Fed. Nat'l Mortg. Ass'n BR-027 v. Harris
343 Ga. App. 295
Ga. Ct. App.2017Background
- Harris executed a security deed to MERS as nominee for SunTrust in 2006 securing a $215,000 loan; the deed was recorded. MERS later assigned the deed to various servicers.
- Harris recorded attempted rescission and MERS mistakenly executed a cancellation of the security deed in 2011; Green Tree (later Ditech) sued in superior court to void that cancellation. Harris was served but did not answer; the superior court entered default judgment in 2013 restoring the deed. Harris did not appeal that judgment.
- Ditech foreclosed in 2016, purchased the property at sale, and transferred title to Fannie Mae by limited warranty deed; those deeds were recorded.
- Fannie Mae obtained a writ of possession from magistrate court; Harris appealed de novo to state court. At the state-court bench trial, the court refused to admit Fannie Mae’s unsealed, uncertified documents (deed under power, limited warranty deed, and the superior-court judgment) as unauthenticated hearsay and entered judgment for Harris.
- Fannie Mae sought discretionary review in the Court of Appeals, arguing the state court abused its discretion by failing to consider Rule 901 circumstantial authentication and thereby erred in denying the writ; Court of Appeals vacated and remanded for a new trial on admissibility and possession.
Issues
| Issue | Plaintiff's Argument (Fannie Mae) | Defendant's Argument (Harris) | Held |
|---|---|---|---|
| Admissibility/authentication of deed under power and limited warranty deed | Documents, though unsealed, are authentic and admissible under OCGA § 24-9-901 by circumstantial evidence (appearance, recording) | Documents are unauthenticated, uncertified, hearsay and inadmissible | Trial court abused discretion by failing to exercise Rule 901 analysis; remand for discretionary determinations on admissibility/authenticity |
| Admissibility of superior-court 2013 judgment restoring security deed | Superior-court order is a public record affecting title and should be authenticated enough to admit under Rule 901 and hearsay exceptions | Order was not an original or certified copy; thus inadmissible | Same as above: state court must consider Rule 901 authentication and hearsay exceptions on remand |
| Whether this Court should order issuance of writ of possession now | Writ should issue because Fannie Mae proved title and right to possession | Harris resists, asserting cancellation/ownership defenses | Court will not issue writ now — remand required because state court remains factfinder for authenticity and ultimate possession question |
| Effect of Harris’s failure to post required monthly payments into registry after magistrate judgment | If Harris failed to pay the $1,200 monthly required by OCGA § 44-7-56, possession issue is moot and writ should issue | Harris claimed one bond payment only and argued other defenses on title | On remand state court should determine whether Harris defaulted on required payments; if he did, writ should issue without further delay |
Key Cases Cited
- Mackey v. Fed. Nat. Mtg. Assn., 294 Ga. App. 495 (2008) (standard of review: de novo for legal questions in dispossessory proceedings)
- Koules v. SP5 Atlantic Retail Ventures, 330 Ga. App. 282 (2014) (trial court must consider circumstantial evidence when authenticating documents under Rule 901)
- Brown v. State, 332 Ga. App. 635 (2015) (prima facie authentication under Rule 901 admits evidence for factfinder to decide ultimate authenticity)
- United States v. Jimenez Lopez, 873 F.2d 769 (5th Cir.) (unsealed documents are not self-authenticating under Rule 902)
- Amah v. Whitefield Academy, 331 Ga. App. 258 (2015) (recorded deeds fall within certain hearsay exceptions and admissibility can be waived)
- Ivey v. Ivey, 266 Ga. 143 (1996) (when evidence demands a contrary result, appellate reversal of factual rulings is appropriate)
- Mitchell v. Excelsior Sales & Imports, 243 Ga. 813 (1979) (failure to post required bond/payments renders possession issues moot and supports writ issuance)