FORECLOSURE - Recusal Refusal Organized Judicial Crime

8/9/2019 FORECLOSURE - Recusal Refusal Organized Judicial Crime

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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR COLLIER COUNTY, FLORIDA

BANKUNITED,

as [purported]successor in interestto [SEIZED] BANKUNITED, FSB.,

Plaintiff,

vs. CASE NO.: 09-6016-CA

JENNIFER FRANKLIN-PRESCOTT, et al.

NOTICE OF APPEAL, DISPOSITION, AND

BANKRUPT BANKUNITEDS SEIZURE

___________________________________________________________________________/

NOTICE OF APPEAL AND DISPOSITION IN FAVOR OF J. FRANKLIN PRESCOTT

BANKRUPT BANK SEIZURE INFORMATION AND 673.3011, FLA. STAT.,

EVIDENCE OF NO entitlement to enforce non-existent instrument

DISPOSITION NOTICE IN FAVOR OF JENNIFER FRANKLIN PRESCOTT

PURSUANT TO UNIFORM COMMERICAL CODE, AND U.C.C., ART. 3,

AND FLORIDA LAW

NOTICE OF APPEAL FROM ALTERATION OF RECORD

1. Jennifer Franklin Prescott, who was neverserved, hereby appeals from

a. The unlawful alteration of the official documents, records, and Case Docket;

b. Thelackof any record of the purported disposition in Jennifer Franklin Prescotts

favor in the Case File;

c. The lackof any record of the dismissalin Jennifer Franklin Prescotts favor;


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d. The absence of the FINAL DISPOSITION FORM, 25.075, Florida Statutes, and

Fla.R.Civ.P. 1.998, from the Case File;

e. The lackof any record, reason, and/or explanation of the publicly recorded removal of

the August 2010 complaint in the Case File;

f. The absence of any record, reason, and explanation of the publicly recorded removal of

the August 2010 summons from the Case File;

g. The lackof any transparency, accountability, due process, and equal protection of law;

h. The record lackof any mortgage ornote in this facially fraudulent and frivolousaction;

i. The lackof any record of the removal of ALFRED CAMNER, Esq., and the CAMNER

LIPSITZ law firm and its Attorneys from the mock proceedings;

j. Therecord lackof the means of final disposition before any hearing.

RECORD ABSENCE OF FINAL DISPOSITION FORM, 25.075, FLA. STAT.

2. Jennifer Franklin Prescott could notfindthe Final Disposition Form, Fla.R.Civ.P. 1.998, in

the Case File on Tuesday, August 17, 2010. See 25.075, Florida Statutes.

ABSENCE OF DISMISSAL IN JENNIFER FRANKLIN PRESCOTTS FAVOR

3. On Tuesday, August 17, 2010, Jennifer Franklin Prescott could notfind the Dismissal in

Jennifer Franklin Prescotts favor in the Case File.

DEFENDANT JUDGE HUGH D. HAYES SUBSTITUTED COUNSEL ON 08/18/2010

4. On August 18, 2010, Defendant Judge Hayes substituted Counsel, and BILL McCOLLUM,

ATTORNEY GENERAL, and Shelley B. Cridlin, Fla. Bar No. 0022451, made an

appearance as counsel for Defendant Judge Hugh D. Hayes, in place of any and all prior

counsel in Federal Case 2:2009-cv-00791.

FALSIFICATIONS AND/OR ALTERATIONS APPARENT


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5. Jennifer Franklin Prescott reported Case File demand and/or review in the Clerk of Courts

Office on August 12, 13, and 16, and 17, 2010. While the electronic Docket showed

a. disposition;

b. complaint; and

c. summons,

none could be ascertainedand/orverifiedin the Naples Courthouse.

DEMANDS FOR CLARIFICATION AND EVIDENCE

6. On Monday, August 16, AM, and Tuesday, August 17, 2010, PM, at the Naples Courthouse,

Jennifer Franklin Prescott demanded to see the Case File evidence of:

a. disposition;

b. complaint; and

c. summons in this fraudulent action.

DEFENDANT JUDGES ASSISTANT ASSERTED MISTAKE/ERROR

7. Defendant Hayes Judicial Assistant, Jan, stated to Jennifer Franklin Prescott that

a. NO August2010 complaint, and

b. NO August2010 summons

appeared in the Case File.

NO negotiable instrumentUNDER GOVERNING CODE

8. The Uniform Commercial Code (UCC), Article 3, governs Negotiable Instruments.

Pursuant to 3-104. NEGOTIABLE INSTRUMENT, no negotiable instrument existed,

and no promise or order to pay a fixed amount of money and interest existed in this

fraudulent action. Bankrupt and seized Bankunited was unable to prove any right to

enforce the admittedly non-existent purported instrument. Here, the Court may not enter


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12. Seized and bankrupt Bankunited violated Ch. 49, Fla. Stat., for illegal purposes of

defrauding Jennifer Franklin Prescott and perpetrating fraud on this Court. In this

fraudulent Case,service by publication was not allowed:

49.011 Service of process by publication; cases in which allowed.

49.021 Service of process by publication, upon whom.

49.031 Sworn statement as condition precedent.49.041 Sworn statement, natural person as defendant.

49.051 Sworn statement, corporation as defendant.

49.061 Sworn statement, parties doing business under a corporate name as defendants.49.071 Sworn statement, unknown parties as defendants.

49.08Notice of action, form.

49.09Notice of action, return day.49.10Notice of action, publication, proof.

49.11Notice of action, posting, proof.49.12 Mailing of notice of action.

RECORD PERJURY

13. The record and Case File showed perjury by, e.g., Nicholas Krancher. See Exhibits on file.

PURPORTED SUMMONS

14. Purportedly, a summons was issued, ELSA JARERO, who is not any known party to this

fraudulent action. Thesummonsdisappeared from the record without any explanation.

