COURT OF APPEALS OF GEORGIA
JAMES B. STEGEMAN, *JANET D. MCDONALD *
Appellants * *
* APPEAL CASE NO. A07A1846vs. *
*WACHOVIA BANK, N.A., et., al *WACHOVIA SECURITIES, et., al. *
Appellees. *
MOTION FOR RECONSIDERATION
Comes Now, Appellants in the above Appeal, and pursuant to Rule 37 of the
Rules of the Court of Appeals of the State of Georgia, timely file their Motion For
Reconsideration within ten days of the December 7, 2007 affirmation of Superior
Court’s Judgment.
Appellants would like the Court to take Notice that the paperwork they
received was not signed by any of the three judges listed as having reviewed their
Appeal and Appellants find it unusual that an Order is not signed.
Appellants show in the following the basis for Granting their Motion For
Reconsideration.
Rule 37.(e) Basis for Granting.
A reconsideration will be granted on motion of the
requesting party, only when it appears that the Court
overlooked a material fact in the record, a statute or a
decision which is controlling as authority and which
would require a different judgment from that rendered, or
has erroneously construed or misapplied a provision of
law or a controlling authority.
Plaintiff-Appellant’s case was dismissed as retaliation against Plaintiff
Stegeman for naming Superior Court Stone Mountain Judicial Circuit as a
Defendant in United States District Court.
One would believe this Honorable Court suggests that Judge Hunter and
Superior Court did not violate Rules of the State and Federal Courts as well as
State and Federal statutes involving the dismissed litigation, this Honorable Court
in essence is suggesting that the Civil action in fact was never pending Removal to
Federal Court; Wachovia was in fact in default and had failed to file a responsive
pleading in seventy plus days.
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Further, Plaintiff-Appellants listed several causes of action for which relief
could and should have been granted. Judge Hunter failed to address several causes
of action in her Order and the ones addressed were improperly addressed.
Causes of Action In Plaintiff-Appellant’s Pleading that were not addressed by
either Wachovia or Superior Court:
Violation of Privacy; Conspiracy to Defraud; Securities Fraud; Theft By
Deception; Malfeasance; Co-conspiracy in Malicious Persecution; Co-conspiracy
in Vexatious Litigation; Malicious Slander; Malicious Defamation of Character;
Damages and Other Relief.
Causes of Action Improperly Addressed By Superior Court’s Order:
Judge Hunter’s Order signed April 12, 2007, pg. 2, ¶B states “Because the criminal
statutes referenced in Paragraphs … do not provide for private causes of action,
Plaintiffs have no cause of action for any alleged violation.”
Plaintiff-Appellants will address these as Judge Hunter has listed them, under
Criminal statutes and Plaintiff’s paragraphs:
¶6, ¶8: Doesn’t in itself provide for a cause of action, but Wachovia’s part resulted
in a tort which is recoverable and Wachovia had a fiduciary duty.
¶9-10, and ¶13-14: Shows fraud with particularity and shows that Plaintiff-
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Appellants have the bank records reflecting these activities. Further, Wachovia
never denied the activities.
¶15: Shows breach of contract
¶17: Shows that because of Wachovia’s part, they were part of a conspiracy to
defraud Plaintiff-Appellants, they breached their fiduciary duty, and neglected their
duty to have law enforcement officials look into the situation. Their acts resulted
in damage to Plaintiff-Appellants and their property, a recoverable cause of action.
PLEASE NOTE: Judge Hunter’s Order doesn’t properly address causes of action
which would show that Plaintiff-Appellants had in fact plead fraud with
particularity as required to successfully plead for the cause of action in the
following:
¶11: which shows fraud and how the fraud was committed (particularity);
¶12: shows that Plaintiff-Appellants were “Business Victims” which again shows
the particularity needed to plead fraud
¶25: shows fraud and how the fraud was committed (particularity)
PLEASE NOTE: Judge Hunter’s Order does not address the following
paragraphs which would show not only fraud particularity, but intentional
infliction of emotional distress and which could have been proven with Plaintiff-
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Appellant’s documents:
¶19: malicious slander and malicious defamation of character. In fact Plaintiff-
Appellants should have listed the cause as libel per se, which they have the
paperwork to prove.
