wrongful foreclosure appeal 11th cir

54
I. STATEMENT OF JURISDICTION Mr. Mouse contends, that the District court lacked jurisdiction over the original complaint, 1 According to the defendant’s Removal to District Court [R1], District Court’s jurisdiction was invoked pursuant to 28 U.S.C. §§ 1331, 1367(a). Defendant’s Motion for Summary Judgment [R55] was filed on February 10, 2012, the Court Granted Defendant’s 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). 1 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

Upload: janet-and-james

Post on 12-Apr-2015

221 views

Category:

Documents


1 download

DESCRIPTION

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

TRANSCRIPT

Page 1: Wrongful Foreclosure Appeal 11th Cir

I. STATEMENT OF JURISDICTION

Mr. Mouse contends, that the District court lacked jurisdiction over the

original complaint,1 According to the defendant’s Removal to District Court [R1],

District Court’s jurisdiction was invoked pursuant to 28 U.S.C. §§ 1331, 1367(a).

Defendant’s Motion for Summary Judgment [R55] was filed on February 10, 2012,

the Court Granted Defendant’s 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).

II. STATEMENT OF THE ISSUES

1. Whether the District Court erred in Denying [R13] Mr. Mouse’s Motion to

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 was

1 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

Page 2: Wrongful Foreclosure Appeal 11th Cir

untimely.

2. Whether the Magistrate Judge erred in reviewing and reversing Superior

Court’s Orders, wherein manifest injustice did not exist..

3. Whether the District Court erred in its ruling that defendant only had to

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

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. Mouse’s Request for De Novo review of the

Magistrate Judge’s 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. Mouse’s Petition for

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 Court

2

Page 3: Wrongful Foreclosure Appeal 11th Cir

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,

[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 Mouse’s Right to Due Process of

Law, by Denying [61] Mr. Mouse’s 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 defendant’s summary

judgment, without considering the whole record [R61].

III. STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and Disposition Below

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 a

3

Page 4: Wrongful Foreclosure Appeal 11th Cir

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 & 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. Mouse’s 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 would

4

Page 5: Wrongful Foreclosure Appeal 11th Cir

grant the motion [R54-2]. BOOhas incorrectly, consistently insisted that Mr.

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. STATEMENT OF THE FACTS

(1) The Complaint Mr. Mouse Filed In Superior Court

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 BOA’s refusal to provide Mr. Mouse

any information in his quest to validate the debt. On August 21, 2009, Mr. Mouse

5

Page 6: Wrongful Foreclosure Appeal 11th Cir

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].

BOA’s 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.

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 their

6

Page 7: Wrongful Foreclosure Appeal 11th Cir

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

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. Mouse’s Motion to Remand on May 03, 2010 [R13].

7

Page 8: Wrongful Foreclosure Appeal 11th Cir

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

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; R36-14¶45;

R24(Brf)-22; R25(Brf)-4; R52-3,4 & 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) The Superior Court’s Orders

2 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 2

8

Page 9: Wrongful Foreclosure Appeal 11th Cir

Both the Magistrate, and District Court Judges ignored the Superior Court’s

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 Court’s Order, and further violated Mr.

Mouse’s Rights. The SCFC had seen first-hand how BOOhad acted in bad faith

and saw fit to award Mr. Mouse’s acts of good faith, and Granted what he sought.

In essence the Magistrate Judge’s ruling was nothing more than

BOOappealing the ruling to USDC, with BOOwinning the appeal.

(4) Magistrate Judge Ruled on the Relevancy of the Documents,

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 Magistrate

3 [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

Page 10: Wrongful Foreclosure Appeal 11th Cir

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 doesn’t

make any sense so I am not ordering that” [R68-14-5; R68-14-11]; “Denied” R68-

15-4]; [R68-16-8; R68-16-15; R68-16-19]; “Okay. That is denied” [R68-15-11;

R68-15-25] “Denied. Doesn’t 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

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 ignoring

4 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

Page 11: Wrongful Foreclosure Appeal 11th Cir

Courts Orders, even in so far as ignoring them when it is for what they requested.

(6) Mr. Mouse’s Objection to the Order, and Motion for De Novo

Review by the District Court Judge

Mr. Mouse filed Objection to the Magistrate Judge’s Order and Motion for

de novo review by the District Judge on September 20, 2010 [R31, R32]; when

District Court failed to rule on the request, the Magistrate Judge ruled on the

matter, herself on December 20, 2010 [R34]. Shortly afterward, the District Court

did make a ruling, on January 03, 2011, District Court also Denied the Motion for

De Novo Review [R35].

