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This is the Appellant Brief, which because the Clerk failed/refused to provide James with Notice of Docketing, and we found out the docketing date by accident, we only had like six days to write. Needed at least ten days, but had to make due. The Appeal from Superior Court, the one we had to wait 3.5 years for the Order was dismissed last week. Will be filing Notice of Intent to Cert. GA Supreme Court.
Citation preview
I. BRIEF BACKGROUND OF PROCEEDINGS
Appellant, Mr. Stegeman (hereinafter Appellant) 100% legally disabled adult
male, was served August 13, 2009 with Summons and Complaint for Foreclosure
on Personal Property under O.C.G.A. §44-14-230 (Doc. 1) in State Court, Civil
Action File No. 09A1175-3 (-3 assignment to State Court Judge Wayne Purdom).
On or around the first week of January, 2009 a man came to Appellant’s
property asking for Ms. Caffrey,(debtor of loan). Appellant told the man the
vehicle could be picked up anytime, as long as the ground was dry to avoid sinking
and getting stuck; the man was also informed that there were on-going proceedings
in which the vehicle was part of the subject. Appellant heard nothing further.
In response to Personal Property Foreclosure, Appellant filed the following:
Motion and Brief to Strike Affidavit of Thomas E. Austin, Jr.(Doc. 2)1; Motion for
Change of Venue (to Fulton County (Doc. 3)); Motion to Stay Foreclosure and All
Other Proceedings … (Doc. 4); Demand for Jury Trial (Doc. 5); Verified Answer,
Defenses and Counterclaim (Doc. 6); Motion and Brief for Appointment of
Counsel, Appellant just found out there is no Docket entry for Appointment of
1 Doc. 2, Doc. 3, etc. are numbered in correspondence with the Documents/No.s as
shown on the Docket Report from State Court.
1
Counsel he has a stamped Filed copy by Clerk “J White” (Doc. 7)).
A hearing had been set for Monday, August 31, 2009. Late Sunday August 30 th
a tire on Mr. Stegeman’s wheelchair went flat. Mr. Stegeman was taken to the
Courthouse by caregiver Ms. McDonald; on the way, he called the clerk to advise
about the wheelchair, he learned from Purdom’s Clerk about Magistrate Court.
Ms. McDonald went into the Court and explained to Magistrate Judge LeShaw
that Mr. Stegeman was present, but had no way to get into the Courthouse. The
hearing was postponed for ten (10) days, until September 10, 2009. Opposing
counsel went to the parking lot and requested that their client be allowed to visit
and view the vehicle during the ten days postponed, Appellant agreed, no one came
September 9, 2009 Appellant filed a Supplemental, adding an Exhibit to the
Answer/ Counterclaim (Doc. 8); Amended his Answer and Counterclaim (Doc. 9).
When Appellant was at the Courthouse filing the documents the day before the
hearing, he questioned the Clerk about the Demand for Jury Trial, and was told
“that’s up to the Judge, you’ll have one if the Judge let’s you”; when trying to find
out why the hearing was to be before Magistrate Court, Appellant was told by the
Clerk “well you filed a Motion for Change of Venue”.
September 30, 2009 Appellant filed Affidavit of Poverty (Doc. 10); Motion to
2
Proceed on Appeal in Forma Pauperis (Doc. 11) which was Granted October 6,
2009; and Notice of Appeal (Doc. 12) paid twenty-five dollars to the Appeals
Clerk. Appellant filed Amended Notice of Appeal October 9, 2009 (Doc. 13)
Appeal was Docketed in this Court October 16, 2009.
SPECIAL NOTE: Appellant has yet to receive Notice of Docketing; Appellant
twice performed an online Docket search after filing Doc. 13, the first time, he
searched under Appellant’s name (James Stegeman), the search had 0 results. The
second search was performed on or around October 27, 2009, after finding that the
State Court’s Docket Report reflected that “Notice of Docketing – Appeals;
Assigned Case No. A10A0420” was entered October 19, 2009. Appellant again
performed and got 0 results; he then searched under Appellee Heritage Bank’s
name; that was when Appellant found the Appeal had been docketed October 16,
2009. Appellant immediately emailed Clerk Mr. Martin about obtaining Notice of
Docketing.; Mr. Martin responded back and said he had mailed it to the proper
address, but that he would mail Appellant another one, which has never arrived.
Although Appellant received back his stamped Filed copy of Motion for
Extension to File Brief, which was mailed by the Court the day after Clerk Mr.
Martin responded that he would send another Notice. Appellant filed Motion for
3
Extension of Time to File Brief on October 28, 2009, explaining lack of Notice of
Docketing, resulting in loss of twelve (12) of the twenty (20) days allowed for
filing Appellant’s Brief; nevertheless, to Appellant’s knowledge, there has been no
Ruling on the Motion, so Appellant has timely filed his Brief.