¶21: shows intentional infliction of emotional distress
¶25: shows intentional infliction of emotional distress
¶27: shows intentional infliction of emotional distress
Judge Hunter’s Order signed April 12, 2007, pg. 2, ¶B states “Because the criminal
statutes referenced in Paragraphs … do not provide for private causes of action,
Plaintiffs have no cause of action for any alleged violation.”
Plaintiff-Appellants will address these as Judge Hunter has listed them, under
regulatory statutes and Plaintiff’s paragraphs:
¶7: shows fraud plead with particularity
¶15: shows fraud plead with particularity; shows intentional infliction of
emotional distress; shows a relationship with John Joyner
¶16: invasion of Plaintiff-Appellant’s privacy
¶17: conspiracy to commit fraud; intentional infliction of emotional distress
¶18: violation of oath of office shows fraud with particularity
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¶20: conspiracy to defraud, plead with particularity
¶21: intentional infliction of emotional distress
Mr. William J. Holley, II, known as one of Georgia’s “Super-Lawyers”1 has
full knowledge of the Georgia Court System. One cannot believe that with Mr.
Holley’s obvious credentials he erred when filing to the wrong judge, and would
have violated Rules, statutes, procedure, etc. and go into default unless he knew
that Judge Hunter would allow him to get away with it. An attorney in his position
and reputation would not take such a risk. Plaintiff’s Motion To Dismiss and
Strike From Record Wachovia’s Untimely Answer, Filed April 20, 2006, page 4,
first ¶.
Plaintiff-Appellants have shown and the record reflects that no doubt exists
that many Uniform Superior Court Rules, Rules of Civil Procedure in both State
and Federal Courts as well as statutes of State and Federal have been violated not
only by Wachovia,2 but Superior Court and Judge Hunter as well. Plaintiff-
1 “Selected as one of Georgia’s “Super-Lawyers” by Law & Politics Media and
Atlanta Magazine, March 2004, March 2005, and March 2006”. Taken from:
http://www.phrd.com/attorneys/attybio.asp?id=27 .
2 Wachovia’s legal counsel is known to be one of “Georgia’s Super-Lawyers”
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Appellants have shown that their State and Federal Constitutional Rights of due
process have been violated. Appellant’s Brief filed June 11, 2007, pgs. 12-29.
Further, Plaintiff-Appellant Stegeman’s State and Federal Civil Rights have
been violated by Superior Court and Wachovia under Color of Law, which is a
Federal crime without immunity. See the following:
TITLE 18, U.S .C. §242: Deprivation of Rights Under
Color of Law. "This statute makes it a crime for any
person acting under color of law, statute, ordinance,
regulation, or custom to willfully deprive or cause to be
deprived from any person those rights, privileges, or
immunities secured or protected by the Constitution and
laws of the U.S.”
“Acts under "color of any law" include acts not only
done by federal, state, or local officials within the bounds
or limits of their lawful authority, but also acts done
without and beyond the bounds of their lawful authority;
…” “This definition includes, in addition to law
enforcement officials, individuals such as Mayors,
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Council persons, Judges, Nursing Home Proprietors,
Security Guards, etc., persons who are bound by laws,
statutes ordinances, or customs.”
“U.S. law enforcement officers and other officials like
judges, prosecutors, and security guards have been given
tremendous power by local, state, and federal
government agencies—authority they must have to
enforce the law and ensure justice in our country. These
powers include the authority to … seize property, to
bring criminal charges, to make rulings in court, and to
use deadly force in certain situations. Preventing abuse of
this authority, however, is equally necessary to the health
of our nation’s democracy. That’s why it’s a federal
crime for anyone acting under “color of law” willfully to
deprive or conspire to deprive a person of a right
protected by the Constitution or U.S. law. “Color of law”
simply means that the person is using authority given to
him or her by a local, state, or federal government
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agency.”
