You are on page 1of 17


A12A1421 _______________________________________________






__________________________________________________________________ APPELLANTS MOTION FOR RECONSIDERATION

Wiley Coyote, Appellant In Propria Persona 4745 Springboard Trace Slumming, GA 30040

COMES NOW, Appellant Wiley Coyote (Appellant, Plaintiff or Wiley Coyote) who timely, pursuant to, and in accordance with, Georgia Court of Appeals, Rule 37(a), and (b) files Appellants Motion for Reconsideration. I. THIS COURTS ORDER DISMISSING THE APPEAL

Plaintiff shows this Honorable Court, Wiley Coyote, January 25, 2010, had filed a Civil Action in Superior Court of Forsyth County. With only an Assignment, without a transfer, there was a non-judicial foreclosure and Sale Under Power, by an entity who was not the holder in due course [R8-16]. Without having obtained a Writ of Possession from either State or Superior Court, there was a Dispossessory action filed February 23, 2010, against Wiley Coyote in Magistrate Court, while there was an on-going Superior Court action concerning the Title to the Real Property, which Appellees had actual knowledge. Although Wiley Coyote did Appeal the Magistrate Courts ruling to Superior Court of Forsyth County [R6], that is where the relationship of the two cases should have ended. Wiley Coyote was contesting the non-judicial Sale

Under Power in Superior Court, which has exclusive and original jurisdiction over title to real property. Opposing counsel complain that Wiley Coyote could not

defend against the Dispossessory action, with the counterclaim that Wiley Coyote filed in Magistrate Court, but as shown in Setlock v. Setlock, 286 Ga. 384, 386, 688 S.E.2d 346 (2010). Each magistrate court and each magistrate thereof shall have jurisdiction and power over...[t]he trial of civil claims in which exclusive jurisdiction is not vested in the superior court and the amount demanded or the value of the property claimed does not exceed $15,000.00[and][t]he issuance of writs and judgments in dispossessory proceedings. OCGA 15 -10-2(5) and (6). However, [f]or the purpose of enabling all persons owning real estate within this state to have the title thereto settled and registered [,] the superior court of the county in which the land is located shall have exclusive original jurisdiction of all petitions and proceedings had thereupon. (Emphasis supplied.) OCGA 44-2-60. Wiley Coyote had to bring his counterclaims in a Court which lacked jurisdiction, because that is where the Plaintiff in that case had filed for dispossession. Thus, here, although the magistrate court had jurisdiction over Steven's dispossessory action, it did not have jurisdiction to render a binding judgment on Eugene's Lake House counterclaims which included claims for declaratory judgment, to quiet title, and an injunction, and which sought money damages that exceeded the $15,000 jurisdictional limit of the magistrate court. See Myers v.

North Ga. Title & Tax Free Exchange, LLC., 241 Ga.App. 379, 380(1) (527 S.E.2d 212) (1999). Indeed, unlike in the cases cited by Steven in his brief, here, Eugene did not choose the magistrate court as the forum within which to bring his Lake House counterclaims, thereby binding him to any judgment rendered in the magistrate court and preventing him from later re-asserting his claims in a future action. See Mahan v. Watkins, 256 Ga.App. 260 (568 S.E.2d 130) (2002) (where plaintiffs brought a suit in magistrate court that included equitable claims over which magistrate court had no jurisdiction, plaintiffs' attempt to re-assert these equitable claims in subsequent superior court case was barred by res judicata, as the [plaintiffs] chose the [magistrate court as their initial] forum and were bound by the limitations of the court that they chose) (footnote omitted). See also Green v. Bd. of Dirs. of Park Cliff Unit Owners Ass'n, 279 Ga.App. 567 (631 S.E.2d 769) (2006) (condo owner who filed suit for money damages in magistrate court could not later assert equitable claims in superior court based on same set of facts). To the contrary, Eugene was the defendant in the dispossessory action here. He raised his counterclaims in response to an action that was initially filed by Steven in the magistrate court. To avoid potential waiver of his counterclaims that arose out of the transaction or occurrence that was the subject matter of Steven's