Mr. Mouse was of the understanding and belief that since the Magistrate

Judge was making all the rulings, that a party could properly object and request a

de novo review, and the Request to Review the Ruling, would be Granted.

(7) Denial of Preliminary Injunction/Temporary Restraining Order

The denial of any protection from foreclosure [R45], during the pendency of

the case, resulted in a Sale Under Power, and effectively caused Mr. Mouse’s

Complaint to become moot. Having been in Court since August 2009, and to cut

the case short when it was so close to a trial, together with the fact, that Mr.

Mouse had retained legal counsel, prevented Mr. Mouse the chance to have his day

in Court. Mr. Mouse had filed an Affidavit of Forgery and Fraud concerning the

11

Page 12: Wrongful Foreclosure Appeal 11th Cir

documents BOOwas using, and the last assignment, as well as the Limited Power

of Attorney, were questionable at best.

(8) The Court Denied Judgment on the Pleadings, But in the Same

Order, Advised That the Court Would Grant Summary

Judgment

BOOhad filed Motion for Judgment on the Pleadings, seeking to end the

case; after all, the non-judicial foreclosure and Sale Under Power had taken place,

resulting in Mr. Mouse’s Verified Complaint becoming moot.

When District Court Ruled on the Motion for Judgment on the Pleadings, in

the Order, the Court stated, “Accordingly...Denied, but the denial is without

prejudice to their bringing essentially the same motion as a motion for summary

judgment. It would significantly assist this Court if Defendant were to include

with its motion, along with the items required by Local Rule 56.1, an affidavit...the

deadline for filing a summary judgment motion is EXTENDED to February 10,

2012.” [R54-1,2]. BOOhad representation, Mr. Mouse had not realized that the

Court was allowed to act as lead counsel for defendants in a civil action, advising

them what to file to end a case. Mr. Mouse was not afforded the same advantage,

not even when he was proceeding in propria persona.

(9) BOODid Not Follow the Local Rules on Summary Judgment

Neither Mr. Mouse, nor his Legal Counsel were notified that Summary

Judgment had been filed. On March 14, 2012, through the CM/ECF system, legal

12

Page 13: Wrongful Foreclosure Appeal 11th Cir

counsel received “Submission of [55] MOTION for Summary Judgment,

submitted to District Judge Willis B. Hunt”; that was the first information that Mr.

Mouse or his legal counsel obtained, showing that Motion for Summary Judgment

had been filed [R56-2,3].

BOOattorneys were also supposed to mail to Mr. Mouse’s Legal Counsel, a

“Notice to Respond to Summary Judgment Motion form”, which the failure to

send, has gone undisputed. The Notice to Respond to Summary Judgment Motion

form was never mailed to Mr. Mouse nor to his legal counsel. BOOhad ignored

their responsibility, and purposefully saw that Mr. Mouse did not receive the

Notice.

Mr. Mouse’s Legal Counsel filed with the Emergency Motion and Affidavit

supporting the fact that neither he, nor his client had any idea, and was not notified

that Summary Judgment had been filed [R56-4]. Mr. Mouse filed Emergency

Motion for Extension of Time to Respond [R56] which the District Court Denied

in the Final Ruling Granting BOOSummary Judgment against Mr. Mouse.

(10) Standard of Review On Summary Judgment is De Novo

V. SUMMARY OF THE ARGUMENT

The case should have been sua sponte Remanded to Superior court, for

Removal of a non-removable action, untimely removal, and lack of personal and

subject matter jurisdiction. The Court refused to remand the action, although there

13

Page 14: Wrongful Foreclosure Appeal 11th Cir

were no federal questions, the case did not arise from federal law, or treatise, the

federal court did not have original jurisdiction, and the monetary relief did not

meet the $75,000.00 requirements of federal court.

District Court Denied Mr. Mouse’s Petition for TRO/Injunction, even just

for while the case was pending. When the TRO was denied, there was an

immediate Sale Under Power. Shortly thereafter, BOOfiled for Judgment on the

Pleadings, which the Court denied, and advised that they should refile, but to file

for Summary Judgment, and that would give the judge whatever it was that he

needed, to be able to grant their motion.

When BOOfiled for Summary Judgment, it was shown that neither Mr.

Mouse, nor his Legal Counsel had been served with the Summary Judgment, Legal

Counsel even filed an Affidavit in support of the motion. Mr. Mouse filed an

Emergency Request for Extension, so that Mr. Mouse could participate in

Summary Judgment. District Court violated Mr. Mouse’s Right to Due Process of

Law, and Right to be heard, when his Motion was Denied, and the Court Granted

BOOSummary Judgment.

