Bank & Trust Co. v. Kunes, 230 Ga. 888, 199 S.E.2d 776 (1973); Giordano v. Stubbs, 356 F. Supp. 1041 (N.D. Ga. 1973); Kilgore v. Life Ins. Co., 138 Ga. App. 890, 227 S.E.2d 860 (1976); Jones v. Hamilton Mtg. Corp., 139 Ga. App. 239, 228 S.E.2d 170 (1976); FDIC v. Ivey-Matherly Constr. Co., 144 Ga. App. 313, 241 S.E.2d 264 (1977); Fleming v. Federal Land Bank, 144 Ga. App. 371, 241 S.E.2d 271 (1977); Grizzle v. Federal Land Bank, 145 Ga. App. 385, 244 S.E.2d 362 (1978); Five Dee Ranch Corp. v. Federal Land Bank, 148 Ga. App. 734, 252 S.E.2d 662 (1979); Heard v. Decatur Fed. Sav. & Loan Ass'n, 157 Ga. App. 130, 276 S.E.2d 253 (1980); FDIC v. Dye, 642 F.2d 833 (5th Cir. 1981); Armstrong v. Lattimore, 164 Ga. App. 232, 296 S.E.2d 188 (1982); United States v. Fidelity Capital Corp., 888 F.2d 1344 (11th Cir. 1989); First Nat'l Bank v. Loggins, 207 Ga. App. 814, 429 S.E.2d 278 (1993); Dickens v. Calhoun First Nat'l Bank, 208 Ga. App. 489, 431 S.E.2d 121 (1993); Cummings v. Anderson, 173 Bankr. 959 (Bankr. N.D. Ga. 1994); Ames v. JP Morgan Chase Bank, N.A., 298 Ga. 732, 783 S.E.2d 614 (2016).

Holder of mortgage or trust deed not required to give notice.

- In the absence of a specific provision to that effect, the holder of a mortgage or trust deed with power of sale is not required to give notice of the exercise of the power to a subsequent purchaser or incumbrancer; and the validity of the sale is not affected by the fact that such notice is not given. Miller Grading Contractors v. Georgia Fed. Sav. & Loan Ass'n, 247 Ga. 730, 279 S.E.2d 442 (1981).

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).

By receiving actual notice of foreclosure sale, appellant received more notice than law required, since notice by advertisement in accordance with O.C.G.A. § 44-14-162 is sufficient. McKinney v. South Boston Sav. Bank, 156 Ga. App. 114, 274 S.E.2d 34 (1980).

The holder of a secondary deed to secure debt is not entitled to any notice beyond that called for by the contract. Ruff v. Lee, 230 Ga. 426, 197 S.E.2d 376 (1973), for comment, see 8 Ga. L. Rev. 264 (1973).

Holders of inferior security deed assigned to foreclosing party were not entitled to receive and to rely upon notice of the exercise of power of sale in first security deed other than that provided for in the first security deed and O.C.G.A. § 44-14-162. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327, 270 S.E.2d 867 (1980).

Junior lien holders and mortgagees are not entitled to any notice of sale except by publication under O.C.G.A. § 44-14-162. Chattanooga Fed. Sav. & Loan Ass'n v. Northwest Recreational Activities, Inc., 4 Bankr. 33 (Bankr. N.D. Ga. 1980).

The fact that the advertisement did not state that the automatic stay provisions of the Bankruptcy Code had been lifted with respect to the debtor's property did not tend to "chill" the sale of the property. Shingler v. Coastal Plain Prod. Credit Ass'n, 180 Ga. App. 539, 349 S.E.2d 785 (1986).

Failure to meet notice requirements.

- At a hearing for confirmation of a foreclosure sale, if either the notice or the advertisement does not substantially meet legal requirements, the sale should be set aside; but, not every irregularity or deficiency at this point will void the sale. Walker v. Northeast Prod. Credit Ass'n, 148 Ga. App. 121, 251 S.E.2d 92 (1978).

Foreclosure sale was void where the required legal advertisement was not published during the week immediately preceding the sale. Foster v. F & M Bank, 108 Bankr. 361 (Bankr. M.D. Ga. 1989).

The alleged failure to advertise the four weeks immediately preceding the sale pursuant to O.C.G.A. § 9-13-141, would not render the sale absolutely void. Stripling v. F & M Bank, 175 Ga. App. 75, 332 S.E.2d 373 (1985).

Advertisement which a bank published when the bank sold a bowling alley at a foreclosure sale, which provided a metes and bounds description of the property, was sufficient under O.C.G.A. §§ 9-13-40 and44-14-162 to foreclose on and convey title only to the real property, and a trial was required to determine the amount of money the bank had to turn over to a Chapter 7 debtor's bankruptcy estate under 11 U.S.C. § 542 because the bank improperly sold the debtor's personal property. The court found that it could not determine on summary judgment whether bowling alley lanes and pin setters the bank sold were fixtures or personal property, and the court ordered the parties to present evidence on that issue at trial. Lubin v. Ga. Commerce Bank (In re Southern Bowling, Inc.), Bankr. (Bankr. N.D. Ga. Oct. 8, 2010).

