Appellant Stegeman Brief Georgia Court Of Appeals11/03/2009

I.

BRIEF BACKGROUND OF PROCEEDINGS

Appellant, Mr. Stegeman (hereinafter Appellant) 100% legally disabled adult male, was served August 13, 2009 with Summons and Complaint for Foreclosure on Personal Property under O.C.G.A. §44-14-230 (Doc. 1) in State Court, Civil Action File No. 09A1175-3 (-3 assignment to State Court Judge Wayne Purdom). On or around the first week of January, 2009 a man came to Appellant’s property asking for Ms. Caffrey,(debtor of loan). Appellant told the man the vehicle could be picked up anytime, as long as the ground was dry to avoid sinking and getting stuck; the man was also informed that there were on-going proceedings in which the vehicle was part of the subject. Appellant heard nothing further. In response to Personal Property Foreclosure, Appellant filed the following: Motion and Brief to Strike Affidavit of Thomas E. Austin, Jr.(Doc. 2)1; Motion for Change of Venue (to Fulton County (Doc. 3)); Motion to Stay Foreclosure and All Other Proceedings … (Doc. 4); Demand for Jury Trial (Doc. 5); Verified Answer, Defenses and Counterclaim (Doc. 6); Motion and Brief for Appointment of Counsel, Appellant just found out there is no Docket entry for Appointment of

1

Doc. 2, Doc. 3, etc. are numbered in correspondence with the Documents/No.s as

shown on the Docket Report from State Court. 1

Counsel he has a stamped Filed copy by Clerk “J White” (Doc. 7)). A hearing had been set for Monday, August 31, 2009. Late Sunday August 30th a tire on Mr. Stegeman’s wheelchair went flat. Mr. Stegeman was taken to the Courthouse by caregiver Ms. McDonald; on the way, he called the clerk to advise about the wheelchair, he learned from Purdom’s Clerk about Magistrate Court. Ms. McDonald went into the Court and explained to Magistrate Judge LeShaw that Mr. Stegeman was present, but had no way to get into the Courthouse. The hearing was postponed for ten (10) days, until September 10, 2009. Opposing counsel went to the parking lot and requested that their client be allowed to visit and view the vehicle during the ten days postponed, Appellant agreed, no one came September 9, 2009 Appellant filed a Supplemental, adding an Exhibit to the Answer/ Counterclaim (Doc. 8); Amended his Answer and Counterclaim (Doc. 9). When Appellant was at the Courthouse filing the documents the day before the hearing, he questioned the Clerk about the Demand for Jury Trial, and was told “that’s up to the Judge, you’ll have one if the Judge let’s you”; when trying to find out why the hearing was to be before Magistrate Court, Appellant was told by the Clerk “well you filed a Motion for Change of Venue”. September 30, 2009 Appellant filed Affidavit of Poverty (Doc. 10); Motion to Proceed on Appeal in Forma Pauperis (Doc. 11) which was Granted October 6, 2

2009; and Notice of Appeal (Doc. 12) paid twenty-five dollars to the Appeals Clerk. Appellant filed Amended Notice of Appeal October 9, 2009 (Doc. 13) Appeal was Docketed in this Court October 16, 2009. SPECIAL NOTE: Appellant has yet to receive Notice of Docketing; Appellant twice performed an online Docket search after filing Doc. 13, the first time, he searched under Appellant’s name (James Stegeman), the search had 0 results. The second search was performed on or around October 27, 2009, after finding that the State Court’s Docket Report reflected that “Notice of Docketing – Appeals; Assigned Case No. A10A0420” was entered October 19, 2009. Appellant again performed and got 0 results; he then searched under Appellee Heritage Bank’s name; that was when Appellant found the Appeal had been docketed October 16, 2009. Appellant immediately emailed Clerk Mr. Martin about obtaining Notice of Docketing.; Mr. Martin responded back and said he had mailed it to the proper address, but that he would mail Appellant another one, which has never arrived. Although Appellant received back his stamped Filed copy of Motion for Extension to File Brief, which was mailed by the Court the day after Clerk Mr. Martin responded that he would send another Notice. Appellant filed Motion for Extension of Time to File Brief on October 28, 2009, explaining lack of Notice of Docketing, resulting in loss of twelve (12) of the twenty (20) days allowed for 3

