Authored by E. Carson Lange of Rogers TowersGiven our geographic proximity, it is not uncommon for Florida banks to do business in Georgia or with clients owning property in Georgia. This geographic proximity, however, does not lend itself to equivalence of foreclosure procedures. This is because, unlike Florida, Georgia recognizes non-judicial foreclosures. Indeed, power of sale foreclosures, as they are called, are the most prevalent form of foreclosure in Georgia. It is useful for Florida banks that have made, or contemplate making, loans secured by real estate in Georgia to be aware of the different procedure available to them on default in that jurisdiction.
The security instrument used in Georgia is called a “Deed to Secure Debt.” For the bank to have the right to pursue foreclosure non-judicially, the Deed to Secure Debt must grant the bank a “power of sale.” If it does, the bank’s remedy comprises the following steps:
First, the bank should ensure that the Security Deed is filed of record in the county in which the real property is located before the foreclosure sale. If the bank acquired its security interest by assignment, it should also ensure that the assignment is filed of record before the foreclosure sale.
Second, the bank must comply with all notice requirements provided in the Deed to Secure Debt.