dispossessory action, Eugene was required to raise them in magistrate court. See OCGA 15-10-45(a) (compulsory counterclaims in magistrate court). However, the statutory requirement for Eugene to raise his compulsory counterclaims in magistrate court did not somehow confer jurisdiction in that court to resolve these claims over which, by law, it had no jurisdiction. See OCGA 15-10-2, 44-2-60. Due to the magistrate court's lack of jurisdiction over the Lake House counterclaims raised by Eugene, it was not a court of competent jurisdiction to resolve these claims on the merits, and the doctrine of res judicata did not bar Eugene from re-asserting these same claims in superior court. See Brown Realty Assoc. v. Thomas, 193 Ga.App. 847(2) (389 S.E.2d 505) (1989) (Where party asserted as a defense in magistrate court dispossessory action that property had been fraudulently sold, res judicata did not bar the party from re-asserting this claim in superior court, because [s]uperior courts have exclusive jurisdiction in cases respecting title to land[and][r]es judicata only applies if the [prior] judgment is from a court of competent jurisdiction) (ci tations and punctuation omitted). Accordingly, the superior court erred in determining that the Lake House claims asserted in Eugene's Petition to Quiet Title were barred by res judicata. Further, until there would be a ruling on the Title issue, and whether or not

Appellees had standing to execute a non-judicial foreclosure and Sale Under Power, the Dispossessory action, should have been stayed. Wiley Coyote contends that the way the Superior Court combines the two cases, violates the Due Process Clause, and robs a party of their Right to a fair and impartial tribunal. In a Dispossessory action, there is supposed to have been a legal, valid nonjudicial foreclosure, by an entity with standing to foreclose, and a legal and binding Sale Under Power, conducted in good faith, where the seller obtained the greatest amount of money possible for the property. Then, and only then, can the purchaser seek a Writ of Possession, then a Dispossessory Order. Thereby, there is not true contest in the Magistrate Court, there is only one way the Magistrate Court can rule, that is for the party seeking dispossession. There is a Landlord/Tenant

relationship, with the one still living at the property, deemed a tenant at sufferance. Then, when it is appealed to Superior Court, that Superior Court Judge, has already had his mind made up, that the party is a tenant at sufferance, which only comes about with a lawful foreclosure and Sale Under Power. It prejudices the already filed, and on-going Superior court action, where it is being argued that the foreclosing entity, is the one in the wrong. It taints the on-going Superior Court action, when the Magistrate Appeal is consolidated with the on-going Superior

Court action. After the consolidation takes place, the Court allows the opposing party to begin filing everything under just the Appeal Case No; and the two cases are fought tangled together, even though, until the title issue has been resolved, the dispossession issue should be stayed. There is great confusion, and a partys Civil and Constitutional Rights Under the Due Process Clause, are violated when the Superior Court consolidates the Magistrate Court Appeal, with the on-going Superior Court, Wrongful Foreclosure Action. The Superior Court, nevertheless consolidates the Dispossessory Action, with the Wrongful Foreclosure action, and the Court almost always ends ruling on both actions in one Order. By so doing, the losing party is effectively estopped from appealing to the Court of Appeals, or the Supreme Court; thereby denying the Right to Appeal the Superior Court action, because when it gets to the appellate court, the appeal is dismissed, with the claim that the appeal is a magistrate court dispossessory action, and the Appellant did not adhere to the seven days, and/or the ruling is not directly appealable, and the Appellant failed to file an application for a discretionary appeal. The exact, very thing that happened in the Appeal at bar.

ARGUMENT AND CITATION OF AUTHORITY The United States Supreme Court has made clear that a fair trial in a fair tribunal is a basic requirement of due process in administrative adjudicatory proceedings as well as in courts Michigan Dept. of Soc. Sercs. V. Shalala, 859 F. Supp. 1113, 1123 (W.D. Mich. 1999) (quoting Withorow v. Larkin, 421 U.S. 35, 36, 95 S.Ct. 1456, 1459, 43 L.E.d.2d 712 (1975)) Thus stated Justice Kennedy in his concurring opinion in the recent Supreme Court case construing the analogous federal statute on judicial disqualification, [i]f through obduracy, honest mistake, or simple inability to attain self knowledge the judge fails to acknowledge a disqualifying predisposition or circumstance, an appellate court must order recusal no matter what the source. Liteky v. U.S., 510 U.S. 540, 563, 114 S.Ct.1147, 1161, 127 L.Ed.2d 474 (1994) (Kennedy J. concurring) This is because, as our court of appeals has declared, litigants ought not have to face a judge where there is a reasonable question of impartiality Alexander v. Primerica Holdings, Inc., 10 F.3d 155, (3rd Cir. 1993). D.B. v. Ocean Tp. Bd. Of Educ., 985 F.Supp. 457 (D.N.J. 1997) (Bold emphasis added.) Both conflicting evidence and credibility are matters reserved only for a jury as fact trier. In Therrell v. Marble Holdings, Crop., 96 F.2d 1555 (11th Cir.