filing Appellant’s Brief; nevertheless, to Appellant’s knowledge, there has been no Ruling on the Motion, so Appellant has timely filed his Brief. A. The Hearing A hearing was held September 10, 2009 in Magistrate Court in Courtroom 1200C, first floor of DeKalb County Courthouse. To Appellant’s knowledge, there is no transcript, he had planned to have one form memory and records filed in the Court, pursuant to O.C.G.A. §5-6-41(c), but did not have time to prepare it and have it to the trial Court in time to get it filed due to lack of Notice of Docketing Appellant planned to prepare a transcript from recollection, and records filed in the Court. If Motion for Extension is Granted, he will have the trial Court Certify and submit to this Court the transcript. Under Oath, while testifying in front of Judge LeShaw, opposing counsel twice committed perjury, a fact pointed out to the Judge. Opposing counsel stated that Appellant “had adverse judgments against him in another court”, which is outrageous, scandalous, slanderous perjury; and also told the Judge there were no proceedings for money damages against Appellant; Appellant provided the Judge with the Summons and Complaint served upon him with the Foreclosure Summons During the hearing, Appellant asked the Judge about the Jury Demand and Motions he filed, the Judge told him that “none of those matter”; then Granted 4

Appellee the Writ of Possession without considering Appellant’s Verified Answers, Defenses and Counterclaims. The property foreclosed on still sits in Appellant’s yard, no one has bothered to come check it out. Opposing counsel said that someone would make arrangements to come check out the vehicle and see if they wanted to take possession of it. Appellant requested twenty-four (24) hours notice in case he had previously scheduled engagements2. Opposing counsel called and made arrangements for Friday October 16, 2009 for the lady that was supposed to view the vehicle before the September 10th hearing. Appellant received no phone call and no visit from the lady. Opposing counsel then called around mid-week the week of October 25th 2009, and Appellant told him that the lady who had hollered at, lied to him, and failed to come to the property a week and a half before was not welcome to come to his home, that it would be Ok for someone else to come; then decided that because of the Appeal, it would probably be better to wait. The vehicle had been available to look at, anytime since April 2003 when they were notified that Ms. Caffrey had

2

Appellant sees his Doctor every thirty days, and several times a year has ultra-

sound on his heart, as well as numerous other tests done several times a year; if he misses one of those appointments, he is charged no less than $25.00 for each. 5

passed away, up through October 16, 2009, but

they didn’t worry about it.

Appellant had been willing to give the vehicle to Appellee without going to Court and without having a Writ of Possession, not once did Heritage Bank bother to contact him, yet they still mail to Ms. Caffrey. I.

JURISDICTION AND ENUMERATION OF ERRORS Jurisdictional Statement

In accordance with and pursuant to The Court of Appeals of Georgia VI. Rule 22 (b) the Jurisdictional Statement is as follows: This Court, rather than The Supreme Court has jurisdiction because this Appeal does not fall within the guidelines shown within The Constitution of the State of Georgia, Article VI, Section VI, Para. I et seq., which provides exclusive jurisdiction to The Supreme Court in election contests, the construction of treaties or the Constitutions of the State of Georgia and/or the United States and does not challenge the constitutionality of a law, ordinance or constitutional provision. Further, this Appeal does not fall under general appellate jurisdiction of the Supreme Court, which has general appellate jurisdiction over cases involving title to land; equity; wills; habeas corpus; extraordinary remedies; divorce and alimony; all cases certified to it by the Court of Appeals and all cases in which a sentence of death was or could be imposed. 6

Enumeration of Errors 1.

The trial Court erred in refusing to allow Appellant the Jury trial he Demanded (Doc. 5), a non-amendable defect, the results of which are violations of:

due process of law, Appellant’s statutory, Civil and

Constitutional Rights, as well as Rights under ADA Title II causing injury and harm to Appellant and his property. 2.

The trial Court erred and caused injury/harm to Appellant and his property by transferring the case from State Court to Magistrate Court; transferring to a different Judge without following the Court’s procedure for transfers to a different Judge, and also erred by failing to notify Appellant about the transfer. Furthermore the counterclaim raised equitable issues, involving amounts in excess of $15,000.00, for which Magistrate Court lacks jurisdiction; and if a transfer were to have taken place, the transfer should have been from State Court to Superior Court, not to Magistrate Court, thereby violating Uniform State Court Rules, procedural due process, and Appellant’s Rights.

3.

