Georgia Eviction following Foreclosure

The Georgia Court of Appeals recently decided a case involving the eviction (or dispossessory) of a "tenant" following a foreclosure. The occupants, whether tenants of the prior owner, or even if they are the prior owner(s), are subject to summary eviction (dispossessory) following a foreclosure sale. The occupants are not permitted to avoid eviction (dispossessory) based upon any alleged or actual problems with the foreclosure sale, unless and until they petition a court to set aside the foreclosure. A petition to set aside a foreclosure must be done in Superior Court, and since most evictions (dispossessories) are done in Magistrate or State Court, the tenant cannot generally attack the foreclosure in the Court where the dispossessory is filed. Full text of a recent Georgia Court of Appeals decision on this topic follows below.

If you have any questions regarding an eviction (dispossessory) in Georgia, please contact The Law Office of Trey Phillips, LLC, visit our website at www.GeorgiaEvictionAttorney.com, or call our office at 888-500-EVICT.
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684 S.E.2d 99, 09 FCDR 2952
Briefs and Other Related Documents
Court of Appeals of Georgia.

OWENSv.GREEN TREE SERVICING LLC (Two Cases).
Nos. A09A1666, A09A1978.
Sept. 2, 2009.

Background: Purchaser of residence at foreclosure sale brought dispossessory action against occupants of the residence. The trial court granted a writ of dispossession, and one occupant appealed. The State Court, DeKalb County, Leshaw and Galbaugh, JJ., subsequently ordered occupant to pay rent pending the appeal, and occupant appealed.

Holdings: The Court of Appeals, Blackburn, P.J., held that:
(1) challenge to the validity of the foreclosure was not a defense to a dispossessory proceeding;
(2) occupant's failure to provide a transcript precluded review of his claim; and
(3) post-judgment order requiring the payment of rent pending appeal was subject to direct appeal.

Affirmed in part and appeal dismissed in part.

BLACKBURN, Presiding Judge.

In this dispossessory action, Terrence Owens appeals first from the court's issuance of a writ of dispossession, arguing that the landowner Green Tree Servicing LLC wrongfully foreclosed on the property. We affirm in this case on two grounds: such is not a valid defense to a dispossessory action, and Owens failed to include a transcript of the trial, precluding our review of his claim of error. Owens's second appeal is from the court's order requiring him to pay rent pending the appeal. In light of our disposition of the first appeal, this second appeal is moot and is therefore dismissed.

The undisputed facts show that on March 9, 2009, Green Tree filed a dispossessory warrant against Owens and other occupants of a residence, asserting that they were all tenants at sufferance as a result of Green Tree's obtaining the property through a recent foreclosure sale. See California Fed. Sav. etc. Assn. v. Day FN1 (the former owner, “by remaining in possession of the premises after a lawful foreclosure of his deed to secure debt, became a tenant at sufferance and subject to summary dispossession by appellant, the purchaser at the foreclosure sale”). Green Tree sought dispossession only. Owens answered, claiming that because of a pending bankruptcy by a co-debtor and because of notice defects, the foreclosure was wrongful, and that therefore no writ of dispossession should issue. After a trial on the merits, the trial court issued a writ of dispossession on March 26, 2009, which writ Owens appeals in Case No. A09A1666. On April 27, 2009, Green Tree moved the court to require Owens under OCGA § 44-7-56 to pay rent into the registry of the court pending the appeal (if he wished to remain in possession of the premises); the court entered such an order, which Owens appeals in Case No. A09A1978.
FN1. California Fed. Sav. etc. Assn. v. Day, 193 Ga.App. 690, 691, 388 S.E.2d 727 (1989).

