Georgia Foreclosure Defense, TRO to Restrain Sale, Confirmation Challenge & Loss Mitigation Package

Georgia Foreclosure Defense, TRO to Restrain Sale, Confirmation Challenge & Loss Mitigation Package

Part 1 — Pre-Defense Intake Checklist

Borrower / Case Information

O.C.G.A. § 44-14-162.2 Notice of Sale Audit (STRICT COMPLIANCE — Reese)

☐ Was written notice sent to Borrower at least 30 days before the sale by registered or certified mail (or statutory overnight delivery)?
☐ Does the notice identify the entity with full authority to negotiate, amend, and modify all terms of the mortgage with the debtor (not merely "the servicer")?
☐ Does the notice include the telephone number of that entity?
☐ Was publication once a week for 4 weeks preceding sale (O.C.G.A. § 9-13-141)?
☐ Are the legal description, time, place, terms, and parties in the published notice accurate?

Standing Audit (You v. JP Morgan)

☐ Who is the record holder of the security deed as of today?
☐ Is the foreclosing party the record-holder of the security deed (not merely the noteholder)?
☐ Was the assignment of the security deed recorded before the first publication?
☐ Is the deed of assignment in the chain of title?

Document Collection Checklist

☐ Original promissory Note
☐ Recorded Security Deed and all assignments (from Superior Court Clerk Real Estate Index)
☐ Notice of foreclosure sale (mailed + published)
☐ Closing documents (HUD-1 / Closing Disclosure / TIL)
☐ All servicer correspondence (24 months)
☐ Payment history / bank records
☐ Loss mitigation applications and offers
☐ Hardship documentation
☐ Any prior bankruptcy filings

Part 2 — Verified Complaint, TRO and Interlocutory Injunction to Restrain Foreclosure Sale

Civil Action No. [____________________]

VERIFIED COMPLAINT FOR TEMPORARY RESTRAINING ORDER, INTERLOCUTORY INJUNCTION, AND DAMAGES

COMES NOW Plaintiff, [BORROWER NAME], by and through undersigned counsel, and files this Verified Complaint and shows the Court as follows:

Parties, Jurisdiction, and Venue

1. Plaintiff is a Georgia resident and owner of real property commonly known as [PROPERTY ADDRESS], [CITY], [_____] County, Georgia (the "Property").
2. Defendant [LENDER] is [___] doing business in Georgia, conducting nonjudicial foreclosure proceedings on the Property.
3. This Court has jurisdiction under Ga. Const. Art. VI, § IV, ¶ I and O.C.G.A. § 23-1-1 et seq. (equity).
4. Venue is proper in this county where the land lies. Ga. Const. Art. VI, § II, ¶ II.

Factual Background

5. On or about [__/__/____], Plaintiff executed a promissory Note and Security Deed to [ORIGINAL LENDER] in the original principal amount of $[__________].
6. [Recite assignments / current claimed holder.]
7. Defendant sent Plaintiff a purported Notice of Foreclosure Sale dated [__/__/____], asserting a sale on the first Tuesday of [_______], 2026.

Count I — Failure to Comply with O.C.G.A. § 44-14-162.2 (Defective Notice)

8. The Notice fails to identify the entity with full authority to negotiate, amend, and modify all terms of the mortgage as required by O.C.G.A. § 44-14-162.2(a), in violation of Reese v. Provident Funding Assocs., 317 Ga. App. 353 (2012). Strict compliance is required. A foreclosure conducted in violation of § 44-14-162.2 is invalid.

Count II — Lack of Authority to Foreclose

9. Defendant is not the holder of the security deed of record as required by You v. JP Morgan Chase Bank, N.A., 293 Ga. 67 (2013). No assignment to Defendant was recorded prior to the first publication of the sale.

Count III — Violation of CFPB Regulation X (12 C.F.R. § 1024.41)

10. Defendant scheduled foreclosure sale while Plaintiff's complete loss mitigation application was pending (12 C.F.R. § 1024.41(g) dual-tracking prohibition), and/or referred the loan to foreclosure prior to 120 days of delinquency (§ 1024.41(f)(1)).

Count IV — Breach of Implied Duty of Good Faith and Fair Dealing

Count V — Wrongful Attempted Foreclosure (when sale is restrained)

Count VI — Violation of FDCPA, FCRA, and Georgia Fair Business Practices Act (separate counts as alleged in Counterclaim package, Part 3)

Count VII — Request for Injunctive Relief (O.C.G.A. § 9-11-65)

11. Likelihood of success on the merits is established by the defective notice and lack of authority to foreclose.
12. Irreparable harm: loss of one's primary residence is per se irreparable injury in equity (Williams v. SunTrust Mortgage, Inc., 333 Ga. App. 595 (2015), and progeny).
13. No adequate remedy at law: damages cannot replace title to unique real property.
14. Balance of equities favors Plaintiff; public interest favors enforcement of foreclosure statutes' protective provisions.

