Written By: MATTHEW CHARLES CARDINALE
(APN) ATLANTA — In yet another abrupt about-face from Fulton County Superior Court Judge Craig Schwall, the judge has ordered a July 11, 2014 hearing to reconsider whether to grant leave for Premium Funding Solutions (PFS) to seek a dispossessory, or eviction, of the Metro Atlanta Task Force for the Homeless, from the shelter they operate in downtown Atlanta, according to a May 27, 2014 order obtained by Atlanta Progressive News.
As previously reported by APN, the Task Force has sued several downtown business interests, including Central Atlanta Progress and Emory University, for their apparent conspiracy to deprive the Task Force of funds by interfering with their relationships with donors, so that they could drive the Task Force into foreclosure and then purchase the building in an auction.
Since the filing of the lawsuit, the owners of the building–currently PFS–have sought several times to evict the Task Force from the building.
However, the Task Force alleges in their tort lawsuit that PFS’s title to the building is invalid and should be quieted by the courts, because the title was obtained through an illegal conspiracy.
Therefore, Judge Schwall had originally stayed the eviction proceedings, in a June 10, 2010 order, consented to by all the parties.
But Schwall’s attitude towards the Task Force appears to have abruptly changed ever since the Task Force sued Emory University in DeKalb County Court. Schwall received his law degree from Emory.
On two occasions, following the filing of the case against Emory, Schwall has evicted the Task Force, only to have to overturn himself. First, he evicted the Task Force, but had to revoke the eviction after he was reminded of a pending motion by Defendant Manny Fialkow to recuse himself that he had not ruled on.
On the second occasion, after disposing of the motion to recuse, Schwall evicted the Task Force sua sponte–meaning, spontaneously of his own volition, not prompted by any motion by a party–but was overturned by the Court of Appeals of Georgia because he did not even give the Task Force notice, or an opportunity to respond or present evidence, as is required by Georgia law.
Since then, the case has remained in Schwall’s court, and has proceeded through discovery. The discovery process is now over and the case appears to be ready for trial, notwithstanding several postponements sought by Defendants and granted by Schwall.
On May 06, 2013, PFS filed yet another motion for dispossessory, but Schwall issued an order holding the motion in abeyance, or on hold, until the outcome of the trial.
The reason for doing so is that if the Task Force is evicted from their property, there would be irreparable harm to the Task Force because there would be no other place in the City of Atlanta to have a shelter; because the property would likely be sold to a developer; and because the Task Force’s grandfather-in zoning status might become jeopardized.
The point of having a full trial–which has been postponed by Judge Schwall several times, despite the objections of the Task Force–is to determine who really owns the building.
If Schwall goes forward with a dispossessory hearing–in which evidence that PFS’s title should be quieted, cannot be heard–and then dispossesses the Task Force, the tort case would still go forward.
Indeed, as reported only by Atlanta Progressive News, the Special Master in the case has ruled that there are factual issues to be decided by a jury, and that a jury could plausibly find that title should be quieted and that the conspirators violated tort law.
Therefore, if dispossessory is issued, and the Task Force still goes on to win its tort claims, it will be too late: the damage will have already been done, and a monetary award cannot compensate for that.
It is not immediately clear why Judge Schwall is reversing himself at this late date, to go against not only his own previous rulings staying dispossessory, and going against the Special Master’s recommendation, but the reversal reveals an incredible waste of time and resources on the part of the parties, their attorneys, the courts, the Special Master, and indeed, the taxpayers.
That is, Schwall could have had a dispossessory hearing back in 2010, or even in 2013, if Schwall was not concerned about equity or preventing irreparable harm to the Task Force.
Instead, Schwall allowed the case to move forward through years of discovery, motions, and appeals; the law firm Baker Donelson to spend approximately a million dollars worth of billable attorneys’ fees, on a pro bono basis; and the Special Master to write a nearly one hundred page report, among other work, valued at 75,000 dollars. All of this could amount to nothing, if Schwall moves forward on dispossessory at this time.
Incidentally, Schwall issued the order on May 27, 2014, only seven days after being reelected to the Fulton County Superior Court on May 20, in the Georgia Primary and Non-partisan Election.