Case No. A09A1666

1. In his appeal of the writ of dispossession, Owens contends that the trial court erred in rejecting his defense of wrongful foreclosure that asserted the bankruptcy of a co-debtor and other alleged defects in the foreclosure process. This contention fails for at least two reasons.
[1] First, “[a] challenge to the validity of foreclosure in defense of a dispossessory proceeding will not lie, because, after a foreclosure sale, the former owner cannot attack dispossession without first setting aside the foreclosure and deed.” Hurt v. Norwest Mtg.FN2 See Solomon v. Norwest Mtg. Corp.FN3 (“after foreclosure sale, the former owner cannot attack dispossession without first setting aside the foreclosure and deed”) (punctuation omitted); Hague v. Kennedy FN4 (“[c]laimed defects in the landlord's title to premises cannot be raised as a defense to a proceeding for possession ...”) (punctuation omitted).

FN2. Hurt v. Norwest Mtg., 260 Ga.App. 651, 659(2)(i), 580 S.E.2d 580 (2003).
FN3. Solomon v. Norwest Mtg. Corp., 245 Ga.App. 875, 876(1), 538 S.E.2d 783 (2000).
FN4. Hague v. Kennedy, 205 Ga.App. 586, 588, 423 S.E.2d 283 (1992).

[2] [3] Second, even if Owens's defenses were available in a dispossessory proceeding, we cannot review the same because Owens failed to include a trial transcript in the record. Indeed, Owens specifically stated in his notice of appeal that “[t]here is no trial transcript in this case.” Yet determination of the “wrongful foreclosure” issue asserted by Owens on appeal (based on an alleged bankruptcy by a co-debtor and alleged notice defects in the foreclosure) would require us to review the evidence submitted at trial.

[Owens], however, failed to file a transcript of the proceedings and apparently did not attempt to reconstruct the transcript as allowed by OCGA § 5-6-41(g) and (i). When a transcript of the evidence is necessary,*101 as it is here, and the appellant omits it from the record or fails to submit a statutorily authorized substitute, we must assume that the evidence supported the grant of a writ of possession. As the appellant[, Owens] had the burden to affirmatively show error by the record. This [he] failed to do. Therefore, we must presume the trial court's judgment granting [Green Tree] a writ of possession is correct.(Punctuation omitted.) Harden v. Young.FN5 We have specifically so held in cases challenging a foreclosure as wrongful, whether because of a bankruptcy stay or otherwise. See, e.g., Miley v. Thornburg Mtg. Home Loans;FN6 Olubajo v. Deutsche Bank Nat. Trust Co.;FN7 Wimbley v. Washington Mut. Bank;FN8 Parks v. Texas Commerce Bank. FN9

FN5. Harden v. Young, 268 Ga.App. 619, 620, 606 S.E.2d 6 (2004).
FN6. Miley v. Thornburg Mtg. Loans, 294 Ga.App. 140, 141, 668 S.E.2d 560 (2008).
FN7. Olubajo v. Deutsche Bank Nat. Trust Co., 280 Ga.App. 154, 633 S.E.2d 543 (2006).
FN8. Wimbley v. Washington Mut. Bank, 271 Ga.App. 477, 478, 610 S.E.2d 124 (2005).
FN9. Parks v. Texas Commerce Bank, 229 Ga.App. 467, 468, 494 S.E.2d 276 (1997).

Case No. A09A1978

2. The second appeal is from the trial court's ruling ordering Owens to pay rent pending appeal, if he wished to remain in possession of the premises. Citing Carter v. Landel/Arundel, Inc.FN10 and Wall v. T.J.B. Svcs., FN11 Green Tree claims that Owens was required to file an interlocutory application to have this appeal heard. However, in both of those cases, the appeal was from an order directing the tenant to pay rent pending the disposition of the dispossessory case; in neither had the trial court decided the question of possession, thus making the appeal from the order to pay rent premature (absent compliance with interlocutory appeal procedures).
FN10. Carter v. Landel/Arundel, Inc., 172 Ga.App. 115, 116(3), 322 S.E.2d 108 (1984).
FN11. Wall v. T.J.B. Svcs., 141 Ga.App. 437, 233 S.E.2d 810 (1977).

