Answer And Counter To Foreclosure On Personal Property

IN THE STATE COURT OF DEKALB COUNTY STATE OF GEORGIA

HERITAGE BANK, Plaintiff

CIVIL ACTION FILE NO: 09A11175-3

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JAMES B. STEGEMAN, Defendant DEFENDANT’S VERIFIED ANSWERS AND COUNTERCLAIM TO PLAINTIFF’S PETITION FOR WRIT OF POSSESSION COMES NOW, James B. Stegeman Defendant and timely files Defendant’s Answers and Counterclaim to Plaintiff’s Petition for Writ of Possession. Filed contemporaneously herewith is Defendant’s Motion to Strike Affidavit of Thomas E. Austin, Jr., Defendant’s Motion for Appointment of Counsel, Defendant’s Motion for Change of Venue, and Defendant’s Motion for Stay Pending Ruling Disposing of All of Defendant’s Pending Motions. Defendant hereby makes a Jury Trial Demand. FIRST DEFENSE Sufficiency of Service SECOND DEFENSE Defendant is not a proper party responsible for payments of the Contract as alleged by Plaintiff THIRD DEFENSE Plaintiff’s Complaint fails to state a claim upon which relief can be granted. FOURTH DEFENSE

Breach of express and implied warranties. FIFTH DEFENSE Breach of contract based upon defects. SIXTH DEFENSE Plaintiff’s own actions or lack of actions caused default on the loan. SEVENTH DEFENSE Defendant responds to each paragraph of Plaintiff’s Petition as follows: 1. Defendant admits that his principal residence is 821 Sheppard Road, Stone Mountain, GA 30083 in DeKalb County Georgia. 2. Defendant denies the allegation and/or accuracy of allegation in paragraph two. 3. Defendant admits that said “Vehicle”1 is at his residence, and in his possession. 4. Defendant neither admits nor denies whether or not the Installment Contract contains a provision pertaining to the “payment of attorney’s fees”, and/or “in addition to the payment of principal and interest” which Plaintiff claims he “intends to enforce”. Defendant denies that he is the proper party from whom to seek attorney’s fees, in addition to payments of principal and interest, and/or any further liability. 5. Defendant denies each and every allegation not specifically admitted. DEFENDANT’S COUNTERCLAIM Defendant listed in the Petition for Writ of Possession is not a proper party defendant, and became a victim of Plaintiff’s negligence. Had the Plaintiff acted in a Defendant herein has adopted Plaintiff’s reference to the “1998 Winnebago…” as the “Vehicle” 1

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responsible manner, the “Vehicle” referenced 1) would have never been sold to an elderly lady and a disabled man neither of whom presented any visible means of income; 2) the debt would have been satisfied by the Guardian of Property for Jean Caffrey in 20022; and/or 3) the debt would have been satisfied by the Caffrey Estate, upon her death April 20033; and this matter would not be wasting this Court’s precious time. Mr. Austin, Jr. is an attorney, licensed to practice in the State of Georgia, as an officer of the Court and is to be held to stringent ethics. Mr. Austin, Jr. has deceived this Court attempting to show that Plaintiff and Mr. Stegeman aloneentered into a contract; that Mr. Stegeman is the sole party responsible for the debt; and that there have been no related cases. All three statements would be deceitful. Plaintiff has committed a fraud upon this Court in an attempt to make Mr. Stegeman liable for a debt that should have been settled in 2002 or at the latest, in 2003. BRIEF BACKGROUND May 1998 Defendant, who is 100% Federally disabled “Exhibit A”, and his elderly aunt Jean Caffrey who, at the time was seventy-eight years old, visited John Bleakley RV Center. A salesman talked Ms. Caffrey into buying a 1998 Winnebago. The salesman filled out the Loan Application “Exhibit B” which claimed that Ms. Caffrey (principal on the loan) made $12,000 monthly and had 500K in the bank, which was untrue; the application also shows that the Defendant Mr. Stegeman (cosigner) was retired rather than disabled and made $1000 monthly. Mr. Stegeman had faith that the lender would check theircredentials and deny 2 Heritage Bank was notified upon appointment of Caffrey’s Guardian of Property, John C. Joyner, who sold Caffrey’s house September 2002, the house was to be back-up for the “Vehicle” loan and there were substantial assets to take care of the loan, or Joyner could have petitioned the Court to take care of the “Vehicle” matter Heritage Bank was notified upon Caffrey’s Death and sent a Death Certificate, Heritage Bank obviously decided they would make more money not filing against the Guardian or Caffrey’s Estate; Stegeman was not Administrator, executor, personal representative, a beneficiary or heir of the Estate 3

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the loan. Mr. Stegeman was neither advised that the creditor would not actually check into the claims made on the credit application, nor of the consequences of being a cosigner.4 Rather than rejection, the loan was approved and the “Vehicle” could be picked up within several days.5 A.

