Monday, July 4, 2011

Lack Of Competent Evidence Supporting Confirmation Of Non-Judicial Foreclosure Process Sinks Sale; Lower Court Foreclosure Ruling Reversals Continue

A ruling by the Georgia Court of Appeals reinforces the fact that a lower court hearing to confirm the results of a Georgia non-judicial foreclosure sale under a power of sale is not to be treated as an exercise in rubber-stamping, a lesson that a reversed state trial judge recently received.

From the ruling (bold text is my emphasis; footnotes from the original text omitted):

  • Franklin argues that the trial court erred by finding that the properties sold for their true market value because no evidence was introduced as to the regularity of the sales, no evidence was introduced showing foreclosure sales ever took place, and no evidence was introduced regarding the actual prices received for the properties at the alleged sales.

    Franklin contends that First Georgia produced only the notices of sale under power for the properties and the testimony of two appraisers, who provided evidence of the market value of the properties, but First Georgia failed to produce competent evidence as to the occurrence or outcome of the sales. We agree and reverse.


  • The confirmation statute requires the trial court to determine whether the sale under power was properly executed. Here, the trial court's determination as to the regularity of the sales is not supported by any competent evidence in the record.

    Although the report to the judge contained allegations of fact concerning the sales, the report was not verified and not supported by testimony or other evidence at the hearing. Although First Georgia's attorney stated that the properties sold for $170,000; $48,000; and $300,000; this statement was not competent evidence.

For the ruling, and the analysis of the applicable Georgia law, see Franklin v. First Georgia Banking Co., A11A0216 (Ga. Ct. App. June 23, 2011).

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