First American Title Insurance Claim

http://www.pdfcoke.com/n ootkabearmcdonald

[email protected]

Janet D. McDonald

James B. Stegeman 821 Sheppard Rd. Stone Mountain, GA 30083-3642 (404) 300-9782 June 25, 2009 FAX & USPS PRIORITY MAIL: 0103 8555 7497 0261 6292 Claims Department First American Title Insurance Company 2750 Chancellorsville Drive Tallahassee, FL 32312

RE: CLAIM NO.: GA09-214 POLICY: GF-09-47430 FILE NO.: 5249909/C577

To Whom It May Concern: On or around April 23, 2009 we filed a claim with your office. The claim was assigned to Ms. Pamela Nix in Atlanta, GA on or around the 29th of April. After trying to contact Ms. Nix for several weeks, and leaving several messages, she finally called us back on or around May 21, 2009.

Ms. Nix requested we send a FAX containing a couple of

different

documents

which

we

did.

communications sent to Ms. Nix as “A” [1]

I

have

included

the

On or around June 9, 2009, after again being unable to contact Ms. Nix and after she refused to respond to messages requesting that she call us back, we sent a FAX to your office informing you of the problem contacting her. On or around June 12, 2009 we received a FAX from Ms. Nix which I have attached hereto as “B”;

The FAX we sent Ms. Nix in response is

“C”. Rather than perform a proper investigation, Ms. Nix made ridiculous findings and slanderous, libelous remarks when denying liability of the claim.

When we bought the property, there was no electric, telephone, or any other kind of pole on the property; any lines that were or should have been visible were hidden by trees. We bought title insurance and depended upon what the surveys said (we had the previous as well as our survey) and the examination or investigation conducted into the title and property done for the purchase of the title insurance. There was no indication of a power line easement on our property.1

Only

when GA Power came to cut the trees after we had been here for over a year did we realize that the lines crossed over our property. They were very courteous and carefully hand trimmed granddaddy oak. At that time, they made no mention of an easement or property rights. Until Superior Court Judge Becker on April 27, 2009, deemed that Georgia Power Company has an easement that has been on file in the County records since 1941, there was no reason to believe that there was a legal valideasement on our property.

Judge Becker’s ruling,

made in violation of Georgia’s Land Registration Laws made First 1

We have seen surveys where there is such an easement and one is plainly marked. [2]

American responsible under the policy we purchased. Further, since there is no definite amount of land mentioned in the easement, and Georgia Power claims to have easement to our entire property, the property is thereby unmarketable.

Information that Ms. Nix should know as part of her career choice, or should have found had she actually done an investigation2 1. We were plaintiffs, nowhere have we found that the company represents Plaintiffs. 2. One cause of action was libel per se; nowhere have we found that the company represents Plaintiffs suing for libel. 3. Georgia Power’s claim was not properly before the Court

4. Would have first checked the reports and findings of the required examiner/auditor/master that gave the Court authority to make it’s Ruling. The Georgia Supreme Court in Woodruff v. Morgan County, 670 S.E.2d 415, 284 Ga. 651 (Ga. 11/17/2008) held the following: “Without the appointment of a special master … the trial court was not authorized to enter a default judgment against them. See Bonner v. Bonner, 272 Ga. 545 (2) (533 SE2d 72) (2000). Because the trial court's entry … is a nonamendable defect appearing on the face of the record, the trial court erred in failing to set aside the default judgment when requested to do so by the Woodruffs. Shields v. Gish, 280 Ga. 556 (2) (629 SE2d 244) (2006); OCGA § 9-1160 (d) (3). Accordingly, we reverse the decision of the trial court and remand this case with the direction that a special master be appointed.” 2

Ms. Nix should have full working knowledge of GA Law, it is not our responsibility to advise her of the law; nevertheless as a courtesy we are listing GA and/or Federal laws pertinent. [3]

5. A “nonamendable defect appearing on the face of the record is a

“void judgment” having no effect. See Smyrna Marine, Inc. v. Stocks, 69303 (172 Ga. App. 426) (323 SE2d 286) (1984) which held the following: “in Wasden v. Rusco Indus., 233 Ga. 439, 445 (211 SE2d 733) (1975), the Supreme Court held that '[s]tatutes of limitation have no application to [void] judgments, and there can be no bar, estoppel or limitation as to the time when a void judgment may be attacked.' " The court further held that "a judgment is void on its face when there is a non-amendable defect appearing on the face of the record …." Id. at 444. See also Ricks v. Liberty Loan Corp., 146 Ga. App. 594 (1 & 2) (247 SE2d 133) (1978) (cert. den.).” 6. Ms. Nix would have found, had she done the investigation, that

the Judge violated the Georgia Land Registration Laws3 by failing to appoint an examiner of title/auditor/master4 as mandated. 7. The Judge neglected bringing the property under jurisdiction of

the Court “in rem” as mandated by Georgia Land Registration Laws. 8. Our complaint was dismissed with prejudice June 11, 2006.5

