Judicial vs. Nonjudicial Foreclosure
The important difference is whether the creditor must first obtain a court judgment authorizing the foreclosure sale.
What does “nonjudicial foreclosure” actually mean?
It means that the foreclosure sale can generally take place without the lender first filing a lawsuit asking a court to authorize the sale.
The Georgia Attorney General describes Georgia as a nonjudicial foreclosure state.
Instead of beginning with a traditional foreclosure lawsuit, the creditor generally follows the power-of-sale procedures contained in the security deed and Georgia foreclosure law.
The courthouse sale does not require a foreclosure lawsuit first.
The fact that the sale occurs at the courthouse can make the process sound like a court proceeding. But the foreclosure auction itself is generally conducted under the power of sale rather than through a lawsuit seeking a foreclosure judgment.
Where does the lender get the right to sell my house?
When a Georgia homeowner finances a home, the loan transaction generally includes both a promissory note and a deed to secure debt.
The note contains the promise to repay the money. The security deed gives the creditor rights against the real estate if the borrower defaults.
Georgia security deeds commonly contain a power of sale allowing the creditor to sell the property after default if the required foreclosure procedures are followed.
That is why the deed to secure debt is one of the most important documents in a Georgia mortgage transaction.
What does the lender have to do before the sale?
Nonjudicial does not mean informal.
Georgia law establishes specific procedures that must generally be followed before property can be sold under a power of sale.
Major pieces of the Georgia foreclosure process
This is a simplified overview rather than every possible legal issue.
How much advance notice do I get?
Georgia law generally requires the written foreclosure notice to be sent at least 30 days before the proposed foreclosure sale. For a focused explanation, see our Georgia foreclosure notice guide .
The notice must also include information for the individual or entity with authority to negotiate, amend, and modify the mortgage terms.
The Georgia Attorney General also explains that refusing certified or registered mail does not invalidate the foreclosure notice. For the larger timeline from default through sale, see How Does Foreclosure Work in Georgia?
Because Georgia generally uses nonjudicial foreclosure, a homeowner should not assume that a lawsuit or court summons must arrive before the property can be sold.
Does the lender have to advertise the foreclosure?
Yes, Georgia law requires publication as part of a power-of-sale foreclosure.
The Georgia Attorney General explains that notice of the foreclosure is published in the official newspaper used for public notices in the county where the property is located for four consecutive weeks before the scheduled foreclosure.
Where does the foreclosure sale happen?
Georgia foreclosure sales are generally held at the courthouse in the county where the property is located.
The Attorney General explains that foreclosure sales generally take place on the first Tuesday of the month between 10:00 a.m. and 4:00 p.m.
“Courthouse steps” does not mean the court approved the foreclosure.
The courthouse is the location of the public sale. In a typical Georgia power-of-sale foreclosure, there was not necessarily a judge or lawsuit involved before the auction.
Does that mean a court is never involved?
No.
The foreclosure itself may proceed nonjudicially, but courts can still become involved in several related situations.
Situations where court involvement can still occur
Can I challenge a foreclosure if there was no lawsuit?
Potentially, depending on the facts.
Nonjudicial foreclosure does not prevent a homeowner from raising legal issues concerning the foreclosure process.
Questions may involve notice, the security deed, the entity conducting the foreclosure, assignments, servicing conduct, bankruptcy stays, or compliance with the power-of-sale procedures.
Whether there is actually a valid claim depends on the documents and facts of the specific foreclosure.
The more useful question is whether the creditor had the legal authority to foreclose and followed the procedures required by Georgia law and the loan documents.
What if I disagree with the amount the mortgage company says I owe?
Do not ignore the foreclosure while the dispute is being investigated.
Mortgage-account disputes and foreclosure timing can move on separate tracks.
Keep written records of payments, statements, escrow issues, loss-mitigation correspondence, and any written dispute sent to the mortgage servicer. Our foreclosure document checklist can help organize the records that matter most.
If a foreclosure date is already scheduled, continue monitoring that date while the account problem is being reviewed.
Can bankruptcy stop a nonjudicial foreclosure?
In many cases, yes.
The Georgia Attorney General notes that a valid bankruptcy filing generally creates a stay of legal proceedings against the debtor, including a nonjudicial foreclosure.
The filing generally needs to occur before the property has already been sold if the goal is to stop the pending foreclosure sale. See Does Chapter 13 Stop Foreclosure in Georgia? and How Late Can I File Chapter 13 to Stop Foreclosure?
What should I look for if foreclosure has started?
Important information to identify
What is the biggest mistake homeowners make about this?
Waiting for a lawsuit that Georgia law generally does not require.
If you receive a foreclosure notice with an actual sale date, treat that notice seriously even if no lawsuit has been filed, no sheriff has served you, and you have never appeared before a judge. If the sale is already scheduled, see what options may still exist before the foreclosure sale .