Michael Loncke v. Bank of America, N.A.

Court of Appeals of Georgia

Michael Loncke v. Bank of America, N.A.

Court of Appeals of Georgia·Decided May 16, 2014·No. A14D0362·Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,__________________ May 16, 2014

The Court of Appeals hereby passes the following order:

A14D0362. MICHAEL LONCKE v. BANK OF AMERICA, N.A.

This case originated as a dispossessory proceeding in magistrate court. After an adverse ruling, defendant Michael Loncke appealed to superior court. He subsequently filed a “Notice of Voluntary Dismissal,” reflecting his desire to dismiss the action. The superior court issued a writ of possession for the plaintiff and, in the same order, denied Loncke’s “Notice of Voluntary Dismissal.” Loncke filed a motion to set aside, which the court denied on April 25, 2014. On May 5, 2014, Loncke filed this application for discretionary appeal. We lack jurisdiction because the application is untimely. Although an application for discretionary appeal generally may be filed within 30 days of entry of the order sought to be appealed, the underlying subject matter of an appeal controls over the relief sought in determining the proper appellate procedure. See Rebich v. Miles, 264 Ga. 467, 467-468 (448 SE2d 192) (1994). The underlying subject matter of this case is a dispossessory judgment. And, pursuant to OCGA § 44-7-56, an appeal from a dispossessory judgment must be filed within seven days of the date the judgment was entered. See Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521 (521 SE2d 456) (1999). Here, Loncke filed his application ten days after the superior court’s most recent order was entered. Accordingly, it is untimely, and it is hereby DISMISSED for lack of jurisdiction. In addition, Loncke has filed an Emergency Motion for Supersedeas, requesting that we preserve the status quo pending resolution of this application. In light of our dismissal of this case, that motion is hereby DISMISSED as moot. Court of Appeals of the State of Georgia 05/16/2014 Clerk’s Office, Atlanta,__________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.

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Court of Appeals of the State of Georgia

ATLANTA,__________________ May 16, 2014

The Court of Appeals hereby passes the following order:

A14D0362. MICHAEL LONCKE v. BANK OF AMERICA, N.A.

This case originated as a dispossessory proceeding in magistrate court. After an adverse ruling, defendant Michael Loncke appealed to superior court. He subsequently filed a “Notice of Voluntary Dismissal,” reflecting his desire to dismiss the action. The superior court issued a writ of possession for the plaintiff and, in the same order, denied Loncke’s “Notice of Voluntary Dismissal.” Loncke filed a motion to set aside, which the court denied on April 25, 2014. On May 5, 2014, Loncke filed this application for discretionary appeal. We lack jurisdiction because the application is untimely. Although an application for discretionary appeal generally may be filed within 30 days of entry of the order sought to be appealed, the underlying subject matter of an appeal controls over the relief sought in determining the proper appellate procedure. See Rebich v. Miles, 264 Ga. 467, 467-468 (448 SE2d 192) (1994). The underlying subject matter of this case is a dispossessory judgment. And, pursuant to OCGA § 44-7-56, an appeal from a dispossessory judgment must be filed within seven days of the date the judgment was entered. See Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521 (521 SE2d 456) (1999). Here, Loncke filed his application ten days after the superior court’s most recent order was entered. Accordingly, it is untimely, and it is hereby DISMISSED for lack of jurisdiction. In addition, Loncke has filed an Emergency Motion for Supersedeas, requesting that we preserve the status quo pending resolution of this application. In light of our dismissal of this case, that motion is hereby DISMISSED as moot. Court of Appeals of the State of Georgia 05/16/2014 Clerk’s Office, Atlanta,__________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.

Michael Loncke v. Bank of America, N.A., (Ga. Ct. App. 2014).

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