PURPORTED COMPLAINT

15. A complaint appeared on the Docket.

Pursuant to Rule 1.190, Fla.R.Civ.P., the Court had nevergranted any leave. Thesummons

disappeared from the record without any explanation.

PURPORTEDplaintiff HAD NO righttoenforce FICTITIOUS note

16. Seized and bankrupt BankUnited was not entitled to enforce a fictitiousnote. Here,

BankUnited was not any holderof any note ormortgage at the time it filed suit or any time


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thereafter. It is elementary that to be a holder, one must be in possession of the instrument.

See s. 673.3011, F.S. Here, BankUnited was not any proper party to file suit toforeclose a

fictitiousun-delivered lost and/ordestroyedinstrument.

IMPOSSIBILITY OF ANY delivery

17. Under Florida law delivery is necessary to validate a negotiable instrument. A lost and/or

destroyednote or mortgage could not have possibly been delivered.

IMPOSSIBILITY OF ANY reestablishment

18. Here, the lost and/ordestroyednote or mortgage could not have possibly been reestablished

pursuant to Ch. 71, Fla. Stat.

EMERGENCY AND THREAT OF FURTHER INJURY

19. Known foreclosure fraud is an EMERGENCY. Further injury must be prevented.

NO note NO default

20. The purported plaintiffdid not own or holdany note. No obligation existed. No default

could havepossibly occurred. See also Uniform Commercial Code; Negotiable Instruments.

UNKNOWN LOSS OR DESTRUCTION

21. The bankrupt and seized plaintiff bank asserted that any promissory note and mortgage

have been lostordestroyedand are not in the custody or controlof Bankunited, and the time

and manner of the loss or destruction is unknown. In this Case, Bankunited could not have

possibly reestablishedany lost ordestroyednote or mortgage.

CAMNER KNEW THAT reestablishmentWAS IMPOSSIBLE, CH. 71, FLA. STAT.

22. In particular, Founder and Attorney Alfred Camner and his law firm knew that Bankunited

could not havepossibly reestablishedany lost ordestroyednote or mortgage.

SEIZURE OF BANKRUPT BANKUNITED


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23. On Thursday, May 21, 2009, BankUnited, FSB, Coral Gables, FL was seized by the Office

of Thrift Supervision (OTS), and the Federal Deposit Insurance Corporation (FDIC)

was named Receiver. Said seizure stripped away the main asset that belonged to the holding

company, BankUnited Financial Corp. Counsel Alfred Camner was the largest shareholder.

24. The June 22 Report by the U.S. Department of the Treasurys Office of Inspector

General (OIG) was critical of the banks management and Attorney and Founder Alfred

Camner. See Counsel, Camner Lipsitz law firm.

FAILURE & SEIZURE OF THE PURPORTEDplaintiff

25. BankUnited, FSBs failure in May 2009 cost the Federal Deposit Insurance Corps insurance

fund about $5.7 billion the second most costly failure in FDIC history.

NO instrument, and NO lien

26. Here, there was neither any instrumentnor any lien. Noproperty was described.

NO interest, and NOsuccessor in interest

27. Here, Bankunited, FSB, had no interest. Here, Bankunited was not and could not have

possibly been anysuccessor in interest. Nosum was due to theplaintiffbankruptbank.

NO rights and NOstanding

28. Here, Bankunited, just like Bankunited, FSB, had no rights and nostanding.

NO conditions precedent FACIALLY FRIVOLOUS action

29. Here, the conditions precedentto the institution of anyforeclosure action did not occur and

could not havepossibly occurred. Here on its face, the sham action was frivolous.

THE COURT KNEW THAT reestablishmentWAS IMPOSSIBLE

30. Here as a matter of law, reestablishment was impossible. Here, the falsified promissory

note and mortgage have been lost or destroyed and are not in the custody or control of


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Bankunited, and the time and mannerof the loss or destruction is unknown. See Ch. 71,

Fla. Stat.

31. Here, Jennifer Franklins record title to herhomesteadproperty was free and clear.

PROTECTED HOMESTEAD PROPERTY

32. Franklin Prescotts property is protected homestead property.

33. As a matter of law, any accountingunder a prima facie non-existentnote and mortgage was

impossible. The prima facienon-meritoriousdemand for an accountingwas fraudulent.

34. Jennifer Franklin Prescott is not any married woman.

35. Jennifer Franklin Prescott is not any defendantand was notserved.

36. Hugh D. Hayes is a named party Defendant in several actions. See, e.g., Summons/service,

U.S.A. Ex Rel, et al. v. U.S.A., et al. in U.S. District Court.

RECUSAL LAW

37. In light of the publicly recorded alterations of the official records and documents, Jennifer

Franklin Prescott has been forced to live in fear of public corruption and the lack of any

opportunity offair,just, and transparentdue process and proceedings.

38. Here, Defendant Judge Hayes knew that

a. Bankrupt Bankunited did not hold any instrument;

b. Seized and bankrupt Bankunited had no right to enforce andprosecute;

c. Floridas real party in interest Rule, Fla. R. Civ. P. 1.210(a), only permitted an action to

be prosecuted if there had been an actual interest.

RULE 1.432 DISQUALIFICATION OF JUDGE

(a) Grounds. Any party may move to disqualify the judge assigned to the action on

the grounds provided by statute.

(b) Contents. A motion to disqualify shall allege the facts relied on to show thegrounds fordisqualification and shall be verified by the party.


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(c) Time. A motion to disqualify shall be made within a reasonable time after

discovery of the facts constituting grounds for disqualification.(d) Determination. The judge against whom the motion is directed shall determine

only the legal sufficiency of the motion. The judge shall not pass on the truth of the

facts alleged. If the motion is legally sufficient, the judge shall enter an order of

disqualification and proceed no further in the action.(e) Judge's Initiative. Nothing in this rule limits a judge's authority to enter an order of

disqualification on the judge's own initiative.

Said rule was intended to unify the procedure for judicial disqualification.

