                               FIRST DIVISION
                                 DOYLE, C. J.,
                        PHIPPS, P. J, and PETERSON, J.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                   January 12, 2016




In the Court of Appeals of Georgia
 A15A2294. CLEVELAND v. MIDFIRST BANK.                                       DO-112

      DOYLE, Chief Judge.

      In her suit against MidFirst Bank (“the Bank”) for an allegedly wrongful

eviction, Mary Frances Cleveland appeals from the grant of the Bank’s motion to

dismiss for failure to state a claim. Cleveland contends that the trial court erred

because her verified complaint pleaded provable facts sufficient to support a claim.

We agree and reverse.

            It is well established that a motion to dismiss for failure to state
      a claim upon which relief may be granted should not be sustained unless
      (1) the allegations of the complaint disclose with certainty that the
      claimant would not be entitled to relief under any state of provable facts
      asserted in support thereof; and (2) the movant establishes that the
      claimant could not possibly introduce evidence within the framework of
      the complaint sufficient to warrant a grant of the relief sought. In
      deciding a motion to dismiss, all pleadings are to be construed most
      favorably to the party who filed them, and all doubts regarding such
      pleadings must be resolved in the filing party’s favor.


      A plaintiff is not required to plead in the complaint facts sufficient to set
      out each element of a cause of action so long as it puts the opposing
      party on reasonable notice of the issues that must be defended against.
      If within the framework of the complaint, evidence may be introduced
      which will sustain a grant of relief to the plaintiff, the complaint is
      sufficient. We review the trial court’s ruling on a motion to dismiss for
      failure to state a claim upon which relief can be granted under the de
      novo standard of review.1


      Here, Cleveland’s complaint alleges that she was wrongfully evicted after the

Bank foreclosed on its security interest and purchased her residence at the foreclosure

sale. Thereafter, the Bank obtained a writ of possession, which Cleveland appealed,

subject to an order to pay rent into the registry of the superior court (“Rent Order”).

When Cleveland failed to make rent payments, the Bank obtained a writ of possession

based on Cleveland’s violation of the Rent Order.

      Cleveland’s complaint further alleges that when the writ was executed, the

Bank’s agents

      1
       (Punctuation and footnotes omitted.) TechBios, Inc. v. Champagne, 301 Ga.
App. 592, 592-593 (688 SE2d 378) (2009).

                                           2
      wrongfully broke the locks on Plaintiff’s doors, . . . broke and damaged
      plaintiff’s personal property, antiques and furnishing[s,] and placed
      them in the dumpster. They refused to allow Plaintiff on the property to
      protect, secure[,] and retrieve her furniture, antiques[,] and furnishings[,]
      and hauled her furniture, antiques[,] and furnishings off to a place
      unknown to Plaintiff. . . .


      Defendant MidFirst [or its agents] denied her the right to retrieve . . . her
      property . . . and . . . . maliciously destroyed and carried away [her
      personal property].


Based on this and other conduct, Cleveland’s complaint asserts that she is entitled to

damages for trespass, emotional distress, theft, and conversion.

      The Bank answered and proffered evidence that it held a security interest in the

property and properly foreclosed on the security interest, secured a writ of possession,

and executed the writ. The Bank then moved to transfer venue to the county where

the property was located, which motion the court granted. The Bank’s motion also

sought to dismiss the suit for failure to state a claim upon which relief could be

granted, which the superior court ultimately granted in a one-page order.

      Cleveland now appeals that ruling, arguing that her complaint asserts facts

sufficient to state tort claims based on the allegedly wrongful eviction process. After

a foreclosure sale, former owners remaining in possession of real property become

                                           3
tenants at sufferance, and the dispossessory procedures set forth in OCGA § 44-7-50

et seq. apply.2 OCGA § 44-7-55 (c) provides as follows:

      Any writ of possession issued pursuant to this article shall authorize the
      removal of the tenant or his or her personal property or both from the
      premises and permit the placement of such personal property on some
      portion of the landlord’s property or on other property as may be
      designated by the landlord and as may be approved by the executing
      officer; provided, however, that the landlord shall not be a bailee of such
      personal property and shall owe no duty to the tenant regarding such
      personal property. After execution of the writ, such property shall be
      regarded as abandoned.


      Addressing the practical effect of that provision, this Court has concluded that

      [w]hile the statute provides that the landlord shall not be a bailee and
      shall owe no duty to the tenant with regard to his personal property, we
      interpret that provision as being contingent upon the landlord first
      placing the tenant’s property on some portion of the landlord’s property
      or on other specific property designated by the landlord and approved
      by the executing officer.3




      2
       See Ikomoni v. Exec. Asset Mgmt., LLC, 309 Ga. App. 81, 84 (2) (709 SE2d
282) (2011).
      3
          Washington v. Harrison, 299 Ga. App. 335, 339 (1) (682 SE2d 679) (2009).

                                          4
Based on this, the Court has held that a claim for conversion may lie when a landlord

“neither placed [the tenant’s] personal property on a portion of the [property] . . . nor

on other property, which they designated and which the executing officer approved.”4

This was because the landlord “hired a salvage crew to simply remove [the tenant’s]

personal property from the [property] with no consideration given as to its ultimate

fate.”5

          Here, under a similar analysis, Cleveland’s complaint alleges facts sufficient

to establish the framework for a grant of relief.6 She alleges that the Bank’s agents

destroyed or stole her personal property, thereby failing to follow the statutory

procedure outlined in OCGA § 44-7-55 (c), and the Bank has not demonstrated that

her claims fail as a matter of law. Accordingly, the trial court erred by dismissing her

complaint for failure to state a claim.7



          4
              Id.
          5
              Id.
          6
        See id. See also Higgins v. Benny’s Venture, Inc., 309 Ga. App. 102, 104 (709
SE2d 287) (2011) (landlord did not “have carte blanche to do whatever he or she
liked with the tenant’s personal property, including even destroying it, at the moment
the writ of possession is issued”) (punctuation omitted).
          7
              See TechBios, Inc., 301 Ga. App. at 595 (1) (a).

                                               5
Judgment reversed. Phipps, P. J., and Peterson, J., concur.




                                  6
