A recent decision of the Georgia Court of Appeals issued July 12, 2012, provides additional protection to homeowners and others who own real property in Georgia who have a security deed and note with a lender. Foreclosure in Georgia normally is "non-judicial" and quickly concluded with little or no review by Georgia judges. On the other hand, some states like Florida require "judicial" foreclosure which is concluded over a longer period of time and is monitored by judges who oversee the foreclosure at each step of the proceedings. Advocates for homeowners argue that the Georgia foreclosure law should provide more "due process" for "borrowers". Lenders argue that the money is owed and quicker is better. Based on this recent decision, it appears that the Georgia legislature has given at least a "nod" in favor of "borrowers rights."
With almost no fanfare, Official Code of Georgia, Section 44-14-162.2(a) was amended effective July 1, 2008 to provide that the "notice (of foreclosure) shall be given to the (property owner) by the secured creditor no later than 30 days before the date of the proposed foreclosure." The court found no problem with a loan servicer or other agent of the true secured creditor (the creditor that actually owned and held the note) mailing the notice on behalf of the true secured creditor. According to the court, however, the "fatal mistake" made in this case was that the notice mailed to the homeowner failed to identify the true owner of the note by its name. The court found that "the identity of the true secured creditor is a material element of the notice" and that the true creditors name must be disclosed in the notice.
As result, if Bank of America, N.A. is the true creditor and Ocwen Loan Servicing is the servicer of the loan, Bank of America, N.A. must appear on the notice. It appears that the goal of the amendment was to make "transparent .... the identity of the secured creditor with the authority .... to agree to a loan modification." According to the court, the available remedies for a failure to name the true creditor in the notice are to set aside the foreclosure or to file a suit for damages for wrongful foreclosure.