"Punishment varies from a fine or imprisonment of up to
one year, or both, and if bodily injury results or if such
acts include the use, attempted use, or threatened use of a
dangerous weapon, explosives, or fire shall be fined or
imprisoned up to ten years or both, and if death results, or
if such acts include kidnapping or an attempt to kidnap . .
or an attempt to kill, shall be fined under this title, or
imprisoned for any term of years or for life, or both, or
may be sentenced to death."3
Title 18, U.S.C., § 241. Conspiracy Against Rights
“This statute makes it unlawful for two or more persons
to conspire to injure, oppress, threaten, or intimidate any
person of any state, territory or district in the free
exercise or enjoyment of any right or privilege secured to
him/her by the Constitution or the laws of the United
States, (or because of his/her having exercised the
3 http://www.fbi. gov/hq/cid/civilrights/statutes.htm
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same).” “Punishment varies from a fine or imprisonment
of up to ten years, or both”; “…and if death results, or if
… they shall be fined under this title or imprisoned for
any term of years or for life, or both, or may be sentenced
to death.”4
Plaintiff-Appellant Stegeman is 100% disabled falling within the guidelines
of Social Security, The Americans With Disability Act, thereby a member of a
protected class of people and protected by State and Federal law.
Title 42, Chapter 126 § 12101.
“Findings and purpose:
(b) Purpose It is the purpose of this chapter—
(1) to provide a clear and comprehensive national
mandate for the elimination of discrimination against
individuals with disabilities;
(2) to provide clear, strong, consistent, enforceable
standards addressing discrimination against individuals
with disabilities;
4 *ref: http ://www.usdoj.gov/crtJcrim/241fin.htm
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(3) to ensure that the Federal Government plays a
central role in enforcing the standards … on behalf of
individuals with disabilities; and
(4) to invoke the sweep of congressional authority,
including the power to enforce the fourteenth amendment
and to regulate commerce, in order to address the major
areas of discrimination faced day-to-day by people with
disabilities”
The Federal government has been designated by Congress to play a key role
in the enforcing the standards and the fourteenth amendment on behalf of the
disabled because unlike racial and other minorities, the disabled have no advocates,
thereby the Federal government has been designated by Congress as the advocate
for disabled.
In Congress’ efforts to ensure protection for disabled Georgians and the
Rights thereof, they went on to remove the State’s Immunity from suit.5
5 Title 42, Chapter 126, Subchapter IV, §12202
State immunity. A State shall not be immune under the eleventh amendment to
the Constitution of the United States from an action in Federal or State court of
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Then congress went on to prohibit against retaliation and coercion.6
Further, this Honorable Court would have one believe that Judge Hunter’s
closing the case with restrictions to re-open the case while it was pending Removal
competent jurisdiction for a violation of this chapter . In any action against a State
for a violation of the requirements of this chapter, remedies (including remedies
both at law and in equity) are available for such a violation to the same extent as
such remedies are available for such a violation in an action against any public or
private entity other than a State .
6 Title 42, Chapter 126, Subchapter IV, §12203
§12203. Prohibition against retaliation and coercion. (a) Retaliation. No person
shall discriminate against any individual because such individual has opposed any
act or practice made unlawful by 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 having
exercised 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.
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in Federal Court is of no consequence. The reality of the matter is this: 1) Judge
Hunter violated both Superior Court and Federal Court Rules; 2) Judge Hunter
signed an order without jurisdiction to do so; 3) the closing of the case in Superior
Court under Judge Hunter while Removal was filed under Judge Castellini (along
with the obvious assumption that Superior Court and Wachovia believed the case
would stay in Federal Court and be dismissed under Castellini) would prohibit
Plaintiff-Appellants from ever being able to re-file the case in either Superior or
Federal Courts.
