Brief In Support Of Motion To Appoint Counsel

IN THE STATE COURT OF DEKALB COUNTY STATE OF GEORGIA

HERITAGE BANK, Plaintiff

CIVIL ACTION FILE NO: 09A11175-3

v

JAMES B. STEGEMAN, Defendant BRIEF IN SUPPORT OF MOTION FOR APPOINTMENT OF COUNSEL COMES NOW, James B. Stegeman1 and files his Brief in Support of Motion for Appointment of Counsel. Mr. Stegeman is One Hundred percent (100%) Federally disabled and receives Supplemental Security Income2. As a disabled adult receiving Supplemental Security Income, Mr. Stegeman is qualified and eligible for, and has a property right of legal assistance through Georgia’s Legal Assistance programs which do receive Federal funding.

Further, a cause of action is a property interest which qualifies as

entitlements, see the following: “Over the years, the Court has found a wide range of property interests that qualify as entitlements, including mere possessory interests in chattels (Fuentes v. Shevin, 1972), intangible interests such as causes of action (Logan v. Zimmerman Brush Co., 1982), the right of an employer to discharge an employee for cause (Brock 1

Referred to hereinafter as either Mr. Stegeman, or Defendant.

Mr. Stegeman has been receiving SSI since 1993, and the current monthly benefit is $674.00 monthly, see US District Court’s Order GRANTING Motion to Proceed on Appeal in Forma Pauperis in which states that Mr. Stegeman is disabled and only source of income is from disability “Exhibit A”; he cannot afford an attorney to protect his Rights, and he is not an attorney, therefore he cannot protect his Rights. The only way to assure Mr. Stegeman will be treated fairly in this matter, is to appoint counsel for him. 2

v. Roadway Express, Inc., 1987), 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, Gas & Water v. Craft, 1978).”

"No otherwise qualified individual with a disability in the United States, ... shall, solely by reason of her or his disability, be ... denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...." 29 U.S.C. Sec. 794(a)

BRIEF BACKGROUND May 1998 Defendant, who is 100% Federally disabled “Exhibit A”, and his elderly aunt Jean Caffrey3 visited John Bleakley RV Center, a salesman talked Ms. Caffrey into buying a 1998 Winnebago Brave SE. The salesman filled out the Loan Application with Ms. Caffrey as principal on the loan and Mr. Stegeman a co-signer. Had the John Bleakley dealership and Heritage Bank performed the necessary credit checks and bank account checks, as well as income checks the loan would have been denied. Heritage Bank was negligent. Mr. Stegeman in 2002, contacted the Plaintiff and informed them that there had been a guardian of property appointed for Ms. Caffrey; and April 2003, Mr. Stegeman contacted Plaintiff about her death. Mr. Stegeman was advised to send a Death Certificate, which was done, see Ms. McDonald’s Affidavit attached to Answer to Foreclose. Ms. McDonald who resides with Mr. Stegeman paid for, obtained, and mailed out Death Certificates to several entities. A.

Related Cases

Not only did the Probate Court have actual knowledge of the “vehicle” Ms. Caffrey bought, but the Guardian of Property and Administrator of the Estate had 3

Ms. Caffrey was born in 1911, in 1998 she was visibly elderly. 2

actual knowledge as well. September 23, 2002 a date that Guardian of Property had for Mr. Stegeman had to respond to Subpoena Duces Tecum, issued through Probate Court; one of the requests was for documentation for the “vehicle” “Exhibit B”. Furthermore, Attorney Stephen Carley had made a demand that the Guardian of Property take over the payments of the “vehicle” as well.

