Drury v. Security State Bank

The state court erred in dismissing an appeal from its order concluding that the defendants were tenants at sufferance following the foreclosure on their property, as the order was not rendered moot by the finality of a separate superior court action declaring the foreclosure legal and valid.

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In these consolidated appeals,1 Kathy and Carl Drury appeal pro se from two trial court orders in this dispossessory action that was filed in Fulton County State Court “the state court”. They contend that the state court erred by 1 concluding that they were tenants at sufferance rather than tenants at will following Security State Bank’s “the Bank” foreclosure; 2 dismissing their appeal “on the grounds that issues of title had been decided;” and 3 ruling upon issues involving title to land over which the state court lacked jurisdiction.

In dispossessory actions, “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.” Citation and footnote omitted. Owens v. Bank of America, N.A., 304 Ga. App. 323 696 SE2d 379 2010. The record shows that on November 2, 2010, the Bank foreclosed upon Fulton County property owned by the Drurys that had been used to secure a $1.5 million loan. On July 19, 2011, the Bank filed a petition for a writ of dispossession in Fulton County State Court alleging that the Drurys were tenants at sufferance. In their answer and counterclaim, filed on August 1, 2011, the Drurys contended that the Bank entered into a lease agreement with them that created a tenancy at will and asserted promissory estoppel as a bar to summary eviction. They also asserted a claim for wrongful eviction “subject to and without waiving any claim that the underlying foreclosure is invalid and should be set aside.”

Drury v. Security State Bank

The state court erred in dismissing an appeal from its order concluding that the defendants were tenants at sufferance following the foreclosure on their property, as the order was not rendered moot by the finality of a separate superior court action declaring the foreclosure legal and valid.

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