[4] Here, however, the trial court had already decided the sole issue of dispossession, leaving nothing to be decided when the court entered the post-judgment order requiring the payment of rent pending appeal. Similar to a post-judgment order requiring the posting of a supersedeas bond, a post-judgment order requiring the payment of rent pending appeal is subject to direct appeal, as there is nothing left to be decided in the trial court. See OCGA § 5-6-34(a)(1). Cf. Rapps v. Cooke FN12 (direct appeal of post-judgment order requiring supersedeas bond); Robenolt v. Chrysler Financial Svcs. Corp.FN13 (direct appeal of post-judgment order to pay rent pending appeal).

FN12. Rapps v. Cooke, 234 Ga.App. 131, 134(2), 505 S.E.2d 566 (1998).
FN13. Robenolt v. Chrysler Financial Svcs. Corp., 201 Ga.App. 168, 170(4), 410 S.E.2d 365 (1991).

3. Owens argues that the trial court lacked the authority to order him to pay rent pending appeal. Beyond the fact that such is expressly authorized by OCGA § 44-7-56, we hold that in light of our disposition of the dispossessory appeal, the question is moot in any case. See Ruskin v. AAF-McQuay, Inc.FN14 (“as the [main] appeal ... has been decided, the matter of the bond is moot”). Accordingly, this second appeal is dismissed as moot. See Almonte v. West Ashley Toyota.FN15

FN14. Ruskin v. AAF-McQuay, Inc., 284 Ga.App. 49, 53, 643 S.E.2d 333 (2007).
FN15. Almonte v. West Ashley Toyota, 281 Ga.App. 808, 810, 637 S.E.2d 755 (2006).

Judgment affirmed in Case No. A09A1666. Appeal dismissed as moot in Case No. A09A1978.
ADAMS and DOYLE, JJ., concur.

Ga.App.,2009.Owens v. Green Tree Servicing LLC684 S.E.2d 99, 09 FCDR 2952

AJC Article - "Apartment occupancy down, renters have upper hand"

According to this August 17, 2009 AJC.com article, apartment occupancy rates are down and renters have the upper hand. While there may be some truth to this, it doesn't change the fact that you MUST continue to follow good landlording procedures, like properly screening your tenants, and ensuring your receive a full deposit BEFORE you give anyone the keys to your rental property. Failure to follow these essential procedures can end up costing you a lot more than an extra month (or even a few) vacancy in your rental property. No matter how desperate you may feel, do NOT give in to the temptation to give the keys to one of your most valuable assets to someone who doesn't pass your proper screening criteria. And if you are not currently checking the credit and references of your tenants, you should be, so make a pledge to yourself to start now. If you have questions about how to legally evict your tenants please feel free to call my office to arrange a free consultation. Our toll-free number is 888-500-EVICT. Also check out our website at http://www.georgiaevictionattorney.com/.

Federal Law Protects Deployed Military from Evictions

See the article below regarding eviction of military families. For the original story, plus video, see ttp://www.myfoxatlanta.com/dpp/news/Tucker_Military_Family_Escapes_Eviction_021309

If you are considering evicting a family, especially one that is associated with the military, you should absolutely check with an attorney first. According to the article below you could face jail time!

Tucker Military Family Escapes Eviction

Edited By: Leigha Baugham
myfoxatlanta.com

TUCKER, Ga. (MyFOX ATLANTA) - A family in Tucker was able to breathe a sigh of relief after dodging an eviction. The family was legally protected against eviction because the loved one is headed to war.

Nikki Limperopoulis is a military veteran married to a Georgia National Guard member, specialist Michael Limperopoulis. Limperopoulis, who is disabled, said she and her husband have an autistic son and her husbands' carpentry jobs dried up before his military checks arrived.

"It's a three day notice to quit and it says we are starting eviction procedures today," Limperopoulis said.

"They have not been evicted they still live here so that was an exaggeration," said the property manager.

The property manager disputes Limperopoulis' claim, even though she had the eviction paperwork. Georgia National Guard Staff Sergeant David Eberhart said he called the property manager three times and sent an email to ward off the eviction.

"She thought she was being bound by the family fair housing practice to evict this family," Eberhart said.

The Georgia National Guard said the mere fact that eviction papers were served on this military family is a violation of the Service Members' Civil Relief Act.