The “Vehicle”

There was a discussion and agreement made between the salesman, Ms. Caffrey and Mr. Stegeman, that there were two brand new 1998 Winnebago Brave SE available on the lot other than the “floor model” or “demo”; they were assured they were buying one other than the “floor model”, “demo”. The salesman lied, and the salesman was not at the dealershipthe day the “vehicle” was picked up. When they attempted to back out of buying the “vehicle”, they were told that the last day to rescind had been the previous day, which was a Sunday. Further, Ms. Caffrey and Mr. Stegeman found they were being charged for an eighteen (18) foot awning, the one installed was a thirteen (13) foot awning. They found that when the awning was installed, the installer had drilled through the bedroom wall and had not even attempted to repair the hole. Driving the “vehicle” home, more problems became evident. It was quickly discovered that the radio didn’t work, the largest window would not open. After getting the “Vehicle” home, they continued to find serious problems. Ms. Caffrey and Mr. Stegeman contacted the Bleakley dealership and again attempted to give the “Vehicle” back; Bleakley refused any assistance with the “vehicle” and told them they would have to take the “Vehicle” to the Winnebago Factory in Forest City, Iowa for any repairs and/or warranty work. Attorney Jeff Hollis wrote letters “Exhibit C”about The only Credit on Mr. Stegeman’s Credit Report was for the home in which he lived; he had neither good, nor bad credit at that time and had bought nothing other than his home on credit for approximately twenty years beforehand. 4

The last day for backing out of the loan was on a Sunday; Mr. Stegeman attempted to halt the transaction and was informed that it was too late to do so and Ms. Caffrey would be subject to liability. 5

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the problems attempting to assist Ms. Caffrey, but the conclusion was that the only way to get any warranty work done, was to take the “Vehicle” to Forest City, Iowa. The more the “Vehicle” was driven, the more problems arose. Drawers and cabinets fell apart; the windshield wipers quit working in a major downpour in Chattanooga, Tennessee on the way home from Forest City, Iowa. While leveling the “Vehicle”, the floor buckled, major structural defect. Ms. Caffrey was told that the factory would need the “Vehicle” for one week and the only week available was the week before Christmas. Arrangements were made, they drove the “Vehicle” to the factory for the third time. A car to drive had to be rented because the only Motel to stay in was 40 miles away from the Factory, a Motel room had to be rented for a week, all meals had to be purchased at the owner’s expense, they were not reimbursed a cent. The factory did not perform the work they said they were going to do. At the end of a week of waiting, the “Vehicle” was retrieved, the factory said that what didn’t get repaired would have to be done at a different date and to schedule an appointment after the first of the year. The work performed on the “Vehicle” was substandard. The generator in the 1998 Winnebago Brave SE is placed directly over the exhaust pipes causing every plastic part in the generator to melt and fail. The failure resultedin a four day stay at the Cummings factory in North Carolina and $3,000.00 in damages. Without relocation of the generator, it has been guaranteed to fail again. Most of the 12,000 miles on the “vehicle” were trips to and from Forest City, Iowa, or to and from the Cummings service center. The “vehicle” is unsafe and should not be allowed on the road. The “vehicle” has been brought up in numerous lawsuits, as well as Objection to Discharge of Administrator of Jean Caffrey’s Estate due to the Estate’s failure to satisfy the debt “Exhibit D”. Had the Plaintiff not been negligent and acted when they were informed of the Death of the principal, the Estate would have satisfied the debt. 5

B.

Ms. Caffrey (Principal)

June 2002, DeKalb County Probate Court Clerk Jeryl Rosh appointed County Administrator John C. Joyner as Guardian of Property of Jean Caffrey. Both Rosh and Joyner had actual knowledge of the “Vehicle” and as guardian of property, Joyner had the responsibility of contacting all of Ms. Caffrey’s creditors and taking care of the debts. Mr. Stegeman was advised by his attorneys that he should make the payments on the “vehicle” until such time Joynerpicked up the payments.

Mr. Stegeman

contacted the Plaintiff and informed them that there had been a guardian appointed for Ms. Caffrey. Mr. Stegeman’s attorneys sent Letters of Demand to Joyner for the “vehicle”. The counterclaim in Hicks v. Stegeman, Civil Action File No.: 06A441516 specifically points out that attorney Pattie Williams, employed by Hicks Law Firm failed to attach a lien on the house of Caffrey which John C Joyner sold. The house was supposed to be security to Mr. Stegeman for co-signing the loan for the “Vehicle”. April 2003, Ms. Caffrey passed away. Mr. Stegeman contacted Plaintiff again, he was advised to send a Death Certificate. Ms. McDonald who resides with Mr. Stegeman paid for, obtained, and mailed out Death Certificates to several entities. Her Affidavit is attached “Exhibit F”. The Plaintiff obviously decided they would gain more by ignoring that the Estate was then responsible for the debt; or the Plaintiff came to agreement with the Estate without advising Mr. Stegeman. C.