Trial court's grant of summary judgment to a mortgagee was error in property owners' wrongful foreclosure action, as the foreclosure was invalid under O.C.G.A. § 44-14-162(a) since the notice did not comply with O.C.G.A. § 44-14-162.2(a); the notice not only did not properly identify the secured creditor, but rather, the notice misidentified the creditor. Reese v. Provident Funding Assocs., LLP, 317 Ga. App. 353, 730 S.E.2d 551 (2012).

There remained a material question of fact as to plaintiff debtors' claim to set aside a foreclosure sale based on the lack of proper statutory notice called for in O.C.G.A. § 44-14-162(a) because, under O.C.G.A. § 44-14-162.2(b), nonjudicial foreclosure procedure required that a "copy" of the notice submitted to the publisher be sent to the debtor. The notice sent to the debtors differed from the one published. Rainey v. FMF Capital, LLC, F. Supp. 2d (N.D. Ga. Mar. 30, 2012).

Trial court erred in dismissing a pro se borrower's complaint for wrongful foreclosure and breach of contract against the borrower's lender's alleged assignee; the trial court could not consider documents attached to the motion to dismiss, and the complaint adequately alleged failure to give the borrower notice and improper advertising, contrary to O.C.G.A. §§ 44-14-162(a) and44-14-162.2. Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750, 751 S.E.2d 545 (2013).

Failure to include a reinstatement balance.

- Notice of foreclosure under a power of sale contained in a deed to secure debt was not defective because it failed to provide a reinstatement balance. Wright v. Barnett Mtg. Co., 226 Ga. App. 94, 485 S.E.2d 583 (1997).

Notice of foreclosure sale held sufficient.

- Bank gave proper statutory notification of a foreclosure sale to property owners pursuant to O.C.G.A. § 44-14-162(a) when the bank sent to the property's address and the property owners' primary residence, by certified mail, a written notice of the foreclosure sale that specified the bank as the foreclosing party by name, address, and telephone number pursuant to O.C.G.A. § 44-14-162.2. Mortensen v. Bank of Am., N.A., F. Supp. 2d (M.D. Ga. Nov. 17, 2011).

Foreclosure notice sent by a loan servicer or agent of a secured party was not defective under O.C.G.A. § 44-14-162. Howard v. Mortg. Elec. Registration Sys., F. Supp. 2d (N.D. Ga. Aug. 17, 2012).

Foreclosure advertisement sufficient.

- Foreclosure sale advertisement of a condominium development was sufficient although the advertisement did not note that several units in the development had been sold prior to the foreclosure. The description of the property was correct in itself, and the excepted units were identified on the courthouse steps at the time of the sale. Dan Woodley Cmtys., Inc. v. Suntrust Bank, 310 Ga. App. 656, 714 S.E.2d 145 (2011).

Superior court did not err in finding that a lender's advertisement of a nonjudicial foreclosure sale properly included a description of the property in accordance with O.C.G.A. § 9-13-140(a) because the legal description in the advertisement was identical to the description in the security deed by which the lender took the lender's interest from a construction company and guarantors; thus, there was no discrepancy between the two, and the advertisement properly reflected the interest taken under the deed and available at the foreclosure sale. Diplomat Constr., Inc. v. State Bank of Tex., 314 Ga. App. 889, 726 S.E.2d 140 (2012).

Sale properly confirmed.

- Trial court did not err in confirming the November sale of certain real estate in a foreclosure action because the mortgagor failed to show that it was deprived of any protection afforded by O.C.G.A. § 44-16-161 as the confirmation proceeding commenced in connection with the November sale comprised a new action after the July sale was invalidated, all of the advertisement requirements were met, and the property was sold for its true market value. Howser Mill Homes, LLC v. Branch Banking & Trust Co., 318 Ga. App. 148, 733 S.E.2d 441 (2012).

Sale must be advertised in every county where property located.

- Trial court did not err in denying a mortgagee's application for confirmation of a nonjudicial foreclosure sale because the court properly ruled that the mortgagee's advertisement failed to comport with the statutory requirements of O.C.G.A. § 44-14-162(a); a sale of real property under a power of sale made pursuant to § 44-14-162(a) must be advertised in every county where the property or any portion of the property is located. Nicholson Hills Dev. v. Branch Banking & Trust Co., 316 Ga. App. 857, 730 S.E.2d 572 (2012).

Manner of sales.

- O.C.G.A. § 44-14-162 requires that sales be advertised and conducted in the county in which the real estate is located and at the time, place and usual manner of sheriff's sales, not that sales under power are required to be conducted at the usual time of sheriff's sales in the particular county where the property is located. Butler v. Forsyth County Bank, 153 Ga. App. 122, 264 S.E.2d 502 (1980).

Given evidence that a security deed was delivered to the clerk's office at 9:41 a.m. on the morning of the day of a foreclosure sale, and because the legal hours of sales were from 10:00 a.m. to 4:00 p.m., the assignment of the security deed to the assignee was filed prior to the sale as required by O.C.G.A. § 44-14-162(b). L & K Enters., LLC v. City National Bank, N.A., 326 Ga. App. 744, 755 S.E.2d 270 (2014).

