wrongful foreclosure appeal 11th cir
DESCRIPTION
Mouse v. BOO, a real case with names changed to protect the parties. The appeal is currently pending before the 11th Cir.TRANSCRIPT
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.
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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
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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
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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
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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
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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
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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].
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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
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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.
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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.
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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
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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
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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
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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
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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’
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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
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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,
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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).
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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.
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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
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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:
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"[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
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
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
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
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
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
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
(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
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
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(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
_________________________ 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
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