A. The Hearing
A hearing was held September 10, 2009 in Magistrate Court in Courtroom
1200C, first floor of DeKalb County Courthouse. To Appellant’s knowledge, there
is no transcript, he had planned to have one form memory and records filed in the
Court, pursuant to O.C.G.A. §5-6-41(c), but did not have time to prepare it and
have it to the trial Court in time to get it filed due to lack of Notice of Docketing
Appellant planned to prepare a transcript from recollection, and records filed in the
Court. If Motion for Extension is Granted, he will have the trial Court Certify and
submit to this Court the transcript.
Under Oath, while testifying in front of Judge LeShaw, opposing counsel twice
committed perjury, a fact pointed out to the Judge. Opposing counsel stated that
Appellant “had adverse judgments against him in another court”, which is
outrageous, scandalous, slanderous perjury; and also told the Judge there were no
proceedings for money damages against Appellant; Appellant provided the Judge
4
with the Summons and Complaint served upon him with the Foreclosure Summons
During the hearing, Appellant asked the Judge about the Jury Demand and
Motions he filed, the Judge told him that “none of those matter”; then Granted
Appellee the Writ of Possession without considering Appellant’s Verified
Answers, Defenses and Counterclaims. The property foreclosed on still sits in
Appellant’s yard, no one has bothered to come check it out.
Opposing counsel said that someone would make arrangements to come check
out the vehicle and see if they wanted to take possession of it. Appellant requested
twenty-four (24) hours notice in case he had previously scheduled engagements2.
Opposing counsel called and made arrangements for Friday October 16, 2009
for the lady that was supposed to view the vehicle before the September 10 th
hearing. Appellant received no phone call and no visit from the lady.
Opposing counsel then called around mid-week the week of October 25 th 2009,
and Appellant told him that the lady who had hollered at, lied to him, and failed to
come to the property a week and a half before was not welcome to come to his
2 Appellant sees his Doctor every thirty days, and several times a year has ultra-
sound on his heart, as well as numerous other tests done several times a year; if he
misses one of those appointments, he is charged no less than $25.00 for each.
5
home, that it would be Ok for someone else to come; then decided that because of
the Appeal, it would probably be better to wait. The vehicle had been available to
look at, anytime since April 2003 when they were notified that Ms. Caffrey had
passed away, up through October 16, 2009, but they didn’t worry about it.
Appellant had been willing to give the vehicle to Appellee without going to Court
and without having a Writ of Possession, not once did Heritage Bank bother to
contact him, yet they still mail to Ms. Caffrey.
II. JURISDICTION AND ENUMERATION OF ERRORS
Jurisdictional Statement
In accordance with and pursuant to The Court of Appeals of Georgia VI. Rule
22 (b) the Jurisdictional Statement is as follows:
This Court, rather than The Supreme Court has jurisdiction because this Appeal
does not fall within the guidelines shown within The Constitution of the State of
Georgia, Article VI, Section VI, Para. I et seq., which provides exclusive
jurisdiction to The Supreme Court in election contests, the construction of treaties
or the Constitutions of the State of Georgia and/or the United States and does not
challenge the constitutionality of a law, ordinance or constitutional provision.
Further, this Appeal does not fall under general appellate jurisdiction of the
6
Supreme Court, which has general appellate jurisdiction over cases involving title
to land; equity; wills; habeas corpus; extraordinary remedies; divorce and alimony;
all cases certified to it by the Court of Appeals and all cases in which a sentence of
death was or could be imposed.
Enumeration of Errors
1. The trial Court erred in refusing to allow Appellant the Jury trial he
Demanded (Doc. 5), a non-amendable defect, the results of which are
violations of: due process of law, Appellant’s statutory, Civil and
Constitutional Rights, as well as Rights under ADA Title II causing injury
and harm to Appellant and his property.
2. The trial Court erred and caused injury/harm to Appellant and his property
by transferring the case from State Court to Magistrate Court; transferring to
a different Judge without following the Court’s procedure for transfers to a
different Judge, and also erred by failing to notify Appellant about the
transfer. Furthermore the counterclaim raised equitable issues, involving
amounts in excess of $15,000.00, for which Magistrate Court lacks
jurisdiction; and if a transfer were to have taken place, the transfer should
have been from State Court to Superior Court, not to Magistrate Court,
7
thereby violating Uniform State Court Rules, procedural due process, and
Appellant’s Rights.
3. Refusing to address and/or Rule on any and all of Appellant’s Motions and
Counterclaim is an error, shows bias/prejudice, and a blatant disregard for
Appellant’s Rights to due process of law and Rights to a fair and impartial
tribunal thereby injuring and harming Appellant and his property.