VI. ARGUMENT AND CITATION OF AUTHORITY

A. USDC Lacked Jurisdiction to Entertain the Case at Bar

The case originally filed on August 21, 2009 in SCFC, had no federal causes

of action, requested no form of federal relief, and none of the causes within the

14

Page 15: Wrongful Foreclosure Appeal 11th Cir

complaint arose from federal law, federal treaties, or under the federal constitution.

Federal Court did not have original jurisdiction over such a case. The case was

merely seeking documentation to prove or disprove the true identity of the secured

creditor so that Mr. Mouse could negotiate a payoff, with the proper entity.

There were no federal claims in the original complaint. The Eleventh

Circuit’s September 07, 2011 Ruling in Madzimoyo held:

“In other words, to be removable on federal-question jurisdiction grounds, the case must arise under federal law. See Merrell Dow Pharm, Inc. v. Thompson, 478 U.S. 804, 807-08 (1986).

“A federal question is presented by the complaint when the suit relies on a federal cause of action or where ‘the vindication of a right under state law necessarily turned on some construction of federal law.’ See Merrell Dow, 478 U.S. at 808.”

i. Removal to Avoid Two (2) Contempts and a Default

BOOhad to Remove the case, in order to get around being in contempt of

two (2) Court Orders, and having failed to file responsive pleadings within thirty

(30) days, they were in default.

Although abstention is the exception and not the rule, “[f]ederal courts

should abstain from exercising their jurisdiction if doing so would ‘disregard the

comity between the States and the National Government.’” Wexler v. Lepore, 385

F.3d 1336, 1339 (11th Cir. 2004) (citation omitted). Abstention had been triggered

because of “undue interference with state proceedings” and because of the

involvement of “certain orders that are uniquely in furtherance of the state courts’

15

Page 16: Wrongful Foreclosure Appeal 11th Cir

ability to perform their judicial functions”

“The Supreme Court has recognized that a state's interest in its contempt process is of sufficient importance to warrant the application of Younger and that a federal court's interference with this process constitutes undue interference with a state's legitimate activities.” Juidice v. Vail, 430 U.S. 327, 335-36, 97 S.Ct. 1211, 1217-18, 51 L.Ed.2d 376 (1977).

These defendants “essentially sought to overturn” Johnnie L. Caldwell, Jr.’s

orders. “This would have required the district court to direct” Judge Johnnie L.

Caldwell, Jr. “to reverse” his “prior rulings, and any relief granted” in this case

would “unduly interfere with state court proceedings”. See id. at 335-36, 97 S.Ct.

at 1217-18. “This interference would relate to” one of Judge Johnnie L. Caldwell,

Jr.’s “judicial functions”, whether or not to Grant TRO and whether or not to

Grant the Order to Produce Documents. Should this court “interfere with the

judicial functions of a state court, comity” that would warrant “the district court's

abstention as to any pending matters”. See Wexler, 385 F.3d at 1339, 1341.

Because there was an order granting an injunction by the state court, the

defendants were seeking a way around that order. “When a court issues an

injunction, it automatically retains jurisdiction to enforce it.” Wesch v Folsom, 6

F.3d at 1470 (11th Cir. 1993). The case had to be remanded.

Such abstention, the Supreme Court recognized in Younger v. Harris, 401

U.S. at 53-54 is required by “[o]ur Federalism[‘s]” notion of comity, that is, “a

16

Page 17: Wrongful Foreclosure Appeal 11th Cir

proper respect for state functions” and “the belief that the National Government

will fare best if the States and their institutions are left free to perform their

separate functions in their separate ways.” Id.

ii. Superior Court Had Original Exclusive Jurisdiction

The Rooker-Feldman Doctrine, In Rooker, The Supreme Court determined

that the federal district courts lacked jurisdiction to “entertain a proceeding to

reverse or modify” a state court judgment, even if said judgment was wrong.

Rooker, 263 U.S. at 416.

In Feldman, The Supreme Court concluded that a federal district court has

“no authority to review final judgments of a state court in judicial proceedings.”

