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The Uniform Commercial Code (UCC) has been adopted by every state in the United States, with little variation. The UCC provides forms and requirements for using collateral to secure a loan or debt. The two types of UCC filings are a standard filing for personal property, and a UCC fixture filing for fixtures. 

A standard UCC filing can use accounts receivables, intangible property, or any personal property as collateral for a loan, and is used mostly for business loans. If a business is using real estate and fixtures as collateral for a debt, then the lender will include fixtures in the Security Instrument.

A lender may also file a stand-alone UCC fixture filing to use the fixtures as collateral by themselves. 

UCC fixture filings are recorded in the county real estate records, and should be recorded in the same county as the location of the collateral.

Standard UCC filings are recorded at the county, but indexed in a statewide index called the UCC Central Index, which is maintained by the Georgia Superior Court Clerks’ Cooperative Authority (GSCCCA).  It is less important to file a standard UCC in the county where the collateral is, because the collateral can be moved. The standard UCC index can be searched statewide on the central index.

 Lenders must use the forms provided in the UCC code. The GSCCCA provides these forms on their website. It used to be uncommon to find a UCC fixture filing on residential property, but this is happening more often as owners finance big ticket items such as solar panels or A/C units.     

John C. Bennett is a real estate closing attorney and owner of Origin Title and Escrow, Inc.. Since 2003, Origin Title has handled real estate transactions – purchases, refinances, reverse mortgages – quickly and professionally. There will be no surprises, nothing misunderstood. Title searches are thorough and well-reasoned, to avoid unpleasant surprises later down the road. Calculate your closing costs in Georgia or Florida using our calculator or contact Origin Title using this form.

Each state has its own process and rules for foreclosing on a mortgage/deed of trust/security deed. Some states require a judicial process and some do not.

Georgia does not require a judicial process. In Georgia, the lender sends out the required notices, publishes the sale in the county newspaper, and auctions the property at the courthouse steps on the first Tuesday of the month.

In Georgia, a foreclosure of a purchase-money security deed (the type most homeowners have) would normally extinguish any second security deeds/mortgage or subsequent judgment liens on the property. Keep in mind that federal law always supersedes state law, so federal liens and claims will not always be wiped-out by a foreclosure. (Note: If the borrower comes back into title after foreclosure, any inferior liens would re-attach to the property). 

Federal entities like the IRS and the Department of Justice are ruled by federal law. Neither IRS nor Department of Justice liens are discharged by a foreclosure. The IRS has its own rules, which require the foreclosing lender to provide notice of the foreclosure to the IRS at least 25 days before the sale, or get consent from the IRS for the sale. After the sale, the IRS has the right to redeem the property for 120 days after the sale. (This rarely happens).  

During the recession and mortgage crisis of 2007-2010, there were federal programs to help borrowers catch up on their mortgage payments. Some of the programs would set aside a portion of the loan to be held by HUD in a second mortgage. These security deeds are recorded and often called ‘Partial Claim’ security deed/mortgages. They must still be paid in full at a sale or refinance of the property. The second security deed/mortgage had no payments and borrowers often forgot about them.

HUD is also a federal agency. The Court of Appeals has affirmed a recent court case in Missouri that held that HUD mortgages are not extinguished in a non-judicial foreclosure per USC § 2410(c).  (Show Me State Premium Homes, LLC v. McDonnell, 74 F.4th 911). The decision holds that HUD must release the mortgage ,or the foreclosure must go through a judicial process.

A foreclosure does not ‘cleanse’ the title of all other claims. The non-judicial foreclosure in Georgia does not eliminate tax liens, IRS liens, Department of Justice liens, or second mortgages held by HUD or any other federal agency.  If there is a second mortgage held by HUD, it might require a judicial foreclosure if HUD is unwilling to release their mortgage. Even though most foreclosures in Georgia are non-judicial, a judicial foreclosure may still be required to extinguish a second mortgage held by HUD or any federal agency.   

John C. Bennett is a real estate closing attorney and owner of Origin Title and Escrow, Inc.. Since 2003, Origin Title has handled real estate transactions – purchases, refinances, reverse mortgages – quickly and professionally. There will be no surprises, nothing misunderstood. Title searches are thorough and well-reasoned, to avoid unpleasant surprises later down the road. Calculate your closing costs in Georgia or Florida using our calculator or contact Origin Title using this form.

With the rising costs of housing, looming student loans and stagnation of wages, the entry to home ownership has risen quite significantly. There are alternatives to the traditional way of purchasing a home that has given millennials, Gen Z and those facing financial constraints a way to finally get a deed of their own. 