4. The trial Court erred, causing injury and harm to Appellant and his
property by failing to have Motion for Appointment of Counsel anywhere in
the record or on the Docket Report, thereby not having to consider the same,
violating procedural due process and is not judicial in nature.
5. The trial court erred by Granting a Writ of Possession without following
statutorily mandated procedures, thereby causing injury to Appellant and his
property and violated Appellant’s statutory, Civil, and Constitutional Rights,
as well as Rights under ADA Title II.
6. The trial Court erred by failing to sanction opposing Counsel when
during the hearing, after being shown, concrete evidence that opposing
counsel had perjured himself, thereby undermining the Judicial system, and
being an Officer of the Court perjured himself in an attempt to obtain a
8
Ruling in his favor, resulting in fraud upon the Court; the Court failed to
hold the attorney in contempt, and/or sanction the attorney/officer of the
Court in any manner what-so-ever, which shows bias/prejudice against
Appellant causing him and his property injury.
III. ARGUMENT AND CITATIONS OF AUTHORITIES
1. Demand for Jury Trial
Ignoring Appellant’s written Demand for a Jury Trial constitutes a
“nonamendable defect”, see Redding v. Commonwealth of America, 143 Ga. App.
215, 216 (1) (237 S.E.2d 689) (1977), disapproved on other grounds in Wise,
Simpson &c. Assoc. v. Rosser White &c., Inc., 146 Ga. App. 789, 795-796 (247
S.E.2d 479) (1978) (holding that the failure to conduct a jury trial was a
nonamendable defect where no waiver of jury trial appeared of record). See also
Coker v. Coker, 251 Ga. 542 (307 S.E.2d 921) (1983); Scott v. W. S. Badcock
Corp., 161 Ga. App. 826 (289 S.E.2d 769) (1982).
Appellant timely filed Verified Answers, Defenses and Counterclaims, in
compliance with and pursuant to O.C.G.A. § 44-14-232 (b): “within seven days
from the date of the actual service” as required. Along with Answers and
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Counterclaims, Appellant filed Demand for Jury Trial (Doc. 5)3. Before the
hearing date, Appellant questioned the Clerk about the Jury Demand, she told
Appellant “You will get a Jury trial if the Judge let’s you have one”. When
Appellant brought up his filings and Demand during the hearing, he was told by
the Judge: “that don’t matter”. Because of the Jury Demand, Magistrate Court
should have transferred it to State or Superior Court. See O.C.G.A. §15-10-14(a)
“There shall be no jury trials in the magistrate court.” One would come to the
conclusion that is the very reason that State Court gave it to Magistrate Court.
There are plenty of Personal Property Foreclosure cases that have had Jury
trials in State or Superior Court; see 02/13/79 Walker v. First National Bank Cobb
County, (1979) .GA. 293 <http://www.versuslaw.com>, 253 S.E.2d 442, 149 Ga.
App. 52: “After a jury trial, the bank obtained a verdict granting possession and
foreclosure in accordance with the provisions of the Personal Property Foreclosure
Act (Code Ann. § 67-701 et seq.)”; See also BCS Financial Corporation v. Sorbo,
3 Appellant has a Stamped Filed Copy, and would like to trust that the trail Court
included the document with the Records submitted to this Court, but Appellant has
lost all faith in the Judicial System, therefore has doubts whether or not the
Document was submitted to this Court.
10
et., al., A94A0488.(213 Ga. App. 259) (444 SE2d 85) (1994) “petition for
foreclosure of a 1988 Redman Lakeside mobile home” “The jury subsequently
returned a verdict in favor of Sorbo on his counterclaim for $10,000, and also
awarded Sorbo title to the mobile home”
February 13, 1979. The Constitution of Georgia as well as the Civil
Practice Act guarantee the right of a jury trial to civil litigants. See Raintree Farms
v. Stripping Center, 1983.GA.1020 <http://www.versuslaw.com>, 166 Ga. App.
305 S.E.2d 660, 848 (judgment reversed) in holding:
“Constitution 1976, Art. VI, Sec. XV, Par. I (Code Ann. § 2-4401)
(unchanged, insofar as relevant here, in the Constitution of Georgia of
1982, effective July 1, 1983); OCGA § 9-11-38 (formerly Code Ann.
§ 81A-138 (Ga. L. 1966, pp. 609, 652)). The right may be "expressly
waived" by "written stipulation filed with the court…" OCGA § 9-11-
39 (formerly Code Ann. § 81A-139 (Ga. L. 1966, pp. 609, 652))”
This Court has repeatedly held that denying a litigant the Constitutional and
statutory Right to a Jury trial is a nonamendable defect must be reversed.