RULE 2.330. DISQUALIFICATION OF TRIAL JUDGES

39. Said Rule stated:

(a) Application. This rule applies only to county and circuit judges in all matters in

all divisions of court.

(b) Parties. Any party, including the state, may move to disqualify the trial judgeassigned to the case on grounds provided by rule, by statute, or by the Code of

Judicial Conduct.

(c) Motion. A motion to disqualify shall:

(1) be in writing;

(2) allege specifically the facts and reasons upon which the movant relies as thegrounds for disqualification;

(3) be sworn to by the party by signing the motion under oath or by a separateaffidavit;

SECTION 38.10, FLA. STAT.

40. Section 38.10 gives parties the right to move to disqualify a judge when the party fears that

he or she will not receive a fair trial . . . on account of the prejudice of the judge of that

court against the applicant or in favor of the adverse party. Fla. Stat. 38.10. Rule of

Judicial Administration 2.330 specifies that a motion to disqualify must show that the party

fears that he or she will not receive a fair trial or hearing because of specifically described

prejudice orbias of the judge. Fla. R. Jud. Admin. 2.330.

41. S. 38.10, Fla. Stat., stated:


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grounded fear that she will not receive a fair trial at the hands of the judge. Id. (quoting

State ex rel. Brown v. Dewell, 179 So. 695, 697-98 (Fla. 1938)); see also Berry v. Berry, 765

So. 2d 855, 857 (Fla. 5th

DCA 2000) (quoting Canon 3E(1) when describing the standard for

granting a motion under 38.10). Here of course, this Court was bound to follow Florida

appellate court decisions interpreting that states law. The final arbiter of state law is the

state Supreme Court, which is another way of saying that Florida law is what the Florida

Supreme Court says it is.

CANON(S) 3E(1), 3E(1)(f), FLORIDA CODE OF JUDICIAL CONDUCT

45. The Florida Supreme Court has adopted a Code of Judicial Conduct to govern the actions

of state court judges and candidates for judicial office. Canon 3E(1) states, e.g.:

(1) A judge shalldisqualify himself or herself in a proceeding in which the judges

impartiality might reasonably be questioned, including but not limited to instanceswhere

46. Those provisions address situations in which a judge must disqualify himself because his

impartiality might reasonably be questioned, including when he has made a public

statement that commits, or appears to commit, the judge with respect to a particular party,

issue, or controversy. Canon 3E(1) [general disqualification provision in Canon 3E(1)],

3E(1)(f) [commits clause at Canon 3E(1)(f)].

47. Canon 3E(1), backed by the threat of a disciplinary proceeding, requires a judge to

disqualify himself if his impartiality might reasonably be questioned. Fla. Stat. 38.10,

supplemented by Rule 2.330, allows a party to have a judge disqualified for the same reason.

48. Canon 3E(1)(f), which the Florida Supreme Court adopted in January 2006, covers one area

in which a judges impartiality might reasonably be questioned. See In re Amendment to

Code of Judicial Conduct, 918 So. 2d 949 (Fla. 2006). In addition to the Florida Supreme

Court, the Judicial Ethics Advisory Committee (Ethics Committee) and the Judicial


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7. An Orderdeclaring the admittedlackof any recordof any note ormortgage;

8. An Orderdeclaring any reestablishmentof any note or mortgageimpossible;

9. An Orderdeclaring the lackof any interestby Bankunited;

10. An Orderdeclaring the action without any meritunder existing law;

11. An Orderenjoining any further fraud and harassment by Bankunited;

12. An Order for sanctions and expenses against said seized and bankrupt bank and its

dismissed and/or fired attorneys at Camner Lipsitz;

13. An Order removing the fired judicial officers with the Camner Lipsitz firm from these

proceedings, and striking their fraudulent pleadings, because they perpetrated record fraud

and fraud on this Court.

________________________

/s/Jennifer Franklin Prescott, record holder of unencumbered title to homestead propertyVictim of bankrupt Bankuniteds record fraud

Victim of seized Bankunited founder Alfred Camners record fraud on this Court

EXHIBITS ON FILE: DOCKET ALTERATIONS

UNIFORM COMMERCIAL CODE

U.C.C. Article 3, Negotiable Instruments

PERJURY EVIDENCE, Nicholas Krancher

673.3011, Fla. Stat.; Ch. 71, Fla. Stat.

F.D.I.C. FAILED BANK INFORMATION


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Case Information Printer Friendly Version

Style: BANKUNITED vs FRANKLIN-PRESCOTT, JENNIFER

Uniform Case Number: 112009CA0060160001XX Filed: 07/09/2009

Clerks Case Number: 0906016CA

Court Type: CIRCUIT CIVIL Disposition Judge: HAYES, HUGH D

Case Type: MORTGAGE FORECLOSURES Disposed: 08/12/2010

Judge: HAYES, HUGH D Reopen Reason:

Case Status: DISPOSED Reopened:Next Court Date: Reopen Close:

Last Docket Date: 08/12/2010 Appealed:

Parties

Dockets

Events

Financials

1 of 1 pages. Entries per page: 60

Date Text All Entries

07/09/2009 CA48/REAL PRO PERTY MORTGAGE FORECLOSURE (PRE 2010) (FILING)

07/09/2009 CIVIL COVER SHEET

07/09/2009 COMPLAINT

07/09/2009 NOTIC E OF LIS PENDENS

07/09/2009 PAID $10.00 PER ISSUANCE OF SUMMONS $40.00

07/09/2009 REAL PRO PERTY VALUATION SHEET

07/10/2009 SUMMONS ISSUEDJENNIFER FRANKLIN PRESCOTT/ WALTER PRESCOTT/ JOHN DOE/ MARY DOE/PLACED IN SOUTH FLORIDA PROCESS SERVERS BIN

