JDZ INVESTMENTS, LLC v. WILMINGTON SAVINGS FUND SOCIETY FSB

• Court: Court of Appeals of Georgia
• Decided: October 27, 2025
• Docket: A25A1234
• Status: Published

Opinion

SECOND DIVISION RICKMAN, P. J., GOBEIL and DAVIS, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

October 27, 2025

In the Court of Appeals of Georgia A25A1234. JDZ INVESTMENTS, LLC v. WILMINGTON SAVINGS FUND SOCIETY FSB et al.

RICKMAN, Presiding Judge.

In this action for wrongful foreclosure, JDZ Investments, LLC obtained a

default judgment as to liability against Wilmington Savings Fund Society FSB d/b/a

Christiana Trust as Trustee for Toorak Repo Seller I Trust, Toorak Capital Partners,

LLC, and Cohen Financial (collectively, “Appellees”), but the trial court later struck

the complaint and dismissed the action with prejudice as a sanction for JDZ’s failure

to comply with discovery related to its claim for damages. JDZ argues that the trial

court lacked the authority and/or abused its discretion in doing so. We find no error

and affirm. A brief summary of the pertinent, undisputed facts are as follows. In 2017, JDZ

purchased four parcels of property and executed a note and security deed in favor of

a non-party lender, who later transferred the rights under the note and security deed

to Appellees.1 Asserting that JDZ defaulted on the loans, Appellees initiated

foreclosure proceedings in December 2018.

In February 2019, JDZ sued Appellees for wrongful foreclosure. The complaint

alleged that JDZ had been making regular loan payments and had recently attempted

to refinance the properties, but that Appellees’ loan servicer had provided inaccurate

payoff information and/or refused to communicate with JDZ. The complaint further

alleged that Appellees had scheduled (for the following day) a defective and illegal

foreclosure sale of the properties, and sought injunctive relief and a claim for

monetary damages “in an amount to be proven at trial.”

The non-judicial foreclosure sale took place as scheduled, and the properties

were purchased by Appellees. Purportedly believing JDZ was not pursuing its lawsuit

1 The notes were assigned and transferred to Wilmington Savings Fund Society FSB d/b/a Christiana Trust as Trustee for Toorak Repo Seller I Trust, for whom Tarook Capital Partners LLC was the trust administrator and Cohen Financial was the loan servicer. 2 after the foreclosure sale, Appellees neither filed an answer to the complaint nor

sought an extension of time in which to file one.

In November 2019, JDZ filed a motion for default judgment, and Appellees filed

a motion to open default. In April 2021, the trial court entered an order granting JDZ

a default judgment and denying Appellees’ motion to open the default (the “Default

Judgment”).2 In the Default Judgment, the trial court explicitly declared that a hearing

on damages would be held at a later date.

In September 2022, JDZ filed an amended complaint for wrongful foreclosure,

seeking monetary damages3 to include the loss of rental income and attorney fees and

2 Appellees unsuccessfully sought appellate review of the trial court’s orders in this Court. 3 In the amended complaint, JDZ also sought to set aside the foreclosure sale but the trial court granted Appellees’ motion for judgment on the pleadings as to that claim because JDZ failed to tender payment as required by law. See Underwood v. Colony Bank, 362 Ga. App. 548, 557 (3) (869 SE2d 535) (2022) (“[W]hen a debtor seeks to set aside a foreclosure sale, he must first pay what he owes to the creditor absent extraordinary circumstances.”); see also OCGA § 23-1-10. 3 expenses.4 Appellees filed an answer and counterclaim to the amended complaint, and

discovery commenced.

In November 2022, Appellees served JDZ with interrogatories and a request to

produce documents. After receiving two extensions of time in which to respond, JDZ

failed to include many responsive documents, including rental agreements, bank

statements, and accounting records related to the monetary damages it sought to

recover. In January 2023, Appellants’ counsel sent a letter pursuant to Superior Court

Rule 6.4 in an effort to address the deficient discovery responses and requested that

the responses be supplemented by February 1, 2023. Appellees also requested and

were provided dates for JDZ’s deposition, and the deposition was noticed for

February 16, 2023.