Refusing to address and/or Rule on any and all of Appellant’s Motions and Counterclaim is an error, shows bias/prejudice, and a blatant disregard for Appellant’s Rights to due process of law and Rights to a fair and impartial 7

tribunal thereby injuring and harming Appellant and his property. 4.

The trial Court erred, causing injury and harm to Appellant and his property by failing to have Motion for Appointment of Counsel anywhere in the record or on the Docket Report, thereby not having to consider the same, violating procedural due process and is not judicial in nature.

5.

The trial court erred by Granting a Writ of Possession without following statutorily mandated procedures, thereby causing injury to Appellant and his property and violated Appellant’s statutory, Civil, and Constitutional Rights, as well as Rights under ADA Title II.

6.

The trial Court erred by failing to sanction opposing Counsel when during the hearing, after being shown, concrete evidence that opposing counsel had perjured himself, thereby undermining the Judicial system, and being an Officer of the Court perjured himself in an attempt to obtain a Ruling in his favor, resulting in fraud upon the Court; the Court failed to hold the attorney in contempt, and/or sanction the attorney/officer of the Court in any manner what-so-ever, which shows bias/prejudice against Appellant causing him and his property injury.

I. 1.

ARGUMENT AND CITATIONS OF AUTHORITIES Demand for Jury Trial 8

Ignoring Appellant’s written Demand for a Jury Trial constitutes a “nonamendable defect”, see Redding v. Commonwealth of America, 143 Ga. App. 215, 216 (1) (237 S.E.2d 689) (1977), disapproved on other grounds in Wise, Simpson &c. Assoc. v. Rosser White &c., Inc., 146 Ga. App. 789, 795-796 (247 S.E.2d 479) (1978) (holding that the failure to conduct a jury trial was a nonamendable defect where no waiver of jury trial appeared of record). See also Coker v. Coker, 251 Ga. 542 (307 S.E.2d 921) (1983); Scott v. W. S. Badcock Corp., 161 Ga. App. 826 (289 S.E.2d 769) (1982). Appellant timely filed Verified Answers, Defenses and Counterclaims, in compliance with and pursuant to O.C.G.A. § 44-14-232 (b): “within seven days from the date of the actual service” as required.

Along with Answers and

Counterclaims, Appellant filed Demand for Jury Trial (Doc. 5)3.

Before the

hearing date, Appellant questioned the Clerk about the Jury Demand, she told Appellant “You will get a Jury trial if the Judge let’s you have one”. When

3

Appellant has a Stamped Filed Copy, and would like to trust that the trail Court

included the document with the Records submitted to this Court, but Appellant has lost all faith in the Judicial System, therefore has doubts whether or not the Document was submitted to this Court. 9

Appellant brought up his filings and Demand during the hearing, he was told by the Judge: “that don’t matter”. Because of the Jury Demand, Magistrate Court should have transferred it to State or Superior Court. See O.C.G.A. §15-10-14(a) “There shall be no jury trials in the magistrate court.” One would come to the conclusion that is the very reason that State Court gave it to Magistrate Court. There are plenty of Personal Property Foreclosure cases that have had Jury trials in State or Superior Court; see 02/13/79 Walker v. First National Bank Cobb County, (1979) .GA. 293 , 253 S.E.2d 442, 149 Ga. App. 52: “After a jury trial, the bank obtained a verdict granting possession and foreclosure in accordance with the provisions of the Personal Property Foreclosure Act (Code Ann. § 67-701 et seq.)”; See also BCS Financial Corporation v. Sorbo, et., al., A94A0488.(213 Ga. App. 259) (444 SE2d 85) (1994)

“petition for

foreclosure of a 1988 Redman Lakeside mobile home” “The jury subsequently returned a verdict in favor of Sorbo on his counterclaim for $10,000, and also awarded Sorbo title to the mobile home” February 13, 1979. The Constitution of Georgia as well as the Civil Practice Act guarantee the right of a jury trial to civil litigants. See Raintree Farms v. Stripping Center, 1983.GA.1020 , 166 Ga. App. 305 S.E.2d 660, 848 (judgment reversed) in holding: 10

“Constitution 1976, Art. VI, Sec. XV, Par. I (Code Ann. § 2-4401) (unchanged, insofar as relevant here, in the Constitution of Georgia of 1982, effective July 1, 1983); OCGA § 9-11-38 (formerly Code Ann. § 81A-138 (Ga. L. 1966, pp. 609, 652)). The right may be "expressly waived" by "written stipulation filed with the court…" OCGA § 9-1139 (formerly Code Ann. § 81A-139 (Ga. L. 1966, pp. 609, 652))” This Court has repeatedly held that denying a litigant the Constitutional and statutory Right to a Jury trial is a nonamendable defect must be reversed. 2.

