Willie Zachery, Jr. v. Federal National Mortgage Association

• Court: Court of Appeals of Georgia
• Decided: January 15, 2014
• Docket: A13A1667
• Status: Published

Opinion

FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, 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. http://www.gaappeals.us/rules/

January 15, 2014

In the Court of Appeals of Georgia A13A1667. ZACHERY v. FEDERAL NATIONAL MORTGAGE ASSOCIATION.

BOGGS, Judge.

Willie Zachary, Jr. appeals from a writ of possession granted to the Federal

National Mortgage Association (“Fannie Mae”) and contends in related enumerations

of error that the writ is a nullity because a deceased person was identified as a

defendant. We disagree and affirm.

The record shows that following a foreclosure of the property at issue, Fannie

Mae filed a dispossessory action against Cassie Mae Zachary as well as “all others.”

Willie Zachary, the son of Cassie May Zachary, filed a pro se answer in which he

asserted that he moved into the property following his mother’s death and before the

foreclosure. Zachary was subsequently notified of a trial date, and the trial court issued a writ of possession following the trial. Zachary appealed, and an amended

notice of appeal filed by counsel states: “No transcript to be attached.”

1. In Robinson v. Ga. Housing & Finance Auth., 244 Ga. App. 653 (536 SE2d

548) (2000), we held that a trial court did not lack jurisdiction over a dispossessory

action filed against “William Robinson or persons in possession” even though

Robinson was deceased. Id. at 653 (2). We reasoned that “OCGA § 9-11-10 permits

the use of any name in the caption where a party’s name is not known. This would

include ‘persons in possession.’” Id. As in Robinson, if Zachary had “desired to have

‘his mother]’s name removed, [he] could have made a motion to remove [her] as a

party in accordance with OCGA § 9-11-21.” Id. at 653-654 (2). The dispossessory

action at issue here was filed against “all others” in addition to a deceased party. We

therefore find no merit in Zachary’s contention that the trial court’s grant of a writ of

possession was void on this ground.

2. To the extent Zachary asserts the trial court erred by ruling on motions to

compel the payment of rent following the filing of his notice of appeal, we cannot

consider such an assertion as the record before us does not include the trial court’s

order or a notice of appeal from any such order. See Owens v. Green Tree Servicing,

2 300 Ga. App. 22, 24-25 (2) (684 SE2d 99) (2009) (order granting motion to compel

rent issued after notice of appeal from grant of writ of possession directly appealable).

Judgment affirmed. Doyle, P. J., and McFadden, J., concur.