Cleveland v. Midfirst Bank
335 Ga. App. 465
| Ga. Ct. App. | 2016Background
- Cleveland sued MidFirst Bank after the Bank foreclosed, purchased her residence at the foreclosure sale, obtained a writ of possession, and executed it, resulting in her eviction.
- Cleveland appealed an earlier writ of possession and was ordered to pay rent into the superior court registry (Rent Order); she failed to make those payments and a subsequent writ was obtained based on that violation.
- Cleveland’s verified complaint alleges that Bank agents broke locks, damaged and destroyed personal property (antiques, furnishings), placed items in a dumpster, refused her access to retrieve property, and removed belongings to an unknown location.
- She asserted tort claims for trespass, emotional distress, theft, and conversion based on the alleged improper handling/destruction of her personal property during execution of the writ.
- The Bank admitted foreclosure and execution of the writ, moved to transfer venue, and moved to dismiss for failure to state a claim; the superior court granted dismissal in a one-page order.
- The Court of Appeals reversed, holding Cleveland’s verified complaint alleged sufficient facts that, if proven, could support tort relief because the Bank may not have followed the statutory procedure for handling tenant property after a writ of possession.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complaint states actionable tort claims arising from eviction execution | Cleveland: allegations that Bank agents destroyed/stole property and denied access state claims for conversion, trespass, theft, and emotional distress | Bank: foreclosure and proper writ execution insulated it from tort liability; dismissal appropriate | Reversed: complaint sufficient to survive dismissal; plaintiff may prove facts supporting relief |
| Whether landlord/foreclosing purchaser owes duty to preserve tenant personalty after writ execution | Cleveland: Bank failed to place property on designated/approved property and thus cannot claim no duty; actions support conversion | Bank: OCGA § 44-7-55(c) bars duty because landlord need not be bailee after writ of possession | Court: statute’s no-duty language is contingent on landlord first placing property on designated/approved property; alleged failure to do so leaves room for conversion claim |
| Whether destruction/removal of property as alleged is categorically permitted once writ issued | Cleveland: statutory scheme does not permit immediate destruction; removing without designation/approval supports tort claims | Bank: execution of writ authorizes removal and treats property as abandoned, shielding conduct | Court: a writ authorizes removal but not carte blanche destruction; prior decisions allow conversion claims where property was removed without designation/approval |
| Whether dismissal for failure to state a claim was proper under Georgia pleading standards | Cleveland: verified complaint gave reasonable notice and potential provable facts to support relief | Bank: facts admitted (foreclosure, writ, execution) made dismissal proper | Court: applied de novo review and held dismissal improper because complaint could support grant of relief if proven |
Key Cases Cited
- TechBios, Inc. v. Champagne, 301 Ga. App. 592 (discussing standard for dismissal for failure to state a claim)
- Ikomoni v. Exec. Asset Mgmt., LLC, 309 Ga. App. 81 (foreclosure purchasers create tenancy at sufferance and dispossessory procedures apply)
- Washington v. Harrison, 299 Ga. App. 335 (statute’s no-duty language contingent on landlord placing tenant property on designated/approved property)
- Higgins v. Benny’s Venture, Inc., 309 Ga. App. 102 (landlord not permitted carte blanche to destroy tenant property upon writ issuance)