Prayer for Relief

WHEREFORE, Plaintiff respectfully prays this Court:

a. Enter a Temporary Restraining Order forthwith restraining and enjoining Defendants from conducting any foreclosure sale of the Property pending a hearing on Plaintiff's Motion for Interlocutory Injunction;
b. After hearing, enter an Interlocutory Injunction continuing the restraint until trial;
c. Declare the Notice of Foreclosure Sale dated [__/__/____] invalid;
d. Award actual, statutory, and punitive damages;
e. Award costs and attorneys' fees under O.C.G.A. § 13-6-11 and 12 U.S.C. § 2605(f);
f. Grant such other relief as is just.

Dated: [__/__/____]

_____________________________
[Attorney Name], Ga. Bar No. [________]
Attorney for Plaintiff
[Firm / Address / Phone / Email]

VERIFICATION

Personally appeared before the undersigned officer authorized to administer oaths, [BORROWER NAME], who being duly sworn deposes and states that the facts set forth in the foregoing Verified Complaint are true and correct to the best of his/her knowledge.

_____________________________
[BORROWER NAME]

Sworn to and subscribed before me this [____] day of [__________], 20[____].

_____________________________
Notary Public

Part 3 — Motion for Temporary Restraining Order and Interlocutory Injunction

MOTION FOR EX PARTE TEMPORARY RESTRAINING ORDER, OR IN THE ALTERNATIVE, EXPEDITED HEARING; AND FOR INTERLOCUTORY INJUNCTION

Plaintiff moves under O.C.G.A. § 9-11-65 and Uniform Superior Court Rule 6.4 for an immediate ex parte Temporary Restraining Order, supported by the Verified Complaint, restraining Defendants from conducting the foreclosure sale of the Property scheduled for [__/__/____].

Brief in Support

I. Standard (O.C.G.A. § 9-11-65(b)): TRO without notice may issue when specific facts shown by verified complaint show that immediate and irreparable injury will result before adverse party can be heard, and applicant's attorney certifies efforts to give notice.

II. Likelihood of Success: Notice defects under § 44-14-162.2 (Reese) and standing defects (You) render the sale void.

III. Irreparable Harm: Loss of homestead is per se irreparable.

IV. Balance of Hardships: Defendant suffers only short delay; Plaintiff loses title.

V. Bond (O.C.G.A. § 9-11-65(c)): Plaintiff offers bond in the amount of [_____________], or requests waiver in the Court's discretion based on Plaintiff's financial hardship and the meritorious nature of the claim.

Part 4 — Counterclaims / Stand-Alone Claims for Damages

Count A — Violation of RESPA / Regulation X (12 U.S.C. § 2605; 12 C.F.R. §§ 1024.35, .36, .41)

Defendant failed to (i) acknowledge Notices of Error / RFIs within 5 business days; (ii) respond substantively within 30 business days; (iii) cease dual-tracking when complete loss mitigation application was pending. Plaintiff seeks actual damages, statutory damages up to $2,000 per violation, costs, and attorneys' fees.

Count B — Violation of FDCPA (15 U.S.C. § 1692e, f, g)

Count C — Violation of FCRA (15 U.S.C. § 1681s-2(b))

Count D — Violation of Georgia Fair Business Practices Act (O.C.G.A. § 10-1-393)

Defendant engaged in unfair or deceptive acts in connection with consumer mortgage servicing affecting the consumer marketplace, including: [____________________________]. Plaintiff seeks actual damages, treble damages for intentional violations (§ 10-1-399(c)), exemplary damages, and attorneys' fees.

Count E — Wrongful Foreclosure (where sale has occurred)

Elements: (1) legal duty owed by foreclosing party to borrower, (2) breach of duty, (3) causal connection between breach and injury, (4) damages. Aetna Fin. Co. v. Culpepper, 171 Ga. App. 315 (1984).

Part 5 — Opposition to Confirmation (O.C.G.A. § 44-14-161) — Post-Sale

IN THE SUPERIOR COURT OF [______________] COUNTY, GEORGIA

In re Confirmation of Foreclosure Sale of [PROPERTY ADDRESS] — Case No. [____________________]

RESPONDENT-DEBTOR'S OPPOSITION TO PETITION FOR CONFIRMATION

Respondent-Debtor [BORROWER NAME] opposes confirmation on the grounds that:

1. True market value not received. The foreclosure sale price of $[__________] is materially below the true market value of $[__________] as established by [appraisal / comparable sales]. See O.C.G.A. § 44-14-161(b).
2. Notice and advertisement defects under O.C.G.A. § 44-14-162 / § 44-14-162.2 / § 9-13-141 (specify defect: [______________]).
3. Irregularity in the sale (chilled bidding, conflict of interest, etc.).
4. Cry of sale failed to accurately describe the property or terms.