09/03/2009 AFFIDAVIT OF NON-SERVICE OF SUMMONS MARY DOE

10/14/2009 AFFIDAVIT OF LOST OR IGINAL SUMMONS JOHN DOE

10/14/2009 AFFIDAVIT OF NON-SERVICE OF SUMMONS JOHN DOE

12/21/2009 AFFIDAVIT OF NON-SERVICE OF SUMMONS WALTER PRESCOTT

12/21/2009 AFFIDAVIT OF NON-SERVICE OF SUMMONS JENNIFER FRANKLIN-PRESCOTT

02/22/2010 NOTICE OF APPEARANCE

AS CO-COUNSEL BY ERIN M ROSE QUINN ON BEHALF OF PLT

04/06/2010 ALIAS SUMMONS ISSUEDJENNIFER FRANKLIN-PRESCOTT/WALTER PRESCOTT/PLACED IN PROVEST LLC BIN

05/20/2010 AFFIDAVIT OF NON-SERVIC E OF SUMMONS JENNIFER FRANKLIN PRESCO TT

05/20/2010 AFFIDAVIT OF NON-SERVICE OF SUMMONS WALTER PRESCOTT

06/15/2010 COR RESPONDENCE FROM COUNSEL TO CLERK

06/15/2010 AFFIDAVIT OF CONSTRUCT IVE SERVICE AS TO WALTER PRESCOTT

06/15/2010 AFFIDAVIT OF C ONSTRUCTIVE SERVICE AS TO JENNIFER FRANKLIN-PRESCOTT

06/15/2010 AFFIDAVIT OF CONSTRUCTIVE SERVICEAS TO ANY AND ALL UNKNOW N PARTIES CLAIMING

06/15/2010 AFFIDAVIT OF DILIGENT SEARCH AS TO WALTER PRESCOTT

06/15/2010 AFFIDAVIT OF DILIGENT SEARCH AS TO JENNIFER FRANKLIN-PRESCOTT

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06/15/2010 COR RESPONDENCE FROM C OUNSEL TO GULF COAST BUSINESS REVIEW

06/17/2010 LETTER TO GULF COAST BUSINESS REVIEW

06/17/2010 NOTICE OF ACTIONTO WALTER PRESCOTT/JENNIFER FRANKLIN-PRESCOTT & ANY AND ALL UNKNOWNPARTIES CLAIMING

06/17/2010 AFFIDAVIT OF MAILING MAILED 6/18/10

06/18/2010 CONFIRMATION OF EMAIL RECEIVED BY GULF CO AST BUSINESS REVIEW

07/07/2010 AFFIDAVIT OF PUBLICATIONNOTICE OF ACTION TO WALTER PRESCOTT/JENNIFER FRANKLIN-PRESCOTT/ANSWERWITHIN 30 DAYS OF FIRST P UBLICATION 6/25/10

07/09/2010 MOTIO N TO DISMISS BY JENNIFER FRANKLIN PRESCOTT

07/22/2010 NOTICE OF SERVICE MOTION TO DISMISS

07/22/2010 MOTIO N TO DISMISS BY JENNIFER FRANKLIN PRESCOTT /PRO SE

07/22/2010 MOTIO N TO ENJOIN / BY JENNIFER FRANKLIN-PRESCOTT -PRO SE

07/22/2010 NOTICE OF SERVICEOF PUBLISHED NOTIC E OF RECORD & MOT ION TO DISMISSBY DEFENDANT

07/23/2010 MOTION FOR CLARIFICATION OF COUNSEL

07/23/2010 MOTION TO DISMISS

07/23/2010 MOTIO N TO C LARIFY ALLEGED PLAINTIFFS PUBLISHED NOTICE OF RECORD FRAUD


08/12/2010 MOTIO N TO DISMISS PRO SE JENNIFER FRANKLIN PRESCOTT

08/12/2010 BANKRUPTCY BANKUNITED

08/12/2010 CA48/REAL PRO PERTY MORTGAGE FORECLOSURE (PRE 2010) (DISPOSITION)

08/12/2010 SUMMONS ISSUED ELSA JARERO/ PUT IN SOUTH FLOR IDA PROCESS BIN

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Court Type: CIRCUIT CIVIL Disposition Judge:

Case Type: MORTGAGE FOR ECLOSURES Disposed:


Case Status: OPEN Reopened:Next Court Date: Reopen Close:


Parties

Dockets

Events

Financials




06/15/2010 CORRESPONDENCE FROM C OUNSEL TO GULF COAST BUSINESS REVIEW


06/17/2010 NOTICE OF ACTIONTO WALTER P RESCOTT/JENNIFER FR ANKLIN-PRESCOTT & ANY AND ALL UNKNOWNPARTIES CLAIMING


06/18/2010 CONFIRMATION OF EMAIL RECEIVED BY GULF COAST BUSINESS REVIEW



07/22/2010 NOTIC E OF SERVICE MOTIO N TO DISMISS

07/22/2010 MOTIO N TO DISMISS BY JENNIFER FRANKLIN PRESCOTT /PR O SE

07/22/2010 MOTIO N TO ENJOIN / BY JENNIFER FRANKLIN-PRESCOTT -PR O SE

07/22/2010 NOTICE OF SERVICEOF PUBLISHED NOTICE OF RECORD & MOT ION TO DISMISSBY DEFENDANT



07/23/2010 MOTIO N TO CLARIFY ALLEGED PLAINTIFFS PUBLISHED NOTICE OF RECORD FRAUD


08/12/2010 SUMMONS ISSUED ELSA JARERO/ PUT IN SOUTH FLORIDA PROCESS BIN



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Court Type: CIRCUIT CIVIL Disposition Judge: HAYES, HUGH D

Case Type: MORTGAGE FOR ECLOSURES Disposed: 08/12/2010


Case Status: DISPOSED Reopened:Next Court Date: Reopen Close:


Parties

Dockets

Events

Financials



06/15/2010 AFFIDAVIT OF DILIGENT SEARCH AS TO WALTER PRESCOTT


06/15/2010 CORRESPONDENCE FROM C OUNSEL TO GULF COAST BUSINESS REVIEW


06/17/2010 NOTICE OF ACTIONTO WALTER P RESCOTT/JENNIFER FR ANKLIN-PRESCOTT & ANY AND ALL UNKNOWNPARTIES CLAIMING


06/18/2010 CONFIRMATION OF EMAIL RECEIVED BY GULF COAST BUSINESS REVIEW



07/22/2010 NOTIC E OF SERVICE MOTIO N TO DISMISS

07/22/2010 MOTIO N TO DISMISS BY JENNIFER FRANKLIN PRESCOTT /PR O SE

07/22/2010 MOTIO N TO ENJOIN / BY JENNIFER FRANKLIN-PRESCOTT -PR O SE

07/22/2010 NOTICE OF SERVICEOF PUBLISHED NOTICE OF RECORD & MOT ION TO DISMISSBY DEFENDANT



07/23/2010 MOTIO N TO CLARIFY ALLEGED PLAINTIFFS PUBLISHED NOTICE OF RECORD FRAUD

08/12/2010 MOTIO N TO DISMISS PRO SE JENNIFER FRANKLIN PRESCOTT

08/12/2010 BANKRUPTCY BANKUNITED

08/12/2010 CA48/REAL PROPERTY MORT GAGE FORECLOSURE (PRE 2010) (DISPOSITION)


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Page 1 of 2

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

JENNIFER FRANKLIN

PRESCOTT, DR. JORGE BUSSE,

Plaintiffs,

v. Case No. 2:09-cv-00791-CEH-SPC

ROGER ALEJO et al.

Defendants.

_________________________________/

NOTICE OF SUBSTITUTION OF COUNSELWITHIN THE OFFICE OF THE ATTORNEY GENERAL

PLEASE TAKE NOTICE that the undersigned attorney, Shelley B. Cridlin, now makes

an appearance as counsel for Defendants, the Honorable Cynthia A. Pivacek and the Honorable

Hugh D. Hayes, in place of any and all prior counsel in this action. Please forward all pleadings

and other legal documents to the undersigned counsel.

BILL McCOLLUM

ATTORNEY GENERAL

/s/ Shelley B. Cridlin

Shelley B. CridlinAssistant Attorney General

Fla. Bar No. 0022451

Office of the Attorney General501 East Kennedy Blvd., Suite 1100

Tampa, FL 33602

T - (813) 233-2880 F - (813) 233-2886

[email protected] for Defendants, the Honorable

Cynthia A. Pivacek and the Honorable Hugh

D. Hayes

[CERTIFICATE OF SERVICE ON NEXT PAGE]

Case 2:09-cv-00791-CEH-SPC Document 254 Filed 08/18/10 Page 1 of 2


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Page 2 of 2

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on August 18, 2010, I electronically filed the foregoing with

the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to

those persons capable of receiving such notice of electronic filing. I further certify that I mailedthe foregoing document and the notice of electronic filing by first-class mail to the following

non-CM/ECF participants: Jennifer Franklin Prescott, P.O. Box 845, Palm Beach, FL 33480 and

Jorg Busse, P.O. Box 11124, Naples, FL 34101 on this the 18th

day of August, 2010.

/s/ Shelley B. CridlinShelley B. Cridlin

Assistant Attorney General

Case 2:09-cv-00791-CEH-SPC Document 254 Filed 08/18/10 Page 2 of 2


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IN THE SUPERIOR COURT OF DEKALB COUNTY

STATE OF GEORGIA

JANET D. MCDONALD,

JAMES B. STEGEMAN,PLAINTIFFS

V

GEORGIA POWER COMPANY, et., al.,

DEFENDANTS

CIVIL ACTION

FILE NO: 07CV11398-6

PLAINTIFFS BRIEF IN SUPPORT OF MOTION TO VOID

THIS COURTS JUNE 11, 2008 ORDERDISMISSING PLAINTIFFS CASE WITH PREJUDICE

____________________________________________________________________________

COMES NOW Plaintiffs Janet D. McDonald and James B. Stegeman and file

Plaintiffs Brief In Support of Motion To Void This Courts June 11, 2008 Order

Dismissing Plaintiffs Case With Prejudice.

Both Georgia and Federal law are clear that when a Judge is also a defendant, the

Judge must recuse or disqualify themselves. In the case at bar, Judge Becker, the day

after being served with Summons and Complaint,1 dismissed with prejudice Plaintiffs

complaint against Georgia Power, leaving the counterclaim against them intact.

The dismissal was either the act of retaliation under color of law against Plaintiffs2

1 Judge Becker was named defendant in US District Court action File No.: 1:08-cv-1981-WSD,

service was perfected June 10, 2008 the day before she signed the Order dismissing with

prejudice Plaintiffs complaint against GA Power leaving only the defendants counterclaim.

2 Mr. Stegeman is Legally Disabled as recognized by Americans with Disabilities Act and SocialSecurity Act, thereby is a member of a protected class of person and is afforded extra protections.

State programs which receive Federal funding that should be protecting Mr. Stegeman have been

denied to Mr. Stegeman. Several state and Federal laws have been violated as well. See


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for attempting to enforce their Civil and Constitutional Rights;3 or an unfair act of

extreme, unreasonable discriminatory/bias/prejudice. The Ruling is without authority and

effect and is not merely voidable, but void.

BRIEF BACKGROUND

After a continuing dispute with Georgia Power, Plaintiffs, one of which is 100%

Federally disabled and receives Supplemental Security Income, filed a verified, prima

facie complaint October 26, 2007. Georgia Power filed a verified answer and

counterclaim December 3, 2007.4 Plaintiffs moved to strike the verified answers and

counterclaim on March 8, 20085 due to verification and counterclaim containing

perjury/false swearing. Plaintiffs moved to stay discovery and all other processes

Attached Exhibit I

3 See U.S.C. 42 12203: Prohibition against retaliation and coercion(a) Retaliation No person

shall discriminate against any individual because such individual has opposed any act or practicemade unlawful by this chapter or because such individual made a charge, testified, assisted, orparticipated in any manner in an investigation, proceeding, or hearing under this chapter.

