Civil Hearings

追加: 2026-05-30

[00:02:01]Good morning.

[00:02:07]>> Good morning, Judge Cross.

[00:02:11]>> Okay, I just have a few matters on the calendar this morning. Uh hopefully we can get through them pretty quickly.

[00:02:17]First position um just looking for announcements at this point who I have here and that sort of thing is uh Shantel Jackson versus the Uptown Law Firm and First Title and escrow which is the main reason the matter is on the calendar. Who do I have here on behalf of Miss Jackson?

[00:02:34]>> Uh this is James Craig, your honor. I'm here on behalf of Miss Jackson.

[00:02:38]>> Hey Mr. Craig and who do I have here on behalf of First Title?

[00:02:41]>> Your honor, this is Tanya Tuttle. I'm here on behalf of First Title.

[00:02:45]>> Hi Miss Tuttle. How are you? Good. Thank you. Um, okay. And, um, I I'm gonna we're going to work through a couple of things in that case um, this morning and I'll be back with you guys in just a minute. I'm just going to keep running through the calendar. Um, Renaissance at South Park versus Brad Graham.

[00:03:03]>> Good morning, Honor. Britney Brock here on behalf of Plano.

[00:03:06]>> Okay. And Miss Brock, obviously, I know this is a default matter. Um, did you have any expectation that Mr. Graham was going to appear?

[00:03:14]>> I did not. We have had some communication with him since the default was filed but unfortunately agreement could an agreement could not be reached.

[00:03:20]Um at this point um we are going to go ahead and proceed with the default.

[00:03:25]>> Okay. Um and I think I have those materials. Um did you um intend to call a witness or um have you submitted all those materials by email other than any fees?

[00:03:36]>> Yes, your honor. Um and I did I had filed an affidavit of indebtedness u with with a with an ev evidentiary ledger um which proves up all the uh charges of principal um and payments and then we uh I'm happy to testify as to the attorney fees. I do have an affidavit of attorney fees but not updated. Um but I I'm happy to testify to those John.

[00:03:59]>> Okay. Thank you very much Miss Brock. Uh is Mr. Graham present on this call or is anyone here on behalf of Mr. Graham?

[00:04:07]Okay.

[00:04:09]Um, Community Finance versus Antoanet Williams.

[00:04:14]>> Good morning, your honor. Casey O'Neal on behalf of Community Finance.

[00:04:19]>> Okay. And same question. Uh, Miss O'Neal, have you been in contact with Miss Williams or did you have any expectation that she might appear? Is Miss Williams on this call?

[00:04:29]>> I don't believe so. Uh, we don't expect her to appear and we haven't been able to get into contact with her. She hasn't.

[00:04:36]>> Okay, thank you.

[00:04:39]>> Um, and then Bedford Estates Community Association versus Jonathan Williams.

[00:04:47]Who do I have here on behalf of Bedford Estates?

[00:04:53]Anybody here on behalf of Jonathan Williams?

[00:04:58]Okay. Um, and then Naranda Mitchell Hall.

[00:05:08]>> Yes, your honor. I'm present.

[00:05:10]>> Okay. And Miss Hall, um, had you been I know my staff attorney communicated to you that you needed to undertake some efforts to notify the defendant serve bank of this hearing. Um, had you been able to uh, and I'll have you go into the on into some detail about that when I'm getting ready to take up your hearing, but had you been in touch with anybody uh, or were you expecting someone from Serve Bank to appear?

[00:05:36]>> Yes, ma'am. Yes, your honor. I >> Okay. Is anyone here on behalf of Serve Bank?

[00:05:47]>> Okay.

[00:05:48]>> Um, Miss Mitchell, I is I'm sorry, Miss Mitchell Hall. Um, I am going to circle back and go to the beginning of my calendar. We're going to wait a bit and see if someone on behalf of Serve Bank appears. Um, mostly that the purpose of calling the calendar is just figure out who's who and and what we're doing.

[00:06:03]Okay.

[00:06:04]>> Yes, your honor.

[00:06:05]>> Thank you, ma'am. You can remute again and I'll come back to you in just a few minutes.

[00:06:10]>> Thank you.

[00:06:11]>> Okay.

[00:06:13]Um, Shantel Jackson versus First Title and escrow. Um I was this matter was set on a default calendar. I ordered the plaintiff to file a default motion as to first title and then I was surprised to read in first titles affidavit that they had agreed to allow first title to file their answer by May the 14th. Now granted, there should have been a stipulation um under 9116 that wasn't filed into the record, but but my understanding from plaintiff's own filing, Mr. Craig, is that you had agreed to allow the defendant to file an answer as late as May the 14th, and they did. So now I don't know that that solves the issue of default in technical default in the state of Georgia, but I was a little surprised to see that you were still pursuing default in light of that agreement. Can you tell me a little bit about that, sir?

[00:07:11]>> Uh yes, your honor. I was surprised to find myself pursuing default under these circumstances as well.

[00:07:17]Um so um with regard to this informal agreement uh there are three issues that I think the court should consider very carefully.

[00:07:28]One is when >> Mr. Greg before you go into too much detail. I realize there is a court reporter on my Zoom that I did not ask who that court reporter is here for so I could formally call this case and put it on the record. Is it here for this matter?

[00:07:40]>> Yes. Yes, ma'am.

[00:07:42]>> Okay. Mr. Diaz, I apologize for that.

[00:07:45]I'm going to formally go on the record um in the matter of Shantel Jackson versus First Title and escrow case number 26 CV 002852.

[00:07:55]Mr. Craig is here on behalf of the plaintiff. Miss Tuttle is here on behalf of the defendant. And Mr. Uh Craig, where you were um starting to address is the circumstances that led you to pursue a default given that there was an informal agreement that was not uh documented or filed into the record. U but it doesn't seem like anybody's disputing that there was that informal agreement. And that's where I interrupted you, Mr. Craig. Please continue.

[00:08:23]>> Your honor, I'm sorry. I I also need to interrupt. I apologize. I just wanted to make a note on the record that I am here on behalf of the codefendant uh the Uptown Law Firm in this case.

[00:08:35]>> Okay. And >> I don't anticipate participating uh substantively, but I just while the record's being made, apologies.

[00:08:41]>> Okay. Not a problem. And you're labeled as Ryan Harbin. Is that correct?

[00:08:46]>> Yes, that is that is me.

[00:08:48]>> Thank you. Go ahead, Mr. Craig.

[00:08:51]>> Thank you, your honor. So with regard to this puditive informal agreement, I think there are three issues that the court needs to consider very carefully.

[00:09:02]The first issue is whether there was in fact an informal agreement between the parties. Uh the second is that if there was an informal agreement, whether uh the plaintiff is obligated to honor that agreement.

[00:09:16]And then the third issue is whether first title was excusably negligent or inexcusably negligent in relying on that agreement.

[00:09:27]Now I'll get right to the bottom line on these issues. Um I do not believe there was an informal agreement between the parties. Um if there was, I would not be professionally obligated to honor that agreement. My client would not be obligated to honor it. and first title was inexcusably negligent in relying on it.

