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BLUE VIEW CORPORATION v. BELL | FindLaw

In May 2004, without notice to the Bells or the bankruptcy court, Bank One assigned the Bells' loan to Blue View. Six months after the assignment to Blue 
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Court docket of Appeals of Georgia.

BLUE VIEW CORPORATION v. BELL et al.

Bell et al. v. Blue View Company.

Nos. A09A0325, A09A0326.

Made up our minds: Would possibly 14, 2009

Bondurant, Mixson & Elmore, Jill Pryor, H. Lamar Mixson, Parker, Hudson, Rainer & Dobbs, William J. Holley II, Rebeccah L. Bower, Atlanta, for appellant. Gerber & Gerber, Sanford J. Gerber, Bernard M. Gerber, Robert S. Sichel, Esther Feuer Panitch, Atlanta, for appellees.

In those instances consolidated for attraction, Blue View Company (Blue View) appeals from the trial courtroom’s grant of a default judgment in prefer of Yolanda Bell and Wesley Bell, Sr. The Bells cross-appeal from the trial courtroom’s ruling on Blue View’s movement to put aside that judgment.   For the reason that trial courtroom erred in getting into the default judgment towards Blue View, we opposite in Case No. A09A0325 and disregard as moot the cross-appeal in Case No. A09A0326.

The Bells sued Blue View for intentional infliction of emotional misery bobbing up out of Blue View’s initiation of foreclosures court cases.1  When Blue View failed to reply to the criticism, the trial courtroom entered default judgment in prefer of the Bells.   Following a listening to on damages, the trial courtroom entered a last judgment awarding the Bells $2 million in compensatory damages and $5 million in punitive damages.   Blue View moved to put aside the default judgment on grounds that it didn’t obtain realize of the general judgment and didn’t obtain well timed realize of the listening to on damages.   Discovering that Blue View didn’t obtain realize of the general judgment however did obtain realize of the listening to, the trial courtroom granted the movement to put aside however then reentered the similar judgment together with the award of damages.

In Case No. A09A0325, Blue View appeals, arguing that the trial courtroom erred in getting into the default judgment, awarding punitive damages, denying its movement to put aside, and refusing to create a transcript of the unreported damages listening to as allowed via OCGA § 5-6-41(g) and (i).   In Case No. A09A0326, the Bells attraction, arguing that the trial courtroom erred in concluding that they had been required to inform Blue View of the general judgment, and erred in atmosphere apart and reentering the general judgment.

Case No. A09A0325

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The Bells’ criticism and amended criticism alleged that during Would possibly 2000, roughly three hundred and sixty five days after buying sure actual assets, they received a house fairness line of credit score and mortgage within the quantity of $67,000 from Financial institution One. Once they fell into arrears at the mortgage, the Bells filed for chapter.   In December 2003, the Bells “entered into excellent religion negotiations with Defendant Financial institution One to ascertain a payoff quantity of the mortgage.”   In Would possibly 2004, with out realize to the Bells or the chapter courtroom, Financial institution One assigned the Bells’ mortgage to Blue View. Six months after the task to Blue View, Financial institution One accredited $4,500 from the Bells as payoff of the mortgage.   In February 2005, Blue View initiated foreclosures court cases at the Bells’ assets, however “the foreclosures used to be withdrawn.”   Blue View assigned the mortgage to Stewart Name in August 2005.   In April 2007, Stewart Name foreclosed at the assets.   The valuables used to be auctioned at a foreclosures sale on June 5, 2007.

The Bells’ criticism alleged claims towards Stewart Name or Financial institution One for wrongful foreclosures, fraud, slander of identify, failure to cancel software of document, conversion, and violation of the Actual Property Agreement Procedures Act. The Bells additionally alleged that they suffered critical emotional misery from the movements of Stewart Name, Financial institution One and Blue View.

 1. Blue View contends that the trial courtroom erred in granting default judgment in prefer of the Bells as a result of “no declare for intentional infliction of emotional misery exists.”   We agree.

 It’s true that “a defendant in default is within the place of getting admitted every subject matter allegation of the plaintiff’s petition except for as to the volume of damages alleged.   The default concludes the defendant’s legal responsibility, and estops him from providing any defenses which might defeat the suitable of restoration.”  (Citations and punctuation unnoticed.)  Fink v. Dodd, 286 Ga.App. 363, 364(1), 649 S.E.2nd 359 (2007).   Alternatively,

[i]t is axiomatic {that a} default does no longer end result within the admission of allegations that don’t seem to be well-pled or which are the results of pressured inferences.   The failure to reply to or to look at trial serves as an admission of the info alleged within the criticism, however no longer of the conclusions of legislation contained therein.   So whilst a default operates as an admission of the well-pled factual allegations in a criticism, it does no longer admit the criminal conclusions contained therein.   A default merely does no longer require blind acceptance of a plaintiff’s inaccurate conclusions of legislation.   Nor does a default preclude a defendant from appearing that beneath the info as deemed admitted, no declare existed which might permit the plaintiff to get well.