Crucial point of inquiry on confirmation.

- Not every irregularity furnishes a basis for voiding a foreclosure sale. The crucial point of the inquiry on confirmation is to insure that the sale was not chilled and the price bid was in fact market value. Stripling v. F & M Bank, 175 Ga. App. 75, 332 S.E.2d 373 (1985).

Confirmation of sale.

- The court's inquiry in a confirmation of a foreclosure sale should go only to the value of the real estate on the date of sale, in the course of the examination to determine which the fairness of the technical procedures used may be examined, but only for the purpose of making sure that the sale was not chilled and the price bid was in fact market value. Shantha v. West Ga. Nat'l Bank, 145 Ga. App. 712, 244 S.E.2d 643 (1978); Walker v. Northeast Prod. Credit Ass'n, 148 Ga. App. 121, 251 S.E.2d 92 (1978).

Whether in bankruptcy or not, before a deficiency action may be brought by a creditor who forecloses on Georgia real estate, it must have the price at which the property sold judicially confirmed to be an accurate reflection of the property's fair market value. United States v. Oakland City Apts., Inc., 1 Bankr. 123 (Bankr. N.D. Ga. 1979).

Trial court did not err by confirming a foreclosure sale because issues as to whether the foreclosing bank recorded an assignment of the deed to secure debt before the foreclosure sale and the validity of the assignment were irrelevant to the confirmation proceeding. River Walk Farm, L.P. v. First Citizens Bank & Trust Co., 321 Ga. App. 173, 741 S.E.2d 165 (2013).

Payment of surplus received from sale.

- Grantee of deeds to secure debt had to pay to grantors the surplus from a foreclosure sale of two properties to the grantee's agent and a subsequent transfer of the properties to third parties for profit. Tower Fin. Servs., Inc. v. Smith, 204 Ga. App. 910, 423 S.E.2d 257, cert. denied, 204 Ga. App. 922, 423 S.E.2d 257 (1992).

Upon the failure of a purchaser to comply with a high bid, a property sold at public auction may not be conveyed to the next highest bidder without complying with the terms of O.C.G.A. §§ 9-13-161 and44-14-162. Little v. Fleet Fin., 224 Ga. App. 498, 481 S.E.2d 552 (1997).

Credit sale not found.

- If a sheriff's sale was, in other respects, lawful, the mere fact that the sheriff gave a bidder to whom the property had been sold time within which to raise the money to pay for the property would not render it a credit sale. Dorsey v. North Am. Life Ins. Co., 217 Ga. 650, 123 S.E.2d 919 (1962).

Sale not consummated prior to bankruptcy.

- Because a creditor conducted a foreclosure sale of a bankruptcy debtor's property shortly before the debtor filed a bankruptcy petition, the debtor retained a right of redemption which passed to the bankruptcy estate since the sale was not consummated by payment of the bid amount and execution of a deed prior to the debtor's bankruptcy. Chase Home Fin. LLC v. Geiger (In re Geiger), 340 Bankr. 422 (Bankr. M.D. Ga. 2006).

No entitlement to relief.

- Borrower who claimed that a mortgage company, a company (LLC) that serviced the borrower's loan, the mortgage company's nominee, and the LLC's foreclosure counsel violated the borrower's rights when they refused to rescind a mortgage and foreclosed on investment property failed to allege facts which showed that the LLC or the nominee violated state law, the Truth in Lending Act, 15 U.S.C. § 1601 et seq., or the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and the court denied the borrower's request for a temporary restraining order or a preliminary injunction prohibiting foreclosure. The borrower incorrectly cited O.C.G.A. § 44-14-236 as the basis for the borrower's claims under state law, and the borrower failed to allege facts that entitled the borrower to relief under O.C.G.A. § 44-14-162 et seq., Georgia's nonjudicial foreclosure statute. Hennington v. Greenpoint Mortg. Funding, Inc., F. Supp. 2d (N.D. Ga. May 15, 2009).

Wrongful foreclosure claim sufficiently pled.

- Trial court erred by dismissing the mortgagors' complaint for wrongful foreclosure because, construed in the light most favorable to the mortgagors, the complaint sufficiently alleged that the bank owed obligations to the mortgagors under the security deed and that the bank breached those contractual obligations by going forward with the foreclosure sale despite the error in the published foreclosure advertisements. Racette v. Bank of Am., N.A., 318 Ga. App. 171, 733 S.E.2d 457 (2012).

Am. Jur. 2d.

- 55 Am. Jur. 2d, Mortgages, § 573 et seq.

C.J.S.

- 59A C.J.S., Mortgages, § 626 et seq.

ALR.

- Statute affecting mortgagee's rights and remedies in respect of deficiency as unconstitutional impairment of obligation of contract, 108 A.L.R. 891; 115 A.L.R. 435; 130 A.L.R. 1482; 133 A.L.R. 1473.

Recognition of action for damages for wrongful foreclosure - types of actions, 82 A.L.R.6th 43.

Necessity of production of original note involved in mortgage foreclosure - twenty-first century cases, 86 A.L.R.6th 411.