Rent-to-own programs bridge the gap between renting and owning a home. Rent-to-own programs are also known as lease options or option contracts. 

These programs allow for a renter to move into a home, pay rent and build equity at the same time.  A portion of the rent is allotted to a down payment account to be used when the renter purchases the home. 

Another benefit is that the renter has time to work on their credit while they are in their dream home to achieve a better interest rate when the time comes for them to purchase the home in which they already reside. 

The renter can also lock in a purchase price, which can save the renter thousands in this ever-rising housing market. (Although if prices ever drop, the renter could over-pay for the house).  It is very important to have all the terms clearly listed in the contract to avoid any surprises.  

The down-side is that the renter cannot apply for the homestead exemption on property taxes, does not have the mortgage-interest deduction for income taxes, and missing a payment can void the rent-to-own contract and any equity is forfeited.   

A rent-to-own program is not for everyone, but it can lower the bar of entry to homeownership for a large majority of the home-buying population. There are pros and cons to any avenue of homeownership, so due diligence is important in making sure that this is the right option for you. 

Christine Fleury is a real estate closing attorney with Origin Title and Escrow, Inc. Since 2003, Origin Title has handled real estate transactions – purchases, refinances, reverse mortgages – quickly and professionally. There will be no surprises, nothing misunderstood. Title searches are thorough and well-reasoned, to avoid unpleasant surprises later down the road. Calculate your closing costs in Georgia or Florida using our calculator or contact Origin Title using this form.

As of July, 2021, the Atlanta metro area includes 11 counties. Having an Atlanta mailing address does not mean the property is in the official city limits. A house can have an Atlanta address and be located in Cobb, DeKalb, or Fulton county.   

When a homeowner refinances or sells property and pays off a mortgage, the mortgage lender files a release in the county records.  Many times, the lender will use just the city name and zip code to file the release, meaning they are often filed in the wrong county.  When a title search shows an open mortgage that we expect was paid in full, Origin Title searches to see if it was filed in the wrong county. Most of the time, we discover that it was.  Origin Title will then get a certified copy of the release and file it in the correct county to keep problems from arising in the future.  

We recommend that borrowers keep copies of any releases from mortgage lenders. This will reduce the chance of delays when the property is being sold or refinanced due to an old mortgage still showing as open in the county public records.  

Yes! When you borrow money to buy a house, there are two separate and distinct promises you are making. 

First, the personal liability is the promise to personally pay back the loan. This is represented by the promissory note at closing.  Lenders look at the credit rating of anyone signing the promissory note.  

Second, is the promise to give the house to the lender if the loan can’t be paid back.  The property owners sign the Security Deed at closing to put the house or land up as collateral for the loan.  Everyone with an interest in the property must sign the Security Deed. The property owners and borrowers aren’t necessarily the same people. 

There are certain reasons it might make sense for only one person to apply for the loan. Contact us to discuss, we can answer your questions on how these decisions can impact your specific situation. 

When a title search is completed, there is always  an effective date on the title commitment. This is the date the county clerk has processed all of the deed filings. Believe it or not, the filing date is very important because whichever lien or security interest is filed first has priority. Being in first lien position allows the lender to foreclose on the property and wipe-out almost all subsequent liens and mortgages. 

Have you ever been in line for tickets and get the last one? Do you feel bad for the people behind you? That’s how liens work. When a borrower defaults, the lien holders all line up and once the property is gone, anyone behind that person is out of luck. 

Mortgage lenders could greatly benefit from working with Origin Title & Escrow, who will file their deeds promptly to protect their interest in the property. 

The answer is no.  It is not automatic and surviving spouses can be in a bind if they aren’t prepared.  

Ideally, spouses are  listed as “joint tenants with right of survivorship” on the vesting deed.  If this is the case, then the surviving spouse automatically becomes the owner of the property.  This is also true for any co-owners of property in Georgia, not limited to married couples.

If a married couple does not have this listed on the deed, hopefully a will is in place where everything is left to the other.  The will would need to be probated after the person’s death, and then a deed would be prepared from the executor of the estate to the surviving spouse.  

If there is no survivorship on the deed AND no will, then a surviving spouse could file for a year’s support in probate court within two years of the death in order to get the house. 

If none of the above is set in place, then the owners would become ALL of the heirs, including children or anyone else entitled to inherit the home.  

Origin Title always ask buyers if they want to be joint tenants with survivorship at closing, which can save thousands of dollars and headaches down the road.