tokn, Author at Thompson O'Brien Kemp & Nasuti, P.C.

FORECLOSING ON REAL PROPERTY IN GEORGIA AND FLORIDA

Posted on August 21, 2019August 21, 2019 by tokn

Foreclosure on Real Property

The American legal system allows for two types of real property foreclosures: judicial and non-judicial. The judicial system, as the name suggests, requires a secured party involve a court by filing a lawsuit. The non-judicial system allows secured parties to foreclose without the involvement of a court. The non-judicial system is typically a quicker and cheaper process. While Georgia law provides for both methods of foreclosure, Florida only provides for the judicial method. Below we dig deeper into the salient features and differences between foreclosing on real property in Georgia and Florida.

GEORGIA FORECLOSURE

Typical Foreclosure

Although Georgia law allows for judicial foreclosure of real property, the judicial route is rarely used. The preferred method is the non-judicial method due to the fact it is significantly cheaper and quicker.

Non-Judicial Foreclosure

The non-judicial method of foreclosing in Georgia typically begins with an acceleration or default letter. The letter demands payment of the debt within a pre-determined time frame. Although letters are not a statutory requirement under Georgia’s foreclosure laws, requirements exists in most security deeds and notes drafted in Georgia. After the acceleration or default deadline runs, the secured party must send notice of the initiation of foreclosure proceedings to the debtor to the property address no later than 30 days before the date of the proposed foreclosure. Alternatively, if the debtor provided written notice of a different service address, the secured party must send the notice to the provided address. Furthermore, registered mail, certified mail, or statutory overnight delivery are the proper methods of service. O.C.G.A. § 44-14-162.2 lists other requirements for the notice of foreclosure sale. .

Georgia law requires that the secured party advertise the sale of the property in the legal organ of the county. The advertisement must run for four weeks prior to the foreclosure. See O.C.G.A. § 9-13-140. The actual foreclosure sale is then conducted on the first Tuesday of the month between 10:00 A.M. and 4:00 P.M. If New Year’s Day and/or the 4th of July fall on the first Tuesday of the month, foreclosure day moves to that Wednesday. See O.C.G.A. § 9-13-161. Finally, the execution and recording of a Deed Under Power in the county where the property is located finalizes the foreclosure sale.

Additional References

For those interested in the unusual methods of foreclosing on real property in Georgia, refer to the following code sections: Foreclosure of a Mortgage at Law (O.C.G.A. §44-14-180 and §44-14-187); Foreclosure of Deed to Secure Debt (O.C.G.A § 44-14-210); and Judicial Foreclosure in Equity (O.C.G.A. §44-14-49).

FLORIDA FORECLOSURE

Florida foreclosures start in the same manner as Georgia foreclosures. First, an acceleration or default letter is sent if required by the underlying loan documents. Once the deadline to pay the debt runs, the secured party will file a lawsuit against the titleholders. It is important to note that Florida law also requires naming additional defendants in the foreclosure action. Examples of potential additional defendants include, but are not limited to, the holders of liens or judgments recorded after the mortgage being foreclosed, condominium/homeowner’s associations, those claiming the property as homestead, etc.

The Complaint

The complaint should include all facts that substantially affect the plaintiff’s right to foreclose. These facts include execution and delivery of the promissory note and mortgage, the present ownership of the note and mortgage, a description of the real property, the names of the present titleholders, defaults on the note and mortgage, and the amount remaining due. See Fla. Civ. Forms. 1.944a-b. Significantly, if the secured party does not possess the original note and allonges, the complaint should have a count stating that the named plaintiff is entitled to enforce the note. The complaint also needs to be verified.

The Process

After serving the required defendants with the foreclosure lawsuit, the secured party can then move for final judgment via a motion for default judgment or a motion for final judgment depending on the circumstances. The final judgment will establish a date for the sale of the property. The sale date must be not fewer than 20 days, nor more than 35 days after the final judgment. See F.S. 45.031(1)(a). Florida law requires that the secured party publish the notice of sale once a week for two consecutive weeks in a newspaper of general circulation. See F.S. 45.031(2). Lastly, the foreclosure sale, just like Georgia, is conducted at a public action.

Wherever you are

Foreclosing on real property is a necessary process. Know your state’s laws, review the statutes, and follow appropriate deadlines.

Author

Viraj P. Deshmukh
Admitted in Georgia and Florida
vdeshmukh@tokn.com

If you would like to learn more about Viraj, please visit his profile or his LinkedIn page.

For information on our Real Estate practice group, click here.

