THIRD DIVISION MILLER, P. J., RAY and BRANCH, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 7, 2013
In the Court of Appeals of Georgia A12A1931. HOWARD v. GMAC MORTGAGE, LLC.
B RANCH, Judge.
In this dispossessory action, Matthew W. Howard appeals, pro se, from two
separate orders entered below. The first of these orders granted the landowner, GMAC
Mortgage, LLC, a writ of possession for the premises in question. The second order
dismissed Howard’s appeal of the writ of possession, based upon his failure to pay
rent into the registry of court during the pendency of that appeal. For reasons
explained below, we affirm the order of the trial court granting GMAC a writ of
possession. Furthermore, because we decide Howard’s original appeal on the merits,
his appeal of the order dismissing his appeal of the writ of possession is moot. 1
1 Additionally, we dismiss as moot GMAC’s motion to dismiss both of Howard’s appeals. The undisputed facts show that in June, 2010, GMAC filed a dispossessory
warrant against Howard in Cherokee County State Court, asserting that he was a
tenant at sufferance as a result of GMAC’s purchase of the property at a May, 2010
foreclosure sale.2 Howard filed an answer asserting as his defense that the foreclosure
sale was wrongful and that he had wrongful foreclosure actions pending against
GMAC and others in Cherokee County Superior Court, and that action was removed
to the United States District Court for the Northern District of Georgia. Howard also
asserted a counterclaim for intentional infliction of emotional distress, based on
GMAC’s decision to seek a writ of possession despite its knowledge of Howard’s
wrongful foreclosure lawsuits. The case was thereafter transferred to the Superior
Court of Cherokee County.
GMAC moved for summary judgment on its claim for a writ of possession and
on Howard’s counterclaim. Following an evidentiary hearing, the trial court granted
that motion and issued the writ of possession on December 8, 2010. Howard filed his
notice of appeal as to that writ on December 13, and then sought to be relieved of
2 See Solomon v. Norwest Mtg. Corp., 245 Ga. App. 875, 876 (1) (538 SE2d 783) (2000) (where the former property owner “remains in possession of the premises after lawful foreclosure of the deed, she is a tenant at sufferance and is subject to be summarily dispossessed by the purchaser at the foreclosure sale”) (punctuation and footnote omitted).
2 paying the costs of his appeal by applying to proceed in forma pauperis. The trial
court denied Howard’s application to proceed in forma pauperis on February 18, 2011,
and Howard attempted to appeal that decision. His application for discretionary
appeal, however, was denied by this Court. The court below also entered an order
requiring Howard to pay rent into the registry of the court pending his appeal of the
writ of possession. Howard filed an untimely notice of appeal as to that order, and the
appeal was therefore dismissed for lack of jurisdiction.
After Howard failed for a number of months either to pay rent into the registry
of court while his appeal of the writ of possession was pending, or to pay the costs
necessary for the docketing of that appeal, GM AC moved to dismiss the appeal.
Following the close of Howard’s bankruptcy case, the trial court held a hearing on
GMAC’s motion, and thereafter issued an order dismissing Howard’s original appeal
and granting GMAC a second writ of possession. Howard then filed his notice of
appeal from that order and apparently paid costs in the trial court, as the record in the
case was transmitted to this Court. Both Howard’s original appeal from the writ of
possession and his appeal from the order dismissing that appeal were docketed
together under the current case number. We now turn to the merits of those appeals.
3 1. We first address Howard’s claim that the court below erred in granting the
writ of possession. Howard argues that GMAC was not entitled to the writ because it
had wrongfully foreclosed on his property. He further contends that the trial court
erred in refusing to allow him to present evidence of wrongful foreclosure; in denying
him a jury trial; in threatening him with contempt at the hearing on GMAC’s motion
for summary judgment; and in granting the writ without affording him, as a pro se
litigant, additional time to address the cases and arguments presented by GMAC at the
hearing. We find no merit in any of these claims.
(a) The trial court did not err in granting the writ of possession despite
Howard’s allegation that GMAC had wrongfully foreclosed on the property. It is well-
established that the alleged invalidity of a foreclosure sale cannot be asserted as a
defense in a subsequent dispossessory proceeding. See Hurt v. Norwest Mtg., 260 Ga.
App. 651, 659 (2) (i) (580 SE2d 580) (2003).