1992) this Court held: Credibility is a matter solely for the jury. It is the function of the jury as the traditional finder of the facts, and not the court to weigh conflicting evidence and inferences, and determine credibility Buckley, 785 F.2d at 1527 (quoting Boeing, 411 F.2d at 375). Appellant contends that the Assignment is a fabricated, falsified, forged document. Fabricated evidence, constitutes fraud upon the court. That is which fraud will dictate that the Ruling must be set aside. As the district court explained in United States v. International Telephone & Telegraph Corp., 349 F.Supp. 22, 29 (D.Conn.1972), aff'd without opinion, 410 U.S. 919, 93 S.Ct. 1363, 35 L.Ed.2d 582 (1973): Generally speaking, only the most egregious misconduct, such as the fabrication of evidence by a party in which an attorney is implicated, will constitute a fraud on the court. See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944); Root Refin. Co. v. Universal Oil Products, 169 F.2d 514 (3d Cir. 1948) 7 J. Moore, Federal Practice, 60.33 at 510-11. See Bulloch v. United States, 763 F.2d held the following: Fraud on the court is directed to the judicial machinery itself H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536 F.2d 1115 (6th Cir.). It is thus fraud where the court or a member is corrupted or influenced or influence is attempted or where the

judge has not performed his judicial function--thus where the impartial functions of the court have been directly corrupted. "Since attorneys are officers of the court, their conduct, if dishonest, would constitute fraud on the court." Porter, 536 F.2d at 1119. Fraud upon the court has been defined by the 7th Circuit: fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication. Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, 60.23" A court should be cautious in exerting its inherent power and must comply with the mandates of due process First Bank of Marietta v. Hartford

Underwriters Insurance Company, 2002 U.S. App. LEXIS 21117, -25; 2002 FED App. 0356P (6th Cir. 2002); In Re Atlantic Pipe Corp., 304 F.3d 136, 143 (1st Cir. 2002). The general rule is that an original writing must be produced and its execution proven Daniel F. Hinkel, Pindars GEORGIA REAL ESTATE LAW AND PROCEDURE (6th Ed. 2006) (Pindars) 19-34 Execution of Deeds, Formal Requisites. The reason [such testimony is not excluded] is obvious; such

an instrument requires proof of execution before it can be admitted [into] evidence, but, because this is so, it does not follow that it must be conclusively taken as ... genuine. McArthur v. Morrison, 107 Ga. 796, 798, 34 S.E. 205 443*443 (1899). In fact, upon proof of execution, the genuineness of the instrument may be attacked by competent evidence on the trial of the case in which the instrument is sought to be used. Its admission is not decisive of its genuineness. Id. Thus, a jury could still conclude that the instrument or the signature on it was forged. See id. See also Rumsey, Agnor's Ga. Evidence 12-4, (3rd Ed.). Further, there was an Assignment with no transfer. A new party under O.C.G.A. 13-4-5 (GCA 20-115), if new parties are introduced so as to change the person to whom the obligation is due, the original contract is at an end. Further, The security interest of the grantee is freely assignable, but for full effect as such, there must be a valid assignment of the indebtedness as a chose in action, together with a transfer of title to the land and the power of sale and other rights set forth in the instrument.1 A defective title may pass only an equitable title.

There was an Assignment, but there has not been a transfer of title to the land

and the power of sale and other rights set forth in the instrument.

Chapman v. McPherson, 184 Ga. 613, 192 S.E.2d 423 (1937). Pindars 21-45. Although it is customary to make the assignment of the original security deed, endorse the note, and make a manual delivery of both documents to the assignee, an assignment by separate instrument. Where the assignment is

delivered, it is effective even though the original documents are retained; but such an assignments does not make the transferee a holder in due course so as to immunize him against defense between the original parties. Tallahassee Bank & Tr. Co. v. Raines, 125 Ga.App. 263, 187 S.E.2d 320 (1972); and payments made to the original grantee without notice of the assignment may be valid, although nonproduction of the note raises a presumption against authority to receive payment. O.C.G.A. 10-6-57 (GCA 4-308). It is true though, that in a contested foreclosure, it would be necessary to produce the note. Weems v. Coker, 70 Ga. 746 (1883). Moreover, a Georgia Court has jurisdiction to set aside an assignment by a nonresident of a note and security deed conveying Georgia property. Regante v. Reliable Triple CEE of North Jersey, Inc., 251 Ga. 629, 308 S.E.2d 372 (1983). Although recording of an assignment will be constructive notice to third persons with