Georgia Updates Foreclosure Provisions
By Zachary Pearlstein, J.D.
Effective July 1, 2015, the State of Georgia has updated its provisions regarding foreclosures, and the witnessing requisites of deeds, mortgages, and bills of sale.
Code Section 44-5-30 of Title 44 of the Official Code of Georgia Annotated, relating to property, has been updated to state that except for documents electronically filed, a deed to lands shall be an original document, in writing, signed by the maker, attested by an officer as provided in Code Section 44-2-15, and attested by one other witness. It shall be delivered to the purchaser or his or her representative and be made on a good or valuable consideration. The consideration of a deed may always be inquired into when the principles of justice require it.
In addition, a new code section has been added to Title 44, relating to United States savings bonds. This section states that (a) Notwithstanding the provisions of subsection (a) of Code Section 44-12-216, United States savings bonds which are unclaimed property and subject to the provisions of Code Section 44-12-190, et seq., the ‘Disposition of Unclaimed Property Act,’ shall escheat to the State of Georgia three years after becoming unclaimed property and subject to the provisions of Code Section 44-12-190, et seq., and all property rights to such United States savings bonds or proceeds from such bonds shall vest solely in the State of Georgia. If, within 180 days after the passage of three years pursuant to subsection (a) of this Code section, no claim has been filed in accordance with the provisions of Code Section 44-12-190, et seq., for such United States savings bonds, the commissioner shall commence a civil action in the Superior Court of Fulton County for a determination that such United States savings bonds shall escheat to the state. The commissioner may postpone the bringing of such action until sufficient United States savings bonds have accumulated in the commissioner’s custody to justify the expense of such proceedings. (c) If no person shall file a claim or appear at the hearing to substantiate a claim or if the court shall determine that a claimant is not entitled to the property claimed, then the court, if satisfied by evidence that the commissioner has substantially complied with the laws of this state, shall enter a judgment that the subject United States savings bonds have escheated to the state. (d) The commissioner shall redeem such United States savings bonds, and the proceeds shall be deposited in the state general fund in accordance with the provisions of Code Section 44-12-218.
In addition, any person making a claim for the United States savings bonds escheated to the state under Code Section 44-12-237, or for the proceeds from such bonds, may file a claim in accordance with the provisions of Code Section 44-12-190, et seq., the ‘Disposition of Unclaimed Property Act.’ Upon providing sufficient proof of the validity of such person’s claim, the commissioner may pay such claim in accordance with the provisions of Code Section 44-12-190, et seq.
Title 44 is further amended by revising Code Section 44-14-33, relating to attestation or acknowledgment of mortgage: In order to admit a mortgage to record, it shall be signed by the maker, attested by an officer as provided in Code Section 44-2-15, and attested by one other witness. In the absence of fraud, if a mortgage is duly signed, witnessed, filed, recorded, and indexed on the appropriate county land records, such recordation shall be deemed constructive notice to subsequent bona fide purchasers.
Code Section 44-14-34 has also been revised, relating to attestation and acknowledgment or probation of mortgages executed outside of the state: When executed outside of the state of Georgia, mortgages shall be signed by the maker, attested by an officer as provided in Code Section 44-2-15, and attested by one other witness.
Code Section 44-14-61 has been revised as well, relating to attestation of deeds to secure debt and bills of sale: In order to admit deeds to secure debt or bills of sale to secure debt to record, they shall be signed by the maker, attested by an officer as provided in Code Section 44-2-15, and attested by one other witness.
In addition, Code Section 44-14-63 has been revised, relating to recording of deeds to secure debt and bills of sale to secure debt, as follows: Every deed to secure debt shall be recorded in the county where the land conveyed is located. Every bill of sale to secure debt shall be recorded in the county where the maker, if a resident of this state, resided at the time of its execution and, if a nonresident, in the county where the personalty conveyed is located. Deeds to secure debt or bills of sale to secure debt not recorded shall remain valid against the persons executing them.
Title 44 is further amended by revising Code Section 44-14-160, relating to recording of foreclosure sales and deeds under power, as follows: (a) Within 90 days of a foreclosure sale, all deeds under power shall be recorded filed by the holder of a deed to secure debt or a mortgage with the clerk of the superior court of the county or counties in which the foreclosed property is located. The clerk shall record and cross reference the deed under power to the deed to secure debt or mortgage foreclosed upon. The deed under power shall be indexed pursuant to standards promulgated by the Georgia Superior Court Clerks’ Cooperative Authority. (b) In the event the deed under power is not filed within 30 days after the time period set forth in subsection (a) of this Code section, the holder shall be required to pay a late filing penalty of $500.00 upon filing in addition to the required filing fees provided for in subsection (f) of Code Section 15-66-77. Such late filing penalty shall be collected by the clerk of the superior court before filing. (c) The sums collected as a late filing penalty under subsection (b) of this Code section shall be remitted to the governing authority of the county. If the foreclosed property is located within a municipality, the governing authority of the county shall remit the late filing penalty for such property to the governing authority of such municipality within 30 days of its receipt of the penalty. For each late filing penalty for property located within the corporate limits of a municipality, the governing authority of the county may withhold a 5 percent administrative processing fee from the remittance to such municipality.
Zachary Pearlstein, J.D. is Regulatory Compliance Consultant at Bankers Advisory. He is a graduate of Brandeis University and earned his Juris Doctor at Suffolk Law School. Zachary is admitted to the Bar in Massachusetts. He can be reached at Zachary@bankersadvisory.com
Zachary Pearlstein, JD, is a Regulatory Compliance Director with CLA's Mortgage Advisory Division. He joined CLA on January 1, 2014, as part of its acquisition of Bankers Advisory, Inc. Zachary oversees Mortgage Advisory's regulatory compliance team, which focuses on federal and state compliance, fair lending, and the Home Mortgage Disclosure Act (HMDA). He is a graduate of Brandeis University and earned his juris doctor at Suffolk University Law School. He is admitted to the Massachusetts Bar.
Comments are closed.