Feldman, 460 U.S. at 482. Both the Rooker and the Feldman rulings have been

reiterated in later rulings. “The Supreme Court has given us direct instruction

explaining the profound limitation to our powers in the sensitive relationship

between courts of separate sovereigns. In District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 1311, 75 L.Ed.2d 206 (1983), the

Court made it clear that federal district courts and federal courts of appeals lack

jurisdiction to review or reverse a state court judgment on the merits. Any such

federal review must be addressed directly to the United States Supreme Court from

the state's highest court pursuant to 28 U.S.C. § 1257. See Atlantic Coast Line

R.R. Co. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 296, 90 S.Ct. 1739,

17

Page 18: Wrongful Foreclosure Appeal 11th Cir

1747, 26 L.Ed.2d 234 (1970); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16,

44 S.Ct. 149, 150, 68 L.Ed. 362 (1923); Facio v. Jones, 929 F.2d 541, 543 (10th

Cir.1991) (district court had no jurisdictional power to set aside state default

judgment); In re Marler, 58 B.R. 481, 483-84 (D.Kan. 1986)”. In re James 940

F.2d 46 (1991)(3rd. Cir.).

Moreover, Superior Court has exclusive original jurisdiction over matters

relating to land and the title thereto.

O.C.G.A. §44-2-60:

“For the purpose of enabling all persons owning real estate within this state to have the title thereto settled and registered as prescribed by this article, the superior court of the county in which the land is located shall have exclusive original jurisdiction of all petitions and proceedings had thereupon.” 5

The current version of §1447 holds that “[i]f at any time before final

judgment it appears that the district court lacks subject matter jurisdiction”,

5 The words “shall”, “will”, or “must” are language of an unmistakably mandatory character, requiring that certain procedures "shall," "will," or "must" be employed Hewitt v. Helms, 459 US 460 - Supreme Court 1983; ("a State creates a protected liberty interest by placing substantive limitations on official discretion"); Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983) ("the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest"). "To create a constitutionally protected liberty interest, a state must employ `language of an unmistakably mandatory character, requiring that certain procedures "shall," "will," or "must" be employed ... '" Russ v. Young, 895 F.2d 1149, 1153 (7th Cir.1990) (quoting Hewitt, 459 U.S. at 471-72, 103 S.Ct. at 871). Protected due process liberty interests can be created, however, when a state "plac[es] substantive limitations on official discretion," Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983).

18

Page 19: Wrongful Foreclosure Appeal 11th Cir

remand would be required, see Powerex Corp., 127 S.Ct. at 2415-16 (emphasis

added)(quoting Judicial Improvements and Access to Justice Act of 1988, Title X,

§1016(c)(1), 102 Stat. 4642, 4670 (codified at 28 U.S.C. §1447(c)(2006)). As the

Court further pointed out, the “same section of the public law that amended

§1447(c) to include the phrase ‘subject matter jurisdiction’ also created” the

current version of 28 U.S.C. §1447(e).6

Section 1447(e) even provides “If after removal the plaintiff seeks to join

additional defendants whose joinder would destroy subject matter jurisdiction, the

court may deny joinder, or permit joinder and remand the action to state court.( 28

U.S.C. §1447(e) (emphasis added)) Accordingly, §1447(e) “unambiguously

demonstrates that a case can be properly removed and yet suffer from a failing in

subject matter jurisdiction that requires remand.”7

iii. Defendants Had Failed to Meet Their Burden On Removal

As the Eleventh Circuit Court of Appeals has clarified the scope of federal

question jurisdiction:

“The fact that a court must apply federal law to a plaintiffs claims or construe federal law to determine whether the plaintiff is entitled to relief will not confer federal subject matter jurisdiction— the implicated federal issue must be substantial.... [I]t is now well established that federal jurisdiction is not created by the mere fact that proof of violation of a federal statute is an element of a

6 Id. at 2417 (citing §1016(c), 102 Stat. At 4670.)7 Powerex Corp., 127 S.Ct. @ 2417.

19

Page 20: Wrongful Foreclosure Appeal 11th Cir

plaintiff's state-law cause of action. Dunlap, 381 F.3d at 1291-1292 (emphasis in original) (citations omitted). Therefore, whether a federal defense may arise is “far removed from a situation where compliance with federal law is an essential element of the plaintiff's claims.” Dunlap, 381 F.3d at 1292 (emphasis added).”

The U.S. Supreme Court held in its affirming the 6th Circuit reversal, in

Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U. S. 1

(1983),[2] and noting “that the FDCA does not create or imply” *807 “a private

right of action for individuals injured as a result of violations of the Act,” it

explained:

"Federal question jurisdiction would, thus, exist only if plaintiffs' right to relief depended necessarily on a substantial question of federal law. Plaintiffs' causes of action referred to the FDCA merely as one available criterion for determining whether Merrell Dow was negligent. Because the jury could find negligence on the part of Merrell Dow without finding a violation of the FDCA, the plaintiffs' causes of action did not depend necessarily upon a question of federal law. Consequently, the causes of action did not arise under federal law and, therefore, were improperly removed to federal court." 766 F. 2d, at 1006. We granted certiorari, 474 U. S. 1004 (1985), and we now affirm.”