Transfer State Court to Magistrate Court Which Lacks

Jurisdiction "When a question of law is at issue, . . . this Court applies the "plain legal error" standard of review." (Citation and punctuation omitted.) Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000). There is no mistake, the Complaint for Foreclosure on Personal Property pursuant to O.C.G.A. §44-14-230, clearly shows it was filed in State Court of DeKalb County, and assigned to State Court Judge Wayne Purdom. O.C.G.A. § 44-14-230 “(a) Any person holding a security interest on personal property …governed by this part or by Title 11, the "Uniform Commercial Code," and wishing to foreclose the security 11

interest shall be authorized to foreclose the security interest …which execution shall command the sale of the secured property …, together with the costs of the proceedings to foreclose the security interest in accordance with the procedure specified in this part, together with an order directing the defendant or the party in possession to turn over to …the property sought to be foreclosed upon as provided for in subsection (d) of Code Section 44-14-233. O.C.G.A. §44-14-233(c) “The defendant may answer either in writing or orally…The answer may contain any legal or equitable defense or counterclaim…, a trial of the issues shall be had in accordance with the procedure prescribed for civil actions in courts of record…, the trial shall not be held before seven days have elapsed from the date the defendant files his answer.” The vehicle which is the subject of the foreclosure is worth more than $15,000; Appellant’s defenses and counterclaims contained equitable and legal claims and was for monies in excess of $15,000; Magistrate Court lacked jurisdiction to hear the case. Furthermore, Appellant Demanded a Jury Trial, and was not provided with a Notice of transfer from State Court to Magistrate Court. In fact, Appellant has found nowhere that a case transfers from State to Magistrate Court. There are 12

several cases which are transferred from Magistrate Court to State or Superior Court, but Appellant found none the other way around. On the seventh day, after being served with Summons and Complaint for Personal Property Foreclosure, Appellant filed Demand for Jury Trial (Doc. 5), and several motions, one of which was Motion for Change of Venue (Doc. 3) to a different, neutral County citing bias/prejudice against him in State Court. The Clerk, when questioned why the case was being heard in Magistrate Court told Appellant “well, you filed a Motion for Change of Venue”. Appellant has been unable to find any citations where a Motion for Change of Venue involved a case being transferred from State Court to Magistrate Court, thereby making citations very difficult to obtain and the transfer impossible to properly argue. Nevertheless, the Motion was never Ruled on and the record shows no reason, or authorization for the transfer from State Court to Magistrate Court. In reality the Uniform Magistrate Court Rules are silent on the matter, the only thing remotely close in Magistrate Court Rules is “O.C.G.A. § 5-10-44 (b) The judge shall conduct the trial in such manner as to do substantial justice between the parties according to the rules of substantive law. All rules and regulations relating to pleading, practice, and procedure shall be liberally construed so as to administer justice”. 13

Appellant found several cases that were transferred from Magistrate Court to State or Superior Court, usually due to the counterclaim, and several of these cases had to do with writs of possession; but there just are none where the State Court transferred to Magistrate Court a case where 1) a Jury Trial had been Demanded; 2) there was a counterclaim with issues that only a Jury could decide; 3) there were issues involving equitable claims; and 4) where the monetary value of the personal property to be foreclosed was in excess of $15,000.00. It would be hard to believe that this has not happened before and this is a question of first impression. Appellant has thoroughly researched the situation, and given the short period of time, due to the Clerk’s having

failed to provide Appellant with Notice of

Docketing; together with the fact that the Appeal search engine has association with Appellee’s, rather than Appellant’s name. Appellant ended up with only seven (7) out of the twenty (20) days to prepare and file his Brief. Even after this Court’s Clerk assured Appellant that another Notice would be mailed, Appellant has still yet to receive the Notice; Appellant has received back his stamped Filed copy of the Motion for Extension to file his Brief, but not the Notice of Docketing. 3.