[00:09:51]Now, the reason for these conclusions goes back to the way that this puditive agreement was supposedly formed.

[00:10:02]Um, and it's important for the court to understand that the present council, Miss Tuttle and I have had no direct communications whatsoever in this case.

[00:10:14]Um and that the council that is representing First Title today and I have had no communications at all. Um other than me being copied on emails to chambers uh which started about yesterday.

[00:10:28]Um, what we do have is a series of four emails that were exchanged between myself and an individual purporting to have some type of relationship with First Title, although she indicated she was not representing them as council or otherwise. Um, she did claim to be contacting me on their behalf.

[00:10:55]And um at the end of that exchange of four emails, the the most salient message is my response to her.

[00:11:04]Uh her name was Emily Fidanzac.

[00:11:08]Um she was claims counsel for an insurance company. Um that email is dated April 16th, 2026.

[00:11:19]And the actionable language is I'll give them the 30 days, but we have also served them with discovery which will be due on the same day. For clarity, the due date will be May 15th.

[00:11:34]So, this email does seem to signify an agreement to a 30-day extension, but that extension is accompanied by a requirement to serve discovery responses with the responsive pleading.

[00:11:51]Now, it's very important, I believe, to point out that there were no subsequent communications between the parties following this email.

[00:12:02]So, they didn't complain about the discovery requirement.

[00:12:07]They didn't email me back saying, "Yes, that would be fine. We accept those terms."

[00:12:13]They didn't email me back saying, "No, that's not okay. We reject those terms."

[00:12:18]I was left to infer from the conduct of First Title as to whether they were going to accept and abide by this agreement or not.

[00:12:29]So, I waited.

[00:12:32]and I never heard anything further back.

[00:12:35]And then the first time that I learned that first title had retained counsel was on May 14th when they filed their answer and their motion to dismiss.

[00:12:47]And in that motion to dismiss, they set forth their argument that discovery was stayed pursuant to the motion and that they had no obligation to respond until after the motion was decided. So at that point in time, that first communication after my email, what they manifested to us, to me, was not only did they not intend to comply with the discovery requirement that I put in my email, but they were repudiating that requirement and had no intention of complying with it.

[00:13:21]So, >> well, it's it's unfortunate, Mr. Craig, that there's not been any direct communication between you and Miss Tuttle because I suspect that that is a fairly standard position for a defense attorney to take that discovery has stayed by operation of a motion to dismiss by operation of Georgia law. And I suspect that y'all could have worked through these issues um had y'all been in direct contact. But I I guess let me um let me say this and forgive me for interrupting you, but I mean there there's really not a dispute that First Title is in default, right? I mean, by operation of Georgia law, they are in default. Um the reason we were originally here today is to determine whether or not the court should enter a default judgment. Um, and then of course my understanding is that now that Miss Tuttle has appeared, um, that it's not yet in the record, but I believe I've been emailed, I think this morning, a motion to open default, um, from Miss Tuttle and the Am I correct in understanding that your position is that because the agreement to extend to May the 14th, regardless of it having not been I mean, to me, none of that really matters because it wasn't memorialized and so it didn't operate to actually extend anything under Georgia law. It it does matter a little bit in terms of where I started, Mr. Craig, about whether or not it makes sense for you in good faith to take the position that the defendant is in default when you had agreed. Am I correct that your position is that because the agreement to extend to May the 14th was conditioned on the agreement of producing discovery that or contingent whatever word we want to use and that that did not occur and has been repudiated whether it was intentionally done or not. Um and that that's why there in fact was no agreement. Is that am I correct in understanding that Mr. Craig?

[00:15:21]>> Uh yes your honor. There was no meeting of the minds.

[00:15:23]>> Okay. Uh there was no manifestation of intent to comply with the terms that I set forth. Uh no further communication.

[00:15:30]I just had to wait and see.

[00:15:33]And when there was finally conduct that gave me an indication as to their intent, it repudiated the terms that I had set forth.

[00:15:41]>> Okay. The reason one of the reasons I interrupted you, Mr. Um, Craig is because I what I I think I want to do is hear from Miss Tuttle now because as I said, the defendant is in default, right? So, so part of the assessment the court has to make is whether or not there's a basis to open the default. Um, and so instead of having you affirmatively argue that there was no excusable neglect, no basis to open the default, I'd rather hear from Miss Tuttle about what her basis is and let you respond to that. Um, because it's sort of turned it on its head now and turned it into a motion to open default, which of course even though we all I think understand the general circumstances, obviously that motion was just filed this morning.

[00:16:31]And so it, you know, it may be that you are in a position to say, I still want to hear from Miss Tuttle at least briefly, but um it may be that you are, you know, choose on behalf of your client to say, "Hey, can we have a little bit of time to process what's in the motion or you may, you know, may be prepared to go forward with it today." I don't know because it was just filed or not even really filed yet. Isn't even in the docket yet. But >> Miss Tut.

[00:16:58]>> Yes, your honor. Thank you. And I apologize for just emailing that this morning. We didn't realize that plaintiffs council was going to be taking this position until just two days ago. So we um put everything together.

[00:17:11]So um as stated in my affidavit, your honor, uh we did not get retained until the 12th of May. um uh you know the communications we were informed um and as a communications state is that there was an agreement to extend the deadline to uh May 15th. We actually filed by May 14th. Um uh there was no communications to with Mr. Craig as to opening default debts. Uh as insurance council the who does this stuff I mean it is extremely common to have these communications. Um, and there was no expectation whatsoever that Mr. Craig would be taking the position that we did not have until uh May 15th to file um any responsive pleadings. And any extension for to an answer is there's nothing in this language that says I will only give you an answer if you wave your right to file a motion to dismiss. Um it it simply says you have until till May 15th. Um we were obviously >> in fairness one of the reasons that I've pushed back on Mr. Craig on that issue is I don't really think it's relevant because at the end of the day nobody filed a stipulation in the absence of a stipulation. There is no extension. The answer was due on >> April the 6th and no answer was filed and default by operation of law that requires a motion to open it happened as of April the 21st because there was no extension. And so where your client is sitting now I grant you and I started with that it sounded like Mr. Craig was initially agreeing um but your client unfortunately did not know or did not insist on the filing of a stipulation to document that agreement.