(b) Interference, coercion, or intimidation It shall be unlawful to coerce, intimidate, threaten, or

interfere with any individual in the exercise or enjoyment of, or on account of his or her havingexercised or enjoyed, or on account of his or her having aided or encouraged any other individual

in the exercise or enjoyment of, any right granted or protected by this chapter.

(c) Remedies and procedures The remedies and procedures available under sections 12117,12133, and 12188 of this title shall be available to aggrieved persons for violations of

subsections (a) and (b) of this section, with respect to subchapter I, subchapter II and subchapter

III of this chapter, respectively.

4 Although the docket reflects the answer and counterclaim was filed December 3, 2007 PlaintiffMcDonald called the Court on December 6, 2007 after not receiving an answer and was told by

Judge Beckers Clerk that no answer had yet been filed. This has been brought up several times

by Plaintiffs, but they cannot prove what they were told on the telephone by the clerk.

5 The docket reflects the filing of Motion to Strike on March 12, 2008, but Postal records showdelivered on March 8, 2008 and since all of Georgia Powers filings reflect the day received by

the Court, it would be only fair that Plaintiffs were treated equally. This too has been shown to

the Court and ignored.

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pending Ruling on Motion to Strike6 on March 20, 2008 after being lied to by opposing

counsel and after opposing counsels orchestration of a false discovery dispute.

Plaintiffs Motions went un-addressed by the Court until their case was dismissed with

prejudice although opposing counsel had the Court assisting them, setting hearings, and

making rulings in their favor.

Although Plaintiffs repeatedly requested assistance from the Court for the

numerous problems between Plaintiffs and attorney Watt, the Court refused to address the

problems. Plaintiffs more than once pointed out discrepancies, and manipulations within

the Court system, the Court ignored all of Plaintiffs requests.

After it became apparent that this Court was going to continually aid Georgia

Power and their attorneys and that Plaintiffs Civil and Constitutional Rights under color

of law would continue to be violated, Plaintiffs filed the action in US District Court. That

Court dismissed under Younger and Plaintiff Stegeman Appealed. The Appeal is

currently pending in the U.S. Court of Appeals for the Eleventh Circuit.

VOID JUDGMENT

Both Georgia and Federal law are clear that when a Judge is a defendant, the

Judge has a personal interest and must recuse or disqualify themselves. In the case at bar,

Judge Becker, the day after being named a defendant, dismissed with prejudice only

Plaintiffs complaint, leaving the counterclaim against them intact. The dismissal was

either the act of retaliation under color of law against Plaintiffs for attempting to enforce

their Civil and Constitutional Rights; or an unfair act of extreme, unreasonable

6 The defendants never responded to Motion to Strike, they moved for a continuance which was

NEVER GRANTED.

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discriminatory/ bias/prejudice, all of such instances calls for mandatory

disqualification/recusal. The Ruling is without authority and effect and is not merely

voidable, but void.

void judgment. A judgment that has no legal force or effect, theinvalidity of which may be asserted by any party whose rights are

affected at any time and any place, whether directly or collaterally *

From its inception, a void judgment continues to be absolutely null. It

is incapable of being confirmed in any manner or to any degree.

Blacks Law Dictionary West Group, 7th Ed. pg. 848.

There are several grounds for which a ruling or judgment is void, i.e.: fraud in the

procurement of a Ruling (which is applicable here); Judge is a defendant thereby

disqualified to act (which is applicable here); non amendable defect:

A disqualified judge can take no judicial action in the case and any

attempt at such action is a mere nullity. Garland v. State of Ga., 110

Ga. App. 756 (140 SE2d 46) (1964).

"The judgment of a court void for any other cause, is a mere

nullity, and may be so held in any court when it becomes material to

the interest of the parties to consider it." Miller v. Miller, et., al.,38752. (104 Ga. App. 224) (121 SE2d 340) (1961)

JUDGES DUTY TO DISQUALIFY/RECUSE

Georgias Code of Judicial Conduct Canon 3 C. (1) (a) states:

"Judges should disqualify themselves in proceedings in which their

impartiality might reasonably be questioned, including but not limited

to instance where: . . . the judge has a personal bias or prejudice

concerning a party or a party's lawyer . . . ."

"We interpret the word 'should' to mean 'shall' in the context of thisrequirement." Savage v. Savage, 234 Ga. 853, 856 (218 SE2d 568)

(1975).

The American Bar Associations Model Rule of Judicial Conduct states:

A judge shall disqualify himself of herself in a proceeding in which

the judges impartiality might reasonably be questioned. ABA

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Model Code of Judicial Conduct, Canon 2, R. 2.11(A) (2007).

It has long been held that a Judge which is a defendant, must disqualify/recuse

themselves.

The judge against whom such an action is brought, is of coursedisqualified from hearing the case. See Code 24-2623. Hamby v.

Pope, 27245 (229 Ga. 339) (191 SE2d 53) (1972).

Further a Judge who has been named a defendant loses neutrality, which helps

guarantee that life, liberty and/or property will not be taken in retaliation.

The neutrality requirement helps to guarantee that life, liberty, or

property will not taken on the basis of an erroneous or distorted

conception of the facts of the law. Marshall v. Jerrico, Inc. 466

U.S. 238, 242, 100 S. Ct. 1610, 64 L. 2d 182 (1980).

If the Due Process Clause requires recusal only when a party could prove actual

bias arising from personal animus in the judges heart or cold cash in the judges pocket,

then the rights of parties to a fair and impartial judge would be imperiled. Probabilities

of unfairness, likelihood of bias, and unacceptable perceptions are at the heart of

circumstantial evidence, which is sometimes the only evidence available on the issue

whether a judge is constitutionally required to disqualify.7

Violations of the Due Process Clause also results in voids judgments.