Ms. Nix Letter Denying Our Claim ¶1:

Denied because we filed a lawsuit without first notifying First

O.C.G.A. §44-2-40 This article shall be known and may be cited as "The Land Registration Law." 3

O.C.G.A. §44-2-100 The judge of the superior court of each judicial circuit shall appoint at least one auditor, who shall be known as the examiner; O.C.G.A. § 44-2-77 While the cause is pending before the examiner of titles; O.C.G.A. § 44-2-64… the recommendation of the examiner, may require a fuller and more adequate description or one tending more permanently to identify the tract in question; O.C.G.A. §44-2-74 If the report of the examiner; 4

5

Dismissal with prejudice in Georgia dismisses both the claim and any counterclaim. [4]

American. As Ms. Nix was told, the suit was filed after discovering through GFAF ORA6 request, that Georgia Power Company supervisor had told Georgia State Patrol Troopers that we had said we would kill him if he came to our property.7 We have seen nowhere in the Policy8 that you represent Plaintiffs, particularly Plaintiffs suing for libel. Although the suit did state that there was no easement on our property; until the Court deemed that the 1941 document was legitimate,we believed that there was no easement.

Without which,there could be no file claimed with First

American. Furthermore, we contactedEverhome Mortgage Company May 28, 2008 and Faxed them information seeking assistance “D”. Everhome Mortgage knows that we have title insurance; Everhome never suggested contacting you; and we find it hard to believe that they did not contact you. Because

the

Judge

neglected

and

refused

to

follow

the

mandatory laws, dismissed our complaint with prejudice the day after being served as defendant in Federal Court, results in judgment void on its face.

¶2:

Ms. Nix complains that we filed the claim shortly before a

6

Georgia First Amendment Foundation Open Records Act

7

Mr. Stegeman is 100% Federally disabled; one of the disabilities is acute bi-polar disorder. After speaking with a document examiner, who is also Deputy Chief of Police for the City of Duluth, and he agreed that should anything happen to the GA Power supervisor, we would be the first ones arrested, we were forced to file suit. 8

“the Policy” refers to the Owner’s Policy of Title Insurance issued by First American Title Insurance Company GF – OP 1814 Georgia ALTA Owner’s Policy, Policy No. GF- OP-47430, date of policy August 22, 1994 @ 8:30 AM in the amount of $55,000.00 [5]

Summary Judgment hearing. She fails to state the complaint had been dismissed with prejudice a year beforehand; thereby there could be no complaint or counterclaim pending; without which there legally could be no Summary Judgment. Furthermore, we filed Motion to set aside the judgment so that we could participate with the bogus Summary Judgment.

Hand delivered Summary Judgment Brief to the Court,

where it was held for over 30 days without being placed on the docket report, then mailed back to us unfiled. ¶3: states“Final Order” and “you did not appear at the hearing despite receiving adequate notice”.

Rather than make accusations, Ms. Nix

should have been wondering why such an Order states what it does; anyone with any sense knows… A. The United States Supreme Court, United States Constitution 9,

Federal laws10, Georgia Supreme Court11, Georgia Constitution and state laws forbid the Rulings made by Judge Becker. B.

Superior Court has fifteen or more hearings scheduled on the calendar for the same day;

C. all notices of hearing sent out shows 9:30 AM; D.

Once the Judge gets there, which is never before the time the court is scheduled to start, there is a roll call and if one is lucky,

9

Both the United States and Georgia Constitutions forbid the taking of land without just compensation first being paid. 10

Federal law cannot goes against state law.