Refusal to Address and/or Rule on Motions and Counterclaim

This appeal presents a question of law concerning whether or not the trial court 14

can refuse to address and rule on a party’s Answers, Defenses, Counterclaims, and Motions; as such, this Court owes no deference to the trial court's ruling and should apply the "plain legal error" standard of review. Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000). Moreover, "[w]here it is apparent that a trial court's judgment rests on an erroneous legal theory, an appellate court cannot affirm. [Cit.]" Gwinnett County v. Davis, 268 Ga. 653, 655 (492 SE2d 523) (1997). Appellant filed several Motions at the same time he filed a Verified Answers, Defenses, Counterclaims and Demand for Jury Trial. Nothing Appellant filed was addressed or Ruled on, Jury Demand was ignored, none of the Motions, Answers, Defenses, Counterclaims were addressed or Ruled on.

Appellant has found

nothing in caselaw where the trial court quite literally ignored everything filed by one of the parties. Appellant was treated with disparate treatment by both State Court and Magistrate Court; he was treated differently than others similarly situated, he was not afforded the same protections and Rights as others; due process of law has been grossly violated, making the Ruling Void. Both the Georgia and United States Constitutions guarantees due process, that the procedure will be fair, before a citizen will be deprived of “life”, “liberty” or “property”, and guarantees that a citizen will not be deprived of “life”, “liberty” or 15

“property” without due process of law (reasonable notice and opportunity to be heard). Magistrate Court violated procedural and substantial due process, as well having denied Mr. Stegeman a disabled adult male, “equality”, and “meaningful access to the courts”. In RE: Law Suits of Anthony J. Carter (two cases) 235 Ga. App. 551, 510 S.E.2d 91, (1998), it was held: at [31]: "Both the Georgia and United States Constitutions prohibit the state from depriving `any person of life, liberty, or property, without due process of law.' United States Const., amend. XIV, sec. 1; see also Ga. Const., [Art. I, Sec. I, Par. I]. The fundamental idea of due process is notice and an opportunity to be heard." *fn14 As stated in Citizens &c. Bank v. Maddox, *fn14 "[t]he benefit of notice and a hearing before judgment is not a matter of grace, but is one of right." "A party's cause of action is a property interest that cannot be denied without due process. (Cit.)" *fn14” Further, O.C.G.A. §15-6-21(d) “If any judge repeatedly or persistently fails or refuses to decide the various motions, demurrers, and injunctions coming before him …such conduct shall be grounds for impeachment and the penalty therefor shall be his removal from office.” See also: Andrus v. Andrus, 659 S.E.2d 793, 290 Ga.App. 394 (Ga.App. 03/20/2008) held: “[13] We are guided by our opinion 16

in Carnes Brothers v. Cox, 243 Ga. App. 863 (534 SE2d 547) (2000) … In Carnes Brothers, we found that a trial court's failure to comply with the requirement of OCGA § 15-6-21 (c), that it provide counsel with notice of its orders, provides justification for the trial court to later set aside such an order under OCGA § 9-1160 (g)*fn3 . Id. at 864… it failed to comply with OCGA § 15-6-21 (c). As a result, we affirm that portion of its order setting aside and vacating its November 24, 2003 dismissal order.” Mr. Stegeman, a disabled adult/member of a protected class,

depends

heavily upon the Courts and it’s Judges to honor their Oath of Office; abide by, uphold, and honor The State of Georgia Constitution and The Constitution of the United States; to protect his Civil and Constitutional Rights; to ensure that he is treated fairly; and to guarantee that his case will go before a fair and impartial tribunal. “Every person in Georgia has a constitutional right of unfettered access to the courts” Ga. Constitution 1983, Art. I, Sec. I, Par. I, (“No person shall be deprived of life, liberty, or property except by due process of law.); Par. XII (“No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.”)” Rice v. Lightmas, 259 17

Ga. App. 380, 577 S.E.2d (Ga.App. 2003) See also: In RE: Law Suits of Anthony J. Carter (two cases). 235 Ga. App. 551, 510 S.E.2d 91, 1998. GA.0042498 “As stated in paragraph 12 of the Georgia Bill of Rights, a person has a right to represent himself or herself in court. "This provision was `primarily intended to guarantee the right of self-representation in the courts of this State . . .' [Cit]… Secondly, the very first provision of the Bill of Rights in "`[t]he constitution of this state guarantees to all persons due process of law and unfettered access to the courts of this state. (Cit.)’” These fundamental constitutional rights require that every party to a lawsuit . . . be afforded the opportunity to be heard and to present his claim or defense, i.e., to have his day in court. (Cits.)'" “So it is that meaningful access to the courts must be scrupulously guarded, as it is a constitutional right universally respected where the rule of law governs. "Those regulations and restrictions which bar adequate, effective and meaningful access to the courts are unconstitutional. (Cits.)"” 4.