2. Transfer State Court to Magistrate Court Which Lacks Jurisdiction
"When a question of law is at issue, . . . this Court applies the "plain legal
11
error" standard of review." (Citation and punctuation omitted.) Suarez v. Halbert,
246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).
There is no mistake, the Complaint for Foreclosure on Personal Property
pursuant to O.C.G.A. §44-14-230, clearly shows it was filed in State Court of
DeKalb County, and assigned to State Court Judge Wayne Purdom.
O.C.G.A. § 44-14-230 “(a) Any person holding a security interest on
personal property …governed by this part or by Title 11, the
"Uniform Commercial Code," and wishing to foreclose the security
interest shall be authorized to foreclose the security interest …which
execution shall command the sale of the secured property …, together
with the costs of the proceedings to foreclose the security interest in
accordance with the procedure specified in this part, together with an
order directing the defendant or the party in possession to turn over to
…the property sought to be foreclosed upon as provided for in
subsection (d) of Code Section 44-14-233.
O.C.G.A. §44-14-233(c) “The defendant may answer either in writing
or orally…The answer may contain any legal or equitable defense or
counterclaim…, a trial of the issues shall be had in accordance with
12
the procedure prescribed for civil actions in courts of record…, the
trial shall not be held before seven days have elapsed from the date
the defendant files his answer.”
The vehicle which is the subject of the foreclosure is worth more than $15,000;
Appellant’s defenses and counterclaims contained equitable and legal claims and
was for monies in excess of $15,000; Magistrate Court lacked jurisdiction to hear
the case. Furthermore, Appellant Demanded a Jury Trial, and was not provided
with a Notice of transfer from State Court to Magistrate Court. In fact, Appellant
has found nowhere that a case transfers from State to Magistrate Court. There are
several cases which are transferred from Magistrate Court to State or Superior
Court, but Appellant found none the other way around.
On the seventh day, after being served with Summons and Complaint for
Personal Property Foreclosure, Appellant filed Demand for Jury Trial (Doc. 5), and
several motions, one of which was Motion for Change of Venue (Doc. 3) to a
different, neutral County citing bias/prejudice against him in State Court.
The Clerk, when questioned why the case was being heard in Magistrate Court
told Appellant “well, you filed a Motion for Change of Venue”. Appellant has
been unable to find any citations where a Motion for Change of Venue involved a
13
case being transferred from State Court to Magistrate Court, thereby making
citations very difficult to obtain and the transfer impossible to properly argue.
Nevertheless, the Motion was never Ruled on and the record shows no reason,
or authorization for the transfer from State Court to Magistrate Court. In reality
the Uniform Magistrate Court Rules are silent on the matter, the only thing
remotely close in Magistrate Court Rules is “O.C.G.A. § 5-10-44 (b) The judge
shall conduct the trial in such manner as to do substantial justice between the
parties according to the rules of substantive law. All rules and regulations relating
to pleading, practice, and procedure shall be liberally construed so as to administer
justice”.
Appellant found several cases that were transferred from Magistrate Court to
State or Superior Court, usually due to the counterclaim, and several of these cases
had to do with writs of possession; but there just are none where the State Court
transferred to Magistrate Court a case where 1) a Jury Trial had been Demanded;
2) there was a counterclaim with issues that only a Jury could decide; 3) there
were issues involving equitable claims; and 4) where the monetary value of the
personal property to be foreclosed was in excess of $15,000.00. It would be hard to
believe that this has not happened before and this is a question of first impression.
14
Appellant has thoroughly researched the situation, and given the short period of
time, due to the Clerk’s having failed to provide Appellant with Notice of
Docketing; together with the fact that the Appeal search engine has association
with Appellee’s, rather than Appellant’s name. Appellant ended up with only
seven (7) out of the twenty (20) days to prepare and file his Brief.
Even after this Court’s Clerk assured Appellant that another Notice would be
mailed, Appellant has still yet to receive the Notice; Appellant has received back
his stamped Filed copy of the Motion for Extension to file his Brief, but not the
Notice of Docketing.
3. Refusal to Address and/or Rule on Motions and Counterclaim
This appeal presents a question of law concerning whether or not the trial court
can refuse to address and rule on a party’s Answers, Defenses, Counterclaims, and
Motions; as such, this Court owes no deference to the trial court's ruling and should
apply the "plain legal error" standard of review. Suarez v. Halbert, 246 Ga. App.
822, 824 (1) (543 SE2d 733) (2000). Moreover, "[w]here it is apparent that a trial
court's judgment rests on an erroneous legal theory, an appellate court cannot
affirm. [Cit.]" Gwinnett County v. Davis, 268 Ga. 653, 655 (492 SE2d 523)
(1997).
