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You v. JP Morgan Chase Bank NA

In considering three certified questions regarding the operation of Georgia's law governing non-judicial foreclosure, the Supreme Court held that the holder of a deed to secure debt does not have to also hold the note or have any beneficial interest in the debt obligation underlying the deed in order to exercise the power of sale.

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This case is before us on three questions certified to this Court by the United States District Court for the Northern District of Georgia1 regarding the operation of this State’s law governing non-judicial foreclosure. After careful analysis, we conclude that current law does not require a party seeking to exercise a power of sale in a deed to secure debt to hold, in addition to the deed, the promissory note evidencing the underlying debt. We also conclude that the plain language of our statute governing notice to the debtor, OCGA § 44-14-162.2, requires only that the notice identify “the individual or entity with full authority to negotiate, amend, and modify all terms of the mortgage with the debtor.” This construction of OCGA § 44-14-162.2 renders moot the third and final certified question, which we do not address.

In 2003, Appellants Chae Yi You and Chur K. Bak purchased a home in Suwanee, Georgia. To finance their purchase, they obtained a loan from Excel Home Loans, Inc., executing both a promissory note and a deed to secure debt in Excel’s favor. The security deed grants to Excel and its successors and assigns the power of sale in the event of the debtor’s default under the note. At some point after the initial transaction, Excel transferred the note to an unidentified entity and assigned the deed to Chase Manhattan Mortgage Corporation, which through a series of mergers was succeeded by JP Morgan Chase Bank “Chase”. The assignment from Excel explicitly granted to Chase and its successors all of Excel’s “power, options, privileges and immunities” in the security deed and the indebtedness secured by it.2

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