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Tenants Can’t Contest Foreclosure Proceedings or Quality of Title In Eviction (Dispossessory) Court

by on March 30, 2011

While a foreclosure vests title in the winning bidder at a foreclosure sale, it doesn’t entitle the winning bidder to immediate possession of the premises.  Rather, getting possession requires the filing an eviction, formally called a Petition for a Dispossessory Warrant in Atlanta, Georgia.

Frequently, tenants in these situations will file an answer claiming the foreclosure sale was done improperly or that the winning bidder’s title is defective.  Often, the court will look at the tenant’s answer and conclude that the tenant’s defenses exceed the jurisdiction of the eviction court, which is set up to handle only landlord-tenant disputes.  Much to the horror of the winning foreclosure bidder, the judge will then transfer the case to the superior court for resolution.  This leaves the tenant in possession of the premises indefinitely and expands a simple eviction into a full-blown lawsuit.

Fortunately, Georgia law is supposed to prevent this from happening.

A recent Georgia Court of Appeal case reiterated the court’s position on these issues.  In Moore v. REO Properties Accredited Home Lenders, Inc., A10A2330 (2/11/11), a tenant, residing in a property that had been foreclosed, argued in her answer that the original sale of the property was fraudulent, that the property was wrongfully foreclosed, and that the lender didn’t have the right to foreclose on the property.

The Court rejected the tenant’s arguments, finding that “‘challenges to a foreclosure sale cannot be asserted as a defense in a subsequent dispossessory proceeding.’” (citing Vines v. LaSalle Bank Nat. Ass’n, 302 Ga. App. 353, 691 SE2d 242 (2010)).  And, “’[c]laimed defects in the landlord’s title to premises cannot be raised as a defense to a proceeding for possession under O.C.G.A. § 44-7-50 et seq.’”  (citing Sanders v. Daniel, 302 Ga. App. 350, 351, 691 SE2d 244 (2010)).

When filing an eviction following a foreclosure, to prevent unnecessary litigation, your attorney should have these cases available at the trial to show the judge.

Please call Krause Golomb & Witcher LLC at (404) 835-8080 to handle your residential and commercial foreclosures and evictions.

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