Tacit Procuration Available in Georgia and Procedural Pitfalls in Reversing Foreclosures

Thanks to Nye Lavalle for this Submission

Editor’s Note: Tacit Procuration Available in Most States. Watch those procedural requirements on reversing foreclosure.

The main procedural points are first file to reverse the sale alleging fraud etc. Second, have a court reporter present at any hearing if you need to appeal. In addition whether it is in the statute or not this georgia Statute is simply re-stating common law that would apply in all courts.

However, in my opinion the appellate court was wrong. It should have reversed and remanded with instructions to allow the homeowner to file the action challenging the deed. The way the Georgia appellate decision reads, it says “OK so they had no right to the house, but they got it and it’s too late to do anything about it.” This goes directly to my point that the dispossessory (unlawful detainer, eviction) actions are the first time that the parties all present in court and therefore that notwithstanding any rule or law to the contrary, the constitutional requirement of due process preempts to allow the homeowner to bring up whatever claims and defenses they want subject to the usual, rules regarding sham pleading, good faith etc.

The last point I wish to make is that Nye is correct that this presents an invitation to file the action against the fraudulent procurement of the deed even now, after the appellate decision. The decision clearly stands for the proposition that such an action is not possible in an eviction proceeding. Thus collateral estoppel would not apply and all claims by the homeowner are therefore preserved. The homeowner cannot be challenged for not having brought up these claims in the eviction action. So the game is NOT over for this owner — but make sure you have a transcript!

Here’s a recent case “on-point” with the GA Appeals Court giving an “out” that needs to be PLED BEFORE you act on the eviction. YOU MUST SET ASIDE THE FORECLOSURE BY : Setting aside the FORECLOSURE “AND” DEED!!!

This case INVITES your claims of fraudulent and forged deeds that nullify the foreclosure as unlawful since the party foreclosing did not have legal title in the property or ownership of the note.

Next, GA has two great provisions in state law as follows:

Title 24, Chapter 4, Section 23 (24-4-23)
In the ordinary course of business, when good faith requires an answer, it is the duty of the party receiving a letter from another to answer within a reasonable time. Otherwise he is presumed to admit the propriety of the acts mentioned in the letter of his correspondent and to adopt them

AND

Title 24, Chapter 3, Section 36 (24-3-36)
Acquiescence or silence, when the circumstances require an answer, a denial, or other conduct, may amount to an admission.

My theory and opinion is that if you send dispute of debt letter, QWR, TILA and a demand to ID your lender and who owns your note and where it is in custody and you question specific transactions AND GET NO ANSWER OR RESPONSE TO QUESTIONS, these two law could be used to create fact issues and you can seek a lawsuit and injunction to stop a foreclosure OR TO SET ASIDE A FORECLOSURE after the fact.

Owens v. Green Tree Servicing LLC, A09A1666 (Ga. App. 9/2/2009) (Ga. App., 2009)
Page 1

OWENS
v.
GREEN TREE SERVICING LLC.
OWENS
v.
GREEN TREE SERVICING LLC.
A09A1666.
A09A1978.
Court of Appeals of Georgia.
Decided: September 2, 2009
BLACKBURN, Presiding Judge.

In this dispossessory action, Terrence Owens appeals first from the court’s issuance of a writ of dispossession, arguing that the landowner Green Tree Servicing LLC wrongfully foreclosed on the property. We affirm in this case on two grounds: such is not a valid defense to a dispossessory action, and Owens failed to include a transcript of the trial, precluding our review of his claim of error. Owens’s second appeal is from the court’s order requiring him to pay rent pending the appeal. In light of our disposition of the first appeal, this second appeal is moot and is therefore dismissed.

