Judge Allows Eviction Proceedings in Task Force Lawsuit, but Only in Superior Court
(APN) ATLANTA — On Friday, August 08, 2014, Fulton County Superior Court Judge Craig Schwall issued an order lifting the stay of dispossessory, allowing Premium Funding Solutions (PFS) to pursue dispossessory proceedings against the Metro Atlanta Task Force for the Homeless; however, only in Fulton County Superior Court.
Because the Superior Court rules require related cases to be assigned to the same judge, it is likely that Schwall will receive a dispossessory case, if filed.
Thus, Schwall would likely hear the dispossessory claims along with the Task Force’s tort claims against PFS and the other co-conspirators who conspired to sabotage the Task Force.
As previously reported by Atlanta Progressive News, the Task Force has been in court with the co-conspirators–Manny Fialkow, Central Atlanta Progress, Atlanta Downtown Improvement District, the Benevolent Community Investment Company (BCIC), and PFS–for some four years.
“The parties and this Court have a long and storied history with requests for dispossessory
regarding the Property, filed first by Plaintiff/Defendant-in-counterclaim Ichthus Community
Trust (hereinafter, “Ichthus”), and then by PFS,” Judge Schwall noted in his Order, obtained by APN.
With the exception of two incidents in which Schwall has dispossessed the Task Force–only to have those rulings overturned–there has been a stay on dispossessory, preventing first BCIC, then PFS, from evicting the Task Force.
In a hearing held on July 11, 2014, PFS argued that the State’s dispossessory statute was clear and unambiguous about what the Court must do when there is a property owner who seeks hearings regarding a tenant who has not paid rent.
In Schwall’s ruling, he agreed, citing OCGA 44-7-50(a) and 44-7-51(a).
“The owner may, individually or by an agent, attorney in fact, or attorney at law, demand the possession of the property so rented, leased, held, or occupied,” the law states.
“If the tenant refuses or fails to deliver possession when so demanded, the owner… may immediately go before the judge of the superior court, the judge of the state court, or the clerk or
deputy clerk of either court, or the judge or the clerk or deputy clerk of any other court with jurisdiction over the subject matter, or a magistrate in the district where the land lies and make an affidavit under oath to the facts,” the law states.
“There appears to be little discretion afforded to the Court regarding the filing of a dispossessory action, for when an ‘affidavit provided for in Code section 44-7-50 is made, the judge of the superior court … shall grant and issue a summons to the sheriff or his deputy,” Schwall wrote, citing O.C.G.A. § 44-7-51(a).
“While the Court is mindful of the claims regarding wrongful foreclosure, fraudulent activity and interference with business relationships alleged by MATF [Task Force] in its related suit against PFS and Defendant Emanuel Fialkow, amongst others, and remains wary of displacing the residents of the MATF under the shadow of such claims, it cannot ignore the plain language of
Georgia Code sections 44-7-50 et seq.,” Schwall wrote.
“Accordingly, the Motion for Leave to File Dispossessory or, in the alternative, Motion for Dispossessory and Motion for Rent, filed in the record on April 17, 2014, is hereby GRANTED
IN PART and PFS is hereby GRANTED LEAVE to file a dispossessory proceeding in the Superior Court of Fulton County,” Schwall wrote.
Thus, Schwall appears to have found a way to satisfy the requirements of the law, while preserving the Task Force’s ability to avoid irreparable harm, by creating a situation where all claims will likely be heard together.
Of note, Schwall also wrote that the Court has adopted the conclusions of fact and law of the Special Master in its August 12, 2013 order, where the Special Master ruled that it was plausible that a jury would find enough facts to conclude that the co-conspirators committed a tort and, relatedly, that PFS’s title to the building should be quieted.