ATLANTA COMMERCIAL AND WRONGFUL FORECLOSURE ATTORNEYS

When lenders underwrite commercial loans, they evaluate their risk and the potential return as well as several factors. These factors include the borrower’s credit, his or her ability to develop and/or operate the property in a profitable manner, cash flows (actual or projected) from tenant leases of the property, the tenant’s credit and the borrower’s cash equity in the property. Sufficient borrower equity offers a level of protection to the lender in the event of a default. Unfortunately, even with plenty of preventative methods in place, there are defaults and commercial foreclosures still continue to be a reality.

Loan underwriting has tightened and become stricter in recent years. Your loans can still fail, even in cases where a refinance or loan modification is granted to a borrower. The experienced Atlanta foreclosure attorneys at Hecht Walker, P.C., can help both lenders and borrowers with foreclosure issues. We can review necessary documents needed to preserve lenders’ and borrowers’ rights, and we can check to see if the documents have been accurately composed, executed and recorded. Furthermore, we can use a team of professionals to protect your best interests.

What Is Georgia’s Commercial Foreclosure Process?

Georgia is a non-judicial foreclosure state. This means that Georgia loan documents, deeds of trust and commercial loan documents have a clause that addresses the power of sale in the event of default. However, the lender is still required to publish a notice of sale. In addition, lenders must serve the mortgagee with a 15-day notice informing him or her of the sale. O.C.G.A§ 44-14-162.2 You can have a serious legal problem if there is any detail that is not addressed in writing. The following are a few of the mandatory requirements that public notices must include and follow:

  • Location: Advertisements must list the time and place of sale.
  • Time Window: The sale of the property must be advertised each week for four consecutive weeks. In addition, it must be advertised in the county where the real estate is located.
  • List Managers: The debtor must receive Notice of the foreclosure. The Notice must include the name, address and telephone number of any party who has authority to negotiate. In addition, it must list anyone who can amend or modify the terms of a security deed.
  • Identify Owners and Lenders: The advertisement must list the name of every individual in possession of the property. Alternatively, it may list business entities that are owners. The advertisement must also reference the lender’s right to sell the property.

What Happens When a Lender Forecloses on a Property?

The foreclosure process is only the first step if a lender is also seeking the recovery of funds borrowed for the original purchase of the property. Following a default on a loan, lenders may choose to initiate legal action. Choosing the best foreclosure option requires lenders to balance factors such as efficiency, cost and risk associated with foreclosing on a property. You have some limitations as a borrower. However, you can still use an attorney to negotiate a better result.

Financial institutions and borrowers must look to loan documents, security deeds and demand letters to ensure that the lender complies with the foreclosure process and also that the lender maintains the correct and complete documentation to assert its rights to foreclose. In some instances, questions will arise regarding the proper collateral for a loan, the actual ownership of the property in question, and the assignment of loans to the institution desiring a foreclosure. Lawsuits, disputes and other obstacles can further complicate the foreclosure process.

What Is a Deficiency Judgment After Foreclosure?

A “deficiency judgment” is a judgment ruled against a borrower whose foreclosure sale did not cover the entire amount owed. The deficiency judgment is unsecured and requires cash to satisfy the deficiency. If the property was sold at fair market value but the borrower fell short in satisfying the loan in its entirety, a lender can — and likely will — seek remedies. This process is called “commercial foreclosure confirmation”. An experienced and qualified commercial Atlanta real estate attorney can help you maneuver this complex area of the law.

If a Georgia court issues a deficiency judgment, then any outstanding balance owed by the borrower after the foreclosure sale remains the personal financial responsibility of the borrower. The Georgia Court may order the borrower to pay the outstanding balance. If payment is not made, or if there is a refusal to pay, then other legal remedies may be available to persuade the borrower to honor the obligation.

Questions? Our Atlanta Foreclosure Attorneys Have Answers

Both the lender and the borrower may need to review the closing documents from the original transaction. For this reason alone, both will likely require the assistance of an experienced foreclosure attorney. This step will help to prevent most bankers and borrowers from entering into perilous situations. As a result, you can work to avoid wrongful foreclosure litigation and improper foreclosures on properties.

At Hecht Walker, P.C., any one of our Atlanta foreclosure attorneys can review closings. In addition, we can look over other relevant documents from the original transaction. You deserve to have your best interests protected by a strong legal team. Contact Hecht Walker, P.C. online or call us at (404) 948-6424 to schedule a consultation. We can investigate the details of your case and let you know how we can help.

DISCLAIMER

This information was posted on 05-22-2018 and does not constitute legal advice nor does it create an attorney-client relationship. The law changes on a daily basis and the reader should engage an attorney through a written agreement before taking action in this area of the law.