Task Force for the Homeless Wins Two Georgia Court of Appeals Rulings
(APN) ATLANTA — Within the last two weeks, the Georgia Court of Appeals has issued two separate orders benefitting the Metro Atlanta Task Force for the Homeless, which is in a dispute with the City of Atlanta, Central Atlanta Progress, Manny Fialkow, Emory University, and others regarding what the Task Force asserts is the parties’ illegal scheme of racketeering and tortious interference with private contractual relationships.
At issue is, first, who owns the building at the corner of Peachtree and Pine, which currently houses several hundred homeless men. Premium Funding Solutions (PFS) is the entity that currently owns notes that the Task Force defaulted on. However, the Task Force alleges that PFS, and Ichthus Community Trust before it, acquired the notes through an illegal conspiracy to both deprive the Task Force of funds, and then financially profit from that deprivation.
The Task Force has separate litigation against the City of Atlanta in federal court; against Emory University that began in DeKalb County Superior Court; and against Central Atlanta Progress and others that begin in Fulton County Superior Court.
In the Fulton County case, Metro Atlanta Task Force for the Homeless v. Premium Funding Solutions, on March 29, 2013, the Court of Appeals of Georgia issued a ruling overturning the dispossessory order of Fulton County Superior Court Judge Craig Schwall, dated February 09, 2012.
As previously reported by Atlanta Progressive News, Judge Schwall issued the February 2012 order in a packed courtroom after refusing to grant the Task Force the chance to present evidence that the mortgage notes, now defaulted, were obtained through an illegal scheme of racketeering and tortious interference with private contractual relationships.
The record, as reviewed and analyzed by APN in depth, indeed shows a clear and compelling case that Central Atlanta Progress, Manny Fialkow, and others, participated in a conspiracy to sabotage the Task Force by cutting off its public and private funding, forcing it to default on its loans, while working to obtain the building at Peachtree and Pine through a series of shell companies.
The Georgia Court of Appeals has ruled that Judge Schwall could not issue a dispossessory without satisfying the requirements of the dispossessory statutes in Georgia law, which provide for the ability of parties to present evidence. The Court overturned Schwall’s order and the case now returns to Schwall.
Presiding Judge Herbert E. Phipps wrote the opinion for a three judge panel that also included Chief Judge John J. Ellington and Judge Stephen Lewis A. Dillard.
Thus, the Task Force will now have the opportunity to present its case.
“On February 9, 2012, the [Fulton County Superior] court entered an order granting a writ of possession to PFS,” the Georgia Court of Appeals wrote.
“The Task Force contends that the court erred in granting a writ of possession to PFS because, inter alia, the court failed to follow the procedures required for a dispossessory action. We agree,” the Court wrote.
“‘The exclusive method whereby a landlord may evict a tenant is through a properly instituted dispossessory action filed pursuant to OCGA 44-7-50 et seq.’ The statutory procedures for dispossessing a tenant must be strictly construed and observed. Our review of the trial court’s ruling on a legal question is ‘plain legal error,’” the Court wrote.
“In this case, the court did not adhere to the requirements of the dispossessory statute. For instance, the Task Force was entitled to a trial on the issues, which would include taking the testimony of witnesses orally in open court (unless otherwise provided), and proper notice of a trial. But, assuming arguendo that PFS met the affidavit and other requirements for applying for a writ of dispossession, the Task Force did not receive the required trial and notice. Accordingly, the court erred by granting a writ of possession to PFS. Thus, the court’s order granting the writ of possession is reversed,” the Court wrote.
The Fulton County ruling was first reported by the Saporta Report online news service.
Meanwhile in the DeKalb County case, Emory University, et al., v. Metro Atlanta Task Force for the Homeless, on March 18, 2013, the Georgia Court of Appeals affirmed the ruling of DeKalb County Superior Court Judge Eleanor Ross, issued on March 05, 2012, that denied Emory’s motion to dismiss the Task Force’s complaint against it.
Emory had filed a motion to the trial court, asking to dismiss the Task Force’s complaint on the basis that the complaint fell under the Anti-SLAPP (Strategic Lawsuit against Public Participation) Statute, and that the Task Force had not provided notice required under the Anti-SLAPP statute.
However, Judge Ross ruled, and the Court of Appeals affirmed, that the Task Force’s complaint did not fall under the Anti-SLAPP statute.
Court of Appeals Judge William M. Ray authored the opinion, with Presiding Judge M. Yvette Miller and Judge Elizabeth L. Branch concurring.
Emory University has already filed a Notice of Appeal, indicating its intent to appeal the issue to the Supreme Court of Georgia.
Meanwhile, the Task Force recently lost a federal appeal regarding its federal claims against the City of Atlanta; however, attorney Steve Hall, who represents the Task Force, tells APN that, despite a report to the contrary by the Saporta Report, the Task Force has not exhausted its federal appeals, and in fact plans to ask the Supreme Court of the US to hear its case.
Hall believes there are important issues involved in the Task Force’s federal case against the City of Atlanta involving the question of what constitutes race-based discrimination versus “class of one” discrimination, which are on the cutting edge of civil rights litigation, and that the Supreme Court of the US may want to consider.
In the meantime, the Task Force is celebrating what it considers to be two legal victories.
“We’re thrilled about it. It’s a real victory,” Anita Beaty, Executive Director of the Task Force, told APN.
“We think we’re winning. This is a good indication we’re going to trial and all the evidence that we have accumulated is going to be exposed, and that is a very good thing,” Beaty said.
Hall tells APN he believes that because the Task Force’s defenses against the PFS dispossessory are, in fact, connected to the Task Force’s RICO and tort claims against PFS and others, he therefore hopes the court will conduct a single trial that will cover all issues.
“We want it all in one. My belief is… we do it all that the same time, it makes the most sense, it’s the fairest, everybody gets to see the whole thing, and it’s in the interest of judicial economy,” Hall said.
“What we believe, our opinion of where things are, if you go and you cause somebody to not be able to pay their bills, you do not get to profit from the fact that they didn’t pay their bills when you caused it,” Hall said.
“Our position has always been, to the extent we have not paid the mortgage or the water bill, it’s because people have prevented the Task Force from being able to do that by… [interfering with] their relationship with their donors, and that’s what we’re arguing,” Hall said.