The purchaser at a foreclosure sale under a power of sale in a security deed is the sole owner of the property until and unless the sale is set aside. It is not germane to a dispossessory proceeding to allege that a contract under which the plaintiff claims to derive title from the defendant is void and should be canceled. If the sale of the premises under the power of sale in the loan deed was void on account of its improper exercise, or because the loan was not mature, this [can] not be
4 set up as a defense to a dispossessory proceeding under . . . OCGA §§ 44-7-50 [and] 44-7-53.
(Punctuation omitted; emphasis supplied.) Bellamy v. FDIC, 236 Ga. App. 747, 749
(a) (512 SE2d 671) (1999). See also Solomon, supra, 245 Ga. App. at 876 (1) (“after
foreclosure sale, the former owner cannot attack dispossession without first setting
aside the foreclosure and deed”) (punctuation and footnote omitted); Hague v.
Kennedy, 205 Ga. App. 586, 588 (423 SE2d 283) (1992) (“[c]laimed defects in the
landlord’s title to premises cannot be raised as a defense” in a dispossessory
proceeding) (citations and punctuation omitted). Thus, while Howard was free to –
and did – challenge the foreclosure and GM AC’s title to the property by way of his
separate lawsuit that was removed to federal court,3 he could not use the allegation of
wrongful foreclosure as a defense to the dispossessory proceeding. Sanders v. Daniel,
302 Ga. App. 350, 351 (1) (691 SE2d 244) (2010).
3 On September 12, 2011, the United States District Court granted summary judgment against Howard and in favor of the named defendants, including GMAC, on all of Howard’s claims, including his claim for wrongful foreclosure. See Howard v. Mortgage Electronic Registration Systems, Inc., et al., 2012 WL 3582586 (N. D. Ga., August 17, 2012) (denying Howard’s motion for reconsideration of the summary judgment order).
5 (b) Howard also asserts that the court below erred in refusing to allow him to
present evidence to support his defense of wrongful foreclosure. This argument,
however, ignores the fact that wrongful foreclosure is not a defense to a dispossessory
proceeding. Accordingly, the trial court properly refused to allow Howard to present
evidence of GMAC’s alleged wrongful foreclosure.4 See Reliance Trust Co. v.
Free access — add to your briefcase to read the full text and ask questions with AI
THIRD DIVISION MILLER, P. J., RAY and BRANCH, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 7, 2013
In the Court of Appeals of Georgia A12A1931. HOWARD v. GMAC MORTGAGE, LLC.
B RANCH, Judge.
In this dispossessory action, Matthew W. Howard appeals, pro se, from two
separate orders entered below. The first of these orders granted the landowner, GMAC
Mortgage, LLC, a writ of possession for the premises in question. The second order
dismissed Howard’s appeal of the writ of possession, based upon his failure to pay
rent into the registry of court during the pendency of that appeal. For reasons
explained below, we affirm the order of the trial court granting GMAC a writ of
possession. Furthermore, because we decide Howard’s original appeal on the merits,
his appeal of the order dismissing his appeal of the writ of possession is moot. 1
1 Additionally, we dismiss as moot GMAC’s motion to dismiss both of Howard’s appeals. The undisputed facts show that in June, 2010, GMAC filed a dispossessory
warrant against Howard in Cherokee County State Court, asserting that he was a
tenant at sufferance as a result of GMAC’s purchase of the property at a May, 2010
foreclosure sale.2 Howard filed an answer asserting as his defense that the foreclosure
sale was wrongful and that he had wrongful foreclosure actions pending against
GMAC and others in Cherokee County Superior Court, and that action was removed
to the United States District Court for the Northern District of Georgia. Howard also
asserted a counterclaim for intentional infliction of emotional distress, based on
GMAC’s decision to seek a writ of possession despite its knowledge of Howard’s
wrongful foreclosure lawsuits. The case was thereafter transferred to the Superior
Court of Cherokee County.
GMAC moved for summary judgment on its claim for a writ of possession and
on Howard’s counterclaim. Following an evidentiary hearing, the trial court granted
that motion and issued the writ of possession on December 8, 2010. Howard filed his
notice of appeal as to that writ on December 13, and then sought to be relieved of
2 See Solomon v. Norwest Mtg. Corp., 245 Ga. App. 875, 876 (1) (538 SE2d 783) (2000) (where the former property owner “remains in possession of the premises after lawful foreclosure of the deed, she is a tenant at sufferance and is subject to be summarily dispossessed by the purchaser at the foreclosure sale”) (punctuation and footnote omitted).