Further, the removing defendants “have the burden of proving federal

jurisdiction”. Kirkland v. Midland Mortgage Co., 243 F.3d 1277, @1281 *n.5

(11th Cir. 2001)”. A conclusory allegation in the notice of removal that the

jurisdictional amount is satisfied, is insufficient to meet the defendant's burden.

See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.1995); Allen v. R & H

20

Page 21: Wrongful Foreclosure Appeal 11th Cir

Oil & Gas Co., 63 F.3d 1326, 1335-36 (5th Cir.1995); Gaus v. Miles, 980 F.2d

564, 567 (9th Cir.1992); see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1097

(11th Cir.1994) (concluding that removing defendant did not meet burden of

proving amount in controversy where it offered “nothing more than conclusory

allegations”); Gaitor v. Peninsular & Occidental S.S. Co., 287 F.2d 252, 255 (5th

Cir.1961) (stating that removing defendant must make “affirmative showing ... of

all the requisite factors of diversity jurisdiction”). BOOfailed to meet the burden.

B. Ignoring the Date Superior Court Action Had Been Filed

District Court’s ignoring the date the case in superior Court had actually

been filed, aided the Court in Denying Remand. Had the Court admitted that the

case had been filed August 21, 2009, rather than October 23, 2009, the Removal on

November 25, 2009 would have been untimely, and thereby not removable.

Plaintiff asserts that the case must be Remanded pursuant to §1447(c), due

to defective removal. U.S.C. 28 §1447(c) implicitly recognizes two bases upon

which a district court may, and in one case must order a remand: when there is (1)

a lack of subject matter jurisdiction or (2) a “defect” other than a lack of subject

matter jurisdiction.

Black's Law Dictionary defines "defect" as:

"[t]he want or absence of some legal requisite; deficiency; imperfection; insufficiency." Black's Law Dictionary 418 (6th Ed. 1990).

Similarly, Webster's defines it as:

21

Page 22: Wrongful Foreclosure Appeal 11th Cir

"[w]ant or absence of something necessary for completeness or perfection; deficiency." Webster's New International Dictionary of the English Language 686 (2nd Ed.1953).

C. District Court Ignored and Overturned Rulings of Superior Court

The Supreme Court “repeatedly has recognized that the States have

important interests in administering certain aspects of their judicial systems.”

Pennzoil, 481 U.S. at 12-13, 107 S.Ct. at 1526-27. In Juidice v. Vail, 430 U.S.

327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977), the Court held that a federal court

should have abstained from adjudicating a challenge to a state's contempt process.

The Court held that “[a] State's interest in the contempt process, through which it

vindicates the regular operation of its judicial system, ... is surely an important

interest.” Id. at 335, 97 S.Ct. at 1217. The Court reasoned: “Contempt in these

cases, serves, of course, to vindicate and preserve the private interests of

competing litigants, but its purpose is by no means spent upon purely private

concerns. It stands in aid of the authority of the judicial system, so that its orders

and judgments are not rendered nugatory”. Id. at 336 n. 12, 97 S.Ct. at 1217 n. 12

(citations omitted).

The inherent powers of federal courts are those which "are necessary to the

exercise of all others." United States v. Hudson, 7 Cranch 32, 34 (1812). The most

prominent of these is the contempt sanction, “which a judge must have and

exercise in protecting the due and orderly administration of justice and in

22

Page 23: Wrongful Foreclosure Appeal 11th Cir

maintaining the authority and dignity of the court. . . .” Cooke v. United States,

267 U. S. 517, 539 (1925); see 4 W. Blackstone, Commentaries @282-285.

The Courts have acknowledged the "inherent power" to “assess attorneys’

fees for the ‘willful disobedience of a court order . . . as part of the fine to be levied

on the defendant[,] Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399, 426-

428 (1923),’ Fleischmann Distilling Corp. v. Maier Brewing Co., supra, at 718;

or when the losing party has ‘acted in bad faith, vexatiously, wantonly, or for

oppressive reasons . . . .’ F. D. Rich Co. [v. United States ex rel. Industrial

Lumber Co.], 417 U. S. [116], at 129 [(1974)] (citing Vaughan v. Atkinson, 369

U. S. 527 (1962))." Id., at 258-259.

“[B]ad faith' may be found, not only in the actions that led to the lawsuit, but

also in the conduct of the litigation.” Hall v. Cole, 412 U. S. 1, 15 (1973). See

Browning Debenture Holders' Comm. v. DASA Corp., 560 F. 2d 1078, 1088

(CA2 1977).