Schwall implies in his latest ruling, that the reason he has changed his position is because the trial has been postponed at the request of the parties. But, according to the Task Force, Schwall is factually incorrect, because the Task Force has never requested postponement and desires to have a trial as soon as possible.
“At the time the Court entered its May 6, 2013 Order, the trial was imminent, making it reasonable to hold PFS’ motions in abeyance. Since that time, however, the trial has been postponed twice at the request of the parties, and currently, there is no date set for trial,” Schwall wrote.
“Therefore, PFS’ Request for Expedited Briefing and Consideration of Motion for Reconsideration of its Petition for Leave to File Dispossessory Action is GRANTED. The Court sets the following briefing schedule on PFS’ Request for Reconsideration of its Petition for Leave to File Dispossessory Action:,” Schwall wrote.
“The Task Force’s response… is due on June 13,2014; and PFS’ reply brief on its Request for Reconsideration of its Petition for Leave to File Dispossessory Action is due on June 23, 2014,” Schwall wrote.
“The Court will take up that matter, as well as the objections to the Special Master’s January 25, 2014 Order on Defendants’ Motions for Summary Judgment… on July 11, 2014 at 10:00 a.m. in Courtroom 5-E of the Fulton Superior Court, 185 Central Avenue, SW, Atlanta, Georgia 30303. SO ORDERED this 7th day of May, 2014,” Schwall wrote.
However, the fact that the trial has taken longer than perhaps Schwall had anticipated–because of his granting of extensions sought by the co-conspirators–does not change the fact that granting a dispossessory at this point would constitute irreparable harm to the Task Force.
On June 13, 2014, the Task Force filed its response to the court’s order scheduling the rehearing on whether to continue the stay of dispossessory.
“Now that the record contains overwhelming evidence demonstrated that he [Manny Fialkow] and his companies are liable to the Task Force and are not entitled to the property, PFS requests that it be allowed to proceed with a truncated dispossessory action in advance of a full trial on the merits in hopes of keeping the damaging evidence from the finder of fact until after the Fialkow Entities have taken the property,” the Task Force wrote.
“PFS’s request should be denied for multiple reasons that are all but axiomatic: (1) granting PFS’s request in light of the evidentiary record and procedural posture of this case would be violate the Court’s duty to administer complete justice; (2) even if the Court had discretion
to grant PFS’s request, the well-documented abuses of process, willful violations of Court Orders, and ongoing false assertions by the Fialkow Entities outweigh anything favoring exercise of that discretion; (3) in light of the Special Master’s determination that the Task Force’s claims are viable and require resolution by a jury, an order dispossessing the Task Force would alter the status quo in advance of a final trial and would be subject to immediate review and reversal;
(4) an early trial of the dispossessory action would cause duplicate proceedings that would require presentation of all the same evidence, from all the same witnesses twice (including third-parties like Dan Cathy and the President of Emory Midtown), and would be a colossal waste of judicial resources, party resources, witness resources and juror resources,” the Task Force said.
“PFS’s request should be resolved by scheduling the entire case for trial, allowing the parties to present all claims to a jury, and determining possession based on the jury’s findings. Anything else will be unjust and inefficient and will cause further unnecessary delay in this already protracted case,” the Task Force said.
The Task Force argued that Superior Courts are courts with the duty of administering justice, including equitable relief.
“A Court does not discharge this duty if its process [sic] are allowed to be used to advance tortious conduct or to confer gains obtained through tortious conduct,” the Task Force said.
The Task Force writes that the Defendants have violated Court orders several times, and without any sanctions by the court, including by initiating several dispossessory proceedings despite the stay; transferring title despite a court order prohibiting it; and exceedingly untimely payments to the Special Master.
The Task Force also writes that Defendants have been misleading in statements made to the Court, also without any sanction or consequence, including statements to hide Fialkow’s control of PFS; misrepresentations about money used to purchase the Task Force’s mortgage notes; and misrepresentations about Fialkow’s entrance into the conspiracy.
The Task Force argues that if issued by the court, a dispossessory would be form of temporary relief that would not dispose of the tort lawsuit. Temporary relief, the Task Force argues, is supposed to maintain the status quo, not destroy it. The dispossessory would be subject to immediate appeal and reversal, the Task Force urges.