15
Appellant filed several Motions at the same time he filed a Verified Answers,
Defenses, Counterclaims and Demand for Jury Trial. Nothing Appellant filed was
addressed or Ruled on, Jury Demand was ignored, none of the Motions, Answers,
Defenses, Counterclaims were addressed or Ruled on. Appellant has found
nothing in caselaw where the trial court quite literally ignored everything filed by
one of the parties. Appellant was treated with disparate treatment by both State
Court and Magistrate Court; he was treated differently than others similarly
situated, he was not afforded the same protections and Rights as others; due
process of law has been grossly violated, making the Ruling Void.
Both the Georgia and United States Constitutions guarantees due process, that
the procedure will be fair, before a citizen will be deprived of “life”, “liberty” or
“property”, and guarantees that a citizen will not be deprived of “life”, “liberty” or
“property” without due process of law (reasonable notice and opportunity to be
heard). Magistrate Court violated procedural and substantial due process, as well
having denied Mr. Stegeman a disabled adult male, “equality”, and “meaningful
access to the courts”. In RE: Law Suits of Anthony J. Carter (two cases) 235 Ga.
App. 551, 510 S.E.2d 91, (1998), it was held:
at [31]: "Both the Georgia and United States Constitutions prohibit
16
the state from depriving `any person of life, liberty, or property,
without due process of law.' United States Const., amend. XIV, sec. 1;
see also Ga. Const., [Art. I, Sec. I, Par. I]. The fundamental idea of
due process is notice and an opportunity to be heard." *fn14 As stated
in Citizens &c. Bank v. Maddox, *fn14 "[t]he benefit of notice and a
hearing before judgment is not a matter of grace, but is one of right."
"A party's cause of action is a property interest that cannot be denied
without due process. (Cit.)" *fn14”
Further, O.C.G.A. §15-6-21(d) “If any judge repeatedly or persistently fails
or refuses to decide the various motions, demurrers, and injunctions coming before
him …such conduct shall be grounds for impeachment and the penalty therefor
shall be his removal from office.” See also: Andrus v. Andrus, 659 S.E.2d 793,
290 Ga.App. 394 (Ga.App. 03/20/2008) held: “[13] We are guided by our opinion
in Carnes Brothers v. Cox, 243 Ga. App. 863 (534 SE2d 547) (2000) … In Carnes
Brothers, we found that a trial court's failure to comply with the requirement of
OCGA § 15-6-21 (c), that it provide counsel with notice of its orders, provides
justification for the trial court to later set aside such an order under OCGA § 9-11-
60 (g)*fn3 . Id. at 864… it failed to comply with OCGA § 15-6-21 (c). As a result,
17
we affirm that portion of its order setting aside and vacating its November 24, 2003
dismissal order.”
Mr. Stegeman, a disabled adult/member of a protected class, depends
heavily upon the Courts and it’s Judges to honor their Oath of Office; abide by,
uphold, and honor The State of Georgia Constitution and The Constitution of the
United States; to protect his Civil and Constitutional Rights; to ensure that he is
treated fairly; and to guarantee that his case will go before a fair and impartial
tribunal.
“Every person in Georgia has a constitutional right of unfettered
access to the courts” Ga. Constitution 1983, Art. I, Sec. I, Par. I, (“No
person shall be deprived of life, liberty, or property except by due
process of law.); Par. XII (“No person shall be deprived of the right to
prosecute or defend, either in person or by an attorney, that person’s
own cause in any of the courts of this state.”)” Rice v. Lightmas, 259
Ga. App. 380, 577 S.E.2d (Ga.App. 2003)
See also:
In RE: Law Suits of Anthony J. Carter (two cases). 235 Ga. App.
551, 510 S.E.2d 91, 1998. GA.0042498 “As stated in paragraph 12 of
18
the Georgia Bill of Rights, a person has a right to represent himself or
herself in court. "This provision was `primarily intended to guarantee
the right of self-representation in the courts of this State . . .' [Cit]…
Secondly, the very first provision of the Bill of Rights in "`[t]he
constitution of this state guarantees to all persons due process of law
and unfettered access to the courts of this state. (Cit.)’” These
fundamental constitutional rights require that every party to a lawsuit .
. . be afforded the opportunity to be heard and to present his claim or
defense, i.e., to have his day in court. (Cits.)'" “So it is that meaningful
access to the courts must be scrupulously guarded, as it is a
constitutional right universally respected where the rule of law
governs. "Those regulations and restrictions which bar adequate,
effective and meaningful access to the courts are unconstitutional.
(Cits.)"”
4. Refusing to File and/or Consider Motion for Appointment of Counsel
Appellant is 100% (percent) disabled within the guidelines of The Social
Security Act, and Americans With Disabilities Act. As a disabled adult receiving
Supplemental Security Income, Appellant is qualified, eligible for, and has a right
19
of legal assistance through Georgia’s Legal Assistance programs which do receive
Federal funding. Appellant has repeatedly attempted to get assistance through
Georgia’s Legal Services programs and has been wrongly denied.
