BARNES, P. J., MCMILLIAN and MERCIER, JJ.
BARNES, PRESIDING JUDGE.
Proceeding
pro se, Mike Samadi appeals the trial court's order
granting the motion to open default filed by the Federal Home
Loan Mortgage Corporation ("Freddie Mac") and the
trial court's final order and judgment granting Freddie
Mac's motion to dismiss based on the doctrines of res
judicata and collateral estoppel. For the reasons discussed
more fully below, we conclude that the trial court abused its
discretion in determining that the present lawsuit was a
"proper case" for opening default under OCGA §
9-11-55 (b) based solely on the fact that Freddie Mac
ultimately raised meritorious defenses to Samadi's
lawsuit; the trial court also was required to consider
whether Freddie Mac had a reasonable explanation for its
approximately 15-month delay in responding to Samadi's
complaint. Accordingly, we vacate the trial court order
opening the default and its final order and judgment
dismissing Samadi's claims, and we remand for the trial
court to apply the proper legal standard for determining
whether the default should be opened.
Factual
Background.
The
record reflects that in June 2002, Samadi obtained a $281,
000 loan from Mortgage Portfolio Services to purchase certain
real property located in Columbia County, Georgia (the
"Property"). Samadi executed a promissory note in
connection with the loan that was secured with a deed to
secure debt on the Property. The note and security deed were
assigned to SunTrust Mortgage, Inc. ("SunTrust").
Samadi
later defaulted on the note, and in November 2012, SunTrust
foreclosed on the Property pursuant to the security deed.
SunTrust was the highest bidder at the foreclosure sale and
then conveyed the Property to Freddie Mac. In March 2013,
Freddie Mac initiated dispossessory proceedings against
Samadi in the Magistrate Court of Columbia County (the
"Dispossessory Proceeding"). Later in March, the
magistrate court granted a writ of possession to Freddie Mac
in the Dispossessory Proceeding, and Freddie Mac proceeded
with the eviction and with the removal of Samadi's
personal belongings from the Property.
The
First Action.
Since
his default on the Note, Samadi has filed three separate
lawsuits that have resulted in a complex procedural history.
In January 2009, Samadi filed suit in the Superior Court of
Columbia County against SunTrust for alleged deceptive trade
practices relating to his mortgage loan (the "First
Action"). The trial court entered summary judgment in
favor of Suntrust on all of Samadi's claims, this Court
affirmed without opinion, [1] and the Supreme Court of Georgia denied
Samadi's petition for a writ of certiorari.
The
Second Action.
In
November 2012, Samadi filed a second suit in the Superior
Court of Columbia County against SunTrust, alleging that the
foreclosure proceedings on the Property were illegal and
seeking a temporary restraining order ("TRO") and
injunctive relief (the "Second Action"). Samadi
later amended his complaint to add Freddie Mac as a defendant
and to add a quiet title claim, but Samadi did not
specifically assert any claims pertaining to the
Dispossessory Proceeding or his eviction from the Property.
The trial court initially granted a TRO and preliminary
injunction prohibiting the foreclosure of the Property, but
the trial court later dissolved the TRO and injunction nunc
pro tunc and dismissed Samadi's claims against SunTrust
and Freddie Mac with prejudice. Samadi sought appellate
review from this Court, but the trial court dismissed his
appeal for an unreasonable delay in filing the transcript,
and this Court affirmed the dismissal without
opinion.[2] Samadi filed a petition for writ of
certiorari, which the Georgia Supreme Court denied.
The
Current Action.
In
April 2015, while the appeal of the Second Action remained
pending, Samadi filed the current pro se action against
Freddie Mac in the State Court of Cobb County, arguing that
the Dispossessory Proceeding and removal of his personal
belongings from the Property had been conducted in an illegal
manner (the "Current Action"). The complaint
alleged that Freddie Mac had never properly served Samadi
with notice of the Dispossessory Proceeding, such that he had
been unaware of the eviction and removal of his personal
belongings when they occurred during the pendency of the
Second Action. The complaint further alleged that Freddie
Mac's eviction of Samadi and removal of his personal
belongings had been illegal because they occurred while the
TRO and preliminary injunction were still in force in the
Second Action.
In May
2015, Freddie Mac was served through its registered agent
with the summons and complaint in the Current Action. Because
Freddie Mac did not timely file an answer to the complaint,
[3] the
Current Action went into automatic default. See OCGA §
9-11-55 (a).[4] Nor did Freddie Mac open the default as a
matter of right within 15 days of the automatic default. See
id.
In
September 2015, Samadi filed a motion for entry of default
judgment against Freddie Mac pursuant to OCGA § 9-11-55
(a). Freddie Mac did not respond to the motion, but in
November 2015, the lawsuit was transferred to the Superior
Court of Cobb County before the state court ruled on the
motion because Samadi sought equitable relief in his
complaint.[5] Following the transfer of the case, the
superior court issued a rule nisi in ...