2 paying the costs of his appeal by applying to proceed in forma pauperis. The trial
court denied Howard’s application to proceed in forma pauperis on February 18, 2011,
and Howard attempted to appeal that decision. His application for discretionary
appeal, however, was denied by this Court. The court below also entered an order
requiring Howard to pay rent into the registry of the court pending his appeal of the
writ of possession. Howard filed an untimely notice of appeal as to that order, and the
appeal was therefore dismissed for lack of jurisdiction.
After Howard failed for a number of months either to pay rent into the registry
of court while his appeal of the writ of possession was pending, or to pay the costs
necessary for the docketing of that appeal, GM AC moved to dismiss the appeal.
Following the close of Howard’s bankruptcy case, the trial court held a hearing on
GMAC’s motion, and thereafter issued an order dismissing Howard’s original appeal
and granting GMAC a second writ of possession. Howard then filed his notice of
appeal from that order and apparently paid costs in the trial court, as the record in the
case was transmitted to this Court. Both Howard’s original appeal from the writ of
possession and his appeal from the order dismissing that appeal were docketed
together under the current case number. We now turn to the merits of those appeals.
3 1. We first address Howard’s claim that the court below erred in granting the
writ of possession. Howard argues that GMAC was not entitled to the writ because it
had wrongfully foreclosed on his property. He further contends that the trial court
erred in refusing to allow him to present evidence of wrongful foreclosure; in denying
him a jury trial; in threatening him with contempt at the hearing on GMAC’s motion
for summary judgment; and in granting the writ without affording him, as a pro se
litigant, additional time to address the cases and arguments presented by GMAC at the
hearing. We find no merit in any of these claims.
(a) The trial court did not err in granting the writ of possession despite
Howard’s allegation that GMAC had wrongfully foreclosed on the property. It is well-
established that the alleged invalidity of a foreclosure sale cannot be asserted as a
defense in a subsequent dispossessory proceeding. See Hurt v. Norwest Mtg., 260 Ga.
App. 651, 659 (2) (i) (580 SE2d 580) (2003).
The purchaser at a foreclosure sale under a power of sale in a security deed is the sole owner of the property until and unless the sale is set aside. It is not germane to a dispossessory proceeding to allege that a contract under which the plaintiff claims to derive title from the defendant is void and should be canceled. If the sale of the premises under the power of sale in the loan deed was void on account of its improper exercise, or because the loan was not mature, this [can] not be
4 set up as a defense to a dispossessory proceeding under . . . OCGA §§ 44-7-50 [and] 44-7-53.
(Punctuation omitted; emphasis supplied.) Bellamy v. FDIC, 236 Ga. App. 747, 749
(a) (512 SE2d 671) (1999). See also Solomon, supra, 245 Ga. App. at 876 (1) (“after
foreclosure sale, the former owner cannot attack dispossession without first setting
aside the foreclosure and deed”) (punctuation and footnote omitted); Hague v.
Kennedy, 205 Ga. App. 586, 588 (423 SE2d 283) (1992) (“[c]laimed defects in the
landlord’s title to premises cannot be raised as a defense” in a dispossessory
proceeding) (citations and punctuation omitted). Thus, while Howard was free to –
and did – challenge the foreclosure and GM AC’s title to the property by way of his
separate lawsuit that was removed to federal court,3 he could not use the allegation of
wrongful foreclosure as a defense to the dispossessory proceeding. Sanders v. Daniel,
302 Ga. App. 350, 351 (1) (691 SE2d 244) (2010).
3 On September 12, 2011, the United States District Court granted summary judgment against Howard and in favor of the named defendants, including GMAC, on all of Howard’s claims, including his claim for wrongful foreclosure. See Howard v. Mortgage Electronic Registration Systems, Inc., et al., 2012 WL 3582586 (N. D. Ga., August 17, 2012) (denying Howard’s motion for reconsideration of the summary judgment order).
5 (b) Howard also asserts that the court below erred in refusing to allow him to
present evidence to support his defense of wrongful foreclosure. This argument,
however, ignores the fact that wrongful foreclosure is not a defense to a dispossessory
proceeding. Accordingly, the trial court properly refused to allow Howard to present
evidence of GMAC’s alleged wrongful foreclosure.4 See Reliance Trust Co. v.