Related Cases 7

Cases in which the “vehicle” has been a part of: Probate Estate No.: 20021161, riddled with fraud upon the Court, the Probate Clerk illegally appointed a Guardian of Property for the Estate of Jean Caffrey.

Assets belonging to Ms.

McDonald and Mr. Stegeman were illegally seized without due process of law, and directly led to Superior Court Civil Action No: 02-cv-9732-8, which was a frivolous, See “Exhibit E”

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Exhibit G shows Docket Reports, etc. for each of the cases listed under C. Related Cases. 7

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vexatious litigation brought for the sole purpose of keeping the assets tied up by the bank by claiming the accounts were in litigation; thereby preventing Ms. McDonald and Mr. Stegeman their assets while the assets were being wasted. The case drug on for two years. Probate Estate No.: 2002-1161 directly led to Pro Se action: In Re: Estate of Jean Caffrey(Appeal from Probate Court/Void Judgment) Superior Court Stone Mountain Judicial Circuit Civil Action File No.: 05-cv-13909-9 8. Probate Estate No.: 2002-1161 directly led to Hicks v. Stegeman, Civil Action File No.: 06A44151is State Court DeKalb County, which Mr. Stegeman proceeded Pro Se. The case has been before that Court for over three years. More than one year ago, Mr. Stegeman filed for Judgment as a Matter of Law. The Motion has been unopposed for over a year and the Judge still has failed to Rule. Probate Estate No.: 2002-1161 directly led to Superior Court Civil Action No.: 06-cv-1065-8, Stegeman, and McDonald v. Wachovia Bank, N.A. and Wachovia Securitiesin which Plaintiffs proceeded Pro Se. Plaintiffs were denied the Right to file any evidence, and the case was Dismissed for failure to state a claim for which relief can be granted. Appealed to Georgia Court of Appeals No: A07A1846; then Petition for Certiorari to The Supreme Court of Georgia No: S08C0805. Probate Estate No.: 2002-1161 directly led to Pro Se action: Stegeman v. State of Georgia, et., al., in The U.S. District Court for the Northern District of Georgia, Atlanta Division Civil Action File No.: 1:06-cv-02954-WSD, which was Appealed to U.S. Court of Appeals for the Eleventh Circuit Appeal No.: 07-13540-I, for which Mr. Stegeman filed Notice of Appeal and the fee was paid; Probate Court held the check until an Appeal would not be timely filed, mailed the check back and said that they were not going to let him Appeal, so he filed in Superior Court Appeal and Void Judgment. This Appeal was held and not Ruled on for over three years. June 26, 2009, after two preemptory hearings a jury trial set for an Appeal, a Final Order was given. Mr. Stegeman timely filed Notice of Appeal to Supreme Court, and filed Motion to Proceed on Appeal in Forma Pauperis July 16, 2009; Motion to Proceed on Appeal in Forma Pauperis has yet to be ruled on and is currently pending in Superior Court. 8

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Cert. to U.S. Supreme Court was filed No.: 08-8320. Probate Estate No.: 2002-1161 directly led to State Court Heritage Bank v. Stegeman, Civil Action Nos.: 09A11175-3, and 09A11176-3. COUNT ONE Sufficiency of Service. Georgia statute concerning Summons states that there are five days with which to serve the Defendant.9 The Summons is signed the 3rd of August, Defendant was served the 13th of August. The result is this Court lacks jurisdiction. COUNT TWO Plaintiff has failed to state a claim for which relief can be granted O.C.G.A. §9-11-12b COUNT THREE Named Defendant is not a proper party defendant, Guardian of Property John C. Joyner, and/or Administrator of Caffrey’s Estate Frank J. Lillig, III would be the proper party defendants. There were ample assets in Caffrey’s Estate while controlled by either party to satisfy the debt. COUNT FOUR Breach of express and implied warranties. See letter from attorney Jeff Hollis to Winnebago Industries. “Exhibit C” COUNT FIVE Breach of contract due to defects, see “Exhibit C” which includes the 37 item repair list from Winnebago Industries; the repairs were insufficient. The “vehicle” is still showing signs of defects and it has not been driven for seven to eight years. Just sitting, it has become obvious that the structural welds were never prepped properly, O.C.G.A. §9-11-4(c) “When service is to be made within this state, the person making such service shall make the service within five days from the time of receiving the summons…” 9

