Motion For Reconsideration (ga Court Of Appeals)

COURT OF APPEALS OF GEORGIA JAMES B. STEGEMAN, JANET D. MCDONALD Appellants vs. WACHOVIA BANK, N.A., et., al WACHOVIA SECURITIES, et., al. Appellees.

* * * * * APPEAL CASE NO. A07A1846 * * * * *

MOTION FOR RECONSIDERATION Comes Now, Appellants in the above Appeal, and pursuant to Rule 37 of the Rules of the Court of Appeals of the State of Georgia, timely file their Motion For Reconsideration within ten days of the December 7, 2007 affirmation of Superior Court’s Judgment. Appellants would like the Court to take Notice that the paperwork they received was not signed by any of the three judges listed as having reviewed their Appeal and Appellants find it unusual that an Order is not signed. Appellants show in the following the basis for Granting their Motion For Reconsideration.

Rule 37.(e) Basis for Granting. A reconsideration will be granted on motion of the requesting party, only when it appears that the Court overlooked a material fact in the record, a statute or a decision which is controlling as authority and which would require a different judgment from that rendered, or has erroneously construed or misapplied a provision of law or a controlling authority.

Plaintiff-Appellant’s case was dismissed as retaliation against Plaintiff Stegeman for naming Superior Court Stone Mountain Judicial Circuit as a Defendant in United States District Court. One would believe this Honorable Court suggests that Judge Hunter and Superior Court did not violate Rules of the State and Federal Courts as well as State and Federal statutes involving the dismissed litigation, this Honorable Court in essence is suggesting that the Civil action in fact was never pending Removal to Federal Court; Wachovia was in fact in default and had failed to file a responsive pleading in seventy plus days.

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Further, Plaintiff-Appellants listed several causes of action for which relief could and should have been granted. Judge Hunter failed to address several causes of action in her Order and the ones addressed were improperly addressed. Causes of Action In Plaintiff-Appellant’s Pleading that were not addressed by either Wachovia or Superior Court: Violation of Privacy; Conspiracy to Defraud; Securities Fraud; Theft By Deception; Malfeasance; Co-conspiracy in Malicious Persecution; Co-conspiracy in Vexatious Litigation; Malicious Slander; Malicious Defamation of Character; Damages and Other Relief. Causes of Action Improperly Addressed By Superior Court’s Order: Judge Hunter’s Order signed April 12, 2007, pg. 2, ¶B states “Because the criminal statutes referenced in Paragraphs … do not provide for private causes of action, Plaintiffs have no cause of action for any alleged violation.” Plaintiff-Appellants will address these as Judge Hunter has listed them, under Criminal statutes and Plaintiff’s paragraphs: ¶6, ¶8: Doesn’t in itself provide for a cause of action, but Wachovia’s part resulted in a tort which is recoverable and Wachovia had a fiduciary duty. ¶9-10, and ¶13-14:

Shows fraud with particularity and shows that Plaintiff-

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Appellants have the bank records reflecting these activities. Further, Wachovia never denied the activities. ¶15: Shows breach of contract ¶17: Shows that because of Wachovia’s part, they were part of a conspiracy to defraud Plaintiff-Appellants, they breached their fiduciary duty, and neglected their duty to have law enforcement officials look into the situation. Their acts resulted in damage to Plaintiff-Appellants and their property, a recoverable cause of action. PLEASE NOTE: Judge Hunter’s Order doesn’t properly address causes of action which would show that Plaintiff-Appellants had in fact plead fraud with particularity as required to successfully plead for the cause of action in the following: ¶11: which shows fraud and how the fraud was committed (particularity); ¶12: shows that Plaintiff-Appellants were “Business Victims” which again shows the particularity needed to plead fraud ¶25: shows fraud and how the fraud was committed (particularity) PLEASE NOTE:

Judge Hunter’s Order does not address the following

paragraphs which would show not only fraud particularity, but intentional infliction of emotional distress and which could have been proven with Plaintiff-Appellant’s