[00:18:50]I agree and that was an error. My the the the uh insurance claims council is not Georgia counsel um as is as is common with any sort of case where insurance may or may not be involved and whe whether coverage was or was not extended. um insurance count claims council obviously doesn't represent the underlying party. Um and so there was not a stipulation filed. You are correct and that is why we filed a motion for default that was an error. Um uh honestly had we been retained a little sooner I we probably would have uh uh realized that but we wanted to we were sort of making sure everything got filed by the deadline. So um but we did file the motion for default u open default because of that reason. And your honor, I believe that we have absolutely, you know, met the standards on this. You know, obviously uh you know, I think that just that we have met the case for both excusable neglect and a proper case in this, your honor. We have we have sent the c we've paid costs. we have put the affidavit in saying that we are pleading and we've well we've already pled we filed the answer before um uh you know and that we are ready for trial and our arguments clearly state in the motion to dismiss um as to our our meritorious defense. In fact, you know, our position is even if for some reason there was a default, your honor, even the well-pled allegations which are minimal as to first title, um, you know, show that there is not a a cause for relief. First of all, it's important to note, your honor, this is this there is a related case on this. their plaintiffs originally filed a lawsuit um that is still pending against um one of the other defendants, the uh lender on the case. It was originally against Uptown Law Firm and Swift Homes um and Swift and they dismissed Uptown Law Firm and then refiled against Up Uptown Law Firm and added Anna Wells Jackson and First Title and escrow. In the first lawsuit, there literally is no allegation that the only allegation is that first title, which is admission and judicio, just for got what appears to be fraudulent wire instructions and just forwarded them to the Uptown Law, who was supposed to do the background and confirm the wiring instructions. Um, the allegations in this lawsuit are really not all that different. The only allegation is negligence per se because of supposed unauthorized practice of law. But Georgia law is very clear that there is no individual right or cause of action for the unauthorized practice of law.

[00:21:27]That is solely for um the state bar of Georgia to do. I don't think that is in this case. Um first title company was just be just an an escore agent that handled the underlying title. Um but an uptown law firm under Georgia law was the one that had the requirement to you know vet these wiring instructions which is admitted to by the plaintiff in the complaint. So not only have we met your honor the all the requirements for to open default as a matter of law I think we were had the reasonable expectation to rely on the fact that Mr. Craig had provided an extension on uh on this.

[00:22:07]Again, had we had more time, I would have reached out to Mr. Craig. Honestly, until Mr. Craig filed the motion for for default, I we were just informed by our client that we had the extension with that that's all we had. We had to go and get the email and uh you know the underlying emails. But it is our position that it is an extension is an extension to file and answer and responsive pleadings. It does not mean that we are you are waving the right to claim that there is no basis of law in order to get this extension and that's not what this agreement stated. So we had >> that's not what I understand Mr. Craig to be saying Mr. Craig I understand Mr. Craig to be saying I served discovery with this complaint. He did >> and I reiterated that discovery was required to be responded to and his argument is >> the fact that you come in and file a motion to dismiss that says we are not answering discovery repudiates one of the bases for his agreement for the extension.

[00:23:04]>> I disagree with how that email is written that it was require that it was that it was a a contingency. That being said, your honor, Georgia law requires that we file the motion to dismiss at the time of the filing or we wave the arguments. And as a matter of law, well, sure, but >> the I mean, I'm just saying that the idea that the filing of an answer 60 days after you were served with a complaint that was accompanied by discovery, there's an argument to be made that the deadline to answer the discovery had already passed and you're sort of reverse engineering a stay. And frankly, I I don't want to get into the weeds of that because I don't I don't think it really matters. I think what matters to the court today is whe because look, if your client remains in default, then whether you answer discovery or not is completely irrelevant. And if your client is no longer in default, then you guys are going to have to work out when and where and how that discovery gets responded to um once the motion to dismiss gets adjudicated, assuming that you remain in the case. And so what we really need to work on is the the issue of the motion to dismiss. So I I I think I understand your position, Miss Tuttle, um in terms of the basis for excusable neglect and the basis for proper case based on your clients um not being an attorney and you know, not well not being a Georgia attorney, I should say. And I'll be the first one to tell you that I was you might notice there are people behind me.

[00:24:28]These are interns uh that are law students. And and one of the things I tell all brand new lawyers and law students is if you are ever going to practice civil law in the state of Georgia, you need to be familiar with 91155 because the default rules in Georgia are unique among jurisdictions.

[00:24:43]They are different from federal court and they are different from most other states and it will bite you if you don't know how to get default or if you don't know how to get out of default. Um in any event, um what I'd like to do, Miss Tuttle, is ask Mr. Mr. Craig, now that I have a general understanding of your position, um Mr. Craig, do you want to adjudicate that issue today or do you want to take the position that you need time to formally respond to the motion to open default that's been made by First Title?

[00:25:15]>> Uh I'm prepared to adjudicate the issue today, your honor.

[00:25:18]>> Okay.

[00:25:18]>> Um my motion for default does anticipate most of the arguments raised in the motion to open default. Mhm.

[00:25:25]>> And I do have some remarks prepared um addressing the question that that third issue that I was talking about about about um whether under these facts reliance on the purported informal agreement was excusable neglect or inexcusable neglect. And I would submit to you that it was inexcusable neglect.

[00:25:47]And I have several specific reasons to support that uh uh conclusion.

[00:25:52]>> Okay. So, the first is the law. Um, and you've kind of already made this point for me, so I won't belabor it. Um, but you know, Georgia law is really clear.

[00:26:01]You've got to have a stipulation. It's a well settled rule. An informal extension of time is not enough to cure a default.

[00:26:09]And this has been the law in Georgia since the 80s. So, uh, all attorneys should know you can't just rely on an informal agreement. you've got to reduce that to an extent uh a stipulation and file it with the court and they chose not to do that. So that deliberate decision on their part is not excusable neglect. It's specifically prohibited as a matter of law.

[00:26:35]Um there's also a case in our brief that uh directly addresses this point about insurance.

[00:26:44]Um and that case says that um relying on an insurer to handle your representation is unreasonable unless they have assured you that they're going to defend you and first title. Um they relied on apparently on this insurer to represent them in negotiating an extension of time. The case law is very clear that that is not excusable neglect.

[00:27:13]Um the third issue uh pertains to how this was uh the representative who was uh uh negotiating this reported extension for them. Um as we've remarked, she is not licensed to practice law in Georgia.

[00:27:31]Um her address is in Texas. Okay.

[00:27:35]But she is an attorney and I I found where she's licensed to practice and that's in Florida.

[00:27:41]So, I would submit to you the question, is it reasonable to rely on an attorney who is not licensed to practice law in Georgia to negotiate an extension of time for a case that is pending in a Georgia court?

[00:27:58]Well, maybe not smart, but I mean it's fairly I I mean I used to be a civil defense attorney and I used to represent insurance companies and it is fairly common for um in-house counsel before they retain counsel to actually defend the matter while they're figuring out if they're even going to to deal directly with plaintiff's counsel. Um I mean mistakes happen as this case is is demonstrative of but >> Okay. All right. So, but she's not licensed to practice law in this state, and she's engaging with us to negotiate this extension.

[00:28:36]Not smart, not even reasonable.

[00:28:39]And there's a um I I looked up the rule in Florida. In Florida, you actually have to get leave of the court to do an extension.

[00:28:52]>> Well, except that in Florida, you're never in default. I used I I'm actually licensed in Florida and I used to practice there. You're never in default much like federal court until the clerk gets around to holding you in default, which the clerk never actually does. All you got to do is file an answer and you fully avoid default. You're right about what the rule says, but >> nobody is ever in default ever.