The Supreme Court of Georgia has: repeatedly found against Georgia Power when the claim of prescriptive easement was a defense: Georgia Power v. Irving, 267 Ga. 760, 482 S.E.2d 362 (Ga. 03/19/1997) SUPREME COURT OF GEORGIA; stated that the laws governing land must be strictly abided by: Frank v. City of Atlanta, 72 Ga. 428, 432 (2) (1884). See also Sims v. City of Toccoa, 256 Ga. 368, 369 (349 S.E.2d 385) (1986).; that an examiner/auditor/master must be appointed: Woodruff v. Morgan County, 670 S.E.2d 415, 284 Ga. 651 (Ga. 11/17/2008), Bonner v. Bonner, 272 Ga. 545 (2) (533 SE2d 72) (2000), Woodruffs. Shields v. Gish, 280 Ga. 556 (2) (629 SE2d 244) (2006); OCGA § 9-11-60 (d) (3); that the proceeding must be in rem: O.C.G.A. §44-2-61; [6] 11

the hearings will begin around 10:30AM; E. The Judge doesn’t sign the Order immediately upon making a Ruling, she has to wait until an Order has been drawn up; F. The Orders are not filed the day they are made as the Court goes

on until 5:00 or 5:30 PM; G. The clerks go home at 5:00 PM. leaving no time for the filing the same day The hearing was set for 9:30 AM, yet the Order was signed and filed at 9:12AM before the Judge or any of the parties appearedat the Courthouse. How would the Judge have known we were not there? How did a document get signed and filed on a Monday morning beforethe Judge was at the Courthouse? The only possible way is for the Order to have been signed sometime Friday.

And

Ms. Nix

investigated this? Not hardly. ¶4: Goes to the trouble of mentioning the dimensions of our property, and tries to allege that the GA Power only has easement over 15’-30’feet.

This statement is ludicrous.

Had Ms. Nix actually

investigated, she would have found Georgia Power has already taken 40-50+ feet (30’ beyond County Right of Way), she would have found what a prescriptive easement means12 and the fact that neither the GA Power’s documents, nor the Judge’s order specifies where the lines are or how much easement they actually have. GA Power claims to have easement over the entire Land Lot which consists of 44 acres, encompassing our entire property.

The

Supreme Court of Georgia has stated that the amount of land encompassed must be stated with definiteness in order for there to be 12

Prescriptive easement gives property rights and, the Order fails to state where the easement actually is, how much property is actually involved, etc. GA Power has maintained that they have easement over the entire property! [7]

an easement, a condemnation, or eminent domain. The Judge again ignored the law and stare decisis thereby further violating the law. ¶5: makes more preposterousstatements: “allege procedural errors” and “filed an action in federal court under Social Security Act and the Americans with Disabilities Act”. Again, if Ms. Nix had actually done the investigation, she would not have to have someone explain due process violations, Title II violations; or that a suit under 42 §§ 1985,

1983,

Conspiracy,

Due

Process

Violations,

Civil

and

Constitutional Rights violations under color of law differ from SSA and ADA.13 Besides, when a Judge ignores mandated law and does as he/she pleases, that is violation of procedure, violation of due process, and Civil and Constitutional Rights violations under color of law. The kinds of violations against a disabled American fall under U.S.C. Title §§ 241, 242 criminal civil rights violations for which a judge is not immune. Conspiracy Against Rights, 18 U.S.C. § 241. Section 241 makes it unlawful for two or more persons to agree together to injure, threaten, or intimidate a person in any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the Unites States, (or because of his/her having exercised the same). …Section 241 does not require that one of the conspirators commit an overt act prior to the conspiracy becoming a crime. The offense is punishable by a range of imprisonment up to a life term or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if Again, it is not our place to make Ms. Nix aware of state or federal laws and/or causes of action. Due process is not that hard to understand and if anyone is interested in the laws governing the Social Security Act or the Americans with Disabilities Act, the laws are easily obtainable online, as are the Civil Rights Acts and criminal civil rights statutes. [8] 13

any.

Deprivation of Rights Under Color of Law, 18 U.S.C. § 242. This provision makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under "color of law" include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim. The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any. There is neither an excuse for Ms. Nix’ attempt to discredit us, her seeming lack of intelligence, and/or ignorance of law; nor an excuse for her lack of investigation. We believe that the easement documents could easily be shown to be bogus/manufactured/forged, which we did state to both the state and federal court and was never denied. The facts and laws clearly show that the use of fraudulent land documents in Georgia is a [9]

felonious act. O.C.G.A. § 44-2-43 Any person who: (1) fraudulently obtains or attempts to obtain a decree of registration of title to any land or interest therein; (2) knowingly offers in evidence any forged or fraudulent document in the course of any proceedings with regard to registered lands or any interest therein; (3) makes or utters any forged instrument of transfer or instrument of mortgage or any other paper, writing, or document used in connection with any of the proceedings required for the registration of lands or the notation of entries upon the register of titles; (4) steals or fraudulently conceals any owner's certificate, creditor's certificate, or other certificate of title provided for under this article; (5) fraudulently alters, changes, or mutilates any writing, instrument, document, record, registration, or register provided for under this article; (6) makes any false oath or affidavit with respect to any matter or thing provided for in this article; or (7) makes or knowingly uses any counterfeit of any certificate provided for by this article shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than ten years.

Ms. Nix may get away with treating some of the persons whose titles you insure, as idiots; we are not idiots, not ignorant of the law, not unintelligent, and don’t appreciate the treatment. After all of Ms. Nix’ discrediting of us, she finally gets to the business at hand on the second page. 1. “Paragraph 3, excludes coverage for matters created, suffered or assumed by the insured” “matters resulting in no loss or [10]

damage” 2.

“Paragraph 3,…in case of any litigation” “if prompt notice is not given, ‘all liability of the Company shall terminate’ to the extent that the Company has been prejudiced by the failure to do so.”

How either statement pertains to the claim at hand, we have not discovered. Ms. Nix carries on about whether or not the lines crossed our property before or after we bought the property making several excuses why the Company is not responsible and has been prejudiced by our failure to immediately notify. In response, we point to the policy ¶3 which refers to ¶4(a) and states the following: “shall notify the Company promptly…litigation as set forth in 4(a) below…” 4(a) 6…”

“Upon written request…and subject to…Section

“shall provide for the defense of an insured in litigation…”

Facts associated with the Civil litigation Ms. Nix ignored: I. One main cause of action was libel per se, the “Company”14

does not cover civil actions for libel II. The Insurance policy specifies “defendants”, we were Plaintiffs. III. We had no idea that GA Power would use a fraudulent

document to show they had an easement; under GA law the use of fraudulent land documents is a felony. IV. The fraudulent 1941 document GA Power used, in no way described or pertained to our property and was signed by a 14

“The Company” refers to First American Insurance [11]

man that never existed. V. The

case

had

been

dismissed

with

prejudice

a

year

beforehand. VI. A separate action would have had to be brought in Superior

Court by GA Power as Plaintiffs. VII.GA law mandates that the proceeding is “in rem”, and a

master/auditor/examiner has to be appointed. Under the above stated circumstances, we were not obligated to promptly notify the Company; we were not being sued, and Georgia Power’s claim was not properly before the Court.

The facts remain

clear that none of the required processes were performed. Court

of

competent

jurisdiction,

with

the

Only a required

examiner/auditor/master and the proceeding in rem could Rule that GA Power had a legal easement.

None of these requirements were

met. Ms. Nix would have one believe that we have suffered no loss; that we brought our problems upon ourselves. This is incorrect. a) The loss is as great as the whole property. b) Much of our property is solid hardwood trees15, one of which

is over 200 years old16. c) The

price of replacing all of the hardwoods already

destroyed

including

“granddaddy

oak”

with

trees

of

comparable size and age is great, the loss we suffer is great. d) We live on a very limited income, do not use air conditioner, and the trees help to keep the house cool. 15

We have no pine trees on our whole property.

16

The 200+ year old Oak is “granddaddy oak” [12]

e) Further, because the resale value of the property is now

nothing, the loss to us is actually the entire property. f) Since neither the survey done when we bought

the

property, nor the survey of the previous owner showed any easement what-so-ever, there was no way that we would have known such an easement existed. g) We purchased title insurance for the appropriate reasons; it

is not our fault a Superior Court Judge deemed there has been an easement since 1941 in a proceeding which she could not make such a decision. We find it distressful that Ms. Nix lied, and went out her way to slander and discredit us. We find it further distressful that we bought title insurance to protect ourselves, and according to Ms. Nix, we wasted our money. If title insurance does not protect the homebuyer, who does it protect? Why should we pay a mortgage when we have no say over the property, and the property can be destroyed at the whim of Georgia Power? We would appreciate (1) Ms. Nix’ decisions is overturned and (2)

someone other than Ms. Nix, does a true and proper

investigationand

(3)

the company bring criminal charges against

Georgia Power

Sincerely,

[13]

Janet D McDonald

James B. Stegeman

P.S. I would also appreciate the address and name of whom to direct a Georgia Open Records Act Request or Freedom of Information Act request.

[14]