Candler, 315 Ga. App. 495, 501 (3) (726 SE2d 636) (2012) (“Although Georgia law
favors the admission of relevant evidence, evidence that does not bear directly or
indirectly on the questions [before the court] should be excluded as irrelevant.”)
(c) Howard further contends that the court erred in denying him a jury trial. W e
disagree. While the right to a jury trial exists in dispossessory actions, “[t]he existence
of the right does not demand that a jury trial be held in all cases, including those
where no issues remain for jury determination.” Hallisy v. Snyder, 219 Ga. App. 128,
129 (3) (464 SE2d 219) (1995). Here, the only potential jury issues that Howard raised
related to his claim that GMAC wrongfully foreclosed on the property. Given that this
claim could not serve as a defense in a dispossessory proceeding, however, the trial
4 Howard’s motion to supplement the record on appeal with documents relating to his defense of wrongful foreclosure, but which were not made a part of the record below, is hereby denied. See Dunwoody-Woodlands Condominium Assoc. v. Hedquist, 199 Ga. App. 91, (1) (403 SE2d 893) (1991).
6 court did not err in refusing Howard a jury trial on this issue. Id. See also Allen v.
Tucker Federal Bank, 236 Ga. App. 245, 246 (2) (510 SE2d 546) (1998) (where
defendants in a dispossessory proceeding asserted counterclaims that “lack[ed] merit
as a matter of law, the trial court properly denied their motions for a jury trial”).
(d) Howard argues that during the evidentiary hearing that resulted in the writ
of possession, the court violated his constitutional rights by threatening him with
contempt if he continued the defense of his case. This assertion, however,
misrepresents what transpired at the hearing. The transcript shows that the court
threatened to hold Howard in contempt only after he repeatedly interrupted the court.
After several interruptions, the judge told Howard:
When I’m speaking you need to stop talking. If you want us to continue – I’m conducting this hearing as fairly as I know how to do. I can’t tell you what to do, but I can tell you that when the Court is speaking you don’t need to interrupt me, and if you continue to do it we’re going to discontinue the hearing and I’m going to hold you in contempt.
Under these circumstances, we find nothing improper in the trial court’s
admonition of Howard. See OCGA § 15-1-3 (1) (every court has the power “[t]o
preserve and enforce order in its immediate presence and, as near thereto as is
necessary, to prevent interruption, disturbance, or hindrance to its proceedings”); In
7 re Herring, 268 Ga. App. 390-391 (2) (601 SE2d 839) (2004) (“[c]ontempt of court,
in its broad sense, means disregard for or disobedience of the order or command of the
court; this also includes the interruption of court proceedings”) (footnote omitted).
(e) At the evidentiary hearing on the writ of possession, GMAC’s lawyer cited
several cases to support his argument that wrongful foreclosure is not a defense in a
dispossessory action and that, unless and until the foreclosure is put aside, the title
holder is entitled to possession of the property. When asked if he had any authority
to the contrary, Howard responded, “That argument was not stated in any of the
filings. So I was not prepared to make a counter to that argument.” The court then
proceeded to hear the evidence and, at the end of the hearing, stated that it was going
to grant the writ of possession. On appeal, Howard contends that because he is a pro
se litigant, the trial court should have given him additional time to respond to
GMAC’s legal arguments before granting the writ of possession. We disagree.
Georgia law makes clear that a litigant’s pro se status does not entitle him to
any deferential treatment. It is true that, as Howard points out, pro se litigants are held
to less stringent standards than attorneys with respect to their pleadings. Campbell v.
McLarnon, 265 Ga. App. 87, 90 (2) (593 SE2d 21) (2003). Other than this exception
for pleadings, however, a court cannot apply different standards to a pro se civil
8 litigant and one represented by counsel. Id. See also Long v. Marion, 257 Ga. 431, 434
(2) (360 SE2d 255) (1987) (finding that pro se litigant had waived his defense of
insufficient service where, even though he raised it in his answer, he failed to request
that the defense be included in the pretrial order). Accordingly, Howard’s pro se status
did not obligate the trial court to grant him additional time to respond to arguments
made by GMAC’s lawyer at the evidentiary hearing.
2. Given that we have addressed the merits of Howard’s appeal of the writ of
possession, his appeal of the trial court’s order dismissing his appeal of the writ is
hereby dismissed as moot. See Owens v. Green Tree Servicing, 300 Ga. App. 22, 25
(3) (684 SE2d 99) (2009).
Judgment affirmed. Miller, P. J., and Ray, J., concur.