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documents: ¶19: malicious slander and malicious defamation of character. In fact PlaintiffAppellants should have listed the cause as libel per se, which they have the paperwork to prove. ¶21: shows intentional infliction of emotional distress ¶25: shows intentional infliction of emotional distress ¶27: shows intentional infliction of emotional distress Judge Hunter’s Order signed April 12, 2007, pg. 2, ¶B states “Because the criminal statutes referenced in Paragraphs … do not provide for private causes of action, Plaintiffs have no cause of action for any alleged violation.” Plaintiff-Appellants will address these as Judge Hunter has listed them, under regulatory statutes and Plaintiff’s paragraphs: ¶7: shows fraud plead with particularity ¶15:

shows fraud plead with particularity; shows intentional infliction of

emotional distress; shows a relationship with John Joyner ¶16: invasion of Plaintiff-Appellant’s privacy ¶17: conspiracy to commit fraud; intentional infliction of emotional distress ¶18: violation of oath of office shows fraud with particularity

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¶20: conspiracy to defraud, plead with particularity ¶21: intentional infliction of emotional distress Mr. William J. Holley, II, known as one of Georgia’s “Super-Lawyers”1 has full knowledge of the Georgia Court System. One cannot believe that with Mr. Holley’s obvious credentials he erred when filing to the wrong judge, and would have violated Rules, statutes, procedure, etc. and go into default unless he knew that Judge Hunter would allow him to get away with it. An attorney in his position and reputation would not take such a risk. Plaintiff’s Motion To Dismiss and Strike From Record Wachovia’s Untimely Answer, Filed April 20, 2006, page 4, first ¶. Plaintiff-Appellants have shown and the record reflects that no doubt exists that many Uniform Superior Court Rules, Rules of Civil Procedure in both State and Federal Courts as well as statutes of State and Federal have been violated not only by Wachovia,2 but Superior Court and Judge Hunter as well. 1

Plaintiff-

“Selected as one of Georgia’s “Super-Lawyers” by Law & Politics Media and

Atlanta Magazine, March 2004, March 2005, and March 2006”. Taken from: http://www.phrd.com/attorneys/attybio.asp?id=27. 2

Wachovia’s legal counsel is known to be one of “Georgia’s Super-Lawyers” -6-

Appellants have shown that their State and Federal Constitutional Rights of due process have been violated. Appellant’s Brief filed June 11, 2007, pgs. 12-29. Further, Plaintiff-Appellant Stegeman’s State and Federal Civil Rights have been violated by Superior Court and Wachovia under Color of Law, which is a Federal crime without immunity. See the following: TITLE 18, U.S .C. §242: Deprivation of Rights Under Color of Law. "This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.” “Acts under "color of any law" include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; …” “This definition includes, in addition to law enforcement officials, individuals such as Mayors,

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Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs.” “U.S. law enforcement officers and other officials like judges, prosecutors, and security guards have been given tremendous

power

by

local,

state,

and

federal

government agencies—authority they must have to enforce the law and ensure justice in our country. These powers include the authority to … seize property, to bring criminal charges, to make rulings in court, and to use deadly force in certain situations. Preventing abuse of this authority, however, is equally necessary to the health of our nation’s democracy. That’s why it’s a federal crime for anyone acting under “color of law” willfully to deprive or conspire to deprive a person of a right protected by the Constitution or U.S. law. “Color of law” simply means that the person is using authority given to him or her by a local, state, or federal government

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agency.” "Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined or imprisoned up to ten years or both, and if death results, or if such acts include kidnapping or an attempt to kidnap . . or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death."3 Title 18, U.S.C., § 241. Conspiracy Against Rights “This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of 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 United States, (or because of his/her having exercised the 3

http://www.fbi. gov/hq/cid/civilrights/statutes.htm -9-

same).” “Punishment varies from a fine or imprisonment of up to ten years, or both”; “…and if death results, or if … they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.”4 Plaintiff-Appellant Stegeman is 100% disabled falling within the guidelines of Social Security, The Americans With Disability Act, thereby a member of a protected class of people and protected by State and Federal law. Title 42, Chapter 126 § 12101. “Findings and purpose: (b) Purpose It is the purpose of this chapter— (1)

to provide a clear and comprehensive national

mandate for the elimination of discrimination against individuals with disabilities; (2)