Appellant’s Brief pages 15-17, III. Error 1. ¶2 and footnote 18
DEFENDANT-APPELLEES UNDISPUTED FACTS 7
The Appellants have shown without doubt that Wachovia violated both
Georgia and U.S. Banking Laws, and violated laws concerning The United States
Postal Services, of which caused Plaintiff-Appellants to suffer financial losses.
Plaintiff-Appellants have shown in Superior Court and Wachovia admits
that they changed the records of accounts held by Wachovia but said it could not
be fraud because they own the computers, the network, the system and the
7 Undisputed Facts because Wachovia admitted the allegations
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employee and the employee had authorization by the owners of the computers,
network, system and employees to change Plaintiff-Appellants records in the
computer. This argument fails miserably for the following reasons:
1. Owners of Wachovia, Wachovia’s computers,
network, system and employees.
Wachovia is a corporation, they are not owned by an
individual, but by stock holders. There was no stock-
holder meeting during any of that time in which the stock
holders authorized Wachovia to change the information
on Plaintiff-Appellant’s accounts.
2. Wachovia also agree that Plaintiff-Appellant’s
accounts were changed at the request of a “John Joyner”,
thus John Joyner authorized the changing of Plaintiff-
Appellant’s accounts, not the “owners”. John Joyner, a
non-employee, non-owner of Wachovia authorized the
changing of Plaintiff-Appellant’s accounts, with no legal
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documentation8 to perform such acts to Plaintiff-
Appellant’s accounts.
Plaintiff-Appellants have shown that Plaintiff-Appellant Stegeman9 in a
previous civil action, through his attorney asked Superior Court Judge Hunter to
freeze the accounts held at Wachovia until a determination of who owned the
accounts, the request went ignored.10 Plaintiff-Appellant’s accounts were illegally
accessed, the names and addresses on the accounts changed, a checking account
closed. Wachovia does not dispute this, but claims they did not wrong.
Appellees claim that there can be no relief from the violation of State and
Federal laws. This is incorrect as “tort” is a cause of action for which relief can
8 Wachovia agrees this would take a Court Order. A Superior Court or a higher
Court would be the only Courts with jurisdiction to give such an Order.
9 Plaintiff-Appellant McDonald was not part of that Civil action.
10 Because of this, Judge Hunter could be said to have a personal interest in the
case, Wachovia could easily blame her for the theft of Plaintiff-Appellant’s assets
and holdings. This is viewed as another reason why she ignored the request
disqualify herself, the Motion to Recuse and Dismissed the case knowing Plaintiff-
Appellants could prove their causes of action.
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and should be granted and Wachovia could reasonably have seen that injury would
occur from their acts.
See Williamson et., al. v. Abellera et., al. 312, 245
Ga.App. 312, 537 S.E.2d 130, 537 S.E.2d 130,
(2000).GA.0043081 which shows: “[G]enerally, an
independent, intervening criminal act of a third party,
without which the injury would not have occurred, will
be treated as the proximate cause of the injury
superseding any negligence of the defendant unless the
intervening criminal act is a reasonably foreseeable
consequence of the defendant's negligent act.”11
“Because the record contains evidence that Abellera and
Blackburn, Walther & Sloan might have reasonably
foreseen that the nature and character of their acts and
omissions could result in injury, the trial court erred in
11 Citing Tucker Federal Sav. & Loan Ass'n v. Balogh, 228 Ga. App. 482, 484
(491 SE2d 915) (1997); see also Coleman v. Atlanta Obstetrics & Gynecology
Group, 194 Ga. App. 508, 510 (1)(390 SE2d 856) (1990).
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ruling, as a matter of law, that those acts and omissions
were not proximate causes of the injury due to an
intervening act.”12
The Plaintiff-Appellant’s have shown statutes and controlling authority13 on
Banking; they have shown breach of contract, fraud, theft of resources, slander and
defamation (even though Superior Court failed to address several of the listed
causes of action).
12 See Schernekau v. McNabb, 220 Ga. App. 772, 773 (470 SE2d 296) (1996)
(proximate cause is properly reserved for the jury and can only be appropriately
addressed on summary judgment in plain and indisputable cases).
13 Using past decisions of this same Appeals Court of Georgia to cite
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The decisions made by both Superior Court and this Honorable Appeals
Court would have one come to the conclusion that both Judge Hunter and
Wachovia are above the law, have immunity for illegal acts and violations of
Plaintiff-Appellant’s Rights, and aren’t required to abide by the same laws as the
rest of society. The Plaintiff-Appellants, as Pro Se litigants, have been treated with
bias and inequality; both procedural and substantiative due process Rights have
been denied; and the guarantees of both The State of Georgia Constitution and The
United States Constitution have not been upheld by the Courts.
"Picking v . Pennsylvania Railway, (151 F2d. 240 Third
Circuit Court of Appeals . In Picking, the plaintiffs civil
rights was 150 pages and described by a federal judge as
"inept." Nevertheless, it was held: "where a Plaintiff
pleads pro-se in a suit for protection of civil rights, the
court should endeavor to construe plaintiffs pleading
without regard to technicalities."
In Walter Process Equipment v . Food Machine 382
U.S. 172 (1965) it was held that in a "motion to dismiss,
the material allegations of the complaint are taken as
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admitted." "From this vantage point, courts are reluctant
to dismiss complaints unless it appears the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief' (See Conley vs. Gibson, 355 U .S.
(1957).;
In Puckett v. Cox, it was held that a pro-se complaint
requires less stringent reading than one drafted by a
lawyer (456 F2d . 233 (1972 Sixth Circuit U.S.C.A.) said
Justice Black in Conley v . Gibson, 355 U.S. 41 at 48
1957 "The Federal Rules rejects the approach that
pleading is a game of skill in which one misstep by
counsel may be decisive to the outcome and accept the
principle that the purpose of pleading is to facilitate a
proper decision the merits ."
According to rule 8(f) FRCP "all pleadings shall be
construed to do substantial justice." The Court also cited
Rule 8(f) FRCP, which holds that "all pleadings shall be
construed to do substantial justice ."
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"It could also be argued that to dismiss a Civil Rights
action or other lawsuit in which a serious factual pattern
or allegation of a cause of action has been made would
itself be violative of procedural due process as it would
deprive a pro se litigant of equal protection of the law
visa vis a party who is represented by counsel . In a fair
system, victory should go to a party who has the better
case, not better representation.”14
14 U.S. Law Books : Pro Se Federal Decisions
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Appellants have failed to find any Statute, Rule or Decision that states that
The Georgia and United States Constitutions Bill of Rights only pertain to certain
individuals or only the privileged; that equality is only for a select few; that
Wachovia is above the law or naming Wachovia as the Fourth Branch of
Government.
Further, Appellants have diligently searched for a Statute, Rule, Decision
that states immunity is to be given to any banking institution or that state that
Wachovia especially is immune from liability when violating the laws of the State
of Georgia, actions for breach of contract, slander, defamation. And because many
transactions having to do with the theft of assets from Plaintiff-Appellant’s
accounts took place over long distance telephone and US Postal Services to
different departments of Wachovia in other states, the matter turned into Federal
crimes as well as state crimes.
BANKING LAWS:
Wachovia and Judge Hunter would have everyone believe that as “business
victims” Plaintiff-Appellants have no cause of action. This too is incorrect.
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See Gerber & Gerber, P.C. v. Regions Bank; and vice
versa. 266 Ga. App. 8; 596 S.E.2d 174; 2004 Ga. App.
LEXIS 206; 2004 Fulton County D. Rep. 898; 52 U.C.C.
Rep. Serv. 2d (Callaghan) 815 February 13, 2004,
Decided.
“Regions Bank argues that G&G failed to exercise
ordinary care, which substantially contributed to the
making of the forged signatures. Regions Bank contends
[*7] that accordingly G&G was precluded under
O.C.G.A. § 11-3-406 (a) from asserting the forgery
against the bank. Indeed, where some evidence shows
that the corporate payee acted negligently in failing to
prevent the forgery of its endorsement, a jury should
decide whether that negligence substantially contributed
to the making of the forgery — but only if the defendant
bank in good faith paid the instrument or took it for value
or for collection. See O.C.G.A. § 11-3-406 (a); cf. Trust
Co. of Ga. Bank &c. v. Port Terminal &c. Co., 153 Ga.
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App. 735, 739-741 (1) (266 S.E.2d 254) (1980)
(interpreting somewhat similar language found in the
predecessor statute to O.C.G.A. § 11-3-406 (a)). In 1996
the General Assembly amended the applicable definition
of “good faith” to mean “honesty in fact and the
observance of reasonable commercial standards of fair
dealing.” O.C.G.A. § 11-3-103 (a) (4); see Ga. L. 1996,
pp. 1306, 1340, § 3. Thus, even assuming the evidence
established as a matter of law that G&G's actions
substantially contributed to the making of the forgeries at
issue, [*8] the question here is whether there is a
disputed issue of fact as to Regions Bank's good faith (its
honesty in fact and its observance of reasonable
commercial standards of fair dealing) in regard to its
accepting the forged checks as deposits in Stafford's
account.”
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JOINT TENANTS WITH RIGHTS OF SURVIVORSHIP
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Accounts that are titled Joint Tenants15 With Rights of Survivorship
demands that all owners of the accounts will have had to agree and together
request (authorize) in writing a change to their accounts, or that without owner
authorizations, such statutes demand that a Superior Court Order must be provided
to change the name and address on an account and to close any account. Wachovia
freely admits that this is what the statutes say, yet at the same time they also admit
to changing the names, addresses, etc. on Plaintiff-Appellants accounts without a
Court order and at the request of one “John Joyner”. Wachovia then goes on to
15 Black’s Law Dictionary, 7th Edition, pg.1477 describes Joint Tenancy:
“joint tenancy. A tenancy with two or more co-owners who take identical interests
simultaneously by the same instrument and with the same right of possession * A
joint tenancy differs from a tenancy in common because each joint tenant has a
right of survivorship to the other’s share…” “RIGHT OF SURVIVORSHIP. Cf.
tenancy in common. “The rules of a joint tenancy are these: The joint tenants must
get their interests at the same time. They must become entitled to possession at the
same time. The interests must be physically undivided interests, and each
undivided interest must be an equal of the whole … Thomas F. Bergin & Paul G.
Haskell, Preface to Estates in Land and Future Investments 55 (2d ed. 1984)
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state that Plaintiff-Appellants cannot show a relationship between John Joyner16
and Wachovia. In other words, anyone can walk into Wachovia, and as long as
they have a name, address and account numbers, they can change the name,
address, etc. on anyone’s account and access that account with no questions asked.
Appellant’s Brief and Reply Brief cited prior, existing controlling authority,
using caselaw and precedents set by The Court of Appeals of Georgia, yet The
Court of Appeals of Georgia now disregard their own previous judgments. In
other words, The Court Of Appeals of Georgia is saying Justice in Georgia does
not exist for these Plaintiff-Appellants and that Wachovia is above the law.
Not one Judge signed the document Appellants received affirming Superior
Court’s decision.
16 The only document provided to Wachovia to set this into action was not a legal
document needed to perform the acts of removing names, adding names, changing
addresses, Wachovia admits to do that one would have to have a Court Order.
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STATUTES
O.C.G.A. §9-11-12(a) “... A defendant shall serve his answer within 30
days after service of the summons…”
O.C.G.A. §9-11-12(b) “… a motion to dismiss for failure of the pleading to
state a claim upon which relief can be granted, … the motion shall be treated as
one for summary judgment and disposed of as provided in Code Section 9-11-56,
and all parties shall be given reasonable opportunity to present all material made
pertinent to such a motion by Code Section 9-11-56.”
O.C.G.A. §9-11-12(d) “… specifically enumerated in paragraphs (1)
through (7) … shall be heard and determined before trial …”
DEFAULT
O.C.G.A. §9-11-55.(a) “… If in any case an answer has not been filed
within the time required by this chapter, the case shall automatically become in
default…”; (b) “… may allow default to be opened for providential cause…” “…
the showing shall be made under oath, shall set up a meritorious defense shall offer
to plead instanter, and shall announce ready for trial.”
Appellees agree: “they tendered costs under O.C.G.A. §9-11-55(a)”,
admitting that “Wachovia” was in default. Default estops the defendant from
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filing an Affirmative response, yet Wachovia was allowed to file offering defenses
which would defeat the right of recovery. Wachovia’s legal counsel, when
referencing the default and the opening thereof, uses the term “as a matter of
right”, gives no explanation of why they defaulted in both Superior Court, US
District Court, then in Superior Court again, just that they “opened default as a
matter of right”.17
See Cochran v. Carlin 254 Ga. App. 580, 585 (3) (331
SE2d 523) (1985) which held “The default concludes the
defendant’s liability, and estops him from offering any
defenses which would defeat the right of recovery.”
(Citations and punctuation omitted.)” See also See
Lucky Friday Silver-Lead Mines Co. v. Atlas Mining
Co., 88 Idaho 11 (395 P2d 477) (1964). “Since appellant
17 The term “as a matter of right” can be used when Removal to U.S. District Court,
but proper procedure still must be followed (U.S. District Court Rules of Civil
Procedure); an Appeal is a “matter of right”, but proper procedure must be
followed (Court of Appeals of Georgia Rules); in both instances if proper
procedure is not followed, the “matter of right” is legally denied.
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failed to file an effective answer, appellant was in
default.” “… appellant failed to make the requisite
responsive pleading, appallee was “entitled to verdict and
judgment by default, …, as if every item and paragraph
… supported by proper evidence…” “CPA 55(a)(Code
Ann. 81A-155 (a)): Tri-State Culvert Mfg., Inc v.
Crum, 139 Ga. App. 448, 450 (2258 SE2d 403)(1976).”
“Under CPA 55(a), appellee is entitled to judgment as if
the allegations of the complaint were supported by proper
evidence. Tri-State Culvert Mfg., Inc. v. Crum, supra.”
Also see: Azarat Marketing Group, Inc v. Department
of Administrative Affairs, et al. (245 Ga. App. 256)(537
SE22d 99)(2000) 1.(b): “… in default is in the position
of having admitted each and every material allegation of
the plaintiff’s petition …” “The default concludes the
defendant’s liability, and estops him from offering any
defenses which would defeat the right of recovery.”
Quoting: “Cochran v. Carlin, 245 Ga. 580, 585(3)(331
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SE2d 523)(1985).” “In this case, …complaint shows that
(1) there was an agreement…; (2)….delivered as
promised; (3) …right of recovery have occurred; and (4)
… the state refused… pursuant to the agreement.” “…
sufficient to state a cause of action for breach of contract
and were deemed admitted by the State’s default. See
OCGA 9-11-8(a)(2); 9-11-55(a); see also Morgan v.
Ga. Vitrified Brick & Co., 196 Ga. App. 779, 780 (1)
(397 SE2d 49)(1990) (all doubts in favor of plaintiff on a
motion to dismiss for failure to state a claim.)”
MOTION TO DISMISS
A Motion To Dismiss is always viewed in favor of the non-moving party,
yet Plaintiffs were not treated with favor and or with the assumption that all
allegations were true which is mandated by both Superior Court Rules of Civil
Procedure and Federal Rules of Civil Procedure.
Appellants were denied their Right to present “all material made pertinent”,
the allegations of their complaint were not viewed “in the light most favorable to
them”
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Appellants were treated unfairly and with bias in Superior Court when
granting Appellee-Defendant’s Motion to Dismiss. 1) Appellants have shown that
because of the default, there could be no Motion to Dismiss (affirmative defense)
filed. 2) Appellants-Plaintiffs were not allowed to present evidence on their
behalf at a hearing before Superior Court decided the case was without merit. 3)
Appellant-Plaintiff Stegeman had filed a Civil action in Federal Court naming
Superior Court as a defendant, Motioned Superior Court for a Stay on that action,
the Motion was ignored. Quite simply, Superior Court retaliated by Dismissing the
case as there were pertinent issues of material fact that only a Jury could have
decided under the Rules of Civil Procedure.
See Brown v. Dorsey, 625 S.E.2d 16, 276 Ga. App. 851
(Ga. App. 11/14/2005) at [9]: “A motion to dismiss may
be granted only where a complaint shows with certainty
… would not be entitled to relief under any state of facts
that could be proven in support of her claim”. 18 “…, all
pleadings are to be construed most favorably to the party
18 Quoting Ga. Military College v. Santamorena, 237 Ga. App. 58 (514 SE2d 82)
(1999). (Citation and punctuation omitted.)
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who filed them, and all doubts … must be resolved in the
filing party’s favor.”19 “We apply a de novo standard of
review to the trial court’s ruling on a motion to
dismiss.”20
Appellants have the evidence21 to prove their allegations, yet Superior Court
denied Appellants their Right to present their evidence and the Right to be heard.
Superior Court refused to have hearings for which Plaintiff-Appellants had asked.
See: Pruitt v. Tyler 351 S.E.2d 539, 181 Ga. App. 174
(1986): “Presumably, no hearing would have been
scheduled on the motion had appellee not requested it.
See Rule 6.3 of the Uniform Superior Court Rules
19 Quoting Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997)
20 Quoting Common Cause/Ga. V. Campbell, 268 Ga. App. 599, 601 (2) (602
SE2d 333)(2004)
21 Certified Bank Records, Certified Depositions of Sr. Vice President Wachovia
Securities Jim Busch, and deposition of Nancy K Levelsmier Compliance Officer,
etc.
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(Rules). But see Sentry Ins. v. Echols, 174 Ga. App. 541
(330 S.E.2d 725) (1985) (holding that, under the Civil
Practice Act, the right to a hearing cannot be waived by
inaction); Ferguson v. Miller, 160 Ga. App. 436, 437
(287 S.E.2d 363) (1981) (holding that, under the Civil
Practice Act, "the spirit of the summary judgment
procedure contemplate that the respondent shall have
actual notice of a day upon which the matter will be
heard and judgment rendered upon the record then
existing.")”
- 33 -
This Court references evidence, the only evidence Wachovia filed was their
answer in US District Court, which was an affirmative defense. They were in
default in U.S. District Court. Wachovia was estopped from filing an affirmative
defense because they were in default. Because they filed an improper response,
the wrong answer, they failed to file an answer period. This Honorable Court has
taken the same position as the Superior Court and denied Plaintiff-Appellants their
Rights by allowing the manifest injustice of ignoring violations of Civil Rules of
Procedure, Uniform Superior Court Rules, statutes of the State of Georgia and
Federal statutes as well.
The cases cited by Superior Court and Judge Hunter in the Findings of Fact
and Conclusions of Law were the exact ones Wachovia had used, the wording was
almost exact. The problem is that the caselaw didn’t pertain to Plaintiff-
Appellant’s case.
“Some Courts of Appeals look with a jaundiced eye…
findings or conclusions of law that follow counsel’s
requests verbatim” Be sure that someone checks the
subsequent history of the cases. It is not a sin to be
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overruled except for relying on a case that has been
overturned.”22
CONCLUSION
Plaintiff-Appellants Move this Honorable Court to reconsider their
Affirmation of Superior Court’s Order Dismissing their case. Plaintiff-Appellants
have filed within the required period of time, and have shown just cause for
reconsideration.
Respectfully Submitted this 17th day of December, 2007
By: _________________________ JAMES B. STEGEMAN, Pro Se
821 Sheppard Rd Stone Mountain, GA 30083
(770) 879-8737
22 From: Benchbook For US District Court Judges
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By: _________________________ JANET D. MCDONALD, Pro Se
821 Sheppard Rd Stone Mountain, GA 30083
(770) 879-8737
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