This appeal presents a question of law concerning whether or not the trial court
can refuse to have filed and showing on the Docket, and fail to address a party’s
Motion for Appointment of counsel; and whether or not the Magistrate Court can
refuse to address and rule on the Motions and Counterclaim; as such, this Court
owes no deference to the trial court's ruling and should apply the "plain legal error"
standard of review. Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733)
(2000).
Traynor v. Turnage, 108 S. Ct. 1372, 485 U.S. 535 (U.S. 04/20/1988)
[ 485 U.S. Page 555] "No otherwise qualified individual with
handicaps . . . shall, …be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance or under any
program or activity conducted by any Executive agency. . . ."
Without representation by legal counsel, it is next to impossible for a pro se
litigant to be taken seriously, and the chances that they will prevail even with a
20
meritorious claim are heavily diminished. In Dreyer v. Jalet, 349 F.Supp. 452, 486
(S.D.Tex.1972), affirmance order, 479 F.2d 1044 (CA5 1973) it was held: "[I]f a
civil action brought by an indigent acting pro se, including prison inmates, has
merit … then counsel should be appointed to properly present the claim." In
Bounds v. Smith, et., al., 97 S. Ct. 1491, 430 U.S. 817 (U.S. 04/27/1977), 52 L. Ed.
2d 72, (1977) [ 430 U.S. Page 826] it was stated: “If a lawyer must perform such
preliminary research, it is no less vital for a pro se … despite the ‘less stringent
standards’ by which a pro se pleading is judged”, Haines v. Kerner, 404 U.S. 519,
520 (1972). Although there is a continued assurance that pro se litigants will be
treated fairly, the promise has yet to be forthcoming.
The Georgia Supreme Court’s Equal Justice Committee On Civil Justice’s
“Minutes” of the December 4, 2006 Meeting addressed the need for counsel in
civil cases: “…in August 2006, the ABA endorsed the right to counsel in certain
civil cases, also known as the civil Gideon…The kinds of cases of which the ABA
endorses a civil right to counsel…”
“The ABA’s principles endorse the inclusions of all persons in a state’s system
for the delivery of civil legal aid, including …the disabled…vulnerable
populations…” “Fourth,…promote …the judiciary and court personnel in
21
reforming rules, procedures and services to expand and facilitate access to
justice…to support pro se litigants.” “Clients that most touch the public’s
sympathy are children,…and the disabled.” “Ms. Fairbanks…defined an equal
justice community as ‘a group of individuals and organizations united through
common, expressed vision and a shared set of values, who are bound together by a
sense of fidelity to the promise of justice and equality, and who are willing to put
personal, professional and organizational allegiances aside in pursuit of a common
justice ideal.’” “An equal justice community requires…‘You have to walk the
walk, not just talk the talk.’”.
Further, over the years, the United States Supreme Court found the following
on property interests as shown in Logan v. Zimmerman Brush Co. et., al, 102 S.
Ct. 1148, 455 U.S. 422 (U.S. 1982):
“the types of interests protected as ‘property’ are varied and, as often
as not, intangible, relating ‘to the whole domain of social and
economic fact.’ National Mutual Insurance Co. v. Tidewater Transfer
Co., 337 U.S. 582, 646 (1949) (Frankfurter, J., dissenting); Arnett v.
Kennedy, 416 U.S. 134, 207-208; and n. 2”
at [55]: *fn4 “Two years ago, in Martinez v. California, 444 U.S.
22
277, 281-282 (1980), the Court noted that ‘[arguably],’ a state tort
claim is a ‘species of 'property' protected by the Due Process Clause."
Logan v. Zimmerman Brush Co. et., al, 102 S. Ct. 1148, 455 U.S. 422
(U.S. 1982) .
“a child’s entitlement to a public school education Goss v. Lopez
1975, and continued gas and electric service conditioned upon
payment of proper charges” Memphis Light v. Craft, et., al, 98 S.Ct.
1554, 436 U.S. 1 (U.S. 1978) .
It has been long realized by many Pro Se litigants that they are looked upon
with bias/prejudice by not only attorneys, but Judges as well. Many times, Pro Se
litigants have been subjected to harsher, stricter standards than attorneys; they
receive Rulings with no findings of fact, or caselaw; the Court’s Opinions are
“Unpublished”, marked “Do Not Publish”, or contain one sentence rulings,
“Motion is Denied”, and their Rights to Appeal are hindered and tampered with.