The “vehicle” has been

brought up in numerous lawsuits, as well as Mr. Stegeman’s Objection to Discharge of Administrator of Jean Caffrey’s Estate due to Mr. Lillig, III’s false swearing, perjury “Exhibit C”. Heritage Bank was negligent and forced Mr. Stegeman into default. Heritage Bank contributed quite heavily to the default by failing to file upon the Estate of Caffrey. Ms. Caffrey had never defaulted, she passed away. Mr. Lillig, III committed fraud upon the Court, he failed to satisfy any of the debts of the Estate “Exhibit D”. Probate Estate No.: 2002-1161, riddled with fraud upon the Court, the Probate Clerk in 2002illegally 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, 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-13909-94. 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 4

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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 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. Mr. Stegeman cannot and will not have a fair and impartial tribunal in this Judicial Circuit, he MOVES this Court to GRANT his Motion for change of venue and have the case taken to Fulton County where the DeKalb County Courts and employees are not intimately involved, and thereby will not attempt to protect the proper parties to the cases at bar, the entities that should be held responsible to Heritage Bank. Two related cases were attempts to sue Mr. Stegeman for Credit Card debts that neither the Guardian of Property, nor Administrator of the Estate paid: CACV of Colorado, LLC Successor in Interest of Fleet Bank v Caffrey and StegemanCivil Action No.: 07A62179-7; and CitiBank v. StegemanCivil Action No.: 05A33060. Both of these cases were Dismissed due to Mr. Stegeman not being the proper party Pauperis has yet to be ruled on and is currently pending in Superior Court. 4

defendant to the suit. ARGUMENT AND CITATIONS OF AUTHORITY5 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; the receive Rulings with no explanations 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 hampered and tampered with. A. Past Case Precedent and Principles of Stare Decisis Past case precedent and the application of the doctrine of stare decisis is essential to the performance of a well ordered system of jurisprudence . When ruling on Pro Se litigant’s filings, the principles of stare decisis and past case precedent are often ignored; Courts refuse to liberally construe Pro Se pleadings, and fail to hold to them and their pleadings toless stringent standards; the judicial system fails resulting in manifest injustice and the Courts find in favor of the opposition, who can afford legal counsel. “Courts will go to particular pains to protect pro se litigants … if injustice would otherwise result” U. S. v. Sanchez, 88 F.3d 1243 (D.C. Cir. 1996). An appeal court's panel is "bound by decisions of prior panels unless an en banc decision, Supreme Court decision, or subsequent legislation undermines those decisions." United States v. Washington, 872 F.2d 874, 880 (9th Cir. 1989).

"Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that It has long been a known fact that State and Superior Court Rules are almost identical to the Federal Rules of Civil Procedure; Georgia is one such state that has almost identical Rules and Procedures. Mr. Stegeman’s Argument and Authorities use caselaw from several sources including US Supreme Court, US Court of Appeals, and US District Court which is acceptable due to the closeness of the Rules and Procedures. 5

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it be settled right" (Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 52 S. Ct. 443, 76 L. Ed. 815 [1932]).

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 prisoner. Indeed, despite the ‘less stringent standards’ by which a pro se pleading is judged”, Haines v. Kerner, 404 U.S. 519, 520 (1972). B. The United States Constitution and State of Georgia Constitution The Fifth Amendment says, "No person shall...be deprived of life, liberty, or property, without due process of law." The Fourteenth Amendment says, "no state shall... deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." Georgia Supreme Court’s Equal Justice Commission Committee On Civil Justice. The “Minutes” of the December 4, 2006 Meeting: “…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 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.” 6

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." 6 As stated in Citizens & Contractors. Bank v. Maddox, *fn2 "[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.)" In RE Law Suits, 235 Ga.App. 551, 510 S.E.2d 91 (Ga.App. 12/02/1998). Wilhelm H. Joseph Jr. 7: Justice system should be equal for rich and poor 2006-07-12; explained: “Effective participation in the system of justice requires the assistance of competent counsel, which is usually beyond the financial capacity of … Americans in general.” In Frase vs. Barnhard, a 2003 case seeking to create a right to counsel in critical civil cases, a judge on Maryland’s highest court wrote, “[I]t is my belief that there is no judge on this Court that believes in his or her heart or mind that justice is equal between the poor and the rich — even in the tradition-hallowed halls of our appellate courts.” It would be a great day when we get past the fear expressed in the 2001 State of the Judiciary speech by California Court of Appeals Chief Justice Ronald George: “If the motto ‘and justice for all’ becomes ‘and justice for those who can afford it,’ we threaten the very underpinnings of our social contract.” 6

