New Georgia Recording Deadline Penalty and Execution Requirement Changes

June 5, 2015

By: Michael Baringer, Associate

Georgia has long had a statutory requirement that a deed under power of sale be recorded within 90 days of a foreclosure sale. However, left unsaid was what would happen if this deadline was not met. With the passing of House Bill 322, Code Section 44-14-160 the statutory requirement has been revised to expressly provide a penalty for non-compliance. The bill requires the holder of a deed to secure debt or a mortgage to file the deed under power (the foreclosure deed) with the appropriate clerk of the superior court within 90 days of the foreclosure sale. If the deed under power has not been filed within 30 days after the 90 days (in other words, by 120 days) then the holder of the deed to secure debt or mortgage shall be required to pay a late filing penalty of $500.00, in addition to the normal filing fee.

With that in mind, we should note that many counties in Georgia now offer E-filing, allowing one to instantly submit a deed and often receive the recorded copy within a day or two. There is a small fee charged by the service provider of approximately $4.50 per document, but the shortened turnaround time makes it well worth it. Also, almost all of the Tennessee counties offer e-recording, and Mississippi and Alabama counties are being added.

If you are not already involved in e-recording and wish to start, please send an email with your approval to allow us to charge the $4.50 cost per document for the e-recording. For LPS Invoice Management clients, please provide us with the LPS code under which to submit the e-recording costs (to differentiate between normal and e-recording) or advise via email if the same LPS recording cost for standard recording costs is to be used.

House Bill 322 also revises the execution requirements for deeds to land, mortgages, and deeds to secure debt in Code sections 44-5-30, 44-14-33, 44-14-34, 44-14-61, 44-14-62. In short, you can no longer use a notary acknowledgement, as we commonly see in deeds executed in such states as California. While Georgia previously required two witnesses, and allowed the notary to also act as one of the witnesses, now it is mandated that the notary be one of the witnesses. The new requirement is that the deed be signed by the maker, attested by the notary, and attested by one other witness. The key word is “attested.” This means the individual actually witnessed (saw) the maker sign the document. An acknowledgement, by its very nature, means the individual did not witness the document being signed, but rather the maker later told the individual that they signed it. With respect to mortgages and deeds to secure debt, it should be noted that they will not be recorded or will be invalidated if not executed correctly, and that priority may be lost in lien position until corrected.

These new provisions go into effect July 1st, 2015.