Lingo v. Smith

The trial court retained jurisdiction over the dispossessory proceeding because the defendant's petition for removal to federal court was untimely.

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James L. Lingo, Jr., pro se, appeals the trial court’s order granting Roger D. Smith’s petition for possession of real property. For the reasons that follow, we affirm. The record shows that on July 25, 2011, Smith filed a dispossessory affidavit in which he alleged that he had foreclosed on the subject property and that Lingo was, consequently, a tenant at sufferance; Smith demanded possession. See OCGA § 44-7-50. Lingo was served with the dispossessory affidavit and summons on July 27. On August 2, Lingo answered, counterclaimed, and moved for a temporary restraining order. On September 9, Lingo filed a notice of his “Motion for Petition for Removal” of the case to federal court; the notice is stamped as having been received in the clerk’s office of the United States District Court of the Middle District of Georgia on September 9. The notice includes a copy of Lingo’s federal court motion in which Lingo asserts that the District Court has jurisdiction because he is asserting a violation of his civil rights under several federal laws.

The next document in the record is the trial court’s final order. In that order, the court notes that on August 10, 2011, Lingo signed a return receipt of certified mail indicating that he had received notice that day of a hearing scheduled for September 12, 2011 on Smith’s demand for possession. The court noted that on September 6, Lingo requested a continuance from Smith but that Smith declined. The court stated that on the date of the hearing, Lingo did not appear, but the court received a fax transmission of the above described petition to remove the case to federal court. The court’s order also indicates that at the hearing, it heard evidence from Smith regarding the real estate, the security deed, certain assignments, the foreclosure process, the foreclosure sale, and Smith’s attempt to notify Lingo that he needed to vacate the property. At the hearing, Smith moved to dismiss Lingo’s notice of removal on the ground that it did not meet the statutory requirements.

Lingo v. Smith

The trial court retained jurisdiction over the dispossessory proceeding because the defendant's petition for removal to federal court was untimely.

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