TOKN Nominated for Best of Gwinnett 2019

Posted on August 8, 2019August 8, 2019 by tokn

We are excited to announce that we have been nominated for Best of Gwinnett! Now, Guide to Gwinnett wants to hear from YOU. If you would like to vote for our firm, please click on the photo below:

TOKN has been nominated for Best of Gwinnett. Click on this photo to vote for TOKN.

We love being a part of this wonderful community! To learn more about us and what we do, please look through our website or contact us at info@tokn.com.

Attorney Spotlight

Posted on July 19, 2019July 31, 2019 by tokn

Viraj Deshmukh

Viraj Deshmukh is an associate at TOKN. He focuses his practice on civil litigation, entrepreneurial services, outside general counsel, and intellectual property protection.

A Little About Viraj Professionally

Viraj has been practicing law for almost 5 years and has been with TOKN for a year and a half. Already, he has become a vital member of our team. During his time at TOKN, Viraj has successfully litigated a wide range of cases involving multiple state and federal laws. Specifically, he has brought and defended claims ranging from contract and real estate disputes to business torts and more.

Additionally, due to his attention to detail, experience in litigation, and knowledge of contract law, he has become a leader in TOKN’s entrepreneurial services and outside general counsel practices. In these practices, Viraj takes a cradle-to-grave approach with companies, advising them from inception, through protecting their intellectual property rights, contract reviews, and employment issues, all the way to dissolution.

In addition to his legal practice, Viraj is a member of the Steering Committee for the Atlanta Council District 12 – Neighborhood Blueprint Plan.

Getting to Know Viraj

Presently, Viraj is on a quest to visit every national park with his wife, Lindsey. However, you can usually find him playing his banjo (or attempting to at least), watching every Atlanta United and Chelsea Football Club match in existence, or reading through all of Fyodor Dostoevsky’s works.

Want to Learn More?

To learn more about Viraj, or to contact him, please visit his profile here or find his LinkedIn here.

Lunch and Learn: Limit Your Liability

Posted on June 13, 2019June 13, 2019 by tokn

Lunch and Learn: Limit Your Liability

A primary reason that businesses incorporate is to limit the liability of their owners. That limitation of liability is called the “Corporate Veil.” The Corporate Veil is a necessary yet delicate aspect of every company. While the Veil is established to protect owners, officers, directors, shareholders, and members, what you do not know can hurt you.

During this lunch and learn Aaron Kappler will discuss common pitfalls in liability for small and/or start-up businesses. Specifically:

the importance of corporate formalities;
overall risk management and asset protection, contract rights, the basic legal requirements to create the corporate veil;
best practices of general corporate governance; and
best practices to limit the liability of the owners and directors.

Please Join us at the Southwest Gwinnett Chamber of Commerce for this lunch and learn on June 26, 2019 at 11:30 a.m. Click here to register. The cost is $10.00 for non-members and free for member of the Southwest Gwinnett Chamber if registered by noon June 25, 2019.

Please contact us at info@tokn.com with any questions.

New Georgia Law Simplifies Real Estate Recording Costs

Posted on June 11, 2019July 19, 2019 by tokn

Effective January 1, 2020, the recording costs of various types of real estate instruments in the State of Georgia will be simplified. Once implemented, this change will impact all individuals and businesses that purchase or finance properties in Georgia.

Prior Law

Under the prior law, the cost of recording real estate instruments in the public record were calculated based upon the type of document, the number of pages it contained, and potential surcharges. In counties with higher populations, surcharges could be included for each filing. For example, if a county had a population greater than 550,000 (as of the 1970 US census), a $1.00 surcharge could be charged on real estate filings. Furthermore, if a county had a population within its unincorporated areas of greater than 350,000 (as of the 1980 US census), a 50¢ surcharge applied to the first page of each filing. This meant that closing professionals had to determine what type of material was being recorded, the number of pages it contained, and any additional surcharges that might or might not apply. Consequently, the calculations could be dizzying, even for experienced professionals!

