                               THIRD DIVISION
                              ELLINGTON, P. J.,
                         DILLARD and MCFADDEN, JJ.

                    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/


                                                                       June 3, 2015




In the Court of Appeals of Georgia
 A15A0514. WOLFFE et al. v. LENDER TITLE & ESCROW, LLC.

      MCFADDEN, Judge.

      Arthur E. Wolffe and Tori F. Talbot, who are proceeding pro se, appeal the

dismissal of their action against Lender Title & Escrow LLC. Because their action is

an improper collateral attack upon the judgment entered in a related action, we affirm.

      Lender Title & Escrow filed a foreclosure action against Wolffe and Talbot in

Fulton County Superior Court, and the court entered a default judgment in its favor.

Wolffe and Talbot moved to set aside the default judgment on the ground that Talbot

had not been personally served. Lender Title & Escrow presented evidence on the

issue, and the trial court denied the motion to set aside. Wolffe and Talbot filed an

application for discretionary appeal, which we denied. Our Supreme Court denied

Wolffe and Talbot’s petition for certiorari.
      At some point, Lender Title & Escrow brought a dispossessory action in

magistrate court. Wolffe and Talbot then filed this action in superior court, arguing

that the trial court erred in entering the default judgment against them in the

foreclosure action. They sought to enjoin the dispossessory proceedings and sought

damages for wrongful foreclosure and wrongful dispossessory.

      Lender Title & Escrow moved to dismiss the action for failure to state a claim

upon which relief can be granted, and the trial court granted the motion. Wolffe and

Talbot filed this appeal.

      1. Failure to rule on motion for default judgment.

      Wolffe and Talbot argue that the trial court erred by failing to rule on their

motion for a default judgment before addressing Lender Title & Escrow’s motion to

dismiss their complaint. We find that they have not shown reversible error.

      Lender Title & Escrow was served with Wolffe and Talbot’s complaint on

October 17, 2013. Its answer was thus due by November 16, 2013. OCGA § 9-11-12

(a). It filed its answer on November 25, 2013, less than 15 days after the answer was

due. And in its verified response to the motion for default, Lender Title & Escrow

asserted that it paid costs when it filed the answer. The record thus demonstrates that

Lender Title & Escrow opened default as a matter of right under OCGA § 9-11-55

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(a). Wolffe and Talbot cannot show harm from the trial court’s failure to rule on their

motion for default judgment as the motion was due to be denied.

      2. Failure to state a claim.

      Under OCGA § 9-11-12 (b) (6),

      an action can be dismissed upon the merits where the complaint fails to
      state a claim upon which relief can be granted. Dismissal is appropriate
      only where a complaint shows with certainty that the plaintiff would not
      be entitled to relief under any state of facts that could be proven in
      support of his claim. We review the dismissal de novo, construing the
      complaint’s allegations and all possible inferences therefrom in favor of
      the plaintiff.


Northeast Georgia Cancer Care v. Blue Cross & Blue Shield of Georgia, 297 Ga.

App. 28 (676 SE2d 428) (2009) (citation and punctuation omitted).

      We conclude that the trial court did not err in dismissing Wolffe and Talbot’s

complaint because, at its base, the complaint simply is an attempt to collaterally

attack the judgment in the foreclosure action. “[A] judgment is subject to collateral

attack only when it is void on its face. . . . . [Wolffe and Talbot have] not shown such

deficiency in the [default judgment]. Instead, [they] merely contend[] that the trial

court’s ruling that [Talbot had been served with the lawsuit] is erroneous on its

merits.” Nally v. Bartow County Grand Jurors, 280 Ga. 790, 791 (1) (633 SE2d 337)

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(2006) (citation omitted). See also OCGA § 9-11-60 (a) (“A judgment void on its face

may be attacked in any court by any person. In all other instances, judgments shall be

subject to attack only by a direct proceeding brought for that purpose . . . .”); Grand

v. Hope, 274 Ga. App. 626, 628 (1) (617 SE2d 593) (2005) (“[U]nder Georgia law,

unless a judgment is void on its face, it may not be attacked collaterally. . . . This is

true regardless of any purported irregularity or error in the judgment.”) (citations and

punctuation omitted).

      “[T]he averments in the complaint disclose with certainty that [Wolffe and

Talbot] would not be entitled to relief under any state of facts which could be proved

in support of their claim.” Matthews Group & Assoc. v. Wages, 180 Ga. App. 151,

153 (2) (348 SE2d 695) (1986) (citation and punctuation omitted). Accordingly, the

trial court did not err in granting the motion to dismiss and we therefore affirm.

      Judgment affirmed. Ellington, P. J., and Dillard, J., concur.




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