The act protects service members with protections against evictions, having things repossessed and other factors which could snowball when a soldier is away.

"Even with the attempt to evict they could face criminal prosecutions,"said Eberhart. Friday afternoon, the family's rent was paid through the Georgia National Guard Family Support Foundation, which was established to help military families in emergencies. With several thousand Georgia guard troops headed to Afghanistan in April, fears are that the same could happen to other military families.

"If you do have soldiers in your apartment complex, at your jobs you should educate yourself so you don't cause undue stress on their family," Eberhart said.

According to the Georgia National Guard, a violation of the Service Members Civil Relief Act can result in a year in jail and hefty fines, but so far this has never happened in Georgia.

For more information, or to schedule a consultation, please call 678-985-9400 or toll-free at 1-888-500-EVICT. You can also see an updated full listing of the Georgia Statutes regulating landlord tenant actions at my website, http://www.georgiaevictionattorney.com/

Georgia Senate Bill 57 Proposes Sixty Day Notice Requirement to Evict Tenants after Foreclosure

A new Georgia Senate Bill 57 would prolong the length of time a tenant would have to be evicted if a house is foreclosed. This wouldn't effect most landlords, assuming the legislature doesn't try to apply this (now, or later) to other types of evictions, such as evictions for non-payment of rent.

For more information, or to discuss your specific questions about Georgia Dispossessories or evictions, call The Law Office of Trey Phillips, LLC toll free at 1-888-500-EVICT and visit our website at www.GeorgiaEvictionAttorney.com. We don't just file the paperwork and go to court, we actually contract the labor to remove the tenant's possessions, and coordinate changing the locks, so that once you call us all that's left for you to do is relax.

Here's a link to the original ajc article http://www.ajc.com/metro/content/metro/stories/2009/01/27/foreclose_senate_bill.html, the full text is below.

ajc.com > Metro
Foreclosure crisis spurs bill to help tenants
By D.L. BENNETT
The Atlanta Journal-Constitution
Tuesday, January 27, 2009

Conceding that Georgia’s foreclosure crisis may be beyond the power of the General Assembly to fix, a bipartisan group of lawmakers proposed a series of reforms Tuesday.

Senate Bill 57 would help protect tenants, give local governments more ability to combat the ills of abandoned foreclosed home and require brokers who sell subprime loans to be more forthcoming about the terms of such deals.

“This will help out around the edges,” said Sen. Bill Hamrick (R-Carrollton), the chief sponsor. “There’s no bill that can solve this problem, obviously.”

The proposal is the product of a series of meetings Hamrick has had around the state as the crisis has grown since the end of the 2008 session. He expects a hearing in his committee next week.

The proposal hits issues pushed by local governments and housing advocates.

Young Hughley Jr., CEO of Reynoldstown Revitalization Corp., a nonprofit community group, said much needs to be done to protect and restore communities hit by the wave of foreclosures. He welcomed the effort.

This seems like it’s dealing with some of the factors that got us into this situation,” Hughley said.

Under the bill, mortgage companies foreclosing on homes would have to quickly file deeds or face penalties. Many local governments complain lenders fail to file deeds for months, leaving vacant, dilapidated houses with no one for governments to hold accountable.

His bill also gives tenants who are paying on time 60 days before they can be evicted, if the landlord is foreclosed on. Local officials and housing advocates say tenants are routinely booted through no fault of their own.

At the same time, those who say they are helping rescue someone from foreclosure only to scam them out of a deed would be blocked from such tactics. And, the bill sets up a series of requirements and disclosures for those who sell subprime loans.

Sen. Nan Orrock (D-Atlanta) called the bill a “good-faith, bipartisan effort” to address the foreclosure crisis. She said a good beginning was last year’s passage of a bill requiring more clarity on who holds a mortgage so homeowners can quickly try to work out a deal if they get behind.

“It’s time to get away from blaming homeowners,” she said.

