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Legislative Update Alert for Georgia Financial Institutions

Legislative Update Alert for Georgia Financial Institutions

April 17, 2008


The Georgia General Assembly adopted several pieces of legislation that will affect Georgia financial institutions.  Below is a summary of three of those bills. These bills have not yet been signed by the Governor, or become law without that approval, however, two of the three summarized below will become effective immediately upon approval, therefore, financial institutions should familiarize themselves with new requirements facing them.  Specific questions regarding the legislation and how it may affect particular institutions should be addressed to a financial institution’s own legal counsel.  Also note that the following recap is only intended as a summary and the full text of the legislation should be reviewed and understood by each financial institution.

House Bill 1093, as passed the House and Senate, is an amendment to O.C.G.A. 44-14-3 relating to providing a cancellation or mortgage satisfaction to a borrower.  The purpose of the original code provision was to protect grantors of deeds and other security instruments from lenders who unreasonably withheld cancellation of deeds when loans were paid in full.  O.C.G.A. 44-14-3 currently provides that, within 60 days of the date of full payment of a loan or note, the holder of the security instrument must file a satisfaction or cancellation with the clerk’s office. It further provides that if a lender fails to furnish such cancellation, “upon written demand” the grantor is entitled to $500.00 in liquidated damages and other costs and fees.  House Bill 1093 was drafted in response to a number of class action lawsuits that have been filed against lenders in Georgia.  These class action suits have been predicated on the argument that a demand can be made when a suit is filed seeking the payment for not only the borrower directly involved in the litigation, but also for any other borrower of the lender whose mortgage had not been satisfied within the 60 day period required.  House Bill 1093 provides clarifying language to address this issue.  Specifically, whenever a deed or security instrument is paid in full, the lender, within 60 days of the date of the full payment, must mail notice of satisfaction or cancellation and notice of the borrower’s right to demand payment of $500.00 in liquidated damages from the lender if such obligation is not timely met.  Language has been added to require that a borrower make written demand to the lender at least 15 business days prior to filing a civil action to recover liquidated damages.   House Bill 1093 will become effective upon the Governor’s signature or upon its becoming law without such approval.

Senate Bill 355, and referred to as the “Good Funds” bill, amends O.C.G.A. 44-14-13 by changing the instruments mortgage settlement agents may accept in lieu of collected funds.  The legislation provides that a settlement agent may disburse proceeds from its escrow account after receipt of any of the following negotiable instruments even though the same are not collected funds:  (1)  a cashier’s check as defined at O.C.G.A. 11-3-104 from a federally insured bank, savings bank, savings and loan association, or credit union, and issued by a lender for a closing or loan transaction; (2)  a check drawn on the escrow account of an attorney or real estate broker, if there are reasonable and prudent grounds to believe that the check will constitute collected funds in the settlement agent’s escrow account within a reasonable time; (3)  a check issued by the United States or Georgia, or any agency thereof, as defined at O.C.G.A. 50-15-1; and (4) a check or checks not exceeding $5,000 in aggregate per loan closing.  The legislation also contains a provision that in the case of a refinancing or any other loan where a right of rescission applies, the lender shall, prior to disbursement, and no later than 11:00 a.m. eastern time of the next business day following the expiration of the rescission period, deliver loan funds to the settlement agent.  Upon the Governor’s signature or upon its becoming law without such approval Senate Bill 355 will become effective July 1, 2008, and will apply to all loans closed on or after July 1, 2008.

Senate Bill 531 amends O.C.G.A. 44-14-162 relating to the advertisement and conduct necessary for validity for sales made on foreclosures under power of sale.  This legislation contains a requirement that the security instrument or assignment thereof vesting the secured creditor with title to the security instrument be filed prior to the time of sale in the county in which the real property is located.  Notice of the initiation of proceedings must be given to the debtor no later than 30 days before the date of the proposed foreclosure.  A copy of the notice to be submitted to the publisher must be included in the notice given to the debtor.   The notice must be in writing and must include the contact information of an individual or entity that has full authority to negotiate, amend, and modify the terms of the mortgage. The code amendment does not require that a secured creditor negotiate, amend, or modify the terms of a mortgage instrument.  Senate Bill 531 will become effective upon the Governor’s signature or upon its becoming law without such approval.   This legislation does not provide any instruction as to how these new notice requirements will affect foreclosure proceedings already in progress.  Only a court of competent jurisdiction will be able to address that issue specifically, however, the Department would suggest that its regulated entities immediately incorporate the notice requirements contained in Senate Bill 531 into their standard operating procedures.