USDC and the Magistrate Judge repeatedly denied Mr. Mouse Due Process

of Law. The Magistrate Judge outright said that she did not have to honor the

Superior Court’s Orders [R34-3, last ¶]. Even though Superior court had ordered

BOOto produce certain documents that Mr. Mouse was seeking, the Magistrate

Judge admitted that she “addressed each document request individually, and I

ordered Defendant to produce a copy of Plaintiff’s promissory note if available,

23

Page 24: Wrongful Foreclosure Appeal 11th Cir

and a copy of Plaintiff’s payment history...I also denied...any other documents

requested in the hearing and not specified in my Order.” [R34-3].

The Magistrate Judge went on to state that she had the right to “grant any

relief she deems appropriate, including reconsidering or reversing state court

rulings...” [R34-3]. Even the Magistrate Judge recognized that BOA, had in fact,

sought appellate review in federal court, the Magistrate Judge was glad to give

them what they wanted. This Order is one of the only ones that the Judge

acknowledged that the case had been filed on August 21, 2009 [R34-1], and yet

she still ignored that Removal had not been timely. The only injustice was her

rulings.

The fact remains that in Georgia it is the Borrower’s responsibility to ensure

that the proper party is paid, or face having to pay for the property multiple times.

BOOadmitted that they did not file the Assignment until years later.

“Although recording the assignment will be constructive notice to third persons

with regard to the property securing the debt, it is not notice with respect to the

debt itself, which is intangible property, Groover v. Peters, 231 Ga. 531, 202

S.E.2d 413 (1973)”.

“Payment after assignment. In paying the secured indebtedness the burden rests on the debtor to determine whether the person to whom he pays is the holder of the instrument or his authorized agent. ‘[T]he borrower must be as careful in repaying the debt as the lender presumptively was in making the loan.’ If the note and deed have been assigned, the burden rests on the borrower to

24

Page 25: Wrongful Foreclosure Appeal 11th Cir

determine that fact and pay only the party entitled.”

Groover v. Peters, 231 Ga. 531, 202 S.E.2d 413 (1973).” Daniel F. Hinkel

Pindar’s Georgia Real Estate Law and Procedure (6th Ed. 2004) Vol. 2, §21

Security Deeds, F. Construction & Operation, §21-45 Assignment and transfer.

Respondents have attempted to allege that Mr. Mouse’s complaint was one

of “show me the note” theories, and/or “vapor money” theories. They are

incorrect, and have pled those theories because the District Court will always

throw out those type of cases. While Mr. Mouse did not use those theories in his

complaint, the fact remains that “the general rule is that an original writing must be

produced and its execution proven” Daniel F. Hinkels Pindar’s Georgia Real

Estate Law and Procedure (6th Ed. 2004), Vol. II, Execution of Deeds §19-34

Formal Requisites. “The reason [such testimony is not excluded] is obvious;

such an instrument requires proof of execution before it can be admitted [into]

evidence, but, because this is so, it does not follow that it must be conclusively

taken as ... genuine.” McArthur v. Morrison, 107 Ga. 796, 798, 34 S.E. 205

443*443 (1899). In fact, upon proof of execution, “the genuineness of the

instrument may be attacked by competent evidence on the trial of the case in which

the instrument is sought to be used. Its admission is not decisive of its

genuineness.” Id. Thus, a jury could still conclude that the instrument or the

signature on it was forged. See id. See also Rumsey, Agnor's Ga. Evidence (3rd

25

Page 26: Wrongful Foreclosure Appeal 11th Cir

ed.), § 12-4.

Further, Mr. Mouse has alleged that the foreclosing entities were not owners

and/or holders of the Original Promissory Note, and that defendants cannot provide

evidence of such ownership. Georgia law authorizes the secured creditor, the

holder of the promissory note, to exercise a power of sale. See O.C.G.A. §§ 44-14-

162 et seq.;8 Weems v. Coker, 70 Ga. 746, 749 (1883) (“Could there be a more

conclusive defense to the foreclosure than that the party prosecuting it was not the

holder of the debt or demand secured by the mortgage, which he failed to produce

when called on, and offered nothing to show that he controlled it, or to explain why

it was not forthcoming at the trial?”), cited by Truitt v. Moister, 11 B.R. 15 (Bankr.