Refusing to File and/or Consider Motion for Appointment of Counsel 18

Appellant is 100% (percent) disabled

within the guidelines of The Social

Security Act, and Americans With Disabilities Act. As a disabled adult receiving Supplemental Security Income, Appellant is qualified, eligible for, and has a right of legal assistance through Georgia’s Legal Assistance programs which do receive Federal funding. Appellant has repeatedly attempted to get assistance through Georgia’s Legal Services programs and has been wrongly denied. This appeal presents a question of law concerning whether or not the trial court can refuse to have filed and showing on the Docket, and fail to address a party’s Motion for Appointment of counsel; and whether or not the Magistrate Court can refuse to address and rule on the Motions and Counterclaim; as such, this Court owes no deference to the trial court's ruling and should apply the "plain legal error" standard of review. Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000). Traynor v. Turnage, 108 S. Ct. 1372, 485 U.S. 535 (U.S. 04/20/1988) [ 485 U.S. Page 555]

"No otherwise qualified individual with

handicaps . . . shall, …be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency. . . ." 19

Without representation by legal counsel, it is next to impossible for a pro se litigant to be taken seriously, and the chances that they will prevail even with a meritorious claim are heavily diminished. In Dreyer v. Jalet, 349 F.Supp. 452, 486 (S.D.Tex.1972), affirmance order, 479 F.2d 1044 (CA5 1973) it was held: "[I]f a civil action brought by an indigent acting pro se, including prison inmates, has merit … then counsel should be appointed to properly present the claim." In Bounds v. Smith, et., al., 97 S. Ct. 1491, 430 U.S. 817 (U.S. 04/27/1977), 52 L. Ed. 2d 72, (1977) [ 430 U.S. Page 826] it was stated: “If a lawyer must perform such preliminary research, it is no less vital for a pro se … despite the ‘less stringent standards’ by which a pro se pleading is judged”, Haines v. Kerner, 404 U.S. 519, 520 (1972). Although there is a continued assurance that pro se litigants will be treated fairly, the promise has yet to be forthcoming. The Georgia Supreme Court’s Equal Justice Committee On Civil Justice’s “Minutes” of the December 4, 2006 Meeting addressed the need for counsel in civil cases: “…in August 2006, the ABA endorsed the right to counsel in certain civil cases, also known as the civil Gideon…The kinds of cases of which the ABA endorses a civil right to counsel…” “The ABA’s principles endorse the inclusions of all persons in a state’s system for the delivery of civil legal aid, including …the disabled…vulnerable 20

populations…”

“Fourth,…promote …the judiciary and court personnel in

reforming rules, procedures and services to expand and facilitate access to justice…to support pro se litigants.”

“Clients that most touch the public’s

sympathy are children,…and the disabled.” “Ms. Fairbanks…defined an equal justice community as ‘a group of individuals and organizations united through common, expressed vision and a shared set of values, who are bound together by a sense of fidelity to the promise of justice and equality, and who are willing to put personal, professional and organizational allegiances aside in pursuit of a common justice ideal.’” “An equal justice community requires…‘You have to walk the walk, not just talk the talk.’”. Further, over the years, the United States Supreme Court found the following on property interests as shown in Logan v. Zimmerman Brush Co. et., al, 102 S. Ct. 1148, 455 U.S. 422 (U.S. 1982): “the types of interests protected as ‘property’ are varied and, as often as not, intangible, relating ‘to the whole domain of social and economic fact.’ National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (1949) (Frankfurter, J., dissenting); Arnett v. Kennedy, 416 U.S. 134, 207-208; and n. 2” at [55]: *fn4 “Two years ago, in Martinez v. California, 444 U.S. 21

