Wake Up Georgia: Courts Are Opening the Door on Wrongful Foreclosure
Posted on March 15, 2013 by Neil Garfield
PRACTICE AND PROCEDURE IN GEORGIA
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Editor’s Note: For years Georgia has been considered by most attorneys to be a “red” state that, along with states like Tennessee showed no mercy on borrowers because of the prejudgment that the foreclosure mess was the fault of borrowers. For years they have ignored the now obvious truth that the defective mortgages and wrongful foreclosures do make a difference.
Now, reflecting inquiries from Courts below who are studying the the issue instead of issuing orders based upon a knee-jerk response, the State has taken a decided turn toward the application of law over presumption and bias. There is even reason to believe that the door is open a crack for past wrongful foreclosures, as the Courts grapple with the fact that thousands of foreclosures were forced through the system by strangers to the transaction and thousands of wrongful foreclosure suits have been dismissed because of the assumption by judges that no bank would lie directly to the court. It was a big lie and apparently the banks were right in thinking there was little risk to them.
Look at Pratt’s Journal of Bankruptcy Law February/ March Issue for an article on “Foreclosure Law in the Wake of Recent Decisions on Residential Mortgage Loans: The Situation in Georgia” by Ashby Kent Fox, Shea Sullivan and Amanda Wilson. Our own lawyers have out in front on these issues for a couple of years but encountering a lot of resistance — although lately they are reporting that the Courts are listening more closely.
The Georgia Supreme Court has now weighed in (Reese v Provident) and decided quite obviously that something is rotten in Georgia. Focusing on Georgia’s foreclosure notice statute but actually speaking to the substantive defects in the mortgages and foreclosures, the majority held, as a matter of law, that
o.c.G.a. § 44-14- 162.2(a), requires the person or entity conducting a non-judicial foreclosure of a residential mortgage loan to provide the borrower/debtor with a written notice of the foreclosure sale that discloses not only “the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor” (the language that appears in the statute), but also the identity of the “secured creditor” (not required by the statutory language, but which the majority inferred based on legislative intent). the majority further found that the failure to identify the “secured creditor” in the foreclosure notice renders the notice, and any subsequent foreclosure sale, invalid as a matter of law.
Once again I caution litigators that this will not dispose of your case permanently and that such rulings be used strategically so that you are not another hallway lawyer explaining how you were right but the judge ruled against you anyway. Notice provisions can be cured, non-existent transactions cannot be cured. Leading with the numbers (the money trail” and THEN using decisions like this to corroborate your argument will get you a lot more traction than leading with defective paperwork.
As I have said repeatedly, no judge, no matter how sympathetic to borrowers is going to give much relief when the borrower has admitted the debt, note, mortgage and default. These must be denied and lawyers should study up on the subject as to why they can and should be denied, and to persevere through discovery to show that the note, mortgage, default and even the debt have all been faked by strangers to the transaction.
Forcing the opposing side to show that they are a bona fide holder FOR VALUE will flush out the truth — that originator in nearly all cases was never the lender, creditor or even broker. They were simply paid naked nominees just like MERS, leaving no real party in interest on the note or mortgage, no consideration between the parties stated on the note and mortgage or notice of default, and no meeting of minds between the real lender (who is NOT in privity with the nominee lender) who, as an investor received a prospectus and Pooling and Servicing Agreement and advanced money under the mistaken belief they were buying bonds of an entity that either did not exist or was simply ignored by the investment banker and the other participants in the false securitization scheme that was used to cover-up a PONZI scheme.
Practice tips: DENY and DISCOVER. Ask for proof of payment and proof of loss. The assignments, the note and the mortgage are not proof of the debt, they are potentially evidence of the debt and the security agreement ONLY if the foundation is there (testimony by witness with personal knowledge, with exhibits of wire transfer receipts and wire transfer instructions, cancelled checks etc.) to show that the originator shown as payee and “Secured party” or “beneficiary” was lender of money.
Make them show that they booked the loan as a receivable with a reserve for default. Discover that they actually booked the transaction as a fee for service (shown on the income statement) and never entered it on their balance sheet.
And PLEASE study up on voir dire, objections and cross examination. If you are not quick and ready objections to leading questions and other issues might well be waived unless you interrupt the questioning as fast as you can stand up. If you study up on hearsay and the business records exception to hearsay you will discover that in practically no case were the business records qualified as exceptions to the hearsay rule. But if you don’t raise it, if you don’t have statutory and case law and even a memo on the subject the judge is going to rule against you. We are talking about good lawyering here and not bias amongst judges.