Agber v. DLJ Mortgage Capital, Inc.

Court of Appeals of Georgia

Agber v. DLJ Mortgage Capital, Inc.

587 S.E.2d 210, 263 Ga. App. 53, 2003 Fulton County D. Rep. 2653, 2003 Ga. App. LEXIS 1085

CourtCourt of Appeals of Georgia

DecidedSeptember 3, 2003

DocketA03A1750

StatusPublished

This text of 587 S.E.2d 210 (Agber v. DLJ Mortgage Capital, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Agber v. DLJ Mortgage Capital, Inc., 587 S.E.2d 210, 263 Ga. App. 53, 2003 Fulton County D. Rep. 2653, 2003 Ga. App. LEXIS 1085 (Ga. Ct. App. 2003).

Pincite

Opinion

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.

Free access — add to your briefcase to read the full text and ask questions with AI

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.

Cite This Page — Counsel Stack

Bluebook (online)

587 S.E.2d 210, 263 Ga. App. 53, 2003 Fulton County D. Rep. 2653, 2003 Ga. App. LEXIS 1085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/agber-v-dlj-mortgage-capital-inc-gactapp-2003.

Opinion

Related

Cite This Page — Counsel Stack