[00:29:12]>> Um, and trust me, one of the reasons this is a hill I will die on is that when I came back to Georgia to practice, I personally got bitten by this rule.

[00:29:20]So, it's something I'm very familiar with.

[00:29:22]>> I see.

[00:29:24]Um, all right. So, I'm going to grant you, of course, this issue about not being licensed in Georgia.

[00:29:32]>> Um, but this is not a case where a defendant lost a piece of mail or miscalured a deadline. They knew about this lawsuit from the beginning. They contacted us for the first time on April 2nd, 4 days before the answer was due.

[00:29:49]And every step from that point forward was a decision. there. It was a decision to begin with not to retain counsel independently and promptly after they were served. It was a decision not to formalize the extension. It was a decision not to file a motion to open default after the court's May 14th order uh requiring us to file a motion for default judgment.

[00:30:14]>> You know, Mr. Craig, I don't I don't I'm not I'm not sure I disagree with you on the issue of excusable neglect, but how do you get around proper case? I mean, proper cases where you literally are supposed to reach out and grab any conceivable basis to open default where because Georgia law says despite our very strict and black letter default rules that default ultimately is a draconian result that should only be done um you know that that should that that Georgia law favors adjudication of cases on their merits. And so I guess my question is let's say I agree with you on excusable neglect. How do you get around why is this not a proper case to open default which is one of the arguments that Miss Tuttles's client has made?

[00:31:04]>> So proper case still requires that the party alleging the existence of a proper case did not engage or gross or willful negligence. Um and that that is set forth in our brief.

[00:31:23]Um, I'm not finding it in the brief right now, so I can't cite it to you, but um, we should have a, um, a block quote in the brief that specifically calls out that language in a recent Georgia case addressing proper case.

[00:31:44]Um, and in this case, because there was gross and willful negligence, we they can't show a proper case. Um, and another important component of proper case analysis is prejudice and whether justice is served by opening the default. And in this, >> but I mean the case law is pretty clear that the the loss of the default judgment can't that the having to litigate on the merits alone can't be the prejudice, >> right? And I'm not uh I'm not contending that. What I'm saying is that um the um that first title can't show prejudice from the default because they have come forward and set forth an argument in detail which they've doubled down on in their motion to open which is that hey even if you take all the allegations in the complaint as true we still are completely exonerated from liability.

[00:32:44]Um, and a default would do nothing more than that, but to establish the well-pleated factual allegations of the complaint as true. And so, on the one hand, they filed this motion to dismiss that says all of these facts as pled support us and establish our complete lack of liability.

[00:33:07]On the other case, uh, on the other hand, they're arguing in this default that they they have to have the default open, that they'll be prejudiced if the default is not opened.

[00:33:18]They can't have it both ways.

[00:33:21]So, they cannot establish that that justice requires opening the default and that undermines any effort to establish a proper case.

[00:33:36]That argument is set forth in our brief as well.

[00:33:39]>> Okay, hold on just one second, Mr. Craig.

[00:33:43]>> Um, okay, >> hold on just one second. Sorry, I'm presiding this week, so I'm trying to deal with random matters at the same time I'm dealing with my own hearing.

[00:33:51]So, hang on just one second.

[00:33:53]>> Thank you.

[00:36:53]I'm so sorry for that interruption.

[00:36:55]Thank you for your patience, Mr. Craig.

[00:36:57]I apologize. As I said, I'm presiding this week and my staff attorney had walked in with a couple of matters I needed to attend to. Um, but I you I'm back and you do have my attention again.

[00:37:07]I'm sorry.

[00:37:08]>> Thank you so much, your honor. Uh just a quick note, I did find that quotation in our brief >> um and I'll just quickly read from it.

[00:37:16]It says, "Our prior proper case decisions generally reflect that the defendant's failure to file a timely answer must not have resulted from willful or gross negligence."

[00:37:30]So that's that's the core of our proper case argument. There's just one other thing I want to say about that which is that um if we had an agreement then the agreement was really clear from my end that I expected discovery to be served by May 15th.

[00:37:51]They they then took advantage of the benefit of that agreement silently, but they ignored the obligation that came along with it.

[00:38:03]And that's not reasonable, your honor. That that would be a breach of contract if it was a contract.

[00:38:12]It is not reasonable or excusable to rely on an agreement that you have no intention of honoring.

[00:38:24]That's my concern that this is why I've taken this position. If I enter into an agreement with somebody, I'm expected to honor that agreement, but so are they.

[00:38:36]And it's not reasonable for them to take advantage of the benefit while ignoring the obligation and then to show up having enjoyed the full benefit and repudiate that obligation and then say, you know, I'm being unreasonable because I'm not honoring the agreement.

[00:38:58]You know, the agreement wasn't honored.

[00:39:03]That's not excusable neglect. That's not reasonable conduct. That's not professionalism.

[00:39:09]Professional courtesy is supposed to be a two-way street.

[00:39:14]I extended multiple courtesies, multiple extensions, and this requirement that I imposed that Discovery be served by May 15th.

[00:39:25]Actually, that was an extra benefit to them. Discovery was already due. I hadn't extended Discovery previously.

[00:39:33]They weren't asking me to extend the discovery deadline. It was an unasked for, completely gratuitous courtesy for me to yet further extend the discovery deadline and remind them that, hey, you know, y'all were served with discovery.

[00:39:49]That's going to be due, too.

[00:39:52]So, that's where I stand on this. You know, professional courtesy is very important. I saw it in the court standing order and I just ask for similar courtesies to be extended when I'm making very generous courtesies myself.

[00:40:08]>> Understood. Mr. Craig, Miss Total, is technically your motion. So, I'm going to let you have the last word on the effort to open the default.

[00:40:18]I cannot hear you. I don't know why you're not muted, but for whatever reason, I can't hear you.

[00:40:28]Sometimes when that happens, I people just have to log out and log back in.

[00:40:32]But try again.

[00:40:33]>> Can you hear me now?

[00:40:34]>> I can.

[00:40:35]>> Okay, look at that. Um, uh, your honor, I think that this has been very well discussed, but I just think that there has not been a showing of willful and gross negligence. Um, I think that, uh, you know, there was a basis to believe as a standard practice in in in insurance defense that this was an extension. I don't think there was any willful ignorance of the discovery. In fact, it seems like the argument is more that that the upset is they're upset that discovery wasn't answered and rather than filing a motion for default, there could have been communication of hey, we still expected this discovery to be done. So I mean I think that there you know I do think there's professional courtesy and and and I do think there was a reliance on that this discovery extension that the extension had been given you know we do have a requirement to file any required motion for default at at at the time of pleading. Um and your honor the argument that because we think that there that the case has no merit means that we shouldn't be allowed to open default is sort of contrary to the whole meritorious defense argument.

[00:41:42]Um, so, uh, I I do not believe it that that meets either. I think from a proper case perspective, your honor, that has been met. I think we need to, uh, have this be heard on the merits. Um, uh, and, you know, we can move it forward as as quickly as possible on on the motion to dismiss. And, um, uh, again, uh, if if Mr. Pra wants to reach out and discuss what exact documents he's looking for, I'm happy to. I I we had a very small role in this. I don't have a whole lot, but um uh you know, I'm I'm we're happy to look at it. We just want this resolved on the merit and and as as quickly as possible as as I'm sure as Mr. Craig.

