Agber v. DLJ Mortgage Capital, Inc.

587 S.E.2d 210 | Ga. Ct. App. | 2003

Phipps, Judge.

DLJ Mortgage Capital, Inc. (DLJ) filed this dispossessory warrant against Yohanne Agber in the State Court of DeKalb County. Agber filed an answer and counterclaim which asserted, among other things, that she had a pending federal bankruptcy action and that, although the bankruptcy court had ordered the automatic bankruptcy stay to be lifted to allow this case to proceed, she had appealed the bankruptcy court’s order. Agber also moved to dismiss for lack of subject matter jurisdiction. Following a trial, the state court entered an order awarding DLJ a writ of possession.

Agber appeals, claiming that she has been deprived of her right under OCGA § 44-7-51 (b) to file any legal or equitable defense or counterclaim, and that the state court erred by refusing to dismiss this dispossessory action for lack of subject matter jurisdiction or transfer it to superior court. But Agber has not shown by the record that she was deprived of her right to file any defense or counterclaim or that she even moved for a transfer of the case to superior court.¹ Agber claims that the state court lacked subject matter jurisdiction because she was under the protection of the federal bankruptcy court when this action was filed. It is, however, undisputed that the automatic bankruptcy stay was lifted. That allowed this proceeding to move forward.² Agber has not shown by argument or citation of authority that her federal appeal of the order lifting the stay continued the stay in effect. Therefore, her jurisdictional challenge is deemed abandoned.³

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur. McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Robert M. Sheffield, for appellee.

1 See generally Boles v. Lee, 270 Ga. 454, 455 (1) (511 SE2d 177) (1999) (party alleging error has burden of showing it affirmatively by record).

2 Butler v. Household Mtg. Svcs., 244 Ga. App. 353, 355 (1) (535 SE2d 518) (2000).

3 See, e.g., Lunsford v. State, 260 Ga. App. 818, 822 (4) (581 SE2d 638) (2003).