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Tisdale v. The Westmoore Group, LLC

Court of Appeals of Georgia, Second Division

May 23, 2017


          DOYLE, C. J., MILLER, P. J., and REESE, J.

          Miller, Presiding Judge.

         Adrian Tisdale sued The Westmoore Group ("Westmoore") and two individuals who assisted in obtaining a mortgage on her home (collectively "Defendants"), alleging multiple violations of federal statutes and the Georgia Fair Lending Act[1] ("GFLA"), fraud in the inducement, and civil conspiracy.[2] Defendants filed a counterclaim for attorney fees under OCGA § 13-6-11. The trial court granted summary judgment in favor of Defendants and awarded them $61, 231.10 in attorney fees.[3] Tisdale now appeals. After a thorough review of the record, we affirm in part and reverse in part.

         "On appeal from a grant of summary judgment, we review the evidence de novo to determine whether the trial court erred in concluding that no genuine issue of fact remains and that the moving party is entitled to judgment as a matter of law." (Citation omitted.) Chapman v. C. C. Dickson Co., 273 Ga.App. 640, 641 (1) (616 S.E.2d 478) (2005).

         So viewed, the evidence shows that in 2011, Tisdale obtained a high-interest mortgage loan ("the Loan") through Westmoore in the amount of $49, 062 to purchase her home in Covington. The Loan was secured by a security deed, which contained an accelerated remedies clause providing for an opportunity to cure any default prior to foreclosure.

         Soon after Tisdale closed on the home, she made late payments and disputed the closing costs, mortgage terms, and loan calculations. On August 28, 2012, Westmoore agreed to a loan modification, in which it refunded certain fees to Tisdale, and Tisdale signed a release (the "Release") agreeing that "all aspects of the Loan [were] proper and correct and in full compliance with all applicable state and federal laws." The Release further provided that Tisdale would release Westmoore and its agents and employees from any claims she "ever had, now have, or which she hereafter can, shall or may have" against them. Under the terms of the Release, any violation would allow Westmoore to "declare the Loan immediately due and payable."

         Despite signing the Release, Tisdale continued to dispute the terms of her mortgage. She also fell further into arrears on her payments. In July 2013, Westmoore notified Tisdale of her default and the opportunity to cure so as to avoid the acceleration of the Loan and the subsequent commencement of foreclosure proceedings.

         After Tisdale again disputed the amount due, Westmoore agreed to postpone acceleration of the Loan. In a Postponement Letter Tisdale signed and agreed to on August 15, 2013, Westmoore advised Tisdale that the failure to comply with the terms of the Postponement Letter could result in foreclosure proceedings. Notably, in the Postponement Letter, Tisdale admitted that she had no defenses against Westmoore in connection with its security interest.

         Nevertheless, Tisdale failed to make the required payments, and Westmoore began foreclosure proceedings. Tisdale continued to challenge the underlying mortgage obligation by filing a complaint in Newton County Superior Court. While that case was pending, Tisdale also sought injunctive relief to stop the foreclosure sale in federal court. Both of these cases were later voluntarily dismissed.

         Tisdale then filed the instant suit, [4] and Defendants filed a counterclam for attorney fees under OCGA § 13-6-11. Liberally construing Tisdale's state-law claims in her complaint, she alleged that the Defendants committed fraud in connection with the initiation and signing of her Loan, conspired to commit fraud in connection with her Loan, and violated the GFLA by demanding payments that exceed the permissible amount. In February 2014, Tisdale filed a bankruptcy petition, which stayed the foreclosure proceeding.[5]

         Defendants removed this case to the federal district court, which ultimately dismissed the federal claims and remanded Tisdale's state-law fraud, conspiracy, and GFLA claims, as well as Defendants' counterclaim, to the trial court. On remand, the trial court granted Defendants' motion for summary judgment, finding (1) the Release was a valid agreement, and, therefore, any claims relating to the Loan prior to the August 28, 2012 date of the Release were barred by the terms of the Release; (2) claims relating to conduct that occurred between the date of the Release and the August 15, 2013 Postponement Letter were barred by the terms of the Postponement Letter; and (3) Defendants were entitled to OCGA § 13-6-11 attorney fees in the amount of $61, 231.10.

         1. Before we reach the merits of the appeal, we note that Tisdale's brief fails to comply with this Court's rules because it does not contain numbered and distinct enumerations of error with supporting arguments. See Court of Appeals Rule 25 (c) (1). Tisdale's pro se status does not relieve her of her obligation to comply with the rules of this Court. See Floyd v. Brown, 338 Ga.App. 520, 521 (1) (790 S.E.2d 307) (2016). "Our requirements as to the form of appellate briefs were created, not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court." (Citation and punctuation omitted.) Id.

         Our rules are more than a mere formality. Barnett v. Fullard, 306 Ga.App. 148, 149 (1) (701 S.E.2d 608) (2010). Rather, they are designed to ensure that all enumerations of error are addressed and to aid our review of each enumeration. Id. By failing to comply with Court of Appeals Rule 25, Tisdale has hindered our review of her arguments and has risked the possibility that certain enumerations will not be addressed. See id. at 149-150 (1). Nevertheless, we will address claims of error to the extent we are able to discern them, and we deny Defendants' motion to dismiss the appeal on this basis. See id. at 150 (1).

         Reviewing Tisdale's brief, we interpret her claims to challenge the grant of summary judgment to Defendants on the grounds that (a) her claims arising prior to August 15, 2013 were not barred; (b) Defendants were in breach by refusing to allow her to cure the default; and (c) the Release and Postponement Letter are void. Tisdale also ...

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