The undisputed facts show that on March 9, 2009, Green Tree filed a dispossessory warrant against Owens and other occupants of a residence, asserting that they were all tenants at sufferance as a result of Green Tree’s obtaining the property through a recent foreclosure sale. See Cal. Fed. Savings & Loan Assn. v. Day1 (the former owner, “by remaining in possession of the premises after a lawful foreclosure of his deed to secure debt, became a tenant at sufferance and subject to summary dispossession by appellant, the purchaser at the foreclosure sale”). Green Tree sought dispossession only. Owens answered, claiming that because of a pending bankruptcy by a co-debtor and because of notice defects, the foreclosure was wrongful, and that therefore no writ of dispossession should issue. After a trial on the merits, the trial court issued a writ of dispossession on March 26, 2009, which writ Owens appeals in Case No. A09A1666. On April 27, 2009, Green Tree moved the court to require Owens under OCGA § 44-7-56 to pay rent into the registry of the court pending the appeal (if he wished to remain in possession of the premises); the court entered such an order, which Owens appeals in Case No. A09A1978.

Case No. A09A1666
1. In his appeal of the writ of dispossession, Owens contends that the trial court erred in rejecting his defense of wrongful foreclosure that asserted the bankruptcy of a co-debtor and other alleged defects in the foreclosure process. This contention fails for at least two reasons.

First, “[a] challenge to the validity of foreclosure in defense of a dispossessory proceeding will not lie, because, after a foreclosure sale, the former owner cannot attack dispossession without first setting aside the foreclosure and deed.” Hurt v. Norwest Mortgage, Inc.2 See Solomon v. Norwest Mortgage Corp.3 (”after foreclosure sale, the former owner cannot attack dispossession without first setting aside the foreclosure and deed”) (punctuation omitted); Hague v. Kennedy4 (”[c]laimed defects in the landlord’s title to premises cannot be raised as a defense to a proceeding for possession . . .”) (punctuation omitted).

Second, even if Owens’s defenses were available in a dispossessory proceeding, we cannot review the same because Owens failed to include a trial transcript in the record. Indeed, Owens specifically stated in his notice of appeal that “[t]here is no trial transcript in this case.” Yet determination of the “wrongful foreclosure” issue asserted by Owens on appeal (based on an alleged bankruptcy by a co-debtor and alleged notice defects in the foreclosure) would require us to review the evidence submitted at trial.

[Owens], however, failed to file a transcript of the proceedings and apparently did not attempt to reconstruct the transcript as allowed by OCGA § 5-6-41 (g) and (i). When a transcript of the evidence is necessary, as it is here, and the appellant omits it from the record or fails to submit a statutorily authorized substitute, we must assume that the evidence supported the grant of a writ of possession. As the appellant[, Owens] had the burden to affirmatively show error by the record. This [he] failed to do. Therefore, we must presume the trial court’s judgment granting [Green Tree] a writ of possession is correct.

(Punctuation omitted.) Harden v. Young.5 We have specifically so held in cases challenging a foreclosure as wrongful, whether because of a bankruptcy stay or otherwise. See, e.g., Miley v. Thornburg Mortgage Home Loans;6 Olubajo v. Deutsche Bank Nat. Trust Co.;7 Wimbley v. Washington Mut. Bank;8 Parks v. Tex. Commerce Bank.9

Case No. A09A1978
2. The second appeal is from the trial court’s ruling ordering Owens to pay rent pending appeal, if he wished to remain in possession of the premises. Citing Carter v. Landel/Arundel, Inc.10 and Wall v. T. J. B. Svcs.,11 Green Tree claims that Owens was required to file an interlocutory application to have this appeal heard. However, in both of those cases, the appeal was from an order directing the tenant to pay rent pending the disposition of the dispossessory case; in neither had the trial court decided the question of possession, thus making the appeal from the order to pay rent premature (absent compliance with interlocutory appeal procedures).

