Tuesday, May 28, 2013

Georgia High Court: Trust Deed Holder Need Not Also Hold Note To Initiate Non-Judicial Foreclosure; Secured Creditor Need Not Be I.D.'d In Notice To Debtor; State Supremes: Current State Of The Law May Stink, But There's Nothing We Can Do About It; Add'l Reforms Are Up To Lawmakers - Our Hands Are Tied!

From a Justia.com Opinion Summary:

  • The United States District Court for the Northern District of Georgia certified three questions regarding the operation of the State's law governing non-judicial foreclosure to the Georgia Supreme Court.

    After careful analysis, the Georgia Court concluded that current law did not require a party seeking to exercise a power of sale in a deed to secure debt to hold, in addition to the deed, the promissory note evidencing the underlying debt.

    The Court also concluded that the plain language of the State statute governing notice to the debtor (OCGA 44-14-162.2), required only that the notice identify "the individual or entity [with] full authority to negotiate, amend, and modify all terms of the mortgage with the debtor."

    This construction of OCGA 44-14-162.2 rendered moot the third and final certified question.(1)
Source: Opinion Summary: You v. JP Morgan Chase Bank, N.A..

For the court ruling, see You v. JP Morgan Chase Bank, N.A., S13Q0040 (Ga. May 20, 2013).

(1) The Georgia Supreme Court respectfully concluded its ruling with the following message, apparently meant for state lawmakers, regarding the crappy law on non-judicial foreclosures as it currently exists in Georgia:
  • As members of this State's judicial branch, it is our duty to interpret the laws as they are written. See Allen v. Wright, 282 Ga. 9 (1) (644 SE2d 814) (2007).

    This Court is not blind to the plight of distressed borrowers, many of whom have suffered devastating losses brought on by the burst of the housing bubble and ensuing recession.

    While we respect our legislature's effort to assist distressed homeowners by amending the non-judicial foreclosure statute in 2008, the continued ease with which foreclosures may proceed in this State gives us pause, in light of the grave consequences foreclosures pose for individuals, families, neighborhoods, and society in general.

    Our concerns in this regard, however, do not entitle us to overstep our judicial role, and thus we leave to the members of our legislature, if they are so inclined, the task of undertaking additional reform.

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