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Schwall Reverses Own Eviction Order, after Task Force Appeals
(APN) ATLANTA -- Fulton County Superior Court Judge Craig Schwall reversed his own disspossesory order against the Metro Atlanta Task Force for the Homeless after the Task Force filed an appeal with the Supreme Court of Georgia.
"The Court hereby VACATES its Order of Dispossessory entered October 17, 2011," Schwall wrote in his order dated October 21.
"Attached please find an Order entered by the Court today vacating its prior Order of Dispossessory," Rupal Romero, staff attorney for Schwall, wrote in an email accompanying the Order.
"Having determined that, under USCR 25, the Court must first address the pending Motion to Recuse, the Court has no alternative but to vacate its October 17, 2011 Order. Only after the Motion to Recuse is addressed may the Court proceed. We apologize for any confusion," Romero wrote.
Defendant Manny Fialkow, who at one time owned the building where the Task Force is located, had filed the motion for Schwall to recuse himself. Ironically, Fialkow created the current obstacle for himself with his own motion.
Previously, Schwall had been clearly more sympathetic to the Task Force, at hearings attended by Atlanta Progressive News and according to transcripts of other hearings obtained by APN. Therefore, Fialkow had accused Schwall of being biased.
"It is Fialkow's contention that throughout the course of this case, the Court appears to have made pre-judgment determinations that Fialkow is somehow controlling the Ichthus Community Trust," Fialkow wrote in his Motion to Recuse Judge dated June 17, 2011.
"Despite the fact that there is absolutely no evidence of record that supports the notion that Fialkow is controlling Ichthus... statements made by the Court, both at the most recent June 10, 2011 status conference and the December 09, 2010 hearing, Fialkow now believes as would a reasonable and fair-minded person, that there is a lack of impartiality by the judge," Fialkow wrote.
It is not clear what will happen next.
To be sure, Schwall could reject Fialkow's motion to recuse, and then turn around and re-issue the dispossessory.
While the Task Force's appeal to the Supreme Court now appears to be moot, seeing as how Schwall vacated his own order, the Task Force raised a number of issues on the record which may give Schwall pause.
"The Trial Court previously and unequivocally ruled there would be no dispossessory until the case was heard on the merits of the Task Force's equitable claims and defenses," the Task Force wrote in their appeal.
"However, within a week of the Task Force's initiation of a separate suit against Emory and engagement in a peaceful protest against those that caused it injury, the Court issued a dispossessory su sponte and summarily ruled against all the Task Force's equitable claims and defenses without notice or hearing, without discovery, without an opportunity for the Task Force to present evidence and without even a motion for summary judgment," the Task Force wrote.
"On Appeal the Task Force will demonstrate the Order was granted in error... without supporting evidence, against all evidence in the record, including the report from the Special Master appointed by the Court, based on findings that are unsupported in the record, and issued while there was a pending Motion to Recuse filed by one of the Defendants," the Task Force wrote.
"The Task Force seeks the emergency relief from this Court because... Plaintiff stands to lose millions of dollars of real property for which there is no adequate remedy at law, and the dispossessory will result in significant harm, if not loss of life, to the homeless people the Task Force serves," the Task Force wrote.
APN has previously reported in detail on the extensive evidence on the record, in the form of emails and other documents as well as deposition transcripts, which shows that the City of Atlanta engaged in a conspiracy with Central Atlanta Progress, Atlanta Downtown Improvement District, Fialkow, and others, to sabotage the Task Force.
The Task Force provided APN yesterday with dozens of new exhibits which make the case even more clear.
These documents include a deposition of Dan Cathy of Chic-fil-a, dated November 16, 2010, in which he details how he decided to stop funding the Task Force after being approached by City officials and members of CAP.
One email, dated November 17, 2006, shows Dave Wardell and AJ Robinson mapping out a strategy to find mechanisms to legally undermine the Task Force, listing in parentheses who in the City or CAP would do the work.
"Look at emergency shelter standards (Public Works and United Way/Homeless Commission staff), evaluate strengths and weaknesses of Homeless TF (Code Enforcement and Homeless Commission), Who is on Board of the Homeless Task Force? Want to go to the source of their resourcing and/or political support. Data to be collected: Volume of Complaints? Bed capacity there and other shelters (Homeless Commission staff). Law Department was going to look at the applicable or prevailing ordinances (Lem - Law Department)," Wardell wrote, referring to Lemuel Ward.
"What is required to declare it a public nuisance? I delivered a copy of the Homeless TF Master Plan for their expansion program City Planning requested. Looking at Grandfather Clauses and Fire and Safety Codes. Zoning as SPI (City Planning). Develop Public Affairs component?" Wardell wrote.
Several documents also detail the communications between Central Atlanta Progress and Mercy Housing, where they were pressuring Mercy Housing--which at the time had outstanding loans to the Task Force--to foreclose on the Task Force.
A November 12, 2008, email from Sister Jane Gerety of Mercy Housing, to Julie Gould of Mercy Housing, states, "I wanted to talk to you about the possibility of foreclosures on the Peachtree and Pine property in Atlanta. I've talked with Pete and others representing the city and believe that foreclosing is what we should do... If Mercy Housing can help accomplish this, I believe we will be in the debt of the city, the business community, and the foundations," Gerety wrote.
An email dated February 19, 2009, from Manny Fialkow to Michael Dinerman, said that AJ Robinson of CAP had pitched the deal of Fialkow's purchase of the Task Force's building earlier that day.
And a 2009 annual registration document from the Secretary of State's website shows that Fialkow is listed as the Registered Agent for Premium Funding Solutions, the company which acquired the Task Force's building from Ichthus.
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