Again, JDZ requested an extension of time in which to supplement its discovery

responses, and an extension was given until February 7, 2023. JDZ’s deposition was

also postponed. After not receiving the supplemental discovery on February 7,

Appellees’ counsel contacted JDZ’s counsel, who represented that JDZ’s office had

4 The amended complaint alleged that JDZ suffered a loss of rental income and sale proceeds in the amount of $284,700, and sought to recover those funds in addition to “an amount to be proven at trial.” Appellees were not in default as to the new allegations. 4 experienced a water leak that damaged some of its records and requested another

extension, until February 14, 2023, to provide the supplemental production.

After more informal scheduling communications between counsel, JDZ’s

deposition was re-noticed for April 13, 2023. On April 4, 2023, JDZ’s counsel

informed Appellees’ counsel that JDZ’s representative was experiencing health issues

and was unavailable to appear on April 13, and suggested the deposition be taken via

video conference instead. Appellees’ counsel declined the request for a video

conference and that same day, asked JDZ’s counsel for dates when an in-person

deposition could be scheduled.

After unsuccessfully requesting available dates from JDZ, Appellees’ counsel

again re-noticed the deposition for April 26, 2023. Appellees’ counsel also informed

JDZ’s counsel that if JDZ’s representative failed to appear, Appellees would seek

court intervention.

On April 24, 2023, JDZ’s counsel informed Appellees that JDZ’s

representative would not be available in-person on April 26, but that its representative

could appear virtually that day. In response, Appellees’ attorney reminded JDZ that

they were entitled to an in-person deposition, which they had been trying to schedule

5 since January. Nevertheless, in an effort to resolve the scheduling of the deposition

without court intervention, Appellees’ counsel inquired whether JDZ’s representative

was “physically unable to appear for a deposition in [counsel’s] office” and, if so,

whether he could provide a doctor’s statement confirming his inability to do so.

Counsel further asked if anyone else could testify as JDZ’s representative and, if so,

when such representative could be available. JDZ’s representative responded that he

was physically unable to appear in person, that he would provide a doctor’s note

confirming that fact, and that no one else could testify as JDZ’s representative.

Appellees’ counsel informed JDZ that in light of its representative’s medical

condition, Appellees would agree to conduct a deposition via video conference,

subject to receiving a doctor’s statement. Appellees thereafter served a notice of video

deposition on May 10, 2023.

On May 5, 2023, Appellees’ counsel sent an email inquiring about the doctor’s

note and the status of JDZ’s supplemental document production. After receiving

neither, Appellees again postponed JDZ’s deposition.

On May 23, 2023, JDZ finally provided a doctor’s note and supplemental

discovery that consisted of four additional documents, two of which were already in

6 the record. The doctor’s note stated only that JDZ’s representative was unable to sit

for prolonged periods of time without frequent and often unexpected bathroom

breaks.

On May 31, 2023, Appellees’ counsel emailed JDZ’s counsel and offered to take

the representative’s deposition at JDZ’s counsel’s office or elsewhere within a

reasonable driving distance for JDZ’s representative, but received no response.

Appellees then filed a motion to compel with the trial court.

The trial court conducted a hearing and on January 4, 2024, issued an order

granting Appellees’ motion to compel (the “Discovery Order”). In the Discovery

Order, the trial court ordered that JDZ’s representative appear for an in-person

deposition at a date, time and location selected by Appellees; that Appellees serve

notice of the deposition; that the location for the deposition have readily available

bathroom facilities, and JDZ’s representative be entitled to as many bathroom breaks

as needed; and that within fourteen days of entry of the Discovery Order, JDZ

produce all documents in its possession, custody or control responsive to Appellees’

requests for production of documents that had not been previously produced. It is

7 undisputed that JDZ did not produce any additional documents after the trial court

issued the Discovery Order.