Here, however, the trial court had already decided the sole issue of dispossession, leaving nothing to be decided when the court entered the post-judgment order requiring the payment of rent pending appeal. Similar to a post-judgment order requiring the posting of a supersedeas bond, a post-judgment order requiring the payment of rent pending appeal is subject to direct appeal, as there is nothing left to be decided in the trial court. See OCGA § 5-6-34 (a) (1). Cf. Rapps v. Cooke12 (direct appeal of post-judgment order requiring supersedeas bond); Robenolt v. Chrysler Financial Svcs. Corp.13 (direct appeal of post-judgment order to pay rent pending appeal).

3. Owens argues that the trial court lacked the authority to order him to pay rent pending appeal. Beyond the fact that such is expressly authorized by OCGA § 44-7-56, we hold that in light of our disposition of the dispossessory appeal, the question is moot in any case. See Ruskin v. AAF-McQuay, Inc.14 (”as the [main] appeal . . . has been decided, the matter of the bond is moot”). Accordingly, this second appeal is dismissed as moot. See Almonte v. West Ashley Toyota.15

Judgment affirmed in Case No. A09A1666, and appeal dismissed as moot in Case No. A09A1978. Adams and Doyle, JJ., concur.

—————

Notes:

1. Cal. Fed. Savings & Loan Assn. v. Day, 193 Ga. App. 690, 691 (388 SE2d 727) (1989).

2. Hurt v. Norwest Mortgage, Inc., 260 Ga. App. 651, 659 (2) (i) (580 SE2d 580) (2003).

3. Solomon v. Norwest Mortgage Corp., 245 Ga. App. 875, 876 (1) (538 SE2d 783) (2000).

4. Hague v. Kennedy, 205 Ga. App. 586, 588 (423 SE2d 283) (1992).

5. Harden v. Young, 268 Ga. App. 619, 620 (606 SE2d 6) (2004).

6. Miley v. Thornburg Mortgage Loans, 294 Ga. App. 140, 141 (668 SE2d 560) (2008).

7. Olubajo v. Deutsche Bank Nat. Trust Co., 280 Ga. App. 154 (633 SE2d 543) (2006).

8. Wimbley v. Washington Mut. Bank, 271 Ga. App. 477, 478 (610 SE2d 124) (2005).

9. Parks v. Tex. Commerce Bank, 229 Ga. App. 467, 468 (494 SE2d 276) (1997).

10. Carter v. Landel/Arundel, Inc., 172 Ga. App. 115, 116 (3) (322 SE2d 108) (1984).

11. Wall v. T. J. B. Svcs., 141 Ga. App. 437 (233 SE2d 810) (1977).

12. Rapps v. Cooke, 234 Ga. App. 131, 134 (2) (505 SE2d 566) (1998).

13. Robenolt v. Chrysler Financial Svcs. Corp., 201 Ga. App. 168, 170 (4) (410 SE2d 365) (1991).

14. Ruskin v. AAF-McQuay, Inc., 284 Ga. App. 49, 53 (643 SE2d 333) (2007).

15. Almonte v. West Ashley Toyota, 281 Ga. App. 808, 810 (637 SE2d 755) (2006).

2 Responses

  1. Good one!! Finding laws and points to help in the foreclosure situation is a great hope for owners !

  2. Thank you, Thank you, Thank YOU!

    This is just what I need as I proceed to a Quiet Title action against AHMSI. With this info, I am confident we can win…Why?

    Because I sent out the 19 pages QWR (that I found on this site) and AHMSI did not respond. At all. yep, that’s right, no acknowledgment within 20 business days of having received the QWR… even though someone signed the certified return receipt. No response to the QWR within the statutorily mandated 60 business days. In fact, in short, and to our total surprise….no response at all. Nada, zip, zilch. it’s like the letter disappeared into a black hole. (Like a lot of notes!)

    So, armed with the above statutes, and the Power of Attorney clause in the Livinglies created QWR, I will most likely be able to completely quiet (and take) title to OUR HOME!

    Niel, Brad, all those who work with you… I can’t say it enough, THANK YOU!

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