N.D. Ga. 1981); Bowen v. Tucker Fed. Sav. & Loan Assoc., 438 S.E.2d 121, 122

(Ga. Ct. App. 1993) (“It is established law in Georgia that although the holder of a

note who is also the grantee of a security deed has the right to exercise the power

of sale in the security deed upon default, he is not required to do so. He may sue on

the note . . . .”); Boaz v. Latson, 580 S.E.2d 572, 578 (Ga. Ct. App. 2003) (“[T]he

security deed arose from the indebtedness allegedly established by the promissory

8 “The security instrument or assignment thereof vesting the secured creditor with title to the security instrument shall be filed prior to the time of sale in the office of the clerk of the superior court in the county in which the real property is located.” O.C.G.A. § 44-14-162(b) (emphasis added). “Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure.” O.C.G.A. § 44-14-162.2(a) (emphasis added).

26

Page 27: Wrongful Foreclosure Appeal 11th Cir

note, and the deed’s power of sale depended on default under the note.”), rev’d on

other grounds, 598 S.E.2d 485, 487 (Ga. 2004); Cummings v. Anderson, 173 B.R.

959, 963 (Bankr. N.D. Ga. 1994) (“assignee of a note and security deed cannot

foreclose upon the security until there has been an actual assignment”), aff’d, 112

F.3d 1172 (11th Cir. 1997); Weston v. Towson, No. 5:04-CV-416, 2006 WL

2246206, at *6 (M.D. Ga. Aug. 4, 2006) (“the holder of the note continues to retain

remedies under the security deed so long as the debt evidenced by the note has not

been satisfied”). It is in fact necessary to prove the right to foreclose.

The fact remains, that if the right to foreclose is called into question through

suit being filed, the defendant must prove that they have the right to foreclose. The

Georgia statute shows that, although it does not say that they must produce the

note, it states that they must own the note. See O.C.G.A. §§ 44-14-162 et seq.;

Weems v. Coker, 70 Ga. 746, 749 (1883) (“Could there be a more conclusive

defense to the foreclosure than that the party prosecuting it was not the holder of

the debt or demand secured by the mortgage, which he failed to produce when

called on, and offered nothing to show that he controlled it, or to explain why it

was not forthcoming at the trial?”), cited by Truitt v. Moister, 11 B.R. 15 (Bankr.

N.D. Ga. 1981); Bowen v. Tucker Fed. Sav. & Loan Assoc., 438 S.E.2d 121, 122

(Ga. Ct. App. 1993) (“It is established law in Georgia that although the holder of a

note who is also the grantee of a security deed has the right to exercise the power

27

Page 28: Wrongful Foreclosure Appeal 11th Cir

of sale in the security deed upon default, he is not required to do so. He may sue on

the note . . . .”); Boaz v. Latson, 580 S.E.2d 572, 578 (Ga. Ct. App. 2003) (“[T]he

security deed arose from the indebtedness allegedly established by the promissory

note, and the deed’s power of sale depended on default under the note.”), rev’d on

other grounds, 598 S.E.2d 485, 487 (Ga. 2004); Cummings v. Anderson, 173 B.R.

959, 963 (Bankr. N.D. Ga. 1994) (“assignee of a note and security deed cannot

foreclose upon the security until there has been an actual assignment”), aff’d, 112

F.3d 1172 (11th Cir. 1997); Weston v. Towson, No. 5:04-CV-416, 2006 WL

2246206, at *6 (M.D. Ga. Aug. 4, 2006) (“the holder of the note continues to retain

remedies under the security deed so long as the debt evidenced by the note has not

been satisfied”). Therefore, Plaintiff’s allegations that the party attempting to

foreclose is not the holder of the note would support a claim for violations of state

statute, if proven.

"The doctrine of law of the case ... ‘expresses the practice of courts generally

to refuse to reopen what has been decided.’” Erie Conduit Corp. v. Metropolitan

Asphalt Paving Association, 560 F.Supp. 305, 307 (E.D.N.Y.1983), aff'd, 765

F.2d 135 (2d Cir.1985), quoting, Messenger v. Anderson, 225 U.S. 436, 444, 32

S.Ct. 739, 740, 56 L.Ed. 1152 (1912). Our Eighth Circuit Court of Appeals

instructs that previously decided issues may be reconsidered "upon a showing of

clear error or manifest injustice." Liddell v. State of Missouri, 731 F.2d 1294, 1304