[00:42:22]>> Okay. Thank you. Um so, as I mentioned, I'm pretty familiar with the default rules. Um and um I am frustrated by this situation largely because you both are quite obviously capable and professional attorneys and a lot of this seems to have just been a lost in translation lack of communication issue to me. Um the problem that I have with all of this and why ultimately I come down on the side of opening default here um it is because I understand Mr. Craig, your frustration that um you know that Miss Tuttle's client has shown up and all of a sudden said, "Well, we're not answering discovery and we're here's a motion to dismiss and all this stuff." But at the end of the day, you know, you were dealing with a person that if I accept at face value that that person was unreasonable in agreeing to the stipulation, unqualified to agree to the stipulation, um, you know, aired or was negligent or grossly negligent as you argue and failing to ensure that a stipulation was filed, then what that really means is that you were taking advantage of someone, right, by agreeing to things and seeming agreeable when in fact you knew you had them in default.

[00:43:40]um because they had not filed the stipulation. And I'm not saying that that was your intent, but I'm saying that's the logical extension of the argument that you're making about this claims council agreeing to things that were unreasonable. And so ultimately to me, where we have what was functionally an agreement, even if it was even if to your argument, Mr. Craig, there was not a meeting of the minds. And even if I wipe all of that away, what I'm looking at is a defendant who filed an answer, albeit late, who has asserted meritorious defenses, who has paid costs, who has filed an affidavit, who has offered to plead in Stanter, um, and who has I think I agree with you, Mr. Craig that I don't think they can show excusable neglect because the handling of the case probably was negligent but probably not excusable in terms of the agreement to the seeking an extension without ensuring a stipulation etc. Um but I don't think that it rises to the level of gross negligence um to justify uh to make it so that it would not be a proper case to open uh default. It is entirely within the court's discretion to make the decision to open default.

[00:44:55]And when the case law is crystal clear that for whatever reason that default is being considered that ultimately Georgia law favors consideration of the case on the merits. Um I do not find um that there is prejudice here that would um to the plaintiff that would result from opening the default given the court the state's clear preference for um for um considering and adjudicating cases on their merits. And so uh ultimately that's where I come down. Uh I think that the um statutory prerequisites have been satisfied by the defendant first title um and that first title has demonstrated a proper case to open default.

[00:45:44]And so what I'm going to do is ask Miss Tuttle for you to send me a proposed order that opens the default um and reflects that um your uh that the answer that was filed by first title uh and the motion to dismiss that was filed by first title um is accepted as timely filed for purposes of the case going forward. Um and then the next question is that motion to dismiss. Ms. Tuttle is not wrong that it it does stay discovery. Um even though as I I've communicated what I think of that, right, which is it's sort of a reverse engineer that seems a little bit unfair to the plaintiff. Um, but there are procedures um for y'all to follow if First Title continues to not respond to discovery. And I'm also very I'm very efficient about dealing with my motions. So, what you can expect is that when Mr. Craig files a response or if the 33rd day comes and Mr. Craig doesn't file a response, which I don't expect will happen, um the court will endeavor to review those things and and um consider them quickly. The only wrinkle here is that now that I am aware that this other case exists, it may be that this whole case gets flipped over to Judge McBurnney. Um because it is a related case. Um at least it appears to be. If one of you wants to tell me that it's not related in some way. Um but it it seems like it would satisfy the requirements of a related case and Judge McBurnernney has the older one so it would probably be transferred over to him after I open the default. Um, understanding that that is going to be my ruling and that I've asked Miss Tuttle for a proposed order, uh, do y'all have any questions for me or do you need anything from the court today other than um the adjudication of the default issue? Mr. Craig, >> I don't think so, your honor. Thank you very much for your very conscientious analysis of the issues. Uh, I understand the court's position and um I I don't think we have anything else other than I'll mention we're perfectly amenable to having the case moved over to Judge McBurnney.

[00:48:01]>> Okay, Miss Tuttle.

[00:48:03]>> Uh, no, your honor. I think that's it.

[00:48:04]The only question I have is and what caused some confusion in the beginning of this is is there is a third defendant Anna Wells Jackson on this case and that's what and I wasn't sure if maybe prior to us coming in if if that had been handled because there does not appear to be an answer on behalf of Miss Jackson.

[00:48:22]>> That's because Miss Jackson hasn't been served. My review of the document >> yeah Miss Jackson has um I think Mr. Craig filed a motion to have a special pro a special server um appointed and was attempting to secure service of that person. Am I am I remembering that correctly, Mr. Craig? Uh yes, your honor, but there's a little bit more to be discussed on that. Um the uh council for Uptown Law Firm and Miss Jackson has indicated to us that uh she is perhaps completely innocent in this matter and was not uh employee of the firm at the time that this transaction took place.

[00:48:58]Okay.

[00:49:00]>> And so, um, we've got some discovery directed to that issue to determine, you know, who was the supervising attorney for for the transaction.

[00:49:08]>> Um, we're working through that discovery. Um, and as soon as we have clarity on that issue, we intend to either, you know, move to drop Miss Jackson as a party and add someone else or uh we'll move forward with service on Miss Jackson. Understood.

[00:49:29]>> Thank you, your honor. I just wasn't I w I I wasn't sure if something had happened before we came into the case.

[00:49:34]So, thank you. I appreciate that. And I will get a proposed order to you today.

[00:49:37]>> Okay. Excellent. Just make sure it's in word format and send it to Mr. Freehoff by email and we'll get it processed for you as quickly as we can. Okay.

[00:49:44]>> Yes, your honor.

[00:49:45]>> Thank you. And full disclosure, I think Mr. Freehoff's going on vacation. So, if you don't email it today, I might not get it for a few days. So, a well-deserved vacation, I might add.

[00:49:55]that today, your honor, so you can enjoy.

[00:49:57]>> Excellent. Thank you all very much. I will um I will get that order on file and then ship you off to Judge McBurnney. Have fun.

[00:50:07]>> Thank you, honor. Appreciate it, govern.

[00:50:10]>> For those of you who've been so patient, if you would be patient for just another two minutes, let me get another cup of coffee. Then I will be with you and we will get moving on the rest of the calendar. Okay. Thank you.

[00:54:55]Good morning everyone. Again, I apologize for the delay and I thank you very much for your patience. Um, Ms. is Brock.

[00:55:04]So, um, my review of your client's case is that the complaint was served on Mr. Graham on March the 13th. The answer was due on April the 13th and Mr. Graham was hopelessly in default as of April the 28th. Um, so not hopelessly, but you know, required a motion, couldn't open as a matter of right. And so, uh, ultimately, um, it it appears to me that your client is entitled to a default judgment. Um, but since the damages are not fully liquidated, um, they're partially, I think, liquidated, I wanted to, um, give you an opportunity to just walk me through the basis of the proposed order that you've submitted, and then I have a couple of questions.