Stephen Elias who had been with Nolo Press, the nation’s leading publisher of self-
help law books, back in 1997, in an article Bias Against Pro Per Litigants… stated:
“From the moment they first contact the court system, most people
who want to represent themselves, without a lawyer, encounter
23
tremendous resistance. Within the closed universe of the courts, this
bias is as pernicious as that based on race, ethnic origins or sex.”
“People who cannot afford a lawyer are a rebuke to the organized
bar’s monopoly…, because that monopoly is morally—if not legally
—justified…the ABA has admitted that 100 million Americans can’t
afford lawyers.”
5. Statutorily Mandated Procedure
This appeal presents a question of law concerning court jurisdiction of
O.C.G.A. § 44-14-231, as such, the Court of Appeals owes no deference to the trial
court's ruling and should apply the "plain legal error" standard of review. Suarez v.
Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000). Moreover, "[w]here it
is apparent that a trial court's judgment rests on an erroneous legal theory, an
appellate court cannot affirm. [Cit.]" Gwinnett County v. Davis, 268 Ga. 653, 655
(492 SE2d 523) (1997).
Appellees filed a Complaint for Personal Property Foreclosure in State Court of
DeKalb County citing O.C.G.A. §44-14-230. Appellant, pursuant to the Rules that
accompany O.C.G.A. §44-14-230, filed a Verified Answers, Defenses, and
Counterclaims with Exhibits of evidence in support of Appellant’s claims; along
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with several Motions and Demand for Jury trial. Appellant utilized all of the
defenses available under statute, so as not to waive any of the defenses. The court
ignored all of Appellant’s “defenses, and claims which if proven would amount to
setoffs (see OCGA 44-14-234), determined that plaintiff was entitled to a writ of
possession.” (Smith v. General Motors Acceptance Corp. 72201. (178 Ga. App.
848) (344 SE2d 768) (1986)):
“Defendant having answered and pleaded his defense, the action
should have proceeded under the provisions of the Civil Practice Act
("CPA"). OCGA §44-14-233. However characterized, the court's
order granting plaintiff a writ of possession was not proper under the
CPA. Also, we reject plaintiff's suggestion that the hearing under
OCGA §44-14-232 is substantially similar to a summary judgment
hearing. See generally Jordan v. Farmers &c. Bank, 138 Ga. App. 43
(225 SE2d 498); Cavender v. First Nat. Bank, 173 Ga. App. 660 (327
SE2d 789). Under the particular facts and circumstances of the case
sub judice the superior court erred in granting the writ of possession to
plaintiff.”
Further, the Magistrate Court’s refusal to address, rule on, or consider
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Appellant’s filings is gross error and results in disparate treatment of Appellant; he
was treated differently than others similarly situated, and denied what others in
similar situations have been afforded, resulting in discrimination and injury to
Appellant and his property. See BCS Financial Corporation v. Sorbo, et., al.,
A94A0488. (213 Ga. App. 259) (444 SE2d 85) (1994) in addressing defenses in
Personal Property Foreclosure:
“under OCGA 44-14-233, in answering a petition in a forfeiture
action, a defendant may assert any legal or equitable defenses or a
counterclaim, and by implication, such defenses will be considered in
the determination of whether a foreclosure petition should be
granted.”
"The proceeding is statutory, and must be strictly construed and observed."
Young v. Cowles, 128 Ga. App. 770 (197 S.E.2d 864) (1973). Without Notice,
and Opportunity to Respond, the case suddenly went before the Magistrate Judge
for hearing. Clearly, an action filed pursuant to O.C.G.A. §44-14-230 in State
Court, and after a defendant files Verified Answers, Defenses, and Counterclaims
pursuant to the statute, cannot be suddenly sent to Magistrate Court where the Civil
Practice Act does not even apply!
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6. Officer of the Court/Fraud Upon the Court
At the Magistrate Hearing, opposing counsel, in an act of bad faith, and with
intent to prejudice and harm Appellant, made two statements that, as an Officer of
the Court, and while under Oath, not only resulted in perjury, but because it was
used as an attempt to obtain a Ruling in his favor, constitutes Fraud Upon the
Court.
“fraud on the court. A lawyer’s or party’s misconduct in a judicial
proceeding so serious that it undermines or is intended to undermine
the integrity of the proceeding.” Black’s Law Dictionary, 7th Ed, pg.
671
“A trial court also is authorized “[t]o preserve and enforce order…to prevent…
hindrance to its proceedings.” Robinson v. Becker, Ga. App. (SE2d) (Case No.
A03A2524, 2004). “It is the responsibility of the trial court to ensure that the
system is not manipulated by any party…” Carson v. State, Ga. App. (SE2d)
(Case No. A031403, 2003);
This enumeration of error shows that the Magistrate Court showed obvious bias
and prejudice against Appellant, with actual knowledge of perjury by Appellee’s
counsel, and as such, this Court owes no deference to the trial court's ruling and
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should apply the "plain legal error" standard of review. Suarez v. Halbert, 246 Ga.