On March 5, 2024, JDZ’s representative was finally deposed. During the

deposition, he was unable to answer even the most basic of questions related to the

damages being sought by JDZ. He admitted that JDZ had produced no documentation

related to three of the four properties that formed the basis of JDZ’s complaint, and

with respect to the single piece of property about which documents were produced,

the production did not include the lease or any other evidence of rent collected. JDZ’s

representative also admitted that he had made little effort to look for documents

responsive to the discovery requests, while also revealing that some responsive

documentation did exist.

Following the deposition, Appellees filed a motion for sanctions, seeking a

dismissal of JDZ’s complaint with prejudice for JDZ’s willful violation of the

Discovery Order. In its response to the motion, JDZ, which had retained new counsel,

represented to the trial court that JDZ’s prior counsel had not shown its

representative the Discovery Order and, consequently, the representative was

unaware of it until August 2024. Contrary to that representation, however, the record

8 plainly revealed that the representative was shown and asked about the Discovery

Order in his March deposition, and he affirmatively confirmed that he had seen the

order.

After conducting a hearing, the trial court granted the motion for sanctions and

dismissed JDZ’s complaint with prejudice. In so doing, the trial court explicitly found

that JDZ acted “willfully, in bad faith and with a conscious indifference to the

consequences of failing to comply with the Discovery Order.” This appeal followed.

JDZ argues, in essence, that the trial court was not authorized to dismiss its

complaint because the Default Judgment was “a final order” and, to the extent a

sanction was warranted, the trial court abused its discretion by invoking the extreme

sanction of dismissal. We disagree.

First, the Default Judgment was not a final order. Rather, by its express terms,

it granted JDZ judgment as to liability, but provided that a hearing on damages would

be conducted at a later date. See OCGA § 9-11-54 (b).5

5 OCGA § 9-11-54 (b) provides that,

When more than one claim for relief is presented in an action . . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims . . . upon an express determination that there is no 9 Regardless, when a party fails to obey an order to provide or permit discovery,

Georgia law authorizes the trial court to “make such orders in regard to the failure as

are just,” which may include “[a]n order striking out pleadings . . . or dismissing the

action or proceeding or any part thereof.” OCGA § 9-11-37 (b) (2) (C). We have

cautioned that “[t]he drastic sanctions found in OCGA § 9–11–37 (b) (2) (C) cannot

be invoked except in the most flagrant cases—where the failure is wil[l]ful, in bad faith

or in conscious disregard of an order.” (Citation and punctuation omitted.) Didio v.

Chess, 218 Ga. App. 550, 551 (462 SE2d 450) (1995). But, the striking of a complaint

and dismissal of an action is appropriate when there has been “a conscious or

intentional failure to act, as distinguished from an accidental or involuntary

non-compliance.” (Citation and punctuation omitted.) Id. We will not reverse a trial

just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. 10 court’s imposition of a discovery sanction absent a clear abuse of discretion. See

Amaechi v. Somsino, 259 Ga. App. 346, 347 (577 SE2d 48) (2003).

Given that JDZ essentially refused to participate in discovery throughout the

entirety of the discovery period, the record fully supports the trial court’s

determination that it acted wilfully, in bad faith, and in conscious disregard of the

Discovery Order. See Schrembs v. Atlanta Classic Cars, Inc., 261 Ga. 182, 183 (402

SE2d 723) (1991) (“[E]vents transpiring during [the] entire [discovery] time period

are probative of whether appellant acted with conscious indifference to the

consequences of failure to comply with the [trial court’s] order. . . .”) (citation and

punctuation omitted). As a result of that willful conduct, the trial court did not abuse

its discretion by dismissing the complaint with prejudice. See OCGA § 9-11-37 (b) (2)

(C); Exum v. Norfolk Southern R., 305 Ga. App. 781, 782-783 (1) (701 SE2d 199)

(2010); Amaechi, 259 Ga. App. at 347.

Judgment affirmed. Gobeil and Davis, JJ., concur.