[00:55:51]>> Yes, your honor. Um the um we did file an active deadness signed by the uh committee association uh president um I believe um along with a copy of the ledgers. Um there was there's two different ledgers and a prior judgment in this matter which we submitted as a exhibit A. Um there was a prior consent judgment um in the magistrate court of Fulton County. Um and then there was um a ledger um as exhibit B um going back to I believe 2018.

[00:56:29]And then um the second ledger is the current manager uh management company which is ACS. Um those those your honor show that the principal has acrewed um from dating back to the prior judgment on April 1 uh 2021 to April 1, 2026 principal in the amount of $9,650.

[00:56:53]Um we are uh my client is entitled to accelerated assessments through the end of this year. Um those total $1,800.

[00:57:01]Uh late fees have accured in the amount of $35.

[00:57:04]interest in the amount of $3816.

[00:57:08]Um, attorney fees in this matter, uh, $2,285.

[00:57:12]We are going to seek $45 for, uh, hearing preparation and attendance. Court cost of $446.86.

[00:57:20]There have been some payments made on this, your honor, of $7,615, uh, since entry of the the prior judgment. Um and so we're seeking a total amount today of $7,5852.

[00:57:34]We are are also seeking order for judicial foreclosure u pursuant to the Georgia uh property owners association act. Um I can go through the uh the fees as well.

[00:57:50]>> Okay.

[00:57:51]>> Um my name Britney Brock. I've been an attorney with Luther, Larkin, and Hunter um for since 2022. Um practicing in the community association department. Um we have performed services upon uh on behalf of Renaissance at South Park Commerce Association. Um the attorney hourly rate is $270 per hour. Um any parallegal work was performed at $140 per hour. All of the um all of that work um and the charges. is we do have some flat fee billing as well to try to um keep costs low on our attorney fee statement that was submitted as our notice of intent to introduce the business record. Um every entry on this uh statement is uh was made out or near the time that where the work was done.

[00:58:38]Um I do submit that these fees are reasonable um for this type of work um in in the Atlanta area.

[00:58:46]>> Okay. Um, I don't, forgive me if I have overlooked it, Miss Brock, but I don't see a proposed order having come in from you. I see your motion and your supporting papers. Have you sent over a proposed order and I just haven't seen yet?

[00:58:59]>> Um, I did, we're not allowed to file them anymore.

[00:59:02]>> No, you're not. And you shouldn't. My my standing order tells you to email it in word format to Mr. Freehoff.

[00:59:09]>> I did um I believe it was last week, your honor. Okay.

[00:59:13]>> But I can ree that over um this morning.

[00:59:17]Okay.

[00:59:17]>> Uh it might just be easier because it if it's at the top of his email. Um the everything looks in order. I don't have any concerns about the amount of the assessment judgement, etc. I I do want to let you know in um full disclosure that I am not going to award the last two entries that were on your time sheet for April 29th um for preparation of a summary judgement motion. That really should not have been filed. um this was a default case and no answer had been filed. There's really no basis to file a summary judgement motion. Um and and so I'm I'm not gonna I'm not going to reimburse your client for those fees when that motion really should not have been filed.

[00:59:57]>> We we just I believe there's just been a a little bit of there's been some debate on this topic. Um we prefer to seek a judgment on the merits. Um we don't believe that >> I understand, but I don't see how you can get a judgment on the merits if the defendant never appears. All all you can get is a default judgment because the defendant defaulted.

[01:00:16]>> I I just disagree with I don't think that the seeking a motion for summary judgment I don't think that they have to answer in order for us to seek a motion on the merits or a motion a judgment on the merits. I just don't I don't see why we would have like they don't have to answer. I do think that uh we can seek a default judgment in that case, but I think we also have the option to seek a summary judgement motion if we have all of the evidence in order. But >> well, I I will tell you that if you have if you I I I do not believe that to be the case, but I admittedly I have not done a deep dive into that issue in several years. And so I'm I'm always happy to be educated and and because this is something that comes up enough for me um that if you have, you know, if you want to do some research or point me in the direction of a practice manual or case law or anything like that, I would be happy to be educated on this issue because again, it comes up enough. Um, but generally my position is I'm not going to award fees for filing a summary judgement motion that you are not actually prevailing on because this is a default judgment and I am of the belief that you cannot recover um a summary judgment um when you have when someone is default is in default. But even if you could, you didn't actually prevail on the summary judgement motion, right?

[01:01:41]You're prevailing on a default motion.

[01:01:42]And so for today, the outcome is going to be the same, which is that I'm going to reduce the fee award that I'm going to enter for you by those last two entries, which are for $350 and for $295.

[01:01:54]Um, beyond that, uh, as I said, and I I don't mean this. Please, please do not think that I'm being passive aggressive in any way, cuz I really honestly mean if you want to point me in the direction of a practice manual, uh, or case law or something that you believe would, you know, educate me or address this issue, I'm happy, um, to have you send it to me so that I can, you know, better understand this issue.

[01:02:18]>> And I think it got Yeah. And I think there's no clear um appellet case that specifically states what I'm arguing. I do think there was there's >> been some language where it's it kind of come down comes down to the facts of the cases and I can I'm happy to draft something up and send it over, your honor. But I don't I think we do have a we have a case um on appeal at this point that we're going to hopefully have this cleared up and interesting. Okay.

[01:02:47]>> Have a decision one way or the other.

[01:02:49]Um, it's probably going to take a while because we did just file.

[01:02:52]>> And to be clear, I don't mean to imply that you've done anything improper. I don't mean to imply that the position you're taking is a bad faith position.

[01:02:58]It's I just disagree with it based on what I understand and that's and so that's why I'm taking the action that I'm taking. Um, but beyond that, I am going to enter your default judgment and so if you will send over an order, um, I will, um, I will get it on file for you as quickly as we can. Okay.

[01:03:15]>> Thank you.

[01:03:18]Okay, Ms. O'Neal.

[01:03:22]>> Good morning, your honor.

[01:03:24]>> Good morning, ma'am. Um, so my review of the record indicates that this uh complaint was served on April the 6th, that the answer was due on May the 6th, and that default um could not be opened as a matter of right after May the 21st.

[01:03:39]Um, so it appears to me that your client, Community Finance, is entitled to a default judgment. um just wanted to give you an opportunity to sort of walk me through uh the liquidated andor unliquidated amounts um regarding your um default judgment.

[01:03:56]>> Yeah, of course. Um so you said it better than I could have said it. Um that's uh to quote you earlier by operation of Georgia law uh Miss Williams is in default. Um as for the damages liquidated, so this is um a essentially a financing agreement. Um that starting balance would have been the 11544 uh in aggregate payments. Um attached to pliff's complaint is a payment history going towards that amount. Um we are only they only received two of those 296 payments. um bringing the total to uh what was in our complaint. I believe it's 10952.

[01:04:45]Um that would be exclusive of um acred interest under Georgia law. It's that 7% um from the date of last payment from 2021. Uh that's $3,616.86.

