A recent decision by the Georgia Court of Appeals could invalidate
foreclosures in Georgia. This is a great decision for Georgia homeowners who have been foreclosed on within the last 2 years and a possible Fair Debt Collection Practices Act (“FDCPA”) violation I f foreclosure notice was sent within the last 12 months.
In Reese v. Provident Funding Associates, LLP, Case No. A12A0619, he Georgia court of appeals held that the Georgia foreclosure statute requires the identity of the secured creditor. This requirement has been around since 2008 but the Reese case clarifies the importance of transparency in the foreclosure notice requirements. Further, this decision is important because for years the mortgage industry has made it difficult to determine who the servicer is and who the owner of the mortgage is. Further, another recent decision clarifies that the entity who claims to have full authority to modify the loan must be the actual entity that has the full authority. For example, if the servicer discloses that they have full authority to modify the loan and the real entity who has full authority is another party, then the notice to the borrower is defective.
Failure to properly notice a foreclosure such as the identity of the secured creditor are grounds to request that the foreclosure sale be canceled and if the foreclosure sale is completed, then it is grounds for a
wrongful foreclosure action. Every case is different and it is always advisable to contact a foreclosure defense attorney.