277, 281-282 (1980), the Court noted that ‘[arguably],’ a state tort claim is a ‘species of 'property' protected by the Due Process Clause." Logan v. Zimmerman Brush Co. et., al, 102 S. Ct. 1148, 455 U.S. 422 (U.S. 1982) . “a child’s entitlement to a public school education Goss v. Lopez 1975, and continued gas and electric service conditioned upon payment of proper charges” Memphis Light v. Craft, et., al, 98 S.Ct. 1554, 436 U.S. 1 (U.S. 1978) . It has been long realized by many Pro Se litigants that they are looked upon with bias/prejudice by not only attorneys, but Judges as well. Many times, Pro Se litigants have been subjected to harsher, stricter standards than attorneys; they receive Rulings with no findings of fact, or caselaw; the Court’s Opinions are “Unpublished”, marked “Do Not Publish”, or contain one sentence rulings, “Motion is Denied”, and their Rights to Appeal are hindered and tampered with. Stephen Elias who had been with Nolo Press, the nation’s leading publisher of selfhelp 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 22

bias is as pernicious as that based on race, ethnic origins or 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.” 5. Statutorily Mandated Procedure This appeal presents a question of law concerning court jurisdiction of O.C.G.A. § 44-14-231, as such, the Court of Appeals owes no deference to the trial court's ruling and should apply the "plain legal error" standard of review. Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000). Moreover, "[w]here it is apparent that a trial court's judgment rests on an erroneous legal theory, an appellate court cannot affirm. [Cit.]" Gwinnett County v. Davis, 268 Ga. 653, 655 (492 SE2d 523) (1997). Appellees filed a Complaint for Personal Property Foreclosure in State Court of DeKalb County citing O.C.G.A. §44-14-230. Appellant, pursuant to the Rules that accompany O.C.G.A. §44-14-230, filed a Verified Answers, Defenses, and Counterclaims with Exhibits of evidence in support of Appellant’s claims; along with several Motions and Demand for Jury trial. Appellant utilized all of the defenses available under statute, so as not to waive any of the defenses. The court 23

ignored all of Appellant’s “defenses, and claims which if proven would amount to setoffs (see OCGA 44-14-234), determined that plaintiff was entitled to a writ of possession.” (Smith v. General Motors Acceptance Corp. 72201. (178 Ga. App. 848) (344 SE2d 768) (1986)): “Defendant having answered and pleaded his defense, the action should have proceeded under the provisions of the Civil Practice Act ("CPA"). OCGA §44-14-233. However characterized, the court's order granting plaintiff a writ of possession was not proper under the CPA. Also, we reject plaintiff's suggestion that the hearing under OCGA §44-14-232 is substantially similar to a summary judgment hearing. See generally Jordan v. Farmers &c. Bank, 138 Ga. App. 43 (225 SE2d 498); Cavender v. First Nat. Bank, 173 Ga. App. 660 (327 SE2d 789). Under the particular facts and circumstances of the case sub judice the superior court erred in granting the writ of possession to plaintiff.” Further, the Magistrate Court’s refusal to address, rule on, or consider Appellant’s filings is gross error and results in disparate treatment of Appellant; he was treated differently than others similarly situated, and denied what others in similar situations have been afforded, resulting in discrimination and injury to 24

Appellant and his property. See BCS Financial Corporation v. Sorbo, et., al., A94A0488. (213 Ga. App. 259) (444 SE2d 85) (1994) in addressing defenses in Personal Property Foreclosure: “under OCGA 44-14-233, in answering a petition in a forfeiture action, a defendant may assert any legal or equitable defenses or a counterclaim, and by implication, such defenses will be considered in the determination of whether a foreclosure petition should be granted.” "The proceeding is statutory, and must be strictly construed and observed." Young v. Cowles, 128 Ga. App. 770 (197 S.E.2d 864) (1973). Without Notice, and Opportunity to Respond, the case suddenly went before the Magistrate Judge for hearing. Clearly, an action filed pursuant to O.C.G.A. §44-14-230 in State Court, and after a defendant files Verified Answers, Defenses, and Counterclaims pursuant to the statute, cannot be suddenly sent to Magistrate Court where the Civil Practice Act does not even apply! 6.