(Citations and punctuation unnoticed.)  Identity. at 365(1), 649 S.E.2nd 359;  see ServiceMaster Co. v. Martin, 252 Ga.App. 751, 752-753(1), 556 S.E.2nd 517 (2001).   The default judgment does no longer preclude Blue View from appearing that “beneath the info as deemed admitted, no declare existed which might permit [the plaintiffs] to get well.”  (Citations unnoticed.)  Fink, supra, 286 Ga.App. at 365(1), 649 S.E.2nd 359.

 The one declare towards Blue View is one for intentional infliction of emotional misery.

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Georgia has lengthy known a reason for motion for intentional infliction of emotional misery.   Alternatively, the weight which the plaintiff should meet with the intention to be triumphant on this reason for motion is a stringent one.   To be triumphant, a plaintiff should reveal that:  (1) the habits giving upward thrust to the declare used to be intentional or reckless;  (2) the habits used to be excessive and outrageous;  (3) the habits led to emotional misery;  and (4) the emotional misery used to be critical.   The defendant’s habits should be so excessive in level, as to move past all conceivable bounds of decency, and to be thought to be atrocious, and totally insupportable in a civilized neighborhood.   Whether or not a declare rises to the needful degree of outrageousness and egregiousness to maintain a declare for intentional infliction of emotional misery is a query of legislation.

(Citations and punctuation unnoticed.)  Frank v. Fleet Finance, 238 Ga.App. 316, 317-318, 518 S.E.2nd 717 (1999).

The Bells alleged that they suffered emotional misery, fright, humiliation, and embarrassment, on account of the intentional movements of Blue View. We glance to the info alleged within the Bells’ criticism, which might be deemed admitted via Blue View, to resolve if the ones info are legally enough to toughen a declare of intentional infliction of emotional misery.   The criticism alleges that Blue View “recklessly, wantonly and with excessive indifference to the effects forget about[d] the info of the case that the debt have been paid,” that Blue View “instituted foreclosures continuing[s] towards the [Bells],” and that “upon knowledge and trust the foreclosures used to be withdrawn via Blue View.” The criticism didn’t include every other main points or explicit allegations regarding Blue View.

Whilst it’s true that “an intentional wrongful foreclosures may also be the root for an motion for intentional infliction of emotional misery,” (quotation unnoticed)  Ingram v. JIK Realty Co., 199 Ga.App. 335, 337(1), 404 S.E.2nd 802 (1991), the info admitted right here identify most effective that Blue View initiated foreclosures court cases however then withdrew them, it appears previous to assigning the mortgage to Stewart Name.   Any wrongful foreclosures, as a foundation for intentional infliction of emotional misery, used to be performed via Stewart Name, no longer Blue View. And we can’t say as an issue of legislation, simply in accordance with the conclusory allegations within the criticism, that the acts of Blue View had been excessive and outrageous or that the Bells’ emotional misery used to be “so critical that no affordable guy might be anticipated to undergo it.”  (Citations and punctuation unnoticed.)  Identity.

Due to this fact, beneath the info pled via the Bells and deemed admitted via Blue View, there’s no declare for intentional infliction of emotional misery that may permit the Bells to get well.   See Ingram, supra, 199 Ga.App. at 337(1), 404 S.E.2nd 802 (no intentional infliction of emotional misery as an issue of legislation the place plaintiff’s safety pastime no longer validly extinguished via tried wrongful foreclosures);  examine DeGolyer v. Inexperienced Tree Servicing, 291 Ga.App. 444, 449-450(4), 662 S.E.2nd 141 (2008) (proof supported declare for intentional infliction of emotional misery the place birthday party proceeded with foreclosures and sale after being instructed it foreclosed on fallacious assets).   The trial courtroom due to this fact erred in getting into a default judgment in prefer of the Bells on their declare for intentional infliction of emotional misery.

2. Blue View’s closing enumerations of error are rendered moot via our conserving in Department 1.

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Case No. A09A0326

In gentle of our disposition in Case No. A09A0325, the Bells’ cross-appeal is rendered moot.   Accordingly, Case No. A09A0326 is hereby pushed aside.

Judgment reversed in Case No. A09A0325.   Attraction pushed aside in Case No. A09A0326.

FOOTNOTES

1.  The Bells additionally sued Financial institution One, N.A. (Financial institution One), Stewart Name Warranty Company (Stewart Name), and Pilkenton-Murray, LLC, however pushed aside with prejudice their claims towards the ones events.

SMITH, Presiding Pass judgement on.

PHIPPS and BERNES, JJ., concur.

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