Landlord not liable for injuries at rental property, if landlord was unaware of dangerous condition

The last couple of posts have been scary for landlords, so I thought I'd post one that was good for landlords. In the 2008 Georgia Court of Appeals case below, a landlord was sued because his tenant's guest was hurt when the deck at the rental house collapsed. The Georgia Court of Appeals decided that the landlord was not liable for the guest's injuries, because the landlord did not KNOW that there was anything wrong with the deck.

The full text of the Georgia Court of Appeals decision is below.

If you have questions regarding Landlord/Tenant law, including evictions or dispossessories for non-payment of rent, feel free to call my office at 678-985-9400 or 1-888-500-EVICT(3842) or to visit my eviction website at http://www.georgiaevictionattorney.com/.

Court of Appeals of Georgia.
SILMAN et al.v.ASSOCIATES BELLEMEADE et al.
No. A08A0863.
Oct. 21, 2008.Reconsideration Denied Nov. 21, 2008.

Background: Guest who fell along with a deck of a rented house brought a personal-injury action against tenants, landlord, and property-management company. Guest's husband sued for loss of consortium. Landlord moved for summary judgment. Guest moved for sanctions against landlord for alleged spoliation of evidence. The State Court, Cobb County, Carlisle, J., granted summary judgment to landlord and denied guest's motion. Appeal followed.

Kevin A. Adamson, Atlanta, for appellants.Lynn Milhollin
Leonard, for appellees.BARNES, Chief Judge.

In July 2004, Merdean Silman was standing on the back deck of a house rented by Lamar and Nancy Scott when the deck fell. She sued the Scotts for damages resulting from personal injury, and her husband Samuel Silman sued for loss of consortium. The Silmans also sued the property owner, Associates Bellemeade, and the property management company, McCreary Realty Management, Inc. (“Bellemeade”). Bellemeade moved for summary judgment, arguing it had no notice the deck was defective, and Silman moved for sanctions, arguing that Bellemeade destroyed the deck despite knowing that litigation would ensue. The trial court *665 granted summary judgment to Bellemeade and denied Silman's motion for sanctions. For the reasons that follow, we affirm.FN1

FN1. The case remains pending against the Scotts.

1. On appeal we review the trial court's grant of summary judgment de novo to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact. Summary judgment is proper only when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Ford v. Bank of America Corp., 277 Ga.App. 708, 627 S.E.2d 376 (2006). When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Wachovia Bank v. Moody Bible Institute of Chicago, 283 Ga.App. 488,
489, 642 S.E.2d 118 (2007).

2. Silman contends that Bellemeade is liable for her injuries because it undertook to inspect the property and therefore is charged with notice of defects it saw or should have seen. As a social guest in the Scotts' private home, Silman was a licensee, and thus the Scotts would be liable to her only for injuries caused by wilful or wanton
conduct. Trulove v. Jones, 271 Ga.App. 681, 610 S.E.2d 649 (2005); OCGA § 51-3-2. As to the landlord, however, Silman was a invitee and Bellemeade is liable to her for injuries caused by Bellemeade's failure to exercise ordinary care to keep the property safe and protect her from known risks. OCGA § 51-3-1. While not an insurer, the owner must be diligent in making the premises safe. Robinson v. Kroger Co., 268 Ga. 735, 740(1), 493 S.E.2d 403 (1997). The owner's liability depends on his superior knowledge of the danger, which is unknown to his guest. Moore v. ECI Mgmt., 246 Ga.App. 601, 602-603, 542 S.E.2d 115 (2000). While a landlord is not responsible to guests for damages caused by a tenant's negligence, he is “responsible for damages arising from defective construction or ... from the failure to keep the premises in repair.” OCGA § 44-7-14. Additionally, if the landlord undertakes to inspect the property, he has a duty to repair any unsafe conditions which should have been discovered during the inspection. Home Owners Loan Corp. v. Brazzeal, 62 Ga.App. 683, 692, 9 S.E.2d 773 (1940). In this case, Silman has not shown that the landlord failed to keep the premises in repair or should have discovered upon inspection that the deck was going to fall.

Bellemeade's agent provides third-party leasing and management services for property owners. It inspects each property annually, to determine whether the tenant is maintaining the property and to look for anything that needed fixing, such as broken kitchen cabinets, leaky faucets, or missing screens. The inspection included walking on the deck and inspecting its surface.

The property where Silman fell was a duplex, built around 1980. The deck was built before the current owner bought the property. Bellemeade had inspection reports and work orders back to 1999, when it began managing the property. Bellemeade's
contractor replaced the deck stairs “probably the year before” the deck fell because the wood had begun to deteriorate, and also secured the railing with screws, replaced some deck boards, and added four-by-four pressure-treated posts along the outside edge of the deck, tasks Bellemeade described as routine maintenance. The posts were added to provide additional support “for overkill ... [j]ust to make sure,” not in response to any particular problem.

In 2002, Bellemeade's contractor inspected the deck and thought it was structurally sound. Typically during annual inspections he bounced or rocked on decks to discern any reflection or deflection, and, being 260 pounds, any structural problems were usually evident immediately. Bellemeade's contractor inspected the property in March 2004, and noted no problems with the deck. In May 2004, a City of Marietta inspector examined the property for safety in response to a local ordinance, with a representative of Bellemeade in attendance. The inspector examined the deck above and below and found no potential problems with the structure. The tenant reported no problems with the deck, and the management company knew of *666 no roblems with the deck or its support structures.

Photographs taken the day after the deck fell showed that the deck's ledger board had been attached to the house using railroad spikes, which are essentially very large nails. Two-by-four posts on footings supported the ledger board and were nailed to the concrete block foundation of the house. When the deck fell, the steps cracked at their base, and pictures showed that the boards on top of the deck had broken in the middle. The siding was discolored above where the deck had been and appeared to have some water damage. The contractor who removed the old deck saw no rot or mold on the deck, although the siding had some mold, mildew, or algae on it, the growth of which could compromise the pressure-treated wood after several years. He did not know why the deck fell.

The record includes the transcript of a statement from tenant Scott to an insurance agent, in which Scott stated that the deck had felt a little wobbly earlier in the year
when she and her son were both on it, and that she had warned her guests not to crowd the deck shortly before it fell because she “was not comfortable with it.” Scott admitted she never told Bellemeade anything about the deck being wobbly because she did not think it was a problem. Silman argues that from this statement “it is reasonable to conclude that the deck had been wobbly” for some time and that Bellemeade had failed to inspect it thoroughly.

Pretermitting whether this transcript of an unsworn statement by the tenant is admissible as an admission against the interest of the landlord, it still does not establish that landlord had actual or constructive knowledge of a problem or failed to inspect properly. The tenant never reported any problems with the deck. Further, two inspections-four months and two months before the incident-uncovered no problems with the deck. Although Silman argued to the trial court that adding the additional four-by-four posts raised an inference that Bellemeade knew or should have known the deck was unsafe because “nobody just ‘adds' support to an existing structure without suspecting something may be wrong with it,” any such inference is clearly dispelled by Bellemeade's direct testimony to the contrary.

“In summary, there is no evidence that [Bellemeade] had actual or constructive knowledge of a defect in the construction or of a condition of the deck that caused [Silman's] injuries.” Wingo v. Harrison, 268 Ga.App. 156, 160, 601 S.E.2d 507 2004).
Accordingly, the trial court did not err in granting summary judgment to Bellemeade.

3. Silman also contends that the trial court erred in denying her motion for sanctions against Bellemeade for spoliation of evidence. She contends that by immediately removing and demolishing the old deck, Bellemeade made it impossible for her to determine why the deck fell. Further, Bellemeade knew she and others were injured when the deck fell and therefore should have anticipated that litigation would ensue. Her experts were unable to determine from Bellemeade's pictures why the deck fell, and Silman argues she was entitled to a finding that the deck collapsed because it was improperly maintained and improperly secured to the house.

“Spoliation” is the destruction or failure to preserve evidence that is necessary to pending or contemplated litigation, and if key evidence was destroyed, sanctions may be warranted. Bridgestone/Firestone, etc. v. Campbell, 258 Ga.App. 767, 768, 574 S.E.2d 923 (2002). Such destruction creates the presumption that the evidence would have been harmful to the spoliator. Glynn Plymouth, Inc. v. Davis, 120Ga.App. 475, 482, 170 S.E.2d 848 (1969). The party moving for sanction must show that the opposing party destroyed or failed to preserve evidence necessary to contemplated or pending litigation. Strickland v. CMCR Investments, 279 Ga. 112, 115(1), n. 7, 610 S.E.2d 71 (2005); Ga. Bd. of Dentistry v. Pence, 223 Ga.App. 603, 608(6), 478 S.E.2d 437 (1996).

In this case, Silman presents no evidence showing that litigation was pending or contemplated when Bellemeade had the deck debris removed from the Scotts' back yard. She argues that Bellemeade should have anticipated litigation because its agents “are *667 business people who know and understand that people who are hurt by something that was not the injured person's fault will likely pursue legal avenues to recoup the costs of their injuries.” Silman also argues that any safety concerns over leaving the deck pieces lying in the back yard could have been addressed by preserving them at either appellee's corporate headquarters.

During the motions hearing, the trial court responded to this argument by noting that contemplation of potential liability was not notice of potential litigation. The court noted, “A lot of times people just let things go; they fall off decks and get hurt, go get treated, and never sue anybody because it's just not something they'd do in their normal course of business.” In this case, Silman did not file suit until almost two years after the fall, and nothing in the record indicates that she ever gave the defendants notice she was contemplating litigation. Thus, the trial court properly found that Silman presented no evidence that Bellemeade acted in bad faith and denied the motion for sanctions.

Judgment affirmed.

JOHNSON, P.J., and PHIPPS, J., concur.

Ga.App.,2008.

Silman v. Associates Bellemeade

669 S.E.2d 663, 08 FCDR 3383

NY Landlord fined $10K for taking tenant's toilet

The article below highlights the problems a landlord can face if they attempt to remove a tenant by intimidation or harassment. If you have a non-paying tenant, or want to remove a tenant for ANY reason, then contact my office for assistance doing it in a legal way.

SPRING VALLEY, N.Y. — A landlord was fined nearly $10,000 for removing the toilet and other fixtures from a basement apartment to get his tenant to move out.

The Rockland Board of Health issued the fine to Fausto Pinos on Wednesday. He had been charged with 24 housing code violations for conditions in the building in Spring Valley, a town north of New York City.

"The people living there were subjected to appalling conditions that were not fit for human habitation," said Dr. Jeffrey Oppenheim, the health board's president. "It was just disgusting."

Pinos, of Bushkill, Pa., did not appear at the meeting, but his brother, Jesus Pinos, speaking on his behalf, said the landlord did not dispute the charges. He said Pinos thought that removing the toilet, bathtub, sink, oven and countertop would force the woman and her child to move.

County officials had been tipped off to problems in the apartment in early November by an agency that was trying to help the woman. Inspectors found numerous health and safety violations, including a roach infestation and sewage in the bathtub.

The Department of Health issued emergency violations letters to Fausto Pinos on Nov. 5, according to records. When inspectors visited the apartment again Nov. 17, they discovered that the toilet and other fixtures had been removed.

The tenant told inspectors that Pinos removed the items the day before and told her to leave. But she said she had no other place to go.

The Department of Social Services helped relocate the woman and her child.

There was no listing for a Fausto Pinos in Bushkill, Pa.

Here's a link to the original story.
http://www.ajc.com/news/content/shared-gen/ap/Feature_Stories/Landlord_Toilet.html?cxntlid=homepage_tab_newstab

For more information visit my website, Trey Phillips, Georgia Eviction Attorney http://www.GeorgiaEvictionAttorney.com/

Landlord ordered to pay tenants over $14,000.00

Below is the complete opinion of a recent Georgia Court of Appeals case decided yesterday. In that case it appears that a landlord was ordered to pay her tenants $6795 in damages for property she allegedly took and/or damaged. As if that wasn't bad enough, she was also ordered to pay $7837 for the tenants' attorney's fees. I don't have the information from the original court case, but it appears from this opinion that the landlord claimed the tenants "abandoned" the premises and therefore went in and removed their belongings. The ONLY safe way to take back leased premises for non-payment of rent, even if the tenants "appear" to have abandoned or left is to file an eviction and get a court order.

At The Law Office of Trey Phillips, LLC (www.GeorgiaEvictionAttorney.com) we can save you a lot of time and headache by handling the process for you from beginning to end. Please do NOT enter a leased premises until you've obtained a court order and the court order has been executed by the county sheriff's department.

Court of Appeals of Georgia.
BEASLEYv.SMITH et al.
No. A08A2255.
Jan. 6, 2009.Dacara Shelease Brown, for Beasley.William Byrd Warlick, for Smith.JOHNSON, Presiding Judge.
*1 Jamie and Ashley Smith sued their landlord, Jeana Beasley, for conversion and damage to personal property located in their residence. Beasley answered and counterclaimed for breach of the lease agreement. Following a bench trial, the trial court found for the Smiths on all claims, awarding them $6,795 in actual damages and $7,837 in attorney fees. Beasley appeals, and we affirm. In three enumerations of error, Beasley argues that the evidence did not support the verdict. Specifically, she claims that the Smiths abandoned their personal property and the leased premises, that they failed to prove the value of the personal property, and that, given the insufficient evidence, the trial court should have granted her a new trial. Beasley, however, did not include a transcript of the bench trial in the record on appeal or obtain a statutorily acceptable substitute.FN1

FN1. See OCGA § 5-6-41(g), (i).

As we have consistently held, when an appellant fails to provide
a transcript of the evidence, “we must rely upon the presumption in favor of the regularity of all proceedings in a court of competent jurisdiction and assume that the evidence was sufficient to authorize the final judgment entered in the trial court.” FN2 Beasley's one-sided, unsupported recitation of the witness testimony does not overcome this presumption.FN3 Accordingly, we affirm. FN4

FN2. (Citations and punctuation omitted.) Atlanta Public Schools v. Diamond, 261 Ga.App. 641, 644(2) (583 S.E.2d 500) (2003).
FN3. See Keita v. K & S Trading, 292 Ga.App. 116, 117(1) (663 S.E.2d 362)
(2008).
FN4. See Diamond, supra; Keita, supra at 119(2).

Judgment affirmed.BARNES and PHIPPS, JJ., concur.

Ga.App.,2009.Beasley v. Smith--- S.E.2d ----, 2009 WL 26714 (Ga.App.)

Briefs and Other Related Documents (Back to top)• A08A2255 (Docket) (Jul. 18, 2008)

END OF DOCUMENT

Here's a clip from a recent newspaper article about evictions in a local Atlanta county:

Fulton suspends evictions for holiday season
Homeless advocates praise measure, landlords call it unfair
By D.L. BENNETT
The Atlanta Journal-Constitution
Thursday, December 11, 2008

Nothing says Happy Holidays during hard times like the marshals knocking on your door to serve an eviction. With record numbers of tenants falling behind and homes being lost to foreclosure, it’s become an increasingly common scene.

One metro county, Fulton, has decided to do something about that, giving some residents a Christmas gift by an at-least three-week ban on evictions. Fulton County Marshal Antonio Johnson said he won’t evict anybody from Dec. 19 through Jan. 5. Commissioners meet on Wednesday and will consider whether they want to extend the ban.

The current economic crisis seems to be creating political sympathy for tenants, but where's the sympathy for the landlords? If the tenant doesn't pay their rent, how is the landlord supposed to pay the mortgage? (And the property taxes, and the upkeep, and the other bills associated with the rental property?)

This strikes me, and many others, as grossly unfair to the landlord.

The moral of the story may be, DON'T WAIT! When the tenant stops paying move immediately to begin the process because you don't know how long it might take to get them out.

Here's a link to the Atlanta Journal Consititution story.

http://www.ajc.com/metro/content/metro/atlanta/stories/2008/12/11/fulton_evictions_suspended.html