Butler v. FIRST FAMILY MORTGAGE CORPORATION OF FLORIDA , 191 Ga. App. 360 ( 1989 )

191 Ga. App. 360 (1989) 381 S.E.2d 551

BUTLER
v.
FIRST FAMILY MORTGAGE CORPORATION OF FLORIDA.

A89A0445.

Court of Appeals of Georgia.

Decided April 5, 1989. Rehearing Denied April 19, 1989.

Myron L. Butler, pro se.

McCalla, Raymer, Padrick, Cobb & Nichols, William A. Broughman, for appellee.

BANKE, Presiding Judge.

The appellee initiated a dispossessory action against the appellant in magistrate court, claiming to have acquired ownership of the property in question at a foreclosure sale. The appellant, acting prose, filed an answer alleging that the foreclosure was a nullity because he had filed a Chapter 13 bankruptcy petition on the day before the foreclosure sale. The appellant failed, however, to include any reference to the alleged bankruptcy proceeding by case number or to provide any documentation indicating that such a proceeding was in fact pending.

The magistrate court granted a writ of possession to the appellee, and the appellant thereafter appealed to the State Court of Fulton County. That court dismissed the appeal on the basis of evidence presented by the appellee showing that, in dismissing a previous bankruptcy petition filed by the appellant, the bankruptcy court had enjoined the appellant from filing another such petition during the relevant time period. Additionally, the state court ordered the appellant to make payments of $325 per month into the registry of the court during the pendency of any appeal or further proceedings in the case. This appeal followed. Held:

1. The appellant has failed to provide this court with a transcript of the proceedings below, and the record before us establishes no basis for a reversal of the court's judgment. Where no transcript is provided, it is presumed that the findings of the trial court were supported by the evidence. See Hunnicutt v. Hunnicutt, 182 Ga. App. 578 (356 SE2d 679) (1987).

2. The appellee has moved this court to assess a 10-percent penalty against the appellant pursuant to OCGA § 5-6-6 for filing a frivolous appeal. The judgment below does not, technically speaking, contain any award of damages against the appellant on which such a penalty could be predicated. However, we must agree with the appellee that there was no arguable merit to the appeal, and we consequently find it appropriate to assess a penalty against the appellant pursuant to Rule 26 (b) of this court for filing a frivolous appeal. The state court is directed to enter judgment against the appellant in the amount of $200 upon the return of the remittitur in the case.

Judgment affirmed with direction. Sognier and Pope, JJ., concur.