Moving Forward

Starting next year, a flat fee will be charged for most document types, regardless of the number of pages (subject to certain exceptions). The chart below shows comparisons of the fee structure for some typical filings:

Type of Document	Prior Fee Structure*	New Fee
Deed of Transfer (e.g., Limited Warranty Deed, Quitclaim Deed)	$10.00 for the first page, $2.00 for each add’l page	$25.00
Security Instrument or Modification of Security Instrument (e.g., Security Deed, ALR)	$10.00 for the first page, $2.00 for each add’l page	$25.00
Assignment, Cancellation, Satisfaction, or Release of Security Instrument (e.g., Security Deed, ALR)	$5.00 for the first page, $2.00 for each add’l page, $2.00 for each cross-reference	$25.00 per instrument
UCC Fixture Filing, Amendment, Continuation, or Termination (county or state-wide)	$10.00 for the first page, $2.00 for each add’l page	$25.00
Liens and Cancellation of Liens (e.g., Fi.Fa., Lis Pendens, hospital lien)	$5.00 for the first page, $2.00 for each add’l page, $2.00 for each cross-reference	$25.00
Tax Liens and Cancellation of Tax Liens filed by state or local government agency	$5.00 for the first page, $2.00 for each add’l page, $2.00 for each cross-reference	Same Fee Structure
Affidavit or Certificate (e.g., Scrivener’s Affidavit, Certificate of Trust)	$10.00 for the first page, $2.00 for each add’l page, $2.00 for each cross-reference	$25.00
Plat of survey	$7.50 per page	$10.00 per page

* These filing fees are based upon higher-populated county rates.

Lenders

It is highly recommended that lenders work with their vendors to ensure that the correct recording costs are included in the Good Faith Estimates (GFE) and Closing Disclosures for any transactions which might occur after December 31, 2019. Likewise, any fees which are collected at the time of the loan closing for the future cancellation of the security instrument should be adjusted for any loans which are anticipated to be paid off and cancelled after December 31, 2019.

Buyers/Borrowers/Sellers

All parties should check the GFE and Closing Disclosure to ensure that the full and correct recording costs are included. For example, in a typical residential transaction, the new recording fee will be $50.00** (for a deed of transfer and a Security Deed). For a typical commercial transaction, the new recording fee will be $125.00** (for a deed of transfer, Security Deed, Assignment of Leases and Rents, and a local/county and state-wide UCC-1 Fixture Filing). These figures are solely for illustration of a typical Georgia transaction; specific costs will vary based upon the property, the parties, and the type of transaction.

**IMPORTANT NOTE: Many counties in the State of Georgia have established the ability for e-recording of real estate materials. The fees associated with e-recording are not impacted by this new law.

Pertinent References: 2019 Georgia Laws Act 231 (H.B. 288); Code Sections 15-6-77, et seq.

**Beth Jones, Esq.**
**Thompson, O’Brien, Kemp & Nasuti, P.C.**
Linkedin.com/in/beth-jones-atlanta
ejones@tokn.com | www.tokn.com

Broker Reception

Posted on May 22, 2019May 22, 2019 by tokn

We are proud and excited to be a part of this exclusive broker reception by Partnership Gwinnett. This event is limited to brokers who are either on Partnership Gwinnett’s email list or that specifically have listings in Gwinnett County, Georgia. However, space is limited to 50 people and will fill up fast. If you fit the criteria above, this is a fantastic event to add to your calendar. For more information about this event, Partnership Gwinnett, or to RSVP, contact Lauren Como atlcomo@partnershipgwinnett.com.

Team Member Spotlight

Posted on May 1, 2019May 1, 2019 by tokn

Elizabeth Winterhalter (Beth) is the Senior Financial Officer at TOKN. Over the last three years, Beth has become a crucial member of our team. She is quick to assist with any and every task, attentive to even the smallest of details, consistently improving processes, and always maintains a positive and professional presence.

In the words of our Managing Partner, Aaron Kappler, “there is not just one single thing that stands out, it is [Beth’s] entire presence. She constantly exhibits the utmost honesty, integrity, professionalism, and really every quality you could want.”

Team member spotlight Q&A:

Q: What is your favorite part of your job?
A: My favorite part is the people I work with.

Q: What is your favorite hobby?
A: My favorite hobby is really spending time with my family on the weekends.

Q: What is one piece of advice you would like to give?
A: I would just like to tell people that it is super important to try new things. You never know how much you can accomplish until you try.

In addition to her knowledge of the financial world, Beth has an uncanny ability to identify any pop culture reference thrown her way.

To learn more about Beth, please visit her LinkedIn at:
https://www.linkedin.com/in/elizabeth-winterhalter-91aa16103/

5 Tips for Business Entity Maintenance

Posted on April 24, 2019April 24, 2019 by tokn

These 5 tips are helpful whether you have a new business entity or an existing business entity.

1. Financial Accounts. Maintain a checking account in the name of the business entity. Do not use any of your personal accounts for business matters. All accounts receivable should be deposited into the business’s accounts. Likewise, all business expenses/payments should be paid from the business’s accounts; this includes any employees’ salaries, overhead expenses, taxes or profits which are distributed to the owners of the business.

