Response To Motion For Summary Judgment

IN THE PROBATE COURT OF DEKALB COUNTY STATE OF GEORGIA RE: ESTATE OF GENEVA S. CAFFREY

* * * Probate Case No.: 2002-1161 * * ___________________________________________________________________________

MR. STEGEMAN’S BRIEF IN RESPONSE TO MR. LILLIG’S MOTION FOR SUMMARY JUDGEMENT COMES NOW, Mr. Stegeman, and pursuant to O.C.G.A. 9-11-56, files this Brief in Response to Mr. Lillig’s Motion for Summary Judgment. Following the filing of Objection to Mr. Lillig’s discharge, there is a six months period of Discovery. Mr. Lillig has not responded to the Objection according to paperwork filed by Mr. Turner when he filed the Motion for Summary Judgement. The proper procedure in the State of Georgia Probate Courts in the State of Georgia that following a Motion such as the Motion of Objection filed by Mr. Stegeman there is a six month Discovery period. Considering the Motion objecting to Mr. Lillig’s discharge of Administration has gone unanswered, shows an admission of guilt. A genuine issue of material facts exists regarding the Objection to Mr. Lillig’s Discharge this is shown by the lack of answer to said Objection. Perjury was committed in order to keep the frivolous Superior Court lawsuit going. Again Mr. Turner went further on to perjure himself to Judge Hunter when he assured her that Mr. Lillig would have Letters of Testamentary within 180 days. He could not know that for fact as there were Two Wills. The hearing did not happen until two months after the 180 days and the question of the Two Wills still was not settled even then. Not until Mr. Lillig was granted Personal Representation could Mr. Lillig be given letters of Testamentary. Therefore, the perjury committed gave the upper hand in favor of Mr. Lillig in a Superior Court suit. Fraud obviously had been committed. The laws governing the Probate Courts of Georgia state that if the Estate has been properly and fully administered and there are not enough funds to pay debts of the Estate to answer using 43-7-10. It is not to be used as an excuse for misappropriating funds, fraud, grand larceny, theft, etc. 53-7-10. (a) For purposes of this article, the term 'personal representative' includes temporary administrators. (b) When an action is brought against a personal representative in that person's representative capacity, the personal representative may make the following defenses: (1) That person does not occupy the position of personal representative, as alleged; (2) That no assets have come into the hands of the personal representative;

(3) That all assets coming into the hands of the personal representative have been fully administered; (4) That all assets coming into the hands of the personal representative have been fully administered except those necessary to satisfy debts of a greater priority; (5) That the personal representative has fully administered the assets that came into the personal representative's hands; or (6) That, pending the action, the letters testamentary or of administration have been revoked and the administration committed to another to whom all the assets that came into the personal representative's hands have been delivered. The following is to be followed in the case of fraud, theft, misappropriating funds, etc.: 53-7-54.(a) If a personal representative or temporary administrator commits a breach of fiduciary duty or threatens to commit a breach of fiduciary duty, a beneficiary of a testate estate or heir of an intestate estate shall have a cause of action: (1) To recover damages; (2) To compel the performance of the personal representative's or temporary administrator's duties; (3) To enjoin the commission of a breach of fiduciary duty; (4) To compel the redress of a breach of fiduciary duty by payment of money or otherwise; (5) To appoint another personal representative or temporary administrator to take possession of the estate property and administer the estate; (6) To remove the personal representative or temporary administrator; and (7) To reduce or deny compensation to the personal representative or temporary administrator. (b) When estate assets are misapplied and can be traced in the hands of persons affected with notice of misapplication, a trust shall attach to the assets. (c) The provision of remedies for breach of fiduciary duty by this Code section does not prevent resort to any other appropriate remedy provided by statute or common law. 53-7-55. Upon the petition of any person having an interest in the estate or whenever it appears to the probate court that good cause may exist to revoke the letters of a personal representative or impose other sanctions, the court shall cite the personal representative to answer to the charge. Upon investigation, the court may, in the court's discretion: (1) Revoke the personal representative's letters; (2) Require additional security; (3) Require the personal representative to appear and submit to a settlement of accounts following the procedure set forth in Article 6 of this chapter, whether or not the personal representative has first resigned or been removed and whether or not a successor fiduciary has been appointed; or (4) Issue such other order as in the court's judgment is appropriate under the circumstances of the case.

