Non-Judicial Foreclosure
WHAT IS A NON-JUDICIAL FORECLOSURE?
A non-judicial foreclosure (also called a "foreclosure under power of sale") occurs when a borrower defaults on a mortgage and the lender exercises the power of sale clause built directly into the Security Deed. Unlike a judicial foreclosure, no court order is required — the lender's attorney can proceed to sell the property at public auction after completing the required notice period under Georgia law.
This is the most common type of foreclosure in Georgia and the largest category at every Bibb County auction. These properties are published in the Macon Reporter (the official legal organ for Bibb County) for four consecutive weeks before the auction date.
THE LEGAL PROCESS STEP BY STEP
STEP 1 — BORROWER DEFAULTS
The borrower stops making mortgage payments. After typically 90–120 days of non-payment, the lender accelerates the loan — meaning the entire remaining balance becomes due immediately, not just the missed payments.
STEP 2 — NOTICE OF DEFAULT & INTENT TO FORECLOSE
Under O.C.G.A. § 44-14-162.2, the lender must send written notice to the borrower at least 30 days before the first publication of the foreclosure notice. This notice must include the name, address, and phone number of the entity with authority to negotiate the loan. Failure to send this notice properly can invalidate the foreclosure.
STEP 3 — MACON REPORTER PUBLICATION (4 WEEKS)
The foreclosure attorney publishes a Notice of Sale Under Power in the Macon Reporter — the official Bibb County legal organ — for four consecutive weeks before the sale date. The notice must describe the property, identify the borrower, state the loan amount, and specify the auction date, time, and location.
STEP 4 — AUCTION AT THE COURTHOUSE
On the first Tuesday of the month, the property is sold at public auction at the United Building, 206 7th Street, Macon. The foreclosing attorney (or their representative) conducts the sale. The opening bid is typically the full amount owed including principal, interest, fees, and attorney costs. Third-party investors may bid above the opening bid. Payment must be made same day in certified funds.
STEP 5 — DEED UNDER POWER ISSUED
The winning bidder receives a Deed Under Power (also called a Foreclosure Deed). This deed conveys the property to the buyer. It is recorded in Bibb County Superior Court. The buyer now owns the property — subject to whatever senior liens were not extinguished by the foreclosure (see Section 4 on Lien Priority).
STEP 6 — POSSESSION & EVICTION
The foreclosure does not automatically remove occupants. If the prior owner or a tenant remains in the property, the new owner must pursue a dispossessory (eviction) action in Bibb County Magistrate Court. This typically takes 30–60 days and adds cost to the deal.
HOW SALE PROCEEDS ARE DISTRIBUTED (THE WATERFALL)
When a property sells at a non-judicial foreclosure auction, the proceeds are distributed in strict priority order. Understanding this waterfall is critical — it determines whether junior lien holders get paid and whether excess proceeds flow back to the borrower.
| PRIORITY | WHO GETS PAID | NOTES |
|---|---|---|
| 1st — ALWAYS | Ad Valorem Property Taxes | Senior to every lien by Georgia law. Must be paid or assumed. Never wiped out. |
| 2nd | Foreclosure Costs & Attorney Fees | The lender's costs of sale are paid before the outstanding principal. |
| 3rd | Outstanding Loan Balance (Principal + Interest) | The foreclosing lender receives the remaining loan balance owed. |
| 4th | Junior Lien Holders (if funds remain) | Second mortgages, judgment liens, HOA liens, contractor liens — paid in recording order IF any proceeds remain after positions 1-3. |
| 5th — LAST | Borrower / Prior Owner | Any surplus after all debts paid goes to the former owner. In practice, surpluses are rare at courthouse auctions. |
LIEN PRIORITY: WHAT SURVIVES, WHAT IS WIPED OUT
The foreclosing Security Deed wipes out all liens JUNIOR to it (recorded after it). Liens SENIOR to the foreclosing deed (recorded before it) SURVIVE and the buyer inherits them. The recording date of the foreclosing Security Deed is the critical dividing line.
| LIEN TYPE | SENIOR? | SURVIVES? | WHAT THE BUYER SHOULD KNOW |
|---|---|---|---|
| Ad Valorem Property Taxes | ALWAYS SENIOR | ✅ ALWAYS SURVIVES | Pay current taxes at closing. Verify delinquent amounts on QPublic before bidding. Delinquent taxes = your immediate out-of-pocket cost on day one. |
| IRS Federal Tax Lien (filed BEFORE Security Deed) | Senior | ✅ SURVIVES | Buyer inherits the IRS lien. IRS also has a 120-day right of redemption after the sale — they can buy the property back at your purchase price plus 6% interest. High-risk scenario. |
| IRS Federal Tax Lien (filed AFTER Security Deed) | Junior | ⚠️ Wiped Out BUT | The lien is extinguished — but the IRS still has 120 days to redeem the property after sale. Plan for this before bidding. IRS liens at any position create redemption risk. |
| Georgia State Tax Execution / Fi Fa (filed BEFORE Deed) | Senior | ✅ SURVIVES | State tax liens are senior if recorded before the Security Deed. Check GSCCCA for Fi Fas. |
| Prior First Mortgage (never cancelled) | Senior | ✅ SURVIVES | If the foreclosing deed is actually a second mortgage and a first mortgage was never satisfied, the buyer takes the property subject to that first mortgage. Verify full chain of title on GSCCCA. |
| Second Mortgage / HELOC | Junior (if recorded after) | ✅ Wiped Out | Wiped out by the first mortgage foreclosure. The second mortgage holder loses their lien on the property. The investor gets clean title from this lien. |
| Judgment Lien (recorded BEFORE Security Deed) | Senior | ✅ SURVIVES | A judgment recorded before the Security Deed survived the foreclosure. Buyer inherits it. Check GSCCCA carefully for pre-deed judgments against the borrower. |
| Judgment Lien (recorded AFTER Security Deed) | Junior | ✅ Wiped Out | Foreclosure extinguishes all judgment liens recorded after the Security Deed. Clean title. |
| HOA Assessments / Lien | Usually Junior | Usually Wiped Out | Most HOA liens are junior. However Georgia law (O.C.G.A. § 44-3-232) gives some HOAs a super-lien for up to 6 months of assessments. Verify with HOA directly. |
| Mechanic's / Contractor Lien | Depends on date | Depends on date | Seniority based on recording date vs. Security Deed. Active mechanic's liens can be expensive to resolve. Search GSCCCA for all claims of lien on the parcel. |
RISK SCENARIOS: FROM CLEAN TO DANGEROUS
SCENARIO A — CLEAN BUY
What you see: Complete 4-week publication run confirmed. GSCCCA shows unbroken assignment chain from original lender to current note holder. No prior unsatisfied Security Deeds. No IRS liens in Bibb County. No judgment liens recorded before the Security Deed. Property taxes current on QPublic. No lis pendens filed.
