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Davis v. Citimortgage Inc.

Claimed defects in the landlord's title to the premises cannot be raised as a defense in a dispossessory proceeding.

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LaShunda Davis appeals the grant of a writ of possession to CitiMortgage, Inc. Davis challenges CitiMortgage’s title as well as its failure to file a notice of substitution of counsel. Because Davis cannot challenge CitiMortgage’s title in this dispossessory proceeding and because Davis has failed to file a transcript to support her claims regarding substitution of counsel, we affirm. After Davis defaulted on her mortgage, CitiMortgage foreclosed on the property securing the note. It then filed this dispossessory action alleging that Davis was a tenant at sufferance and seeking possession. Davis moved to dismiss the dispossessory petition, but the trial court entered judgment in favor of CitiMortgage. Davis, who is proceeding pro se, filed this appeal.

1. First we observe that CitiMortgage has not filed an appellee’s brief. See Court of Appeals Rule 23 b. “Appellee’s brief shall be filed within 40 days after the appeal is docketed or 20 days after the filing of appellant’s brief, whichever is later. Failure to timely file may result in non-consideration of the brief and may subject counsel to contempt.” Emphasis supplied. Instead, CitiMortgage has moved to dismiss the appeal on the ground that Davis has not filed a transcript of the dispossessory hearing or a suitable substitute. However, when, as here, a hearing was not recorded, the failure to file a transcript is not a ground for dismissing an appeal. See OCGA § 5-6-48 f an appeal may be dismissed if an appellant causes a court reporter to fail to file the transcript of evidence and proceedings within the time allowed by law; see also OCGA § 5-6-48 b “No appeal shall be dismissed . . . except: 1 For failure to file notice of appeal within the time required as provided in this article or within any extension of time granted hereunder; 2 Where the decision or judgment is not then appealable; or 3 Where the questions presented have become moot.” CitiMortgage’s motion to dismiss the appeal is therefore denied.

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