14.9 Waiver of Borrower’s Rights
If directed by the Lender, the borrower may execute a Waiver of Borrower’s Rights. (See Comment.) However, the absence of an executed waiver or its attachment to the security deed as recorded shall not invalidate the security deed nor prevent the exercise of an otherwise proper power of sale.
Comment: Customary closing procedure since 1973, following the decision of Law v. United States Dept. of Agriculture, 366 F. Supp. 1233 (N.D. Ga. 1973), has included the use of the Borrower’s Waiver in conjunction with the execution of the deed to secure debt containing the power of sale by non-judicial foreclosure. It is settled that state action is not involved in the exercise of the private power of sale by a private lender and therefore there can be no violation of the due process requirements of the fourteenth Amendment [Global Industries, Inc. v. Harris, 376 F. Supp. 1379 (N.D. Ga. 1974); Ruff v. Lee, 230 Ga. 426, 197 S.E.2d 376 (1973)], and likewise it is settled that federal action is not involved in the exercise of the power of sale by a private lender in a mortgage financed under a federal loan program and therefore there can be no violation of the due process requirements of the Fifth Amendment [Roberts v. Cameron Brown, 556 F.2d 356 (5th Cir. 1977)].
In June 2021, the Consumer Financial Protection Bureau (CFPB) issued its Supervisory Highlights, Issue 24, Summer 2021. Section 2.6.3 “Deceptive waivers of borrowers’ rights in security deed riders and loan security agreement,” stating that CFPB examiners concluded that the Georgia Waiver violated the prohibition on deceptive acts or practices because it could dissuade a consumer from consulting an attorney or lead a consumer to incorrectly believe they could not bring an action for a violation of a federal law relating to the mortgage transaction. As a result, many lenders are requiring that the closing attorney not add a Waiver to the security deed.