2. Tax Identification Number. Obtain and use a separate tax identification number (“TIN”) (in the US also called a federal employer identification number) for the business entity. Many clients will require this TIN in order to issue payment for goods and services that the business is providing. If the business hires employees or meets other state-specified criteria, then a state-issued TIN may also be required.

3. Signing Documents. All documents, including leases and contracts, need to be signed by a proper officer or multiple proper officers. For example, a limited liability company that is manager-managed might execute documents by one or more people who are “Manager” or “Managing Member”. Consult the business entity’s Articles of Organization/Incorporation, Operating Agreement, Bylaws, Partnership Agreement or other governing instruments to determine which management or officer roles should be filled, who is authorized to sign documents and agreements for the business entity and how much independent authority has been granted to the business entity’s management and/or officers.

4. Memorializing Important Events. Big or small, all businesses discuss performance and operations. These discussions may be held in a formal, paneled conference room or over a causal coffee. The point is, there should be a discussion of some sort if the business entity is making decisions about buying, selling, leasing, financing, expanding, retracting, hiring, replacing or terminating, etc. It is recommended that the business memorialize major events with business records, such as meeting minutes or resolutions. A few examples of major events may include:

¨ Admittance or withdrawal of an interest owner

¨ Authorization for sale, lease or purchase of assets

¨ Authorization for new debt or modification of existing debt (e.g., change of repayment schedule)

¨ Approval of plans for business expansion, redirection, retraction or dissolution

¨ Change of management structure or responsibilities

¨ Hire, replace or terminate employees

¨ Change of financial institutions (i.e., bank accounts)

¨ Bring or defend a lawsuit

These meeting minutes or resolutions should be maintained in a similar way that confidential or private information is maintained by the business.

5. Annual Registration/Review. Many states in the US require that the owner of a business entity provide updated information, generally on an annual basis. This includes the current mailing addresses for the business and the in-state registered agent, as well as identification of the incumbent officers. Some states have modernized this process to allow for on-line annual registration and the use of a credit card for payment of the annual registration fee. Note: Make sure that you are on the actual Secretary of State’s (or Department of State’s) website and are not redirected to a private vendor whenever you are providing private information on-line, especially a credit card number. Annually consult the business entity’s Articles of Organization / Incorporation, Operating Agreement, Bylaws, Partnership Agreement or other governing instruments and update them when appropriate.

NDGA Bankruptcy Court Issues Opinion on Future Claimants’ Representatives

Posted on April 24, 2019April 24, 2019 by tokn

Mass tort chapter 11 bankruptcy cases typically involve two groups of claimants: individuals who know they have been injured (i.e. present claimants) and individuals who do not know of their exposure or injury (future claimants). A chapter 11 debtor typically proposes a plan to either reorganize to keep its business alive and pay creditors over time or to liquidate its assets. But how does a debtor in a mass tort bankruptcy case treat the claims of future claimants, the identities and injuries of which are not yet known? To help preserve the rights of these unknown, future claimants, a debtor may establish a trust under the bankruptcy plan. A chapter 11 plan may provide for a “channeling injunction,” which limits future claimants’ ability to assert claims solely against this trust. A channeling injunction requires the appointment of a legal representative on behalf of the future claimants, commonly referred to as a future claimants’ representative (an “FCR”).

In an April 17, 2019, opinion, the Bankruptcy Court for the Northern District of Georgia answered two questions relating to the appointment of an FCR: (1) What is the proper procedure for the appointment of an FCR?; and (2) What is the proper standard for appointment of an FCR?

In the matter of In re The Fairbanks Company, 2019 WL 1752774, 18-41768-PWB, Judge Bonapfel first determined that the procedures for appointing an FCR permits nominations from any party in interest in the case and requires the Court to independently inquire into the proposed representative’s qualifications and ability to protect the rights of future claimants. The Court then concluded that the proper standard for consideration of an FCR is akin to that of a guardian ad litem, such that the individual must not only be disinterested and qualified, but also objective, independent, and loyally committed to protecting the interests of future claimants.

After an evidentiary hearing, the Bankruptcy Court appointed the debtor’s proposed nominee as the future claimants’ representative.

Michael B. Pugh
Thompson, O’Brien, Kemp & Nasuti, P.C.
40 Technology Parkway S., Suite 300
Peachtree Corners, GA 30092
(O) 770-925-0111 | (F) 770-925-8597
mpugh@tokn.com | www.tokn.com
www.linkedin.com/in/michaelbpugh