[01:05:04]Um, and in addition to that, your honor, we are seeking attorney's fees uh, pursuant to 1311.

[01:05:12]>> And I will tell you, Miss O'Neal, as you can see from this morning's hearing and just generally, these are a high volume of cases that we deal with where we've got default, especially with HOAs and others. But um the difference is I will tell you that a 13 my understanding of the law is that if you are recovering fees under 1311 within the contract those are functionally liquidated fees liquidated damages and you don't actually have to appear for the hearing.

[01:05:36]You can just send us an order in the future.

[01:05:39]>> Funny sorry it's funny you say that because some judges do not agree with that. I have been on hearings where I have told them statutoily under 1311 these technically I guess you could make the argument or maybe it's just assumed that they are unlquidated because they're not stipulated to but it's statutory and it kind of goes with that same thought process as the um default interest rate. So, it's crazy the push back that I'll get.

[01:06:07]>> It is. And and I think I mean in fairness to my colleagues, I I think that it's because you're never really going to get in trouble for having a hearing that you didn't need to have, but you'll get in trouble for not having a hearing that you did need to have. Um, but my understanding is that 1311 is about fees that are recoverable in the contract that the parties agreed to and those are capable of immediate calculation based on the liquidated damages. and therefore they are liquidated for purposes of uh my understanding of the default rules. Um but you're here nonetheless and you have made the representation. Um and so and I do believe I have a proposed order from you um on Hang on, let me make sure I have it in front of me. There it is. And that would ultimately mean that I will enter an order on your client's behalf >> in the Hang on. My computer is being slow.

[01:07:03]>> It's okay. It was emailed on the 21st, >> right? I have it, but it will be uh the principal amount is $10,952.

[01:07:12]Uh acred interest of $3,74918 and attorney's fees in the amount of $1,45912 with uh judgment to with interest to run from the date of judgment uh post judgment. Um, is that accurate or any is any of that updated or changed in any way?

[01:07:32]>> No, that sounds accurate to me. I was going off the motion, so I have to keep clicking through depending on what day I'm on.

[01:07:40]>> Okay. Well, I Yeah, I understand. I when I say high volume to you, I'm probably preaching to the choir in terms of the volume that you guys work at. U, but in any event, everything appears to be in order and I'm happy to go ahead and enter that default judgment on your client's behalf.

[01:07:54]>> Sounds good.

[01:07:55]>> Thank you, Miss O'Neal. Yes, no problem.

[01:07:57]And I appreciate your insight on 1311.

[01:08:00]You just That was so refreshing. It kind of made my day.

[01:08:03]>> Okay. Well, I'm glad we're on the same page.

[01:08:06]>> Take care.

[01:08:07]>> Thank you. You, too.

[01:08:12]>> Okay. Um, Ms. Hall, are you there? I apologize for the time it has taken to get to your matter.

[01:08:19]>> Yes, your honor, I'm here.

[01:08:21]>> Okay. Are you able to turn on your video, ma'am?

[01:08:24]I've been fighting with it. It will not come on. I don't know if there's a It keeps telling me cannot detect it.

[01:08:34]>> Okay.

[01:08:35]>> Check. Okay.

[01:08:35]>> Well, I'm okay proceeding without you having video. It's just typically we do prefer that you have video, but um it it's fine. I I'm okay with proceeding in this circumstance. Um so, let me start with a couple of things um Miss Hall and make sure you understand. So, first of all, I'm not the judge that's assigned to your case. I want to make sure you understand that. Um, I believe your matter is assigned to Judge Edwards, but I am the presiding judge this week. Uh, which means I handle things that are super time-sensitive um to try and get them handled quickly um in advance of uh before you know your uh the assigned judge may or may not be able to get to it. and uh Judge Williams uh indicated that this matter um that it did need to be handled on an expedited basis because of the way it was filed and that um it was okay for the presiding judge to go forward. So, I am going to be the one making the decision on your motion for temporary restraining order uh to stop the foreclosure that I believe is scheduled for next week. Um but whatever happens today, going forward, Judge Edwards would still be the judge that you would uh be dealing with in your case. Okay.

[01:09:48]>> Yes, your Arthur.

[01:09:49]>> Okay. So, Miss Hall, um I have had a chance to review your motion for temporary restraining order um to stop the foreclosure. Um but we are um having a hearing and so I wanted to give you an opportunity to sort of talk me through um and you know make a brief presentation about why you think um the court should grant temporary uh restraining order and stop the foreclosure that is supposed to be held next week.

[01:10:17]>> Yes, your honor. Um my name is Noranda Mitchell Hall.

[01:10:22]I am seeking a both an emergency temporary restrainer order and a preliminary injunction to stop the wrongful foreclosure on lot two at 590 Alexander Avenue, a property that is not legally encumbered by the security deed.

[01:10:39]Sir Bank is attempting to foreclose on the central issue before the court is the legal description in my security deed is not the description of lot two.

[01:10:50]It is lot 10 shortened easement description that was added into my deed.

[01:11:01]The ironstone retracement plat survey and the ironstone notes, the affidavit affecting title and the recorded subdivision plat all show that the description is in my deed is not lot two.

[01:11:21]Okay. Um, can I ask you a couple of questions, Miss uh, Hall? First, um, at the very beginning of the hearing this morning, I asked you, I told you that I would want you to give me some information and detail about the extent to which you had attempted to reach Serve Bank so that this matter so that someone could be here on behalf of Serve Bank. Can you tell me just a little bit about what efforts you took?

[01:11:44]>> I process Serve Serve Bank registered agent. Yesterday morning at 9:45, I uploaded to the Serve Bank portal all of the documents on May 26 at 7:02.

[01:12:00]I also emailed loss mitigation and got a return receipt of them receiving my email on May 26 at 7:30.

[01:12:10]>> And was that the matter that you uploaded? Was that >> was that regarding the lawsuit? Hang on.

[01:12:18]Sorry. Was that regarding the lawsuit itself or was that regarding specifically this hearing that there was a hearing today?

[01:12:25]>> It was the lawsuit and the summons.

[01:12:28]>> Okay.

[01:12:30]So, not this hearing. The summons generally >> No, the the hearing. The hearing.

[01:12:37]>> Okay. Okay. Go ahead.

[01:12:40]>> And I also uploaded it on e file so that it could go to Mr. Mitchell.

[01:12:47]>> Okay.

[01:12:50]Okay. Um, let me So, I I Your motion has sort of I mean, you you have alleged you've said all the things that you're supposed to say um in a petition. Um, but the, you know, there's some legal standards about when and the extent to which the court can or should grant um the type of relief that you're seeking.

[01:13:15]And one of those issues is whether or not there is um whether or not that there is an adequate remedy at law that you would be able to pursue. And and often times in these foreclosure cases, the issue is that you could pursue if in fact your house is foreclosed upon uh and that is wrongful uh you can pursue a claim for damages for wrongful foreclosure. Um, and if if you have an adequate legal remedy, which would be a lawsuit for wrongful foreclosure, um, it typically means that you don't also get equitable relief, right, which is the the TTRO, the injunction that you're asking for.