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never painted, never coated, every weld has thoroughly rusted making the “Vehicle” even more dangerous than previously anticipated. COUNT SIX Plaintiff’s negligence is the cause. Whether it is called cause and effect, or contributory negligence, itamounts to the same thing. Plaintiff created their own problem by failing to take proper measures to assure payment of the loan.10 JUDICIAL NOTICE Mr. Stegeman, 100% disabled receiving Supplemental Security Income as his only income, cannot afford legal counsel. He has filed Motion to Appoint Legal Counsel simultaneously with this pleading. The Courts have long held that Pro Se pleadings are to be read liberally and if there is relief available that they have failed to request, the Courts should be lenient and the Pro Se litigant should be afforded that available relief. Moore v. Florida, 703 F.2d 516 (11th Cir. 1983) Reversed and Remanded which held: “[26] ‘a court should be particularly careful to ensure proper notice to a pro se litigant.’ Herron v. Beck, 693 F.2d at 127. See also Barker v. Norman, 651 F.2d 1107, 1129 (5th Cir. 1981) (holding district court abused its discretion…failing to afford to a pro se civil rights litigant…” “[37] The pleadings of pro se litigants…subject to less stringent rules. ‘…, however inartfully drafted, must be held to less rigorous standards than…by lawyers.’ Woodall v. Foti, 651 F.2d 268, 271 (5th Cir. 1981); see Richardson v. Fleming, 651 F.2d 366, 368 (5th Cir. 1981).” 10 Mr. Stegeman expresses to the Court that without legal counsel, he has made a good faith effort to plead properly. He realizes that this pleading may be hard to understand, and/or may not properly reference what he is attempting to state in proper terms, for that he begs leniency and understanding. The short period of time that Mr. Stegeman had to respond to the Foreclosure left him little time to file the many Motions, Responses, etc. that he has filed within the seven days provided. 9

F.D.I.C. v. Hillcrest Assoc., 66 F.3d 566 (2d Cir. 1995) “reiterating general rule and outlining exception for pro se litigants…” “We hold pro se pleadings to a less stringent standard than pleadings drafted by attorneys and construe them liberally.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) We give a "liberal" reading to pro se filings because those litigants lack formal legal training. See GJR Invs., 132 F.3d at 1369 ("Courts do and should show a leniency to pro se litigants not enjoyed by those with the benefit of a legal education.").

In Grayden v. Rhodes, 345 F.3d 1225 (11th Cir. 09/17/2003) the Court held: “The law does not entertain the legal fiction that every individual has achieved a state of legal omniscience; … there is no presumption that all of the citizens actually know all of the law all of the time. Practically speaking, citizens must educate themselves about the law” See West Covina, 525 U.S. at 241, 119 S. Ct. at 682 (noting that an individual "can turn to these public sources to learn about the remedial procedures available to him"); id. at 242, 119 S. Ct. at 682 (noting that a citizen "could not reasonably be expected to educate himself about the procedures available to protect his interests"); United States v. Locke, 471 U.S. 84, 108, 105 S. Ct. 1785, 1799-1800 (1985)” The history of bias and prejudice against pro se litigants within the Courts is long. Stephen Elias who had been with Nolo Press, the nation’s leading publisher of self-help law books, back in 1997, in an article Bias Against Pro Per Litigants… stated: “From the moment they first contact the court system, most people who want to represent themselves, without a lawyer, encounter tremendous resistance. Within the closed universe of the courts, this bias is as pernicious as that based on race, ethnic origins or 10

sex.” “People who cannot afford a lawyer are a rebuke to the organized bar’s monopoly…, because that monopoly is morally—if not legally—justified…the ABA has admitted that 100 million Americans can’t afford lawyers.” "... the right to file a lawsuit pro se is one of the most important rights under the constitution and laws." Elmore v. McCammon (1986) 640 F. Supp. 905

PRAYER FOR RELIEF Mr. Stegeman Prays this Court will be understanding and lenient when reading his pleadings; and that this Honorable Court will GRANT the Motions he has filed to help ensure that he has a fair and impartial tribunal and that justice will satisfy justice. Mr. Stegeman further Prays for Relief in an amount that will satisfy the injustice bestowed upon Mr. Stegeman, all that he has been forced to pay out while attempting 11

to protect his credit and his Aunt’s good name, and whatever other relief is available. Respectfully submitted, this 20th day of August, 2009

By: _____________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Road Stone Mountain, GA 30083 (404) 300-9782

CERTIFICATE OF SERVICE I Certify that I have this 20th day of August, 2009 served a true and correct copy of the foregoing Answer and Counterclaim upon the Plaintiff through their attorney on record by causing to be deposited with the U.S.P.S., First Class Mail, proper postage affixed thereto, addressed as follows: Thomas E. Austin, Jr. 3490 Piedmont Road, N.E. Suite 1005 Atlanta, GA 30305

_______________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd. Stone Mountain, GA 30083 (404) 300-9782

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