WHEREFORE Respondent prays:
a. Confirmation be DENIED, barring any deficiency action;
b. In the alternative, that the Court order a RESALE under O.C.G.A. § 44-14-161(c) for good cause shown;
c. Award costs.

Part 6 — Loss Mitigation Application Package (CFPB Reg X)

Cover Letter

Date: [__/__/____]

Enclosed is a complete loss mitigation application triggering 12 C.F.R. § 1024.41 protections (5-BD acknowledgment, 30-day evaluation, dual-tracking prohibition, 14-day appeal rights).

Financial Worksheet

Hardship Statement

☐ unemployment ☐ underemployment ☐ medical ☐ divorce ☐ death of co-borrower ☐ disability ☐ disaster ☐ military ☐ other [________]

Narrative: [____________________________________________________________]

Options Requested

☐ Loan Modification (Flex / FHA-HAMP / VA / USDA / investor program)
☐ Repayment Plan
☐ Forbearance
☐ Short Sale
☐ Deed-in-Lieu
☐ Reinstatement quote

Document Checklist

☐ 2 pay stubs per wage earner
☐ 2 years' tax returns / transcripts
☐ 2 months' bank statements
☐ P&L (self-employed)
☐ SSA / pension award letters
☐ Form 710 (Uniform Borrower Assistance Form)
☐ IRS Form 4506-C
☐ Utility bill (occupancy)
☐ Hardship affidavit (signed)

Part 7 — Loan Modification Request Letter

Date: [__/__/____]

Borrower requests evaluation for modification under the applicable investor waterfall.

_____________________________
[BORROWER NAME]

Part 8 — Discovery Demand

To Defendant, please respond within 30 days under O.C.G.A. § 9-11-33, § 9-11-34, § 9-11-36:

Interrogatories

1. State the date and means by which Defendant acquired the Note and Security Deed.
2. Identify every assignment of the Security Deed, the recording date, and book/page.
3. Identify the entity with full authority to negotiate, amend, and modify the mortgage as referenced in the Notice of Sale, and provide all written delegations of such authority.
4. Identify each loss mitigation application received and the disposition.
5. State whether the loan is held in a securitization trust; if so, identify the trust and PSA.

Requests for Production

☐ Original Note for inspection
☐ All allonges/endorsements
☐ All recorded assignments of security deed
☐ Complete payment history
☐ The PSA and Mortgage Loan Schedule
☐ Loss mitigation correspondence
☐ Inter-servicer transfer files
☐ Servicing guidelines
☐ Investor approval/delegation of authority
☐ SCRA servicemember status reports

Requests for Admission

1. Admit no assignment of security deed to Defendant was recorded before the first publication of sale.
2. Admit the Notice of Foreclosure Sale did not identify any entity beyond the servicer.
3. Admit Defendant did not respond to the Notice of Error sent on [__/__/____] within 30 business days.

Part 9 — Bankruptcy Referral Checklist

☐ Means test (Form 122A) — Georgia median income comparison
☐ Verify 180-day prior filing rule (11 U.S.C. § 109(g))
☐ Credit counseling certificate within 180 days (11 U.S.C. § 109(h))
☐ Chapter selection:
☐ Chapter 13 — cure arrears in 3–5 years; strip wholly-unsecured junior liens
☐ Chapter 7 — surrender / no reorganization
☐ Chapter 11 (Subchapter V) — small business
☐ Automatic stay analysis (§ 362)
☐ Confirm one-filing/two-filing limitations (§ 362(c)(3)/(c)(4))
☐ FILE BEFORE FIRST TUESDAY SALE to invoke stay
☐ Refer to: [bankruptcy attorney]

Part 10 — Critical Georgia Deadlines Summary

Sources and References

• Official Code of Georgia Annotated, Title 44, Chapter 14, Article 7 (Foreclosure): https://law.justia.com/codes/georgia/title-44/chapter-14/article-7/
• O.C.G.A. § 44-14-161 (Confirmation): https://codes.findlaw.com/ga/title-44-property/ga-code-sect-44-14-161/
• O.C.G.A. § 44-14-162.2 (Notice of sale): https://codes.findlaw.com/ga/title-44-property/
• PNC Bank, N.A. v. Smith, 298 Ga. 818, 785 S.E.2d 505 (2016)
• Reese v. Provident Funding Assocs., LLP, 317 Ga. App. 353, 730 S.E.2d 551 (2012)
• You v. JP Morgan Chase Bank, N.A., 293 Ga. 67, 743 S.E.2d 428 (2013)
• CFPB Regulation X, 12 C.F.R. Part 1024
• Georgia Superior Court Clerks' Cooperative Authority (real estate filings): https://gsccca.org/