I. THE DUE PROCESS CLAUSE

Based on the findings that persons with disabilities have been faced with

restrictions, limitations, subjected to a history of purposeful unequal treatment, and

relegated to a position of political powerlessness in our society, based on characteristics

7 See Randall T. Shepard, Campaign Speech: Restraint and Liberty in Judicial Ethics, 9 Geo. J.

Legal Ethics 1059, 1087 (1996)

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that are beyond the control of such individuals, Congress invoke[d] the sweep of

congressional authority, including the power to enforce the fourteenth amendment, to

enact the ADA.8

InLassiter v. Department Social Serv., 452 U.S. 18, 24 (1981) it was held: The

Due Process Clause imposes an affirmative obligation upon States to take such measures

as are necessary to ensure that individuals, including those with disabilities, are not

deprived of their life, liberty, or property without procedures affording fundamental

fairness. The Due Process Clause requires States to afford individuals with

disabilities, fair proceedings, and when denied access to benefits or programs created

by state regulations and policies.

The United States Supreme Court in Tennessee v. Lane, 541 U.S. 509 (2004) that

Title II of the ADA validly abrogates States Eleventh Amendment Immunity as applied

to the context of access to judicial services. That decision was also supported in United

States v. Georgia, 126 S. Ct. 877, (2006). The Court inLane found that Title II enforces

rights under the Equal Protection Clause as well as an array of rights subject to

heightened constitutional scrutiny under the Due Process Clause Lane 541 U.S. at 522-

523; accord Constantine, 411 F.3d at 486-487.

Rulings made in violation of Due Process are void. Plaintiffs in this case

attempted to bring to the Judges attention numerous times unfair, manipulative treatment

by oppositions attorneys only to have the treatment continue and get worse. A disabled

individual was forced into pro se litigation due to the State of Georgias failure to protect

8 42 U.S.C. 12101(b)(4).

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him and his property, this Court had a duty to ensure fairness. This Court failed, or

refused to ensure that fairness and worked to see that the case against Georgia Power was

dismissed.

Marshall v. Jerrico, 100 S. Ct. 1610, 446 U.S. 238 (U.S. 04/28/1980);64 L. Ed.2d 182, (1980); at [21] The Due Process Clause entitles a

person to an impartial and disinterested tribunal in both civil and

criminal cases. This requirement of neutrality in adjudicative

proceedings safeguards the two central concerns of procedural due

process, the prevention of unjustified or mistaken deprivations and the

promotion of participation and dialogue by affected individuals in thedecisionmaking process. See Carey v. Piphus, 435 U.S. 247, 259-262,

266-267 (1978).

Plaintiffs have been discriminated against and treated with unfairness, bias and

prejudice by this Court and the opposing counsel. An uninterested, lay person, would

question the partiality and neutrality of this Court.

Fairness of course requires an absence of actual bias in the trial of

cases. But our system of law has always endeavored to prevent even

the probability of unfairness. In re Murchinson, 349 U.S. 133, 136

(1955).

Further it is the obligation of every Judge in Georgia to honor, abide by, and

uphold not only the Constitution and laws of the State of Georgia, but they are bound by

the laws and Constitution of The United States as well.

"State courts, like federal courts, have a constitutional obligation to

safeguard personal liberties and to uphold federal law." Stone v

Powell, 428 US 465, 483 n. 35, 96 S. Ct. 3037, 49 L. Ed. 2d 1067

(1976).

Speaking of discrimination against disabled individuals, the Eleventh Circuit has

stated occurs when a disabled individual is treated differently than a non-disabled or less

disabled individual. 42 U.S.C. 12112(b). Nadler v. Harvey, No. 06-12692 (11th Cir.

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2007) before Edmondson, Hull, and Forrester.

Further, apro se litigant, and a disabled pro se litigant, have not been received the

treatment that staire decisis and past case precedent mandates they receive. Not once has

the court liberally construed their pleadings, held them to a less stringent standard than

opposing counsel.

In considering appellant's enumerations of error, we are guided by

the general rule that "[p]ro se pleadings are held to less stringent

standards than pleadings that are drafted by lawyers" ( Thompson v.

Long, 201 Ga. App. 480, 481 (1) (411 SE2d 322)), and by the

statutory provision that "[w]here it is apparent from the notice of

appeal, the record, the enumeration of errors, or any combination ofthe foregoing . . . what errors are sought to be asserted upon appeal,

the appeal shall be considered in accordance therewith

notwithstanding . . . that the enumeration of errors fails to enumerateclearly the errors sought to be reviewed." OCGA 5-6-48 (f). Cotton

v. Bank South, N.A., A93A2579 (212 Ga. App. 1) (440 SE2d 704)

(1994)

holding pro se petition cannot be held to same standard as pleadings

drafted by attorneys See Boag v. MacDougall, 454 U.S. 364, 102 S.

Ct. 700, 70 L.Ed.2d 551 (1982); Estelle v. Gamble, 429 U.S. 97, 106,97 S.Ct. 285, 50 L.Ed.2d 251 (1976) quoting Conley v. Gibson, 355

U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Haines v. Kerner,

404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); McDowell v.

Delaware State Police, 88 F.3d 188, 189 (3rd Cir. 1996); United States

v. Day, 969 F.2d 39, 42 (3rd Cir. 1992)

A court faced with a motion to dismiss a pro se complaint must read

the complaints allegations expansively,Haines v. Kerner 404 U.S.

519, 520-21, S. Ct. 594, 596, 60 L.Ed. 2d 652 (1972)

Court has a special obligation to construe pro se litigants pleadingsliberally Polling v. Hovnanian Enterprises, 99 F. Supp. 2d 502,

506-07 (D.N.J. 2000).