Officer of the Court/Fraud Upon the Court

At the Magistrate Hearing, opposing counsel, in an act of bad faith, and with intent to prejudice and harm Appellant, made two statements that, as an Officer of the Court, and while under Oath, not only resulted in perjury, but because it was 25

used as an attempt to obtain a Ruling in his favor, constitutes Fraud Upon the Court. “fraud on the court. A lawyer’s or party’s misconduct in a judicial proceeding so serious that it undermines or is intended to undermine the integrity of the proceeding.” Black’s Law Dictionary, 7th Ed, pg. 671 “A trial court also is authorized “[t]o preserve and enforce order…to prevent… hindrance to its proceedings.” Robinson v. Becker, Ga. App. (SE2d) (Case No. A03A2524, 2004). “It is the responsibility of the trial court to ensure that the system is not manipulated by any party…” Carson v. State, Ga. App. (SE2d) (Case No. A031403, 2003); This enumeration of error shows that the Magistrate Court showed obvious bias and prejudice against Appellant, with actual knowledge of perjury by Appellee’s counsel, and as such, this Court owes no deference to the trial court's ruling and should apply the "plain legal error" standard of review. Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000). See The Supreme Court of Georgia’s holdings in

Green v Green,

No.

93A0780 (1993) GA.2404 , 437 S.E.2d 457, 263 Ga. 551, citing Evanoff v. Evanoff, 262 Ga. 303, 304-305 (418 S.E.2d 62) (1992) 26

(Benham, J., Concurring).

“In the present case, appellee's counsel has taken a

position equivalent to that of appellee's counsel in Evanoff, … the notions of fundamental fairness that lie at the heart of the principle of due process of law, requires that attorneys, as officers of the court, make a good faith effort to ensure that all parties … have a full and fair opportunity to be heard. *fn4 Given all the circumstances …especially the lengths to which appellee's counsel went to ensure that this case was tried in the absence of appellant, …Spyropoulos, supra, required that the judgment be set aside.” See: Wills et al. v. McAuley 65128., 166 Ga. App. 4 (303 SE2d 26) (1983): “[14] “The trial court found … Wills' false swearing was deliberate, without excuse,… ordered the striking of the answer …, entry of judgment by default, … for costs of this action plus any and all damages which may be assessed …” Petition for Cert to The Supreme Court of Georgia, was denied, but see Justice Smith and Justice Hill’s dissent on denial of Petition: In Justice Smith’s Dissent, “[13]

I would grant the petition for certiorari. Although I agree … I would grant

and write to emphasize … criminal prosecution for perjury ….” McAuley v. Wills, et al. 1983 Ga.. 873 (305 S.E.2d 120) 251 Ga. 41 (1983) Denying disabled, pro se litigants meaningful access to the Courts falls within violations of Constitutionally guaranteed Rights see Tennessee v. Lane 541 U.S. 27

513 (2004); U.S. v. Georgia, “…interference with access to the judicial process, and procedural due process violations…” Tennessee v. Lane, 541 U.S. 513 (2004) Justice Stevens delivered the opinion of the Court. “Title II of the Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 337, 42 U. S. C. §§12131–12165, provides that “no qualified individual with a disability shall, ……denied the benefits of the services, programs or activities…, or be subjected to discrimination by any such entity.”’ “The Due Process Clause also requires the States to afford certain civil litigants a “meaningful opportunity to be heard” …’ Boddie v. Connecticut, 401 U. S. 371, 379 (1971); M. L. B. v. S. L. J., 519 U. S. 102 (1996). Pg.20: “The unequal treatment of disabled persons in the administration of judicial services has a long history, and has persisted despite several legislative efforts to remedy the problem of disability discrimination.” See also: U.S. v. Georgia 04-1203 (2006), Goodman v. Georgia 04-1236 (2006) Justice Stevens with Justice Ginsberg concurring: “…interference with access to the judicial process, and procedural due process violations…” CONCLUSION Appellant has shown that without authorization and/or notification, a case brought in State Court was transferred to Magistrate Court, which guaranteed that 28

Appellant’s Verified Answers, Defenses, Counterclaims, Motions, and his Demand for Jury Trial would not be considered or Ruled on, and for which Magistrate Court lacks jurisdiction. Appellant MOVES this Court to reverse and remand with instructions to the state court to transfer the case to Fulton County State or Superior Court where Appellant will have a fair and impartial tribunal to preside, and a Jury trial on the issues. Respectfully Submitted, this 3rd day of November, 2009,

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

IN THE COURT OF APPEALS OF GEORGIA No. A10A0420 _____________________________________________________ JAMES B. STEGEMAN

Appellant, Versus

HERITAGE BANK

Appellee

CERTIFICATE OF SERVICE 29

I Certify that I have this 3rd day of November, 2009 served upon Appellees, a true and correct copy of the foregoing Appellant’s Brief through their attorneys on record by causing to be deposited with the U.S.P.S., Certified Mail: 7007 0710 0002 1509 6616, 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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