wrongful foreclosure appeal 11th cir
Post on 12-Apr-2015
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DESCRIPTIONMouse v. BOO, a real case with names changed to protect the parties. The appeal is currently pending before the 11th Cir.
STATEMENT OF JURISDICTION
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).
STATEMENT OF THE ISSUES
Whether the District Court erred in Denying [R13] Mr. Mouses 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 was1
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
untimely. 2. Whether the Magistrate Judge erred in reviewing and reversing Superior
Courts 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. Mouses Request for De Novo review of the
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
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
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 Mouses Right to Due Process of
Law, by Denying  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
judgment, without considering the whole record [R61]. III. A. STATEMENT OF THE CASE 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 a3
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. 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
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. (1) STATEMENT OF THE FACTS 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 BOAs refusal to provide Mr. Mouse any information in his quest to validate the debt. On August 21, 2009, Mr. Mouse5
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.
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
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