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DEKALB COUNTY FORECLOSURE REGISTRY

On July 27, 2010, the DeKalb County Board of Commissioners approved the establishment of a foreclosure registry to require lenders to register properties that have been foreclosed. The ordinance was modeled after legislation from Los Angeles, California. The county’s description of the ordinance states that its purpose is to establish a mechanism “to protect neighborhoods from becoming blighted through the lack of adequate maintenance and security as a result of properties that are foreclosed or where ownership has been transferred after foreclosure.”

The registry will require lenders to provide official contact information for a person or entity who will be responsible for bringing foreclosed real property into compliance with applicable legal requirements regarding maintenance. The key elements of the registry ordinance are as follows:

Effective Date: The foreclosure registry went into effect in October 27, 2010. Foreclosure sales in November 2010 and thereafter are subject to the registration requirement. It does not apply retroactively to foreclosures occurring prior to October 27, 2010.

Registration/Fee: A lender that obtains foreclosed real property must register the property with the County’s foreclosure registry and pay a $175.00 registration fee for each foreclosed real property. The registration form must be completed electronically on the County’s website [www.dekalbcountyga.gov/foreclosureregistry], and a hard copy must then be submitted with the fee payment to the Office of the Clerk of Superior Court of DeKalb County. A copy of the registration form is attached. The information required for the form includes the following:

· Date of foreclosure

· Name of borrower

· Name and address of the lender that was the seller in the foreclosure sale

· Name, address, and email address for the purchaser at the foreclosure sale. A phone number and fax number are requested but not required.

· Name, address, and email address for the local property agent. A 24-hour phone number and fax number are requested but not required.

· Street address for the foreclosed property. The tax parcel ID number is requested but not required. However, as noted below, a separate registration is

required for each tax parcel, so it will generally be necessary for the lender to know the tax parcel ID number in order to confirm that only one registration is required.

· The date of the Deed Under Power and the deed book and page of the recorded Deed Under Power, if available, are requested but not required.

[NOTE: A separate registration is required for each foreclosed property with a separate tax parcel ID number. If a single foreclosure covers four tracts, each with a separate tax parcel ID number, or if it covers a single tract which contains parcels with four separate tax parcel ID numbers, then four registrations (and four fees) are required.]

The County may make the registry information accessible online.

Registration Deadline: The ordinance does not state a deadline for registering the foreclosed property. Presumably, this was an omission in the drafting of the ordinance. The “Frequently Asked Questions” section of the County’s foreclosure registry website states that registration is required within 30 days after the foreclosure, and lenders should comply with this 30-day deadline, even though the ordinance itself is silent.

Commercial/Residential: Although the discussions of the ordinance when it was enacted focused on residential properties, the registry applies to both residential and commercial properties that have been foreclosed.

Improved Property: The registry only applies to improved properties. The ordinance does not specify what constitutes an “improved” property, but the County’s foreclosure registry manager has stated that the County’s position is that any change to raw land, including grading the property or installing utilities, will cause the property to be considered as being improved.

Unincorporated Areas: The registry only applies to property in the unincorporated areas of DeKalb County. If the property lies within an incorporated area, such as Decatur, the registry does not apply. The tax records should be checked to confirm whether a property is in an incorporated area.

Deed In Lieu: In addition to foreclosed properties, the registry applies to any property acquired by a lender pursuant to a deed in lieu of foreclosure. This point is easily overlooked in the ordinance, which does not refer to a deed in lieu except in the definition of “foreclosed real property.”

Local Property Agent: As noted above, the registration form must list a local property agent. If the lender is located within Clayton, DeKalb, Fulton, Gwinnett, Henry or Rockdale County, then the lender can designate itself as the property agent. If the lender is located outside those counties, a local property agent must be designated. The property agent must have the authority to take action with respect to the property, including security, maintenance and code compliance. Any change in contact information must be reported to the County within 15 days. [NOTE: For a non-local lender, it will be critical to arrange ahead of time for the designation of a local property agent.]

Transferred Foreclosed Real Property. The most confusing section of the registry ordinance is the provision for a registry of transferred foreclosed real property. Under this provision, a lender that has foreclosed and then transfers the foreclosed real property must register the transferred property and pay the $175 fee within 30 days of the transfer. As written, this appears to require registration whenever a lender disposes of foreclosed property, including any sale to a third party. However, the County’s foreclosure registry manager has stated that the provision is only intended to apply to a situation where the foreclosing lender then transfers the property to an affiliate (or similar transfer that is not an arms-length transaction). It is not intended to apply to all sales of foreclosed properties by lenders. This is a sensible interpretation, since it is consistent with the ordinance’s purpose of providing information about the lender (or affiliate) that owns foreclosed property.

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Violation/Penalties: The penalties for failure to register a foreclosed property are quite costly. Any violation of the registration requirements is subject to a penalty of $1,000 per day, per property, not to exceed $100,000 per property per calendar year.