28

Page 29: Wrongful Foreclosure Appeal 11th Cir

(8th Cir.1984), cert. denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984);

Paulson v. Greyhound Lines, Inc., 628 F.Supp. 888, 891 (D.Minn. 1986), aff'd,

804 F.2d 506 (8th Cir.1986).

Upon removal, the federal court must treat all state court rulings as if they

had occurred in federal court. In the Matter of Meyerland Co., 910 F.2d 1257,

1262-63 (5th Cir.1990), rehearing granted en banc, 921 F.2d 55, 56 (5th Cir.1990);

First Republicbank Fort Worth v. Norglass, Inc., 751 F.Supp. 1224, 1228

(N.D.Tex. 1990). That this case has been removed to federal court from the state

district court does not limit the court's authority to correct clear errors or remedy

manifest injustice. Resolution Trust Corp. v. Security Town Co., 745 F.Supp.

1216, 1221-22 (E.D. La.1990) (law of the case doctrine does not preclude a federal

court upon removal from correcting state court rulings and granting appropriate

relief). Thus, the law of the case doctrine does not preclude review or modification

of the state district court's liability decision or denial of defendants' previously filed

post-trial motions if the state district court's rulings were clearly erroneous or

manifestly unjust.

Similarly, the purpose of a motion for amended findings of fact and

conclusions of law under Fed.R.Civ.P. 52(b) is to permit the court to remedy

“manifest errors of law or fact.” Clark v. Nix, 578 F.Supp. 1515, 1516

(S.D.Iowa 1984), modified, Clark v. Brewer, 776 F.2d 226 (8th Cir.1985); Evans,

29

Page 30: Wrongful Foreclosure Appeal 11th Cir

Inc. v. Tiffany, 416 F.Supp. 224, 244 (D.Ill.1976). Rule 52(b) does not provide an

avenue for “relitigating issues upon which the moving party did not prevail at

trial.” DeGidio v. Pung, 125 F.R.D. 503, 505 (D.Minn.1989), aff'd, 920 F.2d 525

(8th Cir.1990); Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1219 (5th

Cir.1986) (motion to amend findings does not secure a rehearing on the merits).[2]

“Defendants bear a heavy burden in seeking to demonstrate clear error or manifest

injustice”. Piekarski v. Home Owners Sav. Bank, FSB, 759 F. Supp. 542 - Dist.

Court, Minnesota 1991.

CONCLUSION AND PRAYER

Mr. Mouse Prays that this Honorable Court can see what has happened, and

will agree that what happened was wrong, and violated numerous rules, and laws.

The only manifest injustice is the one bestowed upon Mr. Mouse by BOA, and

their blatant disregard for the title and foreclosure laws of Georgia.

Mr. Mouse further Prays that this Honorable Court will Reverse and

Remand the Rulings, and Grant whatever they can to protect him from further

injustice.

Respectfully submitted, this 22nd day of January, 2013

By: __________________________Gaellen Mouse, Appellant

6332 West Fayetteville RoadRiverdale, GA 30296

30

Page 31: Wrongful Foreclosure Appeal 11th Cir

(404) 934-8423

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

Certificate of Compliance With Type-Volume Limitation, Typeface

Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed.R.App.P. 32(a)

(7)(B) because this brief contains seven thousand two hundred fifty (7250) words,

excluding the parts of the brief exempted by Fed.R.App. 32(a)(7)(B)(iii).

2. This brief complies with the type face requirements of Fed.R.App.P. 32(a)

(5) and the type style requirements of Fed.R.App.P. 32(a)(6) because this brief has

been prepared using Microsoft Office 2007 Ultimate Edition, and Microsoft Word

2007, in 14 point, Times New Roman size and font.

This 22nd day of January, 2013

Re- Submitted - February 11, 2013

31

Page 32: Wrongful Foreclosure Appeal 11th Cir

_________________________ Gaellen Mouse, Appellant

CERTIFICATE OF SERVICE

I hereby Certify, that I have, this 22nd day of January, 2013, Corrected with

Expanded Record Excerpts on February 11, 2013 served a true and correct copy of

the foregoing Appellant’s Brief upon the Respondent/Appellee, through their

attorney on file, by causing to be deposited with USPS, First Class Mail, proper

postage affixed, and addressed as follows:

Howell Alexander HallPENDERGAST & ASSOCIATES, P.C.115 Perimeter Center PlaceSouth Terraces, Suite 1000Atlanta, GA 30346

_______________________Gaellen Mouse

32

Page 33: Wrongful Foreclosure Appeal 11th Cir

33