Howard v. GMAC Mortgage, LLC
321 Ga. App. 285
| Ga. Ct. App. | 2013Background
- GMAC Mortgage filed a dispossessory warrant in Cherokee County in June 2010, asserting Howard occupied the premises as a tenant at sufferance after a foreclosure sale.
- Howard answered, challenging the foreclosure as wrongful and noting related suits removed to federal court; the case was transferred to Cherokee County Superior Court.
- The trial court granted GMAC’s motion for summary judgment and issued a writ of possession on December 8, 2010; Howard gave notice of appeal on December 13, 2010.
- The court denied Howard’s in forma pauperis request, later dismissed his untimely appeal for failure to pay rent into the registry, and after Howard’s bankruptcy, dismissed the original appeal and granted a second writ of possession.
- Howard’s appeal proceeded with both the writ appeal and the dismissal appeal docketed together; the appellate court ultimately addressed the merits of the writ appeal and found moot the appeal from the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the writ of possession was proper despite Howard’s wrongful-foreclosure defense | Howard argues GMAC foreclosed wrongly and that defense should defeat the writ | GMAC contends wrongful foreclosure is not a defense to dispossessory action | Writ upheld; wrongful foreclosure cannot defeat dispossessory |
| Whether Howard was entitled to present evidence of wrongful foreclosure at the hearing | Howard claims he should have been allowed to present evidence | Wrongful foreclosure is not a defense to dispossessory action; evidence improperly admitted | Evidence of wrongful foreclosure properly not admitted; not a defense here |
| Whether Howard was entitled to a jury trial on these issues | Howard sought jury trial to address foreclosure defenses | No right to jury trial where issues lack merit as a matter of law | No entitlement to jury trial on this issue; rights not violated |
| Whether the trial court violated Howard’s rights by threatening contempt | Howard alleges improper contempt admonitions | Court admonished due to interruptions, within proper power | No improper contempt finding; admonition within court’s authority |
Key Cases Cited
- Hurt v. Norwest Mtg., 260 Ga. App. 651 (Ga. Ct. App. 2003) (foreclosure sale validity not defense in dispossessory proceeding)
- Bellamy v. Fed. Deposit Ins. Corp., 236 Ga. App. 747 (Ga. Ct. App. 1999) (title defects cannot defeat dispossessory action)
- Sanders v. Daniel, 302 Ga. App. 350 (Ga. Ct. App. 2010) (foreclosure title issues separate from dispossessory)
- Hague v. Kennedy, 205 Ga. App. 586 (Ga. Ct. App. 1992) (defects in landlord’s title not defense in dispossessory)
- Hallisy v. Snyder, 219 Ga. App. 128 (Ga. Ct. App. 1995) (jury trial right not automatic in dispossessory when issues lack merit)
- Allen v. Tucker Fed. Bank, 236 Ga. App. 245 (Ga. Ct. App. 1998) (pro se defenses lacking merit may be denied jury trial)
- Reliance Trust Co. v. Candler, 315 Ga. App. 495 (Ga. Ct. App. 2012) (relevance limits to admissible evidence)
- Solomon v. Norwest Mtg. Corp., 245 Ga. App. 875 (Ga. Ct. App. 2000) (post-foreclosure owner cannot attack dispossession without setting aside foreclosure)
- Owens v. Green Tree Servicing, 300 Ga. App. 22 (Ga. Ct. App. 2009) (mootness when issues decided on appeal)