Mr. Lillig is not entitled to Summary Judgment. If there is a Summary Judgement, it should be in the favor of Mr. Stegeman who has always shown good faith and even though he is representing himself is trying to follow the laws, procedures and formats of The Probate Court of DeKalb County. Mr. Stegeman honored the contract concerning the Caveat, “Exhibit A”. Mr. Lillig had Mr. Turner inform Wachovia that the Caveat contract had been violated and not to release the account to the rightful owner(s) “Exhibit B” 1. O.C.G.A. 13-5-5* assures Mr. Stegeman the right to declare the contract voided, which he has done. Furthermore, the Memorandum of Understanding “Exhibit C” signed by both Ms. Williams and Mr. Turner was intentionally altered by Mr. Lillig and Mr. Turner “Exhibit C”. 2. O.C.G.A. 13-4-1* assures that the alteration of the Memorandum of Understanding shows the intention of defrauding Mr. Stegeman and thereby voids the whole contract. Using the Memorandum of Understanding’s contract of Withdrawal of Caveat after voiding the contract not only proves to be fraudulent, but Mr. Lillig and Mr. Turner have perjured themselves under Oath to the Probate Court of DeKalb County. Mr. Lillig and Mr. Turner have shown that perjury while under Oath is the norm. Beginning with the first Petitions they filed with The Probate Court perjury while under Oath has been a constant practice “Exhibit D” 3. O.C.G.A. 13-6-1* allows Mr. Stegeman compensation for any injury sustained by Mr. Stegeman because of the breach of the contract by Mr. Lillig. Not only did Mr. Lillig never intend on upholding his part of the Memorandum of Understanding contract, but he committed fraud by not honoring the contract and using the Withdrawal anyway because The Memorandum of Understanding contract directly tied the Civil Suit Action No.: 02-CV-9732 to the Withdrawal of Caveat, one dependant on the other. 4. O.C.G.A. 13-4-22* allows Mr. Stegeman the right to maintain an action against the party that did not perform, he waited to see if Mr. Lillig would perform his obligation under the new Consent Order that had to be drawn up by Mr. Apolinsky in which Mr. Lillig again breached the contract therefore Mr. Stegeman is entitled to the fee charged by Mr. Apolinsky in the sum of $5,000.00. “Exhibit E” Since The Memorandum of Understanding contract had been breached by Mr. Lillig thus voiding the contract, Mr. Lillig could not use the Withdrawal of Caveat. Mr. Lillig could only use the Withdrawal of Caveat under the Consent Order contract was signed and filed with Superior Court. Again, Mr. Lillig had agreed to help Mr. Stegeman with the Wachovia problem and furnish all paperwork to him, this never happened and in fact ended up costing more money and precious time only to find out that the Wachovia accounts have been drained, thus violating that contract also. The fact is that according to Certified Bank Records, in June 2002 there was no marginal loan against any of the holdings at Wachovia. According to Mr. Joyner’s Affidavit, there had been a balance of a credit card of $150,000. Upon obtaining the Wachovia accounts, Mr. Stegeman has a $150,000 marginal debt showing and no assets backing it up. “Exhibit F”. Both contracts signed by Mr. Lillig agreed that the Estate of Jean S. Caffrey was responsible for all of Ms. Caffrey’s debts. Fact remains that Mr. Stegeman, co-signer of

the Heritage Bank loan has been borrowing money from Ms. McDonald, third party Caveator in order to make the payments of said RV even though the RV loan was always a known debt as shown in “Exhibit G”. Mr. Turner, Mr. Joyner and Mr. Lillig all knew of the debt. Since June 2002 the debt has been discussed. Mr. Stegeman could not file as debtor against the Caffrey Estate, that would have been fraudulent as he is not the creditor, he is co-signer. Since the debt was a “known” debt and Mr. Lillig never listed the debt, it was a fraudulent attempt to leave Mr. Stegeman paying a debt that rightfully was a debt of the Estate of Ms. Caffrey and there should have been enough funds to cover the debt.

Respectfully Submitted, BY:______________________ James B. Stegeman, 821 Sheppard Rd Stone Mountain, GA 30083 (770) 879-8737

*O.C.G.A. 13-5-5: Fraud renders contracts voidable at the election of the injured party. *O.C.G.A. 13-4-1: If a written contract is altered intentionally and in a material part thereof by a person claiming a benefit under it with intent to defraud the other party, the alteration voids the whole contract, at the option of the other party. *O.C.G.A. 13-6-1: Damages are given as compensation for the injury sustained as a result of the breach of a contract. *O.C.G.A. 13-4-22: Where the conditions as to performance of a contract are concurrent, if one party offers to perform and the other refuses to perform, the first shall be discharged from the performance of his part of the contract and may maintain an action against the other.