App. 822, 824 (1) (543 SE2d 733) (2000).
See The Supreme Court of Georgia’s holdings in Green v Green, No.
93A0780 (1993) GA.2404 <http://www.versuslaw.com>, 437 S.E.2d 457, 263 Ga.
551, citing Evanoff v. Evanoff, 262 Ga. 303, 304-305 (418 S.E.2d 62) (1992)
(Benham, J., Concurring). “In the present case, appellee's counsel has taken a
position equivalent to that of appellee's counsel in Evanoff, … the notions of
fundamental fairness that lie at the heart of the principle of due process of law,
requires that attorneys, as officers of the court, make a good faith effort to ensure
that all parties … have a full and fair opportunity to be heard. *fn4 Given all the
circumstances …especially the lengths to which appellee's counsel went to ensure
that this case was tried in the absence of appellant, …Spyropoulos, supra, required
that the judgment be set aside.”
See: Wills et al. v. McAuley 65128., 166 Ga. App. 4 (303 SE2d 26) (1983):
“[14] “The trial court found … Wills' false swearing was deliberate, without
excuse,… ordered the striking of the answer …, entry of judgment by default, …
for costs of this action plus any and all damages which may be assessed …”
Petition for Cert to The Supreme Court of Georgia, was denied, but see Justice
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Smith and Justice Hill’s dissent on denial of Petition: In Justice Smith’s Dissent,
“[13] I would grant the petition for certiorari. Although I agree … I would grant
and write to emphasize … criminal prosecution for perjury ….” McAuley v. Wills,
et al. 1983 Ga.. 873 (305 S.E.2d 120) 251 Ga. 41 (1983)
Denying disabled, pro se litigants meaningful access to the Courts falls within
violations of Constitutionally guaranteed Rights see Tennessee v. Lane 541 U.S.
513 (2004); U.S. v. Georgia, “…interference with access to the judicial process,
and procedural due process violations…”
Tennessee v. Lane, 541 U.S. 513 (2004) Justice Stevens delivered the opinion
of the Court. “Title II of the Americans with Disabilities Act of 1990 (ADA or
Act), 104 Stat. 337, 42 U. S. C. §§12131–12165, provides that “no qualified
individual with a disability shall, ……denied the benefits of the services, programs
or activities…, or be subjected to discrimination by any such entity.”’
“The Due Process Clause also requires the States to afford certain civil litigants
a “meaningful opportunity to be heard” …’ Boddie v. Connecticut, 401 U. S. 371,
379 (1971); M. L. B. v. S. L. J., 519 U. S. 102 (1996). Pg.20: “The unequal
treatment of disabled persons in the administration of judicial services has a long
history, and has persisted despite several legislative efforts to remedy the problem
29
of disability discrimination.”
See also: U.S. v. Georgia 04-1203 (2006), Goodman v. Georgia 04-1236 (2006)
Justice Stevens with Justice Ginsberg concurring: “…interference with access to
the judicial process, and procedural due process violations…”
CONCLUSION
Appellant has shown that without authorization and/or notification, a case
brought in State Court was transferred to Magistrate Court, which guaranteed that
Appellant’s Verified Answers, Defenses, Counterclaims, Motions, and his Demand
for Jury Trial would not be considered or Ruled on, and for which Magistrate
Court lacks jurisdiction. Appellant MOVES this Court to reverse and remand with
instructions to the state court to transfer the case to Fulton County State or
Superior Court where Appellant will have a fair and impartial tribunal to preside,
and a Jury trial on the issues.
Respectfully Submitted, this 3rd day of November, 2009,
By: _____________________________ JAMES B. STEGEMAN, Pro Se
821 Sheppard Rd. Stone Mountain, GA 30083
(404) 300-9782
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IN THE COURT OF APPEALS OF GEORGIA
No. A10A0420_____________________________________________________
JAMES B. STEGEMAN Appellant,
Versus
HERITAGE BANK Appellee
CERTIFICATE OF SERVICE
I Certify that I have this 3rd day of November, 2009 served upon Appellees,
a true and correct copy of the foregoing Appellant’s Brief through their attorneys
on record by causing to be deposited with the U.S.P.S., Certified Mail: 7007 0710
0002 1509 6616, proper postage affixed thereto, addressed as follows:
Thomas E. Austin, Jr.3490 Piedmont Road, N.E.Suite 1005Atlanta, GA 30305
_______________________________JAMES B. STEGEMAN, Pro Se
821 Sheppard Rd.Stone Mountain, GA 30083
(404) 300-9782
31
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