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Appellate win in wrongful foreclosure case

Posted by John Hadden | Oct 16, 2017 | 0 Comments

John Hadden typically handles plaintiff personal injury and wrongful death cases, but occasionally assists attorneys with cases involving other type of lawsuits. One example was the recent Georgia Court of Appeals decision in Mike's Furniture Barn v. Smith, Case No. A17A1162 (August 10, 2017). This case involved an allegedly wrongful foreclosure of our client's home, a type of consumer protection lawsuit. In 2002, the client financed a purchase of some personal property, and executed both a note and a security deed ("deed to secure debt"). In 2016, the lender commenced foreclosure proceedings against the borrower (our client) and foreclosed on her home. She then retained an attorney (our co-counsel, Ben Windham) who successfully had the foreclosure set aside and sought monetary damages for the wrongful foreclosure. The basis for setting aside the foreclosure was that the lender had simply waited two long - Georgia law provides for a 7-year reversionary period following maturity of the debt after which full title to the property reverts to the owner, after which foreclosure is unavailable. In some cases, however, that period can be extended to 20 years if the loan language contains an "affirmative statement contained in the record of conveyance intend to establish a perpetual or indefinite security interest in the real property conveyed to secure a debt or debts."

The defendants filed an appeal to the Georgia Court of Appeals, arguing that the language of the note and security deed did, in fact, contain the required language necessary to extend to period in which foreclosure could occur. But, after reviewing the documents, the Court of Appeals agreed with us, and the trial court, that the language did not clearly establish an intent to establish a perpetual debt, and therefore affirmed the setting aside of the foreclosure, and the granting of a permanent injunction against any further foreclosure actions.

 

About the Author

John Hadden

John D. Hadden is the owner and founder of the Hadden Law Firm. An experienced trial and appellate lawyer, he is author of three respected treatises on Georgia litigation practice: Greens Georgia Law of Evidence, Georgia Law of Torts - Trial Preparation and Practice, and Georgia Magistrate Court...

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