[01:13:58]Um, can you, uh, address that issue for me, ma'am?

[01:14:04]>> The relief that I'm seeking, your honor, is you can't with the equity in the house. If I lose my home, I don't have anywhere to be. And I need this to go before the court so that ultimately for curative actions.

[01:14:29]Well, so I I I can't give you legal advice, but I guess my point is you have this lawsuit even if I let's say I don't give you injunctive relief.

[01:14:40]don't say um that the foreclosure is stayed and the foreclosure goes forward.

[01:14:47]The arguments that you're making would also be in support of a suit against the foreclosing entity saying you wrongly foreclosed my house, give me damages. Um why is that to your mind? Why is that not an adequate remedy for you?

[01:15:03]because I would your home is something you can't get back.

[01:15:09]Losing it is is not a good thing.

[01:15:16]Especially when it's not even my home that's in that description.

[01:15:22]It's a repable harm.

[01:15:27]>> Okay.

[01:15:28]>> And money cannot get you your >> your home back.

[01:15:32]Now, I understand there is there is law that says that, you know, primary residences can be unique and sometimes can be the subject of um of equitable relief. Um but I I am concerned about um the likelihood of success on the merits here as well. I I I I think you probably have an adequate remedy at law and I'm concerned that because you could sue for wrongful foreclosure. Um, but I also am concerned that on the merits itself, I'm not I'm not exactly sure I'm understanding your legal argument about how it is that you came to believe that the legal description in your mortgage and in your deeds um on which the uh lean holder is foreclosing were inaccurate.

[01:16:28]>> If you um your honor, I put up the exhibits. There is a corrective deed in Ironstone's report >> and it's totally different than the description that's in the power of sale and my security deed. My security deed shows that I'm the front of lot nine.

[01:16:52]Lot nine is in the back. the um in 2017, your honor, I did discover by once Ironstone came out did the retracement plaque um discovered that nothing in my deed matched anything on the ground. In their report, they said that my description cannot be located on the ground.

[01:17:19]None of my paperwork from my clothing, anything references lot two. Not the description, not the dimensions of this lot. Everything is based off a description that cannot be found.

[01:17:39]I I understand that you are alleging that the deed is not accurate, but ultimately I think I understand there was a corrective deed, but at the end of the day, you as I understand it did in fact take out a mortgage with Serve Bank or its predecessor and have not paid on that contract. Is your position that that contract is completely invalid and that you are under no obligation to pay because the description is inaccurate?

[01:18:09]>> My take on it, your honor, you all do not have a lean on this property because the description is not this home.

[01:18:21]It's not a payment issue. I would like for them to correct the legal description because in a foreclosure all of that has to be accurate. The legal description of the home has to be accurate.

[01:18:39]The lean has to attach to the home.

[01:18:43]Their remedy could be sue me personally, but your lean does not attach to the home.

[01:18:54]Okay. Um, anything else that you want to add, Miss Hall?

[01:19:02]>> Yes. Respectfully, this hearing is regarding the incorrect legal description of the property. It's the description is of lot 10 inserted into my deed. That is somebody else's property.

[01:19:23]Okay.

[01:19:27]Um, thank you, Miss Hall. Um, I appreciate the time and effort that you have put into preparing these pleadings.

[01:19:36]Um, and into being patient this morning while I got to some other matters. Um, and then in walking me through your position. Um, I I sympathize with the position that you're in. I understand how frustrating it is. Um but at the end of the day, the court is, you know, equitable relief is extraordinary relief that should not be granted um in, you know, absent extraordinary circumstances. And ultimately, one of the things that the court has to concern itself with is in addition to the factors that have been asserted um correctly in your motion uh under 91165.

[01:20:16]One of the things that the courts also consider is whether there is an adequate remedy at law. And if there is an adequate remedy at law, the court should not grant equitable relief.

[01:20:27]And my understanding is that a party, if you are in fact foreclosed upon, you can sue the foreclosing entity for wrongful dis wrongful foreclosure. And while I understand your position absolutely that that would still involve you losing your house, uh I don't believe that that satisfies the legal requirements u for the granting that that that that gets rid of this issue of you having an adequate remedy at law.

[01:20:55]Also, uh, based on what I understand, um, about the law, um, I also have concerns about whether you have a substantial likelihood of success on the merits. Um because uh ultimately I based on what I'm hearing so far um it it appears that um the company has the factual and legal basis to proceed with a non-judicial foreclosure which is what they're doing currently. Now ultimately I may be proven wrong. Um but based on what I know currently I don't believe >> Hang on. I let you talk. So you're let me finish ma'am. If you have something else to say, I'm happy to let you address the court. Okay.

[01:21:43]>> Um >> Yes, ma'am.

[01:21:44]>> So all I was saying is that uh essentially my assessment is I I I believe that you do have an adequate remedy at law in the form of a suit for wrongful foreclosure if in fact the foreclosure goes forward. And number two, um, if the court were to reach the issue of whether to grant equitable relief, um, in assessing the factors, uh, I do believe that I I have some concerns about whether you have demonstrated a likelihood of success on the merits, uh, of your underlying claim in terms of the validity of the, um, documents that underly the claim that ServeBank has. And so for those reasons, I'm going to I would deny the request for TTRO that you have filed today. Miss Hall, did you want to say something or did you have questions?

[01:22:31]>> Yes, ma'am. Um, in 2017, ma'am, before I purchased, everybody knew that the legal description was wrong to my property. I just became aware of all of this. It was in front of the court trying to get reform of for reformationation that the description of this property was wrong. They dismissed the case against the prior owner and sold it the same way to me.

[01:23:07]>> I I understand.

[01:23:08]>> I did not, >> Miss Hall. I I understand. And and let me be clear. I'm not making an assessment of the validity of your claims. What I'm telling you is that exparte with little information, I do not believe that there is a basis for equitable relief here today, especially extraordinary equitable relief in the form of um ordering that a foreclosure not go forward. number one because I believe that you have a an adequate remedy at law and I believe I I have concerns about whether or not you have demonstrated a likelihood of success on the merits of your underlying claim. Now again, I know it sounds like I'm commenting on the validity of your claims and I am not. I am making an incomplete decision with incomplete well the best decision I can with incomplete information. Um but that is my assessment and you are free to go forward um and take whatever legal action you believe you need to take going forward in this case. What I am telling you is that today it is my job to assess the request that you have made which is for an emergency injunction and I don't believe that you have satisfied the legal u requirements for that and so I'm going to deny that request. So, what will happen next, Miss Hall, is I'm going to enter an order that denies your request for a TTRO, and then the case will go back to Judge Edwards, and you can seek relief from Judge Edwards in whatever manner you wish to seek in the case going forward. Do you understand, Miss Hall?

[01:24:37]>> Yes, ma'am.

[01:24:38]>> Okay. Thank you very much. I will get an order on file and then you can proceed with Judge Edwards and I will um I will um wish you good luck with your claim.