“The gap between civil legal needs and available services has been well O.C.G.A. §9-15-2 (d)

Wilhelm H. Joseph Jr. has served as executive director of the Legal Aid Bureau of Maryland since 1996. Previously he was director of the legal support unit at Legal Services for New York City. A law graduate of the University of Mississippi and Harvard’s JFK School of Government, Joseph is the immediate past chair of the Legal Services Project Committee of the American Bar Association Section of Litigation. 7

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documented. A 1993 American Bar Association study showed that 70 percent of poor people could not obtain legal help for their serious legal problems. Many follow-up studies suggest the number is closer to 90 percent. As a consequence, poor people largely cannot enforce what rights they have.”8 “Although lay litigants are no better able to navigate the legal system in civil cases than in criminal ones, the simple logic of Gideon v. Wainwright, 372 U.S. 335 (1963), has yet to be applied in the civil arena. In Gideon, the U.S. Supreme Court required that counsel be appointed for criminal defendants because “the right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” Id. at 344–45. Eighteen years later, the Supreme Court in Lassiter v. Dep’t of Social Services, 452 U.S. 18 (1981), acknowledged that federal due process does at times require appointment of counsel in civil cases.” “Indeed, creative litigation and legislative efforts are underway in California, Georgia, Maryland, New York, Texas, Washington, and Wisconsin to recognize the right to civil counsel.” C. ADA Title II and 42 §1983 In Miller v. King, et., al., 449 F.3d 1149, 17 A.D. Cases 1758 (11th Cir. 2006) in which the opinion was vacated in full “in light of the Supreme Court’s decision in United States v. Georgia, 546 U.S. ___ 126 S. Ct. 877 (2006)”, it was held: At [13] “However, the analytical difficulties created by Miller;s pro se pleadings are now heightened by the Supreme Court’s decision in Georgia, which indicates that it is important for lower courts to determine on a claim by claim basis (1) which aspects of the State’s conduct violate Title II; (2) to what extent such alleged misconduct also violates the Constitution; and (3) whether such alleged misconduct violates Title II but does not violate the Constitution. Georgia 546 U.S. at___, 126 S. Ct. at 882.” A Civil Right to Counsel for the Poor By Paul Marvy and Debra Gardner. http://www.abanet.org/irr/hr/summer05/counsel.html. 8

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At [20] “*fn 3 Miller filed his complaints pro se and remained pro se until this Court appointed him pro bono counsel on appeal.” The U.S. Supreme Court in Lane, 541 U.S. at 523-528 teaches that Title II enforces rights under the Equal Protection Clause as well as an array of rights subject to heightened constitutional scrutiny under the Due Process Clause of the Fourteenth Amendment; accord Constantine, 411 F.3d at 486-487. Title II enforces the Equal Protection Clause’s prohibition of arbitrary treatment based on hostility, or “mere negative attitudes”, University of Ala. v. Garrett, 531 U.S. 356, 367 (2001); to private biases, Palmore v. Sidoti, 466 U.S. 429, 433 (1984). CONCLUSION Appointment of counsel in this matter will ensure Mr. Stegeman proper and fair treatment; would ensure the guaranteed meaningful access to the Courts; and would also ensure that his defenses would be properly presented to the Court. The Supreme Court has recognized that at times, even for Civil actions in civil cases, the only way for an Appellant to be afforded proper protection of one’s rights, legal counsel must be appointed. Appellant prays this Court will appoint to him legal counsel, even if it is just for direction and advice on filings, and to represent him at hearings.

Respectfully Submitted this 20th day of August, 2009

By: _______________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd. Stone Mountain, GA 30083 (404) 300-9782 9

IN THE STATE COURT OF DEKALB COUNTY STATE OF GEORGIA

HERITAGE BANK, Plaintiff

CIVIL ACTION FILE NO: 09A11175-3

v

JAMES B. STEGEMAN, Defendant

CERTIFICATE OF SERVICE I Certify that I have this 20th day of August, 2009 served a true and correct copy of the foregoing Motion for Appointment of Counsel and Brief in Support of Motion for Appointment of Counsel, through their attorneys 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. 10

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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