June 2014

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By most accounts, a decision from the Georgia Court of Appeals last September represents a sea change in the law governing judicial confirmation of foreclosure sales and post-foreclosure deficiency claims.  Indeed, the Court’s decision in HWA Properties, Inc. v. Community and Southern Bank, 322 Ga. App. 877 (2013) appears to be first declaration in Georgia that the safeguards against excessive deficiency claims in O.C.G.A. § 44-14-161 can be waived in the loan documents.  The significance of HWA Properties cannot be overstated — a creditor who fails to judicially confirm a non-judicial foreclosure sale (either because the creditor opts not to seek confirmation or the superior court denies confirmation) may still sue the guarantor(s) of the loan to recover the deficiency. (more…)