Owens v. Green Tree Servicing LLC , 300 Ga. App. 22 ( 2009 )

684 S.E.2d 99 (2009) 300 Ga. App. 22

OWENS
v.
GREEN TREE SERVICING LLC (Two Cases).

Nos. A09A1666, A09A1978.

Court of Appeals of Georgia.

September 2, 2009.

Terrence Owens, pro se.

Pendergast & Jones, Howell A. Hall, for appellee.

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 California Fed. Sav. etc. Assn. v. Day^[1] (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 Mtg.^[2] See Solomon v. Norwest Mtg. Corp.^[3] ("after foreclosure sale, the former owner cannot attack dispossession without first setting aside the foreclosure and deed") (punctuation omitted); Hague v. Kennedy^[4] ("[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 Mtg. Home Loans;^[6]Olubajo v. Deutsche Bank Nat. Trust Co.;^[7]Wimbley v. Washington Mut. Bank;^[8]Parks v. Texas 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, 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. Cooke^[12] (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. Appeal dismissed as moot in Case No. A09A1978.

ADAMS and DOYLE, JJ., concur.

NOTES

[1] California Fed. Sav. etc. Assn. v. Day, 193 Ga. App. 690, 691, 388 S.E.2d 727 (1989).

[2] Hurt v. Norwest Mtg., 260 Ga.App. 651, 659(2)(i), 580 S.E.2d 580 (2003).

[3] Solomon v. Norwest Mtg. Corp., 245 Ga.App. 875, 876(1), 538 S.E.2d 783 (2000).

[4] Hague v. Kennedy, 205 Ga.App. 586, 588, 423 S.E.2d 283 (1992).

[5] Harden v. Young, 268 Ga.App. 619, 620, 606 S.E.2d 6 (2004).

[6] Miley v. Thornburg Mtg. Loans, 294 Ga.App. 140, 141, 668 S.E.2d 560 (2008).

[7] Olubajo v. Deutsche Bank Nat. Trust Co., 280 Ga.App. 154, 633 S.E.2d 543 (2006).

[8] Wimbley v. Washington Mut. Bank, 271 Ga. App. 477, 478, 610 S.E.2d 124 (2005).

[9] Parks v. Texas Commerce Bank, 229 Ga.App. 467, 468, 494 S.E.2d 276 (1997).

[10] Carter v. Landel/Arundel, Inc., 172 Ga.App. 115, 116(3), 322 S.E.2d 108 (1984).

[11] Wall v. T.J.B. Svcs., 141 Ga.App. 437, 233 S.E.2d 810 (1977).

[12] Rapps v. Cooke, 234 Ga.App. 131, 134(2), 505 S.E.2d 566 (1998).

[13] Robenolt v. Chrysler Financial Svcs. Corp., 201 Ga.App. 168, 170(4), 410 S.E.2d 365 (1991).

[14] Ruskin v. AAF-McQuay, Inc., 284 Ga.App. 49, 53, 643 S.E.2d 333 (2007).

[15] Almonte v. West Ashley Toyota, 281 Ga.App. 808, 810, 637 S.E.2d 755 (2006).