What it means: You are buying clean title. Your only ongoing obligation is current and future property taxes. The foreclosure has wiped out any junior liens. The assignment chain confirms the foreclosing attorney has legal authority to sell.
Action: Bid with confidence up to your Max Bid formula (ARV × 70% − Rehab costs). Bring certified funds. Call attorney morning of sale to confirm property is being cried.
SCENARIO B — CAUTION (RESOLVABLE ISSUES)
What you see: One or more of: delinquent property taxes ($X,XXX owed), IRS lien filed AFTER the Security Deed (junior but creates 120-day redemption risk), HOA with unpaid dues but no recorded lien, assignment chain complete but one step is a securitized trust assignment (common — not a defect, but verify).
What it means: These issues are known and quantifiable. Delinquent taxes are your immediate cost — subtract them from your max bid. IRS redemption risk means you may rehab the property and then have the IRS redeem it at your purchase price + 6% before day 120. That would leave you with your purchase price back plus 6% but no property — a forced exit with a small return.
Action: Quantify every cost before bidding. Reduce your max bid by the delinquent tax amount. Consult with a tax attorney about IRS lien risk before committing capital above $50,000.
SCENARIO C — HIGH RISK (DO NOT BID WITHOUT COUNSEL)
What you see: Any of the following: IRS lien filed BEFORE the Security Deed and not released, a prior Security Deed recorded before the foreclosing deed with no cancellation on record, a judgment lien recorded before the Security Deed, an active Lis Pendens on the property, a gap in the assignment chain (cannot verify legal authority to sell), borrower in active Chapter 13 bankruptcy (sale should not proceed — verify on PACER night before auction).
What it means: You may be buying into a lien you cannot see or cannot afford. You may be buying a property the foreclosing attorney does not have clear legal authority to sell. A title insurance company may refuse to insure this property after you purchase it, making it impossible to resell with conventional financing.
Action: Do not bid without a written title opinion from a Georgia real estate attorney. If bidding, price in the cost of the surviving senior lien as a debt you must retire. In most cases, walk away and wait for a cleaner property.
SCENARIO D — DO NOT BID
What you see: Active bankruptcy filed by borrower (PACER confirms Chapter 13 or 11 active — the automatic stay prohibits the sale), broken assignment chain with no recorded instrument connecting parties, two or more prior Security Deeds with no cancellations, active federal or state litigation contesting ownership, notice publication run is legally defective (fewer than 4 consecutive weeks verified).
What it means: This sale may be legally void. A deed issued at this sale could be challenged and unwound in court. You could pay six figures and then lose the property in litigation with no clear path to recovery.
Action: Walk away entirely. Follow up the next month to see if the defect was cured.
PRE-AUCTION CHECKLIST FOR NON-JUDICIAL FORECLOSURES
- ☐WEEKS PRIOR TO AUCTION Confirm 4-week publication run complete in Macon Reporter. Flag any gap weeks as potential bankruptcy stay.
- ☐GSCCCA TITLE SEARCH Search borrower name + parcel ID. Verify complete assignment chain. Confirm all prior Security Deeds have recorded cancellations. Check for judgments, IRS liens, Fi Fas, Lis Pendens.
- ☐QPUBLIC TAX STATUS Verify current year taxes paid. Quantify any delinquent taxes as a Day 1 cost. Confirm parcel ID matches property in notice.
- ☐PACER BANKRUPTCY CHECK Search borrower name night before auction. An active Chapter 13 = automatic stay = sale cannot legally proceed.
- ☐ZILLOW / DRIVE-BY Estimate ARV. Assess condition. Calculate Max Bid = (ARV × 70%) − Estimated Rehab − Delinquent Taxes.
- ☐MORNING OF SALE (7–9 AM) Call the foreclosing attorney's direct number. Confirm the property is still being cried. In our tracked auctions only about 13–20% of listed Non-Judicial properties are actually cried — the large majority are postponed or revert to the lender, so morning-of confirmation is essential.
- ☐AT THE AUCTION Arrive by 9:45 AM. Have certified check or wire confirmation. Know your max bid before you arrive. Do not bid above your number due to auction excitement.
- ☐AFTER WINNING Record Deed Under Power at Bibb County Superior Court Clerk. Begin dispossessory if property is occupied. Verify all junior liens are released. Obtain title insurance before reselling.
DISCLAIMER: This report is provided for informational and research purposes only. It does not constitute legal advice, title insurance, or a guarantee of clean title. All investors are strongly encouraged to consult with a licensed Georgia real estate attorney before bidding. Lien research is based on public records as of the search date and may not reflect instruments recorded after that date.
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