We hold pro se pleadings to a less stringent standard than pleadings

drafted by attorneys and construe them liberally. Tannenbaum v.

United States, 148 F.3d 1262, 1263 (11th Cir. 1998)

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The Due Process Clause requires notice and opportunity to be heard. By this

Courts own Order Dismissing Plaintiffs case with Prejudice states On May 27, 2008,

the Court conducted a hearing to resolve outstanding discovery disputes; Despite

adequate notice and actual knowledge To date, no party to the case in Superior Court,

or the case in U.S. District Court has produced evidence that Plaintiffs (1) had adequate

Notice or had (2) actual knowledge of a hearing for discovery disputes; (3) a

Motion Calendar showing Plaintiffs or Defendants listed on the Calendar for any

hearings; or (4) a showing that the Docket Report reflected in the scheduled events any

such hearings. Plaintiffs did request that the Docket Report and Motion Calendar to

reflect a hearing if a hearing was scheduled. Plaintiffs Motions were not addressed until

June 11, 2008 when their claims were dismissed.

OATH OF OFFICE

In Georgia as elsewhere, Judges take an Oath of Office, swearing to support the

Constitution of the United States as well as the State of Georgia Constitution:

I swear that I will administer justice without respect to person and do

equal rights to the poor and the rich and that I will faithfully andimpartially discharge and perform all the duties incumbent on me as

judge of the superior courts of this state, according to the best of my

ability and understanding, and agreeably to the laws and Constitution

of this state and the Constitution of the United States. So help me

God. O.C.G.A. 15-6-6;

Note: The federal constitution requires that the judicial officers of thestate be bound by oath or affirmation to support the federal

constitution. See U.S. Const., Art. 6, 3.

The U.S. Supreme Court has stated that No state legislator or executive or

judicial officer can war against the Constitution without violating his undertaking to

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support if. Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401 (1958). Any judge who does

not comply with his oath to the Constitution of the United States, wars against that

Constitution and engages in violation of the Supreme Law of the Land. If a judge does

not fully comply with the Constitution, then his orders are void, In re Sawyer, 124 U.S.

200 (1888), he is without jurisdiction, and he/she has engaged in an act or acts of treason.

U.S. v. Will, 449 U.S. 200, 216, 101 S. Ct. 471, 66 Ed.2d 392, 406 (1980); Cohens v.

Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821).

"No man in this country is so high that he is above the law. No officer

of the law may set that law at defiance with impunity. All the officersof the government from the highest to the lowest, are creatures of the

law, and are bound to obey it." Butz v. Economou, 98 S.Ct. 2894

(1978); United States v. Lee, 106 U.S. at 220, 1 S.Ct. at 261 (1882).

The United States Constitution:

Article VI.

Clause 2: This Constitution, and the Laws of the United States which

shall be made in Pursuance thereof; and all Treaties made, or which

shall be made, under the Authority of the United States, shall be the

supreme Law of the Land; and the Judges in every State shall bebound thereby, any Thing in the Constitution or Laws of any State to

the Country notwithstanding.

Clause 3: The Senators and Representatives before mentioned, andthe Members of the several State Legislatures, and all executive and

judicial Officers, both of the United States and of the several States,

shall be bound by Oath or Affirmation, to support this Constitution

Amendment XIV

Section 3.: No person shall be a Senator or Representative in

Congress, or elector of President and Vice President, or hold anyoffice, civil or military, under the United States, or under any State,

who, having previously taken an oath, as a member or Congress, or as

an officer of the United States, or as a member of any State

legislature, or as an executive or judicial officer of any State, tosupport the Constitution of the United States, shall have engaged in

insurrection or rebellion against the same, or given any aid or comfort

to the enemies thereof.

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rebellion. 2. Open resistance or opposition to an authority or

tradition.Blacks Law Dictionary, 7th Ed. West Group, pg. 1273

Violation of Oath of Office is not only grounds for void judgment, but more

importantly is grounds for impeachment, forever barring holding of Judicial Office.

CONCLUSION

Plaintiffs in this matter, having shown sufficient grounds to have this Courts

Order Dismissing their Complaint with Prejudice set aside as a void judgment, Move this

Court to grant their Motion. Plaintiffs further Move this Court to disqualify/recuse Judge

Becker so that Plaintiffs may be able to have a fair and impartial tribunal, or a better

alternative is to have this case transferred out of Stone Mountain Judicial Circuit to a

Court which treats disabled and pro se litigants with dignity and respect.

Submitted this 24th day of February, 2009

By: ___________________________

JANET D. MCDONALD, Pro Se

821 Sheppard Rd

Stone Mountain, GA 30083(404) 300-9782

By: ___________________________

JAMES B. STEGEMAN, Pro Se

821 Sheppard RdStone Mountain, GA 30083

(404) 300-9782

THE SUPERIOR COURT OF DEKALB COUNTY

STATE OF GEORGIA

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JANET D. MCDONALD,

JAMES B. STEGEMAN,

PLAINTIFFS

v

GEORGIA POWER CO., et., al.,

DEFENDANTS

CIVIL ACTION

FILE NO: 07CV11398-6

CERTIFICATE OF SERVICE

I hereby Certify that I have this 24th day of February, 2009 served upon

Defendants a true and correct copy of Motion To Void This Courts June 11, 2008

Order Dismissing Plaintiffs Case With Prejudice by depositing with U.S.P.S. First class

mail, proper postage affixed and mailed to Defendants counsel on record as follows:

Troutman Sanders, LLPBrian P. Watt

5200 Bank of America Plaza

600 Peachtree Street

Atlanta, GA 30308-2216

By: ______________________________JANET D. MCDONALD, Pro Se

By: _______________________________

JAMES B. STEGEMAN, Pro Se

821 Sheppard Rd

Stone Mountain, GA 30083

(770) 879-8737

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Documents

FORECLOSURE - Recusal Refusal Organized Judicial Crime