In the state of Georgia both Judicial and no-judicial foreclosures apply. This makes the primary instruments of security the Trust Deed and the Mortgage Lien. A typical time-line is about 90 days and rights of redemption apply as do deficiency judgments, subject to certain requirements of the law.
In the judicial process a court suit has to be filed by the lender against the borrower and this is the chief means of debt recovery for a Mortgage Lien. It is used because there is not power of sale clause contained in a mortgage agreement. Once the court has declared that the foreclosure may take place, the processes fall into place and the property is auctioned off or becomes the property of the lender, lender owned properties are known as REO’s or real estate owned.
The non-judicial foreclosure process takes place when the primary instrument of security is a Deed of Trust containing a power of sale clause. Essentially this clause means the borrower has granted the lender the mean to sell a property in the case of a default. It is a kind of pre-authorization agreement where the lender or their representative (the trustee) takes control of the foreclosure and sells the property to recover the debt owing.
There are strict guidelines which must be applied to the non-judicial process and if the lenders’ representative does not follow these the borrower has recourse to get the foreclosure declared null and void. It is for this reason that the trustee is an attorney with non-judicial foreclosure as his area of expertise. These guidelines include notices being correctly posted for the required amount of time before any sale of the property can take place. The auction must take place on the first Tuesday of the month, at the courthouse between 10 am and 4pm.
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