There are only three ways to stop a mortgage foreclosure in Georgia:
- the lender or its attorney can voluntarily stop the foreclosure process
- you can file a lawsuit in Superior Court and ask the judge to enjoin (stop) the foreclosure action
- you can file Chapter 13 bankruptcy and use the power of Chapter 13 to cancel the default and pay back your arrearage (missed payments) in a five year Chapter 13 plan
Do Non Bankruptcy Options Really Work?
My firm’s experience has been that lenders and/or their attorneys rarely agree to a voluntary cancellation of the foreclosure process. However, if you can identify a flaw in the foreclosure process (i.e. notice was sent to the wrong place or you have a written forbearance in hand that the foreclosing lawyer did not know about), you may be able to convince the foreclosing attorney to delay the process. If the lender’s law firm agrees to stop the foreclosure you should ask for confirmation in writing – a verbal promise is not enough.
Similarly the Superior Court remedy is rarely used in residential foreclosures. First, you need to have evidence that the foreclosure is somehow wrongful, second, you need to be able to get into court prior to the foreclosure date, and third, you will likely have to pay a real estate litigator by the hour to represent you. Further there is no guarantee that the judge will agree with your position or that he will rule in time to order the lender to stop.
Georgia is a “non-judicial” foreclosure state which means that lenders do not have to file suit in a state court to proceed with foreclosure. Included in that stack of paperwork you signed at closing was something called a power of sale which authorizes the lender to sell your home on the courthouse steps if you become delinquent with your payments.
Foreclosure in Georgia can happen in less than 40 days start to finish – thus as a practical matter once you find out that you are actually in a foreclosure there is almost no time to do anything about it other than to file a bankruptcy.
Chapter 13 Bankruptcy – the Most Cost Effective Action to Stop a Foreclosure
Chapter 13 usually turns out to be the least expensive and most certain method to stop a sale on the courthouse steps. Firstly, when you file a Chapter 13 bankruptcy you will immediately put a halt to all pending foreclosure activity. With limited exception (mostly having to do with prior filings), the instant you file Chapter 13, the automatic stay of bankruptcy comes into force and all creditor actions are rendered null and void.
Chapter 13 works even if you file it one minute before your house is sold in the courthouse steps and the lender’s attorney does not know that you have filed. In fact, sales consummated in violation of the automatic stay (whether the violation is intentional or not) are void and even an innocent third party purchaser of your property will be out of luck.
Obviously you do not want to wait until the hour before, the day before or even the week before foreclosure to pursue the Chapter 13 option. The most effective Chapter 13 bankruptcy filings are those where we have sufficient time to carefully review your debts and assets, income and expenses. The minute you learn that your lender has actually started foreclosure proceedings or has referred your file to a lawyer to start the process, call my office to evaluate both bankruptcy and non-bankruptcy options.