to provide clear, strong, consistent, enforceable

standards addressing discrimination against individuals with disabilities; 4

*ref: http ://www.usdoj.gov/crtJcrim/241fin.htm - 10 -

(3)

to ensure that the Federal Government plays a

central role in enforcing the standards … on behalf of individuals with disabilities; and (4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities” The Federal government has been designated by Congress to play a key role in the enforcing the standards and the fourteenth amendment on behalf of the disabled because unlike racial and other minorities, the disabled have no advocates, thereby the Federal government has been designated by Congress as the advocate for disabled. In Congress’ efforts to ensure protection for disabled Georgians and the Rights thereof, they went on to remove the State’s Immunity from suit.5 5

Title 42, Chapter 126, Subchapter IV, §12202

State immunity. A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of - 11 -

Then congress went on to prohibit against retaliation and coercion.6

Further, this Honorable Court would have one believe that Judge Hunter’s closing the case with restrictions to re-open the case while it was pending Removal competent jurisdiction for a violation of this chapter . In any action against a State for a violation of the requirements of this chapter, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State . 6

Title 42, Chapter 126, Subchapter IV, §12203

§12203. Prohibition against retaliation and coercion. (a) Retaliation. No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter. . . (b) Interference, coercion or intimidation. It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter. - 12 -

in Federal Court is of no consequence. The reality of the matter is this: 1) Judge Hunter violated both Superior Court and Federal Court Rules; 2) Judge Hunter signed an order without jurisdiction to do so; 3) the closing of the case in Superior Court under Judge Hunter while Removal was filed under Judge Castellini (along with the obvious assumption that Superior Court and Wachovia believed the case would stay in Federal Court and be dismissed under Castellini) would prohibit Plaintiff-Appellants from ever being able to re-file the case in either Superior or Federal Courts. Appellant’s Brief pages 15-17, III. Error 1. ¶2 and footnote 18

DEFENDANT-APPELLEES UNDISPUTED FACTS 7 The Appellants have shown without doubt that Wachovia violated both Georgia and U.S. Banking Laws, and violated laws concerning The United States Postal Services, of which caused Plaintiff-Appellants to suffer financial losses. Plaintiff-Appellants have shown in Superior Court and Wachovia admits that they changed the records of accounts held by Wachovia but said it could not be fraud because they own the computers, the network, the system and the employee 7

Undisputed Facts because Wachovia admitted the allegations - 13 -

and the employee had authorization by the owners of the computers, network, system and employees to change Plaintiff-Appellants records in the computer. This argument fails miserably for the following reasons: 1.

Owners of Wachovia, Wachovia’s computers,

network, system and employees. Wachovia is a corporation, they are not owned by an individual, but by stock holders. There was no stockholder meeting during any of that time in which the stock holders authorized Wachovia to change the information on Plaintiff-Appellant’s accounts. 2.

Wachovia also agree that Plaintiff-Appellant’s

accounts were changed at the request of a “John Joyner”, thus John Joyner authorized the changing of PlaintiffAppellant’s accounts, not the “owners”. John Joyner, a non-employee, non-owner of Wachovia authorized the changing of Plaintiff-Appellant’s accounts, with no legal

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documentation8

to perform such acts to Plaintiff-

Appellant’s accounts. Plaintiff-Appellants have shown that Plaintiff-Appellant Stegeman9 in a previous civil action, through his attorney asked Superior Court Judge Hunter to freeze the accounts held at Wachovia until a determination of who owned the accounts, the request went ignored.10 Plaintiff-Appellant’s accounts were illegally accessed, the names and addresses on the accounts changed, a checking account closed. Wachovia does not dispute this, but claims they did not wrong. Appellees claim that there can be no relief from the violation of State and Federal laws. This is incorrect as “tort” is a cause of action for which relief can 8

Wachovia agrees this would take a Court Order. A Superior Court or a higher

Court would be the only Courts with jurisdiction to give such an Order. 9

10

Plaintiff-Appellant McDonald was not part of that Civil action. Because of this, Judge Hunter could be said to have a personal interest in the

case, Wachovia could easily blame her for the theft of Plaintiff-Appellant’s assets and holdings. This is viewed as another reason why she ignored the request disqualify herself, the Motion to Recuse and Dismissed the case knowing PlaintiffAppellants could prove their causes of action. - 15 -

and should be granted and Wachovia could reasonably have seen that injury would occur from their acts. See Williamson et., al. v. Abellera et., al. 312, 245 Ga.App. 312, 537 S.E.2d 130, 537 S.E.2d 130, (2000).GA.0043081 which shows:

“[G]enerally, an

independent, intervening criminal act of a third party, without which the injury would not have occurred, will be treated as the proximate cause of the injury superseding any negligence of the defendant unless the intervening criminal act is a reasonably foreseeable consequence of the defendant's negligent act.”11 “Because the record contains evidence that Abellera and Blackburn, Walther & Sloan might have reasonably foreseen that the nature and character of their acts and omissions could result in injury, the trial court erred in 11

Citing Tucker Federal Sav. & Loan Ass'n v. Balogh, 228 Ga. App. 482, 484

(491 SE2d 915) (1997); see also Coleman v. Atlanta Obstetrics & Gynecology Group, 194 Ga. App. 508, 510 (1)(390 SE2d 856) (1990). - 16 -

ruling, as a matter of law, that those acts and omissions were not proximate causes of the injury due to an intervening act.”12 The Plaintiff-Appellant’s have shown statutes and controlling authority13 on Banking; they have shown breach of contract, fraud, theft of resources, slander and defamation (even though Superior Court failed to address several of the listed causes of action).

12

See Schernekau v. McNabb, 220 Ga. App. 772, 773 (470 SE2d 296) (1996)

(proximate cause is properly reserved for the jury and can only be appropriately addressed on summary judgment in plain and indisputable cases). 13

Using past decisions of this same Appeals Court of Georgia to cite - 17 -

The decisions made by both Superior Court and this Honorable Appeals Court would have one come to the conclusion that both Judge Hunter and Wachovia are above the law, have immunity for illegal acts and violations of Plaintiff-Appellant’s Rights, and aren’t required to abide by the same laws as the rest of society. The Plaintiff-Appellants, as Pro Se litigants, have been treated with bias and inequality; both procedural and substantiative due process Rights have been denied; and the guarantees of both The State of Georgia Constitution and The United States Constitution have not been upheld by the Courts. "Picking v . Pennsylvania Railway, (151 F2d. 240 Third Circuit Court of Appeals . In Picking, the plaintiffs civil rights was 150 pages and described by a federal judge as "inept." Nevertheless, it was held: "where a Plaintiff pleads pro-se in a suit for protection of civil rights, the court should endeavor to construe plaintiffs pleading without regard to technicalities." In Walter Process Equipment v . Food Machine 382 U.S. 172 (1965) it was held that in a "motion to dismiss, the material allegations of the complaint are taken as

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admitted." "From this vantage point, courts are reluctant to dismiss complaints unless it appears the plaintiff can prove no set of facts in support of his claim which would entitle him to relief' (See Conley vs. Gibson, 355 U .S. (1957).; In Puckett v. Cox, it was held that a pro-se complaint requires less stringent reading than one drafted by a lawyer (456 F2d . 233 (1972 Sixth Circuit U.S.C.A.) said Justice Black in Conley v . Gibson, 355 U.S. 41 at 48 1957 "The Federal Rules rejects the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision the merits ." According to rule 8(f) FRCP "all pleadings shall be construed to do substantial justice." The Court also cited Rule 8(f) FRCP, which holds that "all pleadings shall be construed to do substantial justice ."

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"It could also be argued that to dismiss a Civil Rights action or other lawsuit in which a serious factual pattern or allegation of a cause of action has been made would itself be violative of procedural due process as it would deprive a pro se litigant of equal protection of the law visa vis a party who is represented by counsel . In a fair system, victory should go to a party who has the better case, not better representation.”14

14

U.S. Law Books : Pro Se Federal Decisions - 20 -

Appellants have failed to find any Statute, Rule or Decision that states that The Georgia and United States Constitutions Bill of Rights only pertain to certain individuals or only the privileged; that equality is only for a select few; that Wachovia is above the law or naming Wachovia as the Fourth Branch of Government. Further, Appellants have diligently searched for a Statute, Rule, Decision that states immunity is to be given to any banking institution or that state that Wachovia especially is immune from liability when violating the laws of the State of Georgia, actions for breach of contract, slander, defamation. And because many transactions having to do with the theft of assets from Plaintiff-Appellant’s accounts took place over long distance telephone and US Postal Services to different departments of Wachovia in other states, the matter turned into Federal crimes as well as state crimes. BANKING LAWS: Wachovia and Judge Hunter would have everyone believe that as “business victims” Plaintiff-Appellants have no cause of action. This too is incorrect.

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See Gerber & Gerber, P.C. v. Regions Bank; and vice versa. 266 Ga. App. 8; 596 S.E.2d 174; 2004 Ga. App. LEXIS 206; 2004 Fulton County D. Rep. 898; 52 U.C.C. Rep. Serv. 2d (Callaghan) 815 February 13, 2004, Decided. “Regions Bank argues that G&G failed to exercise ordinary care, which substantially contributed to the making of the forged signatures. Regions Bank contends [*7]

that accordingly G&G was precluded under

O.C.G.A. § 11-3-406 (a) from asserting the forgery against the bank. Indeed, where some evidence shows that the corporate payee acted negligently in failing to prevent the forgery of its endorsement, a jury should decide whether that negligence substantially contributed to the making of the forgery — but only if the defendant bank in good faith paid the instrument or took it for value or for collection. See O.C.G.A. § 11-3-406 (a); cf. Trust Co. of Ga. Bank &c. v. Port Terminal &c. Co., 153 Ga.

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App. 735, 739-741 (1) (266 S.E.2d 254) (1980) (interpreting somewhat similar language found in the predecessor statute to O.C.G.A. § 11-3-406 (a)). In 1996 the General Assembly amended the applicable definition of “good faith” to mean “honesty in fact and the observance of reasonable commercial standards of fair dealing.” O.C.G.A. § 11-3-103 (a) (4); see Ga. L. 1996, pp. 1306, 1340, § 3. Thus, even assuming the evidence established as a matter of law that G&G's actions substantially contributed to the making of the forgeries at issue,

[*8]

the question here is whether there is a

disputed issue of fact as to Regions Bank's good faith (its honesty in fact and its observance of reasonable commercial standards of fair dealing) in regard to its accepting the forged checks as deposits in Stafford's account.”

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JOINT TENANTS WITH RIGHTS OF SURVIVORSHIP

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Accounts that are titled Joint Tenants15 With Rights of Survivorship demands that all owners of the accounts will have had to agree and together request (authorize) in writing a change to their accounts, or that without owner authorizations, such statutes demand that a Superior Court Order must be provided to change the name and address on an account and to close any account. Wachovia freely admits that this is what the statutes say, yet at the same time they also admit to changing the names, addresses, etc. on Plaintiff-Appellants accounts without a Court order and at the request of one “John Joyner”. Wachovia then goes on to 15

Black’s Law Dictionary, 7th Edition, pg.1477 describes Joint Tenancy:

“joint tenancy. A tenancy with two or more co-owners who take identical interests simultaneously by the same instrument and with the same right of possession * A joint tenancy differs from a tenancy in common because each joint tenant has a right of survivorship to the other’s share…” “RIGHT OF SURVIVORSHIP. Cf. tenancy in common. “The rules of a joint tenancy are these: The joint tenants must get their interests at the same time. They must become entitled to possession at the same time.

The interests must be physically undivided interests, and each

undivided interest must be an equal of the whole … Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Investments 55 (2d ed. 1984) - 25 -

state that Plaintiff-Appellants cannot show a relationship between John Joyner16 and Wachovia. In other words, anyone can walk into Wachovia, and as long as they have a name, address and account numbers, they can change the name, address, etc. on anyone’s account and access that account with no questions asked. Appellant’s Brief and Reply Brief cited prior, existing controlling authority, using caselaw and precedents set by The Court of Appeals of Georgia, yet The Court of Appeals of Georgia now disregard their own previous judgments. In other words, The Court Of Appeals of Georgia is saying Justice in Georgia does not exist for these Plaintiff-Appellants and that Wachovia is above the law. Not one Judge signed the document Appellants received affirming Superior Court’s decision.

16

The only document provided to Wachovia to set this into action was not a legal

document needed to perform the acts of removing names, adding names, changing addresses, Wachovia admits to do that one would have to have a Court Order. - 26 -

STATUTES O.C.G.A. §9-11-12(a) “... A defendant shall serve his answer within 30 days after service of the summons…” O.C.G.A. §9-11-12(b) “… a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, … the motion shall be treated as one for summary judgment and disposed of as provided in Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56.” O.C.G.A. §9-11-12(d) “… specifically enumerated in paragraphs (1) through (7) … shall be heard and determined before trial …” DEFAULT O.C.G.A. §9-11-55.(a) “… If in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default…”; (b) “… may allow default to be opened for providential cause…” “… the showing shall be made under oath, shall set up a meritorious defense shall offer to plead instanter, and shall announce ready for trial.” Appellees agree:

“they tendered costs under O.C.G.A. §9-11-55(a)”,

admitting that “Wachovia” was in default. Default estops the defendant from

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filing an Affirmative response, yet Wachovia was allowed to file offering defenses which would defeat the right of recovery.

Wachovia’s legal counsel, when

referencing the default and the opening thereof, uses the term “as a matter of right”, gives no explanation of why they defaulted in both Superior Court, US District Court, then in Superior Court again, just that they “opened default as a matter of right”.17 See Cochran v. Carlin 254 Ga. App. 580, 585 (3) (331 SE2d 523) (1985) which held “The default concludes the defendant’s liability, and estops him from offering any defenses which would defeat the right of recovery.” (Citations and punctuation omitted.)”

See also See

Lucky Friday Silver-Lead Mines Co. v. Atlas Mining Co., 88 Idaho 11 (395 P2d 477) (1964). “Since appellant 17

The term “as a matter of right” can be used when Removal to U.S. District Court,

but proper procedure still must be followed (U.S. District Court Rules of Civil Procedure); an Appeal is a “matter of right”, but proper procedure must be followed (Court of Appeals of Georgia Rules); in both instances if proper procedure is not followed, the “matter of right” is legally denied. - 28 -

failed to file an effective answer, appellant was in default.”

“… appellant failed to make the requisite

responsive pleading, appallee was “entitled to verdict and judgment by default, …, as if every item and paragraph … supported by proper evidence…” “CPA 55(a)(Code Ann. 81A-155 (a)): Tri-State Culvert Mfg., Inc v. Crum, 139 Ga. App. 448, 450 (2258 SE2d 403)(1976).” “Under CPA 55(a), appellee is entitled to judgment as if the allegations of the complaint were supported by proper evidence. Tri-State Culvert Mfg., Inc. v. Crum, supra.” Also see: Azarat Marketing Group, Inc v. Department of Administrative Affairs, et al. (245 Ga. App. 256)(537 SE22d 99)(2000) 1.(b): “… in default is in the position of having admitted each and every material allegation of the plaintiff’s petition …” “The default concludes the defendant’s liability, and estops him from offering any defenses which would defeat the right of recovery.” Quoting: “Cochran v. Carlin, 245 Ga. 580, 585(3)(331

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SE2d 523)(1985).” “In this case, …complaint shows that (1) there was an agreement…; (2)….delivered as promised; (3) …right of recovery have occurred; and (4) … the state refused… pursuant to the agreement.” “… sufficient to state a cause of action for breach of contract and were deemed admitted by the State’s default. See OCGA 9-11-8(a)(2); 9-11-55(a); see also Morgan v. Ga. Vitrified Brick & Co., 196 Ga. App. 779, 780 (1) (397 SE2d 49)(1990) (all doubts in favor of plaintiff on a motion to dismiss for failure to state a claim.)” MOTION TO DISMISS A Motion To Dismiss is always viewed in favor of the non-moving party, yet Plaintiffs were not treated with favor and or with the assumption that all allegations were true which is mandated by both Superior Court Rules of Civil Procedure and Federal Rules of Civil Procedure. Appellants were denied their Right to present “all material made pertinent”, the allegations of their complaint were not viewed “in the light most favorable to them”

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Appellants were treated unfairly and with bias in Superior Court when granting Appellee-Defendant’s Motion to Dismiss. 1) Appellants have shown that because of the default, there could be no Motion to Dismiss (affirmative defense) filed. 2) Appellants-Plaintiffs were not allowed to present evidence on their behalf at a hearing before Superior Court decided the case was without merit.

3)

Appellant-Plaintiff Stegeman had filed a Civil action in Federal Court naming Superior Court as a defendant, Motioned Superior Court for a Stay on that action, the Motion was ignored. Quite simply, Superior Court retaliated by Dismissing the case as there were pertinent issues of material fact that only a Jury could have decided under the Rules of Civil Procedure. See Brown v. Dorsey, 625 S.E.2d 16, 276 Ga. App. 851 (Ga. App. 11/14/2005) at [9]: “A motion to dismiss may be granted only where a complaint shows with certainty … would not be entitled to relief under any state of facts that could be proven in support of her claim”.

18

“…, all

pleadings are to be construed most favorably to the party 18

Quoting Ga. Military College v. Santamorena, 237 Ga. App. 58 (514 SE2d 82)

(1999). (Citation and punctuation omitted.) - 31 -

who filed them, and all doubts … must be resolved in the filing party’s favor.”19 “We apply a de novo standard of review to the trial court’s ruling on a motion to dismiss.”20 Appellants have the evidence21 to prove their allegations, yet Superior Court denied Appellants their Right to present their evidence and the Right to be heard. Superior Court refused to have hearings for which Plaintiff-Appellants had asked.

See: Pruitt v. Tyler 351 S.E.2d 539, 181 Ga. App. 174 (1986):

“Presumably, no hearing would have been

scheduled on the motion had appellee not requested it. See Rule 6.3 of the Uniform Superior Court Rules 19

Quoting Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997)

20

Quoting Common Cause/Ga. V. Campbell, 268 Ga. App. 599, 601 (2) (602 SE2d

333)(2004) 21

Certified Bank Records, Certified Depositions of Sr. Vice President Wachovia

Securities Jim Busch, and deposition of Nancy K Levelsmier Compliance Officer, etc. - 32 -

(Rules). But see Sentry Ins. v. Echols, 174 Ga. App. 541 (330 S.E.2d 725) (1985) (holding that, under the Civil Practice Act, the right to a hearing cannot be waived by inaction); Ferguson v. Miller, 160 Ga. App. 436, 437 (287 S.E.2d 363) (1981) (holding that, under the Civil Practice Act, "the spirit of the summary judgment procedure contemplate that the respondent shall have actual notice of a day upon which the matter will be heard and judgment rendered upon the record then existing.")”

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This Court references evidence, the only evidence Wachovia filed was their answer in US District Court, which was an affirmative defense. They were in default in U.S. District Court. Wachovia was estopped from filing an affirmative defense because they were in default.

Because they filed an improper response,

the wrong answer, they failed to file an answer period. This Honorable Court has taken the same position as the Superior Court and denied Plaintiff-Appellants their Rights by allowing the manifest injustice of ignoring violations of Civil Rules of Procedure, Uniform Superior Court Rules, statutes of the State of Georgia and Federal statutes as well. The cases cited by Superior Court and Judge Hunter in the Findings of Fact and Conclusions of Law were the exact ones Wachovia had used, the wording was almost exact.

The problem is that the caselaw didn’t pertain to Plaintiff-

Appellant’s case. “Some Courts of Appeals look with a jaundiced eye… findings or conclusions of law that follow counsel’s requests verbatim”

Be sure that someone checks the

subsequent history of the cases. It is not a sin to be

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overruled except for relying on a case that has been overturned.”22 CONCLUSION Plaintiff-Appellants Move this Honorable Court to reconsider their Affirmation of Superior Court’s Order Dismissing their case. Plaintiff-Appellants have filed within the required period of time, and have shown just cause for reconsideration.

Respectfully Submitted this 17th day of December, 2007

By: _________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (770) 879-8737

22

From: Benchbook For US District Court Judges - 35 -

By: _________________________ JANET D. MCDONALD, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (770) 879-8737

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