RICHARDS v. WELLS FARGO BANK, N.A., A13A1678. (2014)
Court: Court of Appeals of Georgia
Number: ingaco20140210151
Visitors: 4
Filed: Feb. 10, 2014
Latest Update: Feb. 10, 2014
Summary: ORDER KEN MOLBERG , Justice . Before the Court is appellant's September 18, 2020 motion for extension of time to file its letter brief on jurisdiction. We GRANT the request and ORDER the brief be filed no later than September 28, 2020. FootNotes 1. OCGA 9-11-13(f) provides: " Omitted counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendm
Summary: ORDER KEN MOLBERG , Justice . Before the Court is appellant's September 18, 2020 motion for extension of time to file its letter brief on jurisdiction. We GRANT the request and ORDER the brief be filed no later than September 28, 2020. FootNotes 1. OCGA 9-11-13(f) provides: " Omitted counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendme..
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ORDER
KEN MOLBERG, Justice.
Before the Court is appellant's September 18, 2020 motion for extension of time to file its letter brief on jurisdiction. We GRANT the request and ORDER the brief be filed no later than September 28, 2020.
FootNotes
1. OCGA § 9-11-13(f) provides: "Omitted counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment."
2. Naraine v. City of Atlanta, 306 Ga.App. 561, 703 S.E.2d 31 (2010) (citations omitted); see OCGA § 9-11-56(c).
3. See Gurr v. Gurr, 198 Ga. 493, 509-510(4), 32 S.E.2d 507 (1944) ("A power of sale in a ... security deed becomes part of the security, conferred for the purpose of effectuating the same. It is a remedy by contract intended to substitute the remedy by law, should the creditor see fit to avail himself of it.") (citations omitted).
4. Supra.
5. Id. at 505(4), 32 S.E.2d 507 (citations omitted).
6. See OCGA § 9-11-56(e), pertinently providing:
"When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."
7. See Zywiciel v. Historic Westside Village Partners, 313 Ga.App. 397, 406(12), 721 S.E.2d 617 (2011); Osborne v. City of Marietta, 302 Ga.App. 475, 477(3), 690 S.E.2d 664 (2010).
8. See EarthLink, Inc. v. Eaves, 293 Ga.App. 75, 78-79(4), 666 S.E.2d 420 (2008).
9. Carlock v. Kmart Corp., 227 Ga.App. 356, 360-361, 489 S.E.2d 99 (1997).
10. Chastain v. Baker, 255 Ga. 432, 433(2), 339 S.E.2d 241 (1986).
11. Black's Law Dictionary (6th ed. 1991).
12. 278 Ga.App. 477, 629 S.E.2d 26 (2006).
13. Id. at 482(1)(a). 629 S.E.2d 26.
14. Ellington v. Tolar Constr. Co., 142 Ga.App. 218, 220, 235 S.E.2d 729 (1977), citing Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604, 203 S.E.2d 173 (1974) (punctuation omitted).
15. Supra.
16. Summer-Minter & Assoc., supra at 601-603, 203 S.E.2d 173.
17. Id. at 606, 203 S.E.2d 173; see Smith v. Lockridge, 288 Ga. 180, 186(4), 702 S.E.2d 858 (2010).
18. Richards, in his motion for leave to file counterclaims, sought to assert against Wells Fargo claims for fraud, "Georgia RICO," breach of duty of good faith and fair dealing, "conventional quia timet and rescission for fraud," wrongful foreclosure, damages, and equitable relief.
19. See Aycock v. Calk, 228 Ga.App. 172, 175, 491 S.E.2d 383 (1997) (having failed to assert compulsory counterclaim in prior action either in their answer or by properly amended answer with leave of trial court, appellants lost such claim and were "now forever barred from asserting such claim against" opposing party).
20. See generally Davis v. Wilson, 280 Ga. 29-30, 622 S.E.2d 325 (2005). Compare generally Jones v. Isom, 223 Ga.App. 7, 9(2), 477 S.E.2d 139 (1996) (where trial court correctly concluded that appellants failed to serve appellee within the applicable statute of limitation and properly granted appellee's motion to dismiss, trial court also correctly concluded that appellants' motion for entry of default and motion for partial summary judgment were rendered moot).
21. Unnever v. Stephens, 142 Ga.App. 787, 789(2), 236 S.E.2d 886 (1977) (citations omitted); see Ellington, supra.
22. See generally Unnever, supra.
Source: Leagle
