Morgan v. U.S. Bank Nat'Lass'N

• Decision Date: 20 June 2013
• Docket Number: No. A13A0279.,A13A0279.
• Citation: 745 S.E.2d 290,322 Ga.App. 357
• Parties: MORGAN v. U.S. BANK NATIONAL ASSOCIATION.
• Court: Georgia Court of Appeals

322 Ga.App. 357

745 S.E.2d 290

MORGAN

v.U.S. BANK NATIONAL ASSOCIATION.

No. A13A0279.

Court of Appeals of Georgia.

June 20, 2013.

Francis J. Morgan, pro se.

Tracy L. Starr, Jonathan Evan Green, Steven Gordon Hall, Joshua Neil Tropper, Atlanta, for Appellee.

McFADDEN, Judge.

Francis J. Morgan appeals pro se from the trial court's order dissolving a temporary restraining order and allowing U.S. Bank National Association (in its capacity as Trustee for the C–Bass Mortgage Loan Asset–Backed Certificates Series 2006–CB5) to foreclose on Morgan's house. Because the trial court did not abuse its discretion in declining to consider at the hearing on injunctive relief other claims raised by Morgan in an amended complaint, and did not abuse its discretion in requiring, as a condition for extending injunctive relief, that Morgan place into escrow an amount of money reflecting past-due payments on his mortgage, we affirm.

1. Facts and procedural posture.

The evidence is undisputed that Morgan obtained a mortgage on his house and subsequently stopped making payments on that mortgage. He did so because he concluded that the note had become “void or voidable” due to a “failure of conveyance,” apparently referring to an assignment that he alleged was improper. After being notified that U.S. Bank intended to foreclose on the house, Morgan filed a pro se action against U.S. Bank styled “Complaint for Fraud and Request for Temporary Restraining Order.” Therein, he asserted that U.S. Bank had no standing to foreclose because it was not the holder of either the note or deed securing the debt on the property, sought further discovery into “U.S. Bank's actions,” and sought to enjoin the foreclosure. The same day that Morgan filed the complaint, the trial court granted him a temporary restraining order and directed the parties to appear for a hearing on the complaint the following month. Shortly before the scheduled hearing, Morgan filed an amended complaint in which he alleged additional causes of action and sought damages, declaratory relief, and further injunctive relief.

The trial court conducted a hearing on July 2, 2012, to determine “whether the TRO is going to be made permanent or not.” The trial court expressly did not consider other issues raised in the amended complaint, noting that U.S. Bank had not yet received a copy of that pleading. At the hearing, Morgan presented testimony and argued that, although he stopped making payments on his mortgage, questions existed about whether U.S. Bank was the entity to which he owed those payments and whether he was presently indebted to any entity at all. The trial court indicated his willingness to grant Morgan injunctive relief from the foreclosure if he placed into the court registry an amount of money covering the past-due payments on the mortgage. Morgan declined to do so. The trial court then ruled from the bench that he was “going to dissolve the temporary restraining order and let U.S. Bank proceed,” noting that the law “d[id] not favor” Morgan's contention that U.S. Bank lacked standing to pursue payments under the note.

On July 13, the trial court entered a written order dissolving the temporary restraining order and allowing U.S. Bank to proceed with the foreclosure. (U.S. Bank's counsel prepared this order and in its appellate brief characterizes the order as “grant[ing] U.S. Bank's motion to dismiss” Morgan's complaint. The record reflects, however, that U.S. Bank did not move to dismiss the complaint until July 27, 2012, after the trial court issued its order. And although the order is styled “Order of Dismissal with Prejudice,” by its terms it neither rules on a motion to dismiss nor dismisses Morgan's action sua sponte.) Morgan appeals.

2. Appellate jurisdiction.

As an initial matter, we must address our duty to inquire into our jurisdiction to entertain each appeal. See Forest City Gun Club v. Chatham County, 280 Ga.App. 219, 220, 633 S.E.2d 623 (2006). As detailed below, OCGA § 5–6–34(a)(4) permits Morgan's direct appeal from the July 13 order.

The order on appeal dissolved a previously-granted temporary restraining order. It followed a hearing at which the trial court heard evidence on whether to extend the injunctive relief sought by Morgan. See generally OCGA § 9–11–65(b) (setting forth procedure by which court conducts hearing to determine whether either to dissolve previously-entered ex parte temporary restraining order or to grant interlocutory injunction). As such, the order's function and substance was to deny Morgan interlocutory injunctive relief pending the litigation of the various claims raised in his complaint and amended complaint. See Hughey v. Gwinnett County, 278 Ga. 740, 741(1), 609 S.E.2d 324 (2004) (when determining whether order is directly appealable, we consider its function and substance rather than its nomenclature). Accordingly, the order fell under OCGA § 5–6–34(a)(4), which permits a party to directly appeal from “[a]ll judgments or orders granting or refusing applications ... for interlocutory or final injunctions.” See Georgia Power Co. v. Hunt, 266 Ga. 331(1), 466 S.E.2d 846 (1996) (where trial court's decision effectively denied party's request for interlocutory injunctive relief, it was the equivalent to a refusal to grant an interlocutory injunction application and was therefore directly appealable under OCGA § 5–6–34(a)(4)); Spell v. Blalock, 243 Ga. 459, 460–461(1), 254 S.E.2d 842 (1979) (trial court's ruling on whether to continue a restraining order was directly appealable under predecessor to OCGA § 5–6–34 as an exception to the doctrine of finality of judgment); Nat. Hills Exchange v. Thompson, 319 Ga.App. 777–778, 736 S.E.2d 480 (2013) (trial court's order extending temporary restraining order in effect granted directly appealable preliminary injunction); see also Dolinger v. Driver, 269 Ga. 141, 142(1...