Wrongful Foreclosure Appeal 11th Cir

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Mouse v. BOO, a real case with names changed to protect the parties. The appeal is currently pending before the 11th Cir.

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<p>I.</p> <p>STATEMENT OF JURISDICTION</p> <p>Mr. Mouse contends, that the District court lacked jurisdiction over the original complaint,1 According to the defendants Removal to District Court [R1], District Courts jurisdiction was invoked pursuant to 28 U.S.C. 1331, 1367(a). Defendants Motion for Summary Judgment [R55] was filed on February 10, 2012, the Court Granted Defendants Motion for Summary Judgment on August 30, 2012 [R61] 28 U.S.C. 1291, the Clerks judgment was filed on August 31, 2012 [R62]. On September 28, 2012, Mr. Mouse timely filed Notice of Appeal [R63], in accordance with Fed.R.App.P.4(a)(1)(A).</p> <p>II. 1.</p> <p>STATEMENT OF THE ISSUES</p> <p>Whether the District Court erred in Denying [R13] Mr. Mouses Motion to</p> <p>Remand[R9], when Removal had been untimely, there were no federal causes of action, no federal questions, the causes of action were not dependent upon federal law, and the case was requesting documents as relief, no money ,thereby federal Court lacked jurisdiction. Even if that was not error, it was certainly error for the case not to be remanded on the grounds that Removal was not attempted, until the action had been in the Court for ninety-five (95) days, and thereby removal was1</p> <p>Which in reality, was a request for documentation proving the identity of the holder of the Promissory Note and Security Deed, as Mr. Mouse had wanted to negotiate a payoff, and have the debt satisfied/cancelled at that same time [R3] and attempted to have the case remanded.1</p> <p>untimely. 2. Whether the Magistrate Judge erred in reviewing and reversing Superior</p> <p>Courts Orders, wherein manifest injustice did not exist.. 3. Whether the District Court erred in its ruling that defendant only had to</p> <p>produce one or two documents, out of twenty-six (26) documents that Superior Court Ordered, to be produced after being shown that BOOhad acted in bad faith. 4. Whether the District Court erred by not enforcing its Order [R29] that</p> <p>Respondent depose Mr. Mouse within 30 days, even if that was not error, was it err for the court to grant motion to compel [R68-19] when defendant had no intention of re-deposing Mr. Mouse, which was the reason for Motion to Compel the issue that they filed the motion to compel for? 5. Whether Denial of Mr. Mouses Request for De Novo review of the</p> <p>Magistrate Judges ruling of September 20, 2010 [R31, R32] was error; and even assuming that the Denial was not error, was it error for the Magistrate Judge to be the one ruling on the request of her ruling for de novo review by the District Court Judge, herself [R34], rather than the District Court Judge to make such ruling? 6. Whether District Court erred in Denying [R45] Mr. Mouses Petition for</p> <p>Preliminary Injunction/Temporary Restraining Order [R42], leaving the property open to be foreclosed upon, and causing the case to become moot. 7. District Court erred, when, after Mr. Mouse filed a new Superior Court2</p> <p>action for wrongful foreclosure, and the case removed to District Court, in front of the same Judge as the case at bar, and it having been shown, that neither Mr. Mouse, nor his Legal Counsel were served Motion to Dismiss/summary judgment, just as in the case at bar, and the judge allowed the ruling to stand, then using that ruling to moot this first filed civil action. 8. Whether the District Court erred when in its ruling, the Judge advised BOA,</p> <p>[R54] that if BOOwere to file the same thing, but as a Summary Judgment, that it would be Granted. 9. Whether the District Court violated Mr Mouses Right to Due Process of</p> <p>Law, by Denying [61] Mr. Mouses emergency Motion for an extension to respond to summary judgment[R56] showing that neither he, nor his Legal Counsel had been served the Motion for Summary judgment [R55], and requesting that he be allowed to participate. 10. Whether the District Court erred in Granting defendants summary</p> <p>judgment, without considering the whole record [R61]. III. A. STATEMENT OF THE CASE Nature of the Case, Course of Proceedings, and Disposition Below</p> <p>Mr. Mouse, whose loan was not in default, and who, had been both a real estate agent, and a real estate broker, had tried for many months to get documentation from Bank Of America, N.A. (BOA) so that he could negotiate a3</p> <p>payoff on his home loan. BOOrefused any and all documentation, which led Mr. Mouse to believe that his suspicions of having been paying an entity not entitled to the payments had been confirmed. Mr. Mouse quit making the payments and filed a civil action in Superior Court of Fayette County (SCFC) in order to obtain the documents that he required. BOOhad Johnson &amp; Freedman lawfirm send Notice of Foreclosure letters. The Superior Court scheduled a hearing on the documents issue for October 23, 2009. BOOfailed to appear for hearing, the Judge found BOOhad shown bad faith, while Mr. Mouses many attempts to resolve the matter outside of the court, for over a year, in good faith. Superior Court Granted a TRO, and Granted the Production of all documents Mr. Mouse sought [R52-4,5,6], within ten (10) days. With actual knowledge that they were in contempt of the Order, and had defaulted on their responsive pleading, in a case with no federal causes of action, no federal questions, BOOremoved the case to US District Court on November 23, 2009, more than ninety-five days after the case had been filed. A year or more into the case, Magistrate Judge Denied a Petition for TRO when BOOmade it clear that they were pursuing foreclosure. After foreclosing, BOOwithdrew their Counterclaim and filed Motion for Judgment on the Pleadings. The District Court Denied the Motion [R54] and in the Ruling, told BOOthat should they file the same thing in the form of Summary Judgment that he would4</p> <p>grant the motion [R54-2].</p> <p>BOOhas incorrectly, consistently insisted that Mr.</p> <p>Mouse did not dispute the authenticity of the Deed, Note and Assignments; it is common knowledge that Mr. Mouse, more than once, had entered an Affidavit of Fraud/Forgery into proceedings concerning those documents [R52-2 thru 4; R52-9, 10]; [R26-Ex3; R26-Ex4; R26-Ex5]. BOOfiled for Summary Judgment [R55], but did not comply with the Local Rules on Notice to Respond to Summary Judgment. In fact Mr. Mouse at that time, was represented by Legal Counsel, and neither Mr. Mouse, nor his Legal Counsel were alerted that a Summary Judgment had been filed. Mr. Mouse and his Legal Counsel learned of the Motion when Legal Counsel was later notified electronically, that the Motion had been submitted to the Judge. Mr. Mouse filed an Emergency Motion [R56], to which Legal Counsel had attached an Affidavit [R55-#1] Requesting that he be allowed to participate, and file a late response. The District Court Denied the Motion, in the final ruling Granting BOOSummary Judgment against Mr. Mouse [R61]. IV. (1) STATEMENT OF THE FACTS The Complaint Mr. Mouse Filed In Superior Court</p> <p>Mr. Mouse, had sent Qualified Written Request Letters to BOOon 04/04/09, 05/06/09, 06/22/09, and 07/25/09. Due to BOAs refusal to provide Mr. Mouse any information in his quest to validate the debt. On August 21, 2009, Mr. Mouse5</p> <p>filed a civil action in Fayette County Superior Court (SCFC), solely to force BOOto produce documents that would validate the debt. Mr. Mouse was not seeking a money judgment. Upon validation, Mr. Mouse planned to satisfy the remainder of the debt, and have cancelled, the Promissory Note and Security Deed [R52-5,6]. BOAs response was to send Mr. Mouse Notice of Foreclosure letters, and to schedule a Sale Under Power for the first Tuesday in November. October 7, 2009 the Court scheduled a hearing on the documents issue, scheduled for October 23, 2009. Mr. Mouse was Ordered to have Notice of hearing formally served upon BOA, to which, Mr. Mouse complied. BOOfailed to appear. The Court found BOOhad acted in bad faith, and Granted both the TRO [R2] and Granted Request for Production of documents [R3]. The Court Ordered that BOOhad 10 days to produce the documents.</p> <p>Instead, of providing the documents, and while Plaintiff was in the middle of drafting Motions for Contempt of Court and for Default, BOOremoved the action, after the case being in Superior Court for ninety-five (95) days, to United States District Court (USDC) [R1]. BOOon November 25, 2009 removed a case that had been filed on August 21, 2009, ninety-five (95) days prior to their Notice of Removal. Mr. Mouse, knew nothing about federal court, but believed that the Court would adhere to their6</p> <p>own rules on Removals and lack of jurisdiction, and that the court would sua sponte, Remand the case back to Superior court. There were no federal causes [R9-3], no federal relief sought, and there were not federal constitutional violations. BOOwas in contempt of two (2) Court Orders [R2, R3] had failed to file responsive pleadings for three months. The thirty (30) days in which the case could have been removed, had turned into ninety-five (95) days. When it became obvious that the Court was going to ignore their lack of jurisdiction, Mr. Mouse filed Motion to Remand [R9] showing that BOOwas looking to get around two contempt charges, a default judgment for failing to file responsive pleading, and that BOOintended to use USDC as an appellate Court [R9-2,3], the court clearly, lacked jurisdiction [R9-3,4,5]. Mr. Mouse also</p> <p>included in Motion to Remand, federalism/comity/abstention [R9-7,8], and Rooker-Feldman [R9-8]. In his Reply Brief, Mr. Mouse clearly showed that he had merely stated BOOhad violated FDCPA and/or RESPA, neither were used as a cause of action, sought no relief for said violations, Mr. Mouse further showed that the complaint did not arise under federal law [R12-4]. The Magistrate Judge sided with BOOand held that mentioning FDCPA and RESPA made them claims and Plaintiff, as the master of his pleadings should not have included those words [R13-7]; and Denied Mr. Mouses Motion to Remand on May 03, 2010 [R13].7</p> <p>Mr. Mouse felt so strongly about the issue, he filed an Objection and Motion for Reconsideration of the Order [R17]. In the Motion, Mr. Mouse showed that Notice of Removal was filed ninety-five (95) days after the civil action had been filed into superior court.[R17-4]; that BOOwas in default [R17-6]; that BOOwas contempt of two court orders, and had failed to remove all documents [R13-8]. (2) Magistrate Judge Refused to Address the Date The Case Was Filed</p> <p>Every time Mr. Mouse filed anything into the Court he brought up that SCFC case had been filed on August 21, 2009 [R9-1; R12-5; R17-1; R36-1445; R24(Brf)-22; R25(Brf)-4; R52-3,4 &amp; Ex.1]. BOOcontinually claimed that it had been filed the same day as the hearing, October 23, 2009 [R52-4]; that way BOOcould claim that the Temporary Restraining Order (TRO) had been granted ex parte. Mr. Mouse even filed into the USDC record, the Docket Report from SCFC [R52-Ex2], and the Magistrate Judge still refused to address the true date the case was filed [R52-5]. Pretending that the case had not been filed until the hearing of October 23, 2009, allowed the Magistrate Judge keep from having to address that BOOwas in Default, or that they had not timely removed the case to USDC. (3)2</p> <p>The Superior Courts Orders</p> <p>R24(Brf)-2 = R = Record (Docket Report Number of Document); Document 24 is Motion for Contempt, (Brf) is the accompanying Brief (The docket report reads Motion for Contempt with Brief in Support by Gaellen Mouse) -2 = page 28</p> <p>Both the Magistrate, and District Court Judges ignored the Superior Courts Orders Granting TRO [R2], and Granting the Production of Documents [R3]. Mr. Mouse had attempted to get BOOcharged with being in contempt of those Orders, and was Denied [R34]. BOOhad knowingly, willingly, and wantonly refused to Obey the two (2) Court Orders. In fact, the Magistrate Judge limited the documents that Mr. Mouse could request on Discovery, which included the documents that BOOhad been ordered to produce [R68-12-17]. The Magistrate Judge effectively overturned the Superior Courts Order, and further violated Mr. Mouses Rights. The SCFC had seen first-hand how BOOhad acted in bad faith and saw fit to award Mr. Mouses acts of good faith, and Granted what he sought. In essence the Magistrate Judges ruling was nothing more than BOOappealing the ruling to USDC, with BOOwinning the appeal. (4) Magistrate Judge Ruled on the Relevancy of the Documents,</p> <p>When She Clearly Did Not Understand What the Documents Were At a Motion to Compel hearing, brought by BOOagainst Mr. Mouse for their unhappiness at his answers in a deposition, Mr. Mouse, after being ridiculed by the Magistrate Judge, was going through the list of documents that he had requested, and SCFC had Ordered BOOto produce, [R68-12-21 thru 25],3 which were the same documents that Mr. Mouse had tried to get before he filed suit; the Magistrate3</p> <p>[R68-12-21 thru 25] = R68 = Transcript from August 31, 2010 for Motion to Compel hearing); -12 = page 12; 21 thru 25 = lines 21 thru line 25.9</p> <p>Judge showed that she had no idea what the documents were, but ruled them nonsensical [R68-13-5], irrelevant [R68-13-18; R68-13-23]; held that doesnt make any sense so I am not ordering that [R68-14-5; R68-14-11]; Denied R6815-4]; [R68-16-8; R68-16-15; R68-16-19]; Okay. That is denied [R68-15-11; R68-15-25] Denied. Doesnt make any sense[R68-15-18]. In essence, the Magistrate Judge Reviewed, Reversed, and Overruled an Order from SCFC, when such Order was given because BOOhad acted in bad faith, and had refused to appear for a duly Noticed Hearing. The documents were also documents that Mr. Mouse had a right to request. (5) Magistrate Judge Ordered BOOto Conduct Second Deposition</p> <p>The Magistrate Judge, at the Motion to Compel hearing, Ordered that BOOset up a second deposition for Mr. Mouse to attend, and to give him at least two weeks notice4 [R68-19-10 thru 11], and, at the suggestion of BOOattorney [R68-17-25 thru 1-18-2; R68-18-10 thru 11], they were Ordered to hold the deposition within thirty (30) days [R68-19-3 thru 4]. In truth and fact, BOOnever scheduled that second deposition, and thereby failed to Obey another Court Order. Apparently BOOis in the habit of ignoring4</p> <p>When BOOhad sent Notice of Deposition to Mr. Mouse the first time, they Noticed the Deposition for four (4) days after Mr. Mouse received the Notice. Mr. Mouse contacted BOOand requested an extension so that he could locate Legal Counsel to attend the deposition with him. BOOgranted a one day extension knowing that Mr. Mouse would not be able to find Counsel to attend on such short Notice.10</p> <p>Courts Orders, even in so far as ignoring them when it is for what they requested.</p> <p>(6)</p> <p>Mr. Mouses Objection to the Order, and Motion for De Novo Review by the District Court Judge</p> <p>Mr. Mouse filed Objection to the Magistrate Judges Order and Motion for de novo review by the District Judge on September 20, 2010 [R31, R32]; when District Court failed to...</p>