OWENS v. BANK OF AMERICA (2010)

After foreclosing upon and then purchasing real property formerly owned by Brian Owens, Bank of America National Association initiated dispossessory proceedings in state court against Owens “and [a]ll [o]thers.” Owens, who lived elsewhere and leased the premises out to a tenant, filed an answer and counterclaim for damages, alleging that the foreclosure was unlawful. Following a bench trial at which Owens appeared, the court granted a writ of possession to the Bank and dismissed Owens's counterclaim.

Owens filed this pro se appeal, contending that: (1) the trial court erred in not addressing his counterclaim, wherein he asserted that the Bank had violated foreclosure law by disregarding a “bad title issue”; (2) the trial court lacked jurisdiction over the dispossessory action because the damages sought on his wrongful foreclosure counterclaim exceeded the jurisdictional limits of the state court; and (3) the trial court ignored a new federal law intended to protect tenants following foreclosure.

We apply a de novo standard of review to legal issues decided by the trial court, and factual findings made by the trial court shall not be set aside unless clearly erroneous.¹ The appellant has the burden of affirmatively showing error by the record.² Owens has failed to carry this burden, so we affirm the judgment of the trial court.

1. Owens has not demonstrated error in the trial court's dismissal of his wrongful foreclosure counterclaim. Even if such a counterclaim were assertable in a dispossessory proceeding,³ we cannot determine from the record whether Owens pursued the claim at the dispossessory trial because he has failed to include in the record a trial transcript or acceptable substitute therefor.⁴

2. Owens contends that the case should have been transferred to superior court because the amount of damages he sought in his counterclaim exceeded the jurisdictional limits of state court. But the state court had jurisdiction over the case without regard to the amount in controversy,⁵ so this argument is without merit.

3. Assuming, without deciding, that Owens had standing to assert a claim that his tenant was not given proper notice under federal law, he has not shown that he raised the argument at trial and sought its disposition. Accordingly, the argument has been waived.⁶

4. There is no merit to Owens's claim that he should have been granted a jury trial, given that the law does not contemplate a jury trial where, as here, no issues remain for jury determination.⁷

Judgment affirmed.

FOOTNOTES

1.  Mackey v. Fed. Nat. Mortgage, 294 Ga.App. 495, 496 (669 S.E.2d 397) (2008).

2.  Fisher v. One Stop Mortgage, 258 Ga.App. 479, 480 (574 S.E.2d 605) (2002).

3.  See, e.g., Vines v. LaSalle Bank, N. A., 302 Ga.App. 353 (691 S.E.2d 242) (2010) (generally, a challenge to the validity of foreclosure will not lie in defense of a dispossessory proceeding); Owens v. Green Tree Servicing, 300 Ga.App. 22, 23(1) (684 S.E.2d 99) (2009); Jackman v. LaSalle Bank, N. A., 299 Ga.App. 894, 895(1) (683 S.E.2d 925) (2009); Hague v. Kennedy, 205 Ga.App. 586, 588 (423 S.E.2d 283) (1992) (this rule includes claimed defects in the title to the premises); Womack v. Columbus Rentals, 223 Ga.App. 501, 504(3) (478 S.E.2d 611) (1996) (in a dispossessory action, when a tenant pleads matters concerning foreclosure, the landlord obtains judgment on the pleadings unless and until that foreclosure is set aside); Solomon v. Norwest Mortgage Corp., 245 Ga.App. 875, 876(3) (538 S.E.2d 783) (2000) (a counterclaim alleging wrongful foreclosure cannot be tried in state court).

4.  Sanders v. Daniel, 302 Ga.App. 350, 351(1) (691 S.E.2d 244) (2010); Owens, supra at 23-24(1).

5.  OCGA § 15-7-4(a)(2).

6.  See Able-Craft, Inc. v. Bradshaw, 167 Ga.App. 725, 727(2) (307 S.E.2d 671) (1983); see generally Ga. Farm Bureau Mut. Ins. Co. v. Pawlowski, 284 Ga.App. 183, 186(2)(b) (643 S.E.2d 239) (2007).

7.  Allen v. Tucker Fed. Bank, 236 Ga.App. 245, 246(2) (510 S.E.2d 546) (1998).

PHIPPS, Presiding Judge.

MILLER, C.J., and JOHNSON, J. concur.