Post-Foreclosure Defense in Georgia
Sometimes, previous property owners remain in their homes after foreclosure, either by choice or necessity. At Brian R. Cahn & Associates, LLC we assist clients in post-foreclosure defense, including defense against deficiency judgments and evictions. Our goal is to help clients fight foreclosures and evictions whenever possible, using protections afforded under bankruptcy law and real property law.
Defending against Deficiency Judgments
In Georgia, if your home is foreclosed on and sold for less than the amount you owe on your mortgage, your lender may be able to pursue a deficiency lawsuit against you for the difference between your home’s sale price and the outstanding loan balance. However, there are valid and effective defenses against deficiency judgments, such as:
- The lender may have been able to mitigate (lessen) its damages.
- The lender may not be the proper party to seek a deficiency judgment.
- The lender may have violated the Truth in Lending Act (TILA) or other lending laws.
- The lender may be required to pursue a private insurance claim prior to attempting to collect from the former homeowner.
Increasing awareness of illegal shortcuts taken by lenders in foreclosure proceedings has provided former homeowners with the opportunity to defend themselves against lenders who pursue deficiency judgments. In fact, if a case is reopened to set aside a foreclosure, a lender may lose the right to pursue a deficiency judgment.
Post-Foreclosure Eviction Defense
To evict a former homeowner after foreclosure, the new owner (often a bank) must follow specific procedures, including serving notice and going to court. This is because a former homeowner who remains after foreclosure is considered a tenant at sufferance, and has the same right as all tenants to defend against eviction by bringing certain claims against the property owner. For example, a former homeowner may win an eviction case if he or she did not receive reasonable notice, or if the bank’s court complaint is defective.
Another way to fight eviction is through bankruptcy. If you file for bankruptcy during eviction proceedings, your eviction case cannot move forward without the Bankruptcy Court’s permission. The bank must file a motion in your bankruptcy case, and only if the motion is allowed can the eviction proceed. You may also challenge the foreclosure as part of your bankruptcy case.
Talk to a Local Georgia Lawyer about Staying in Your Home after Foreclosure
If you have been through foreclosure and are facing eviction, do not give up. There are still ways to fight back, and we can help you do it. Contact Brian R. Cahn & Associates, LLC today for a free initial consultation. Our lawyers serve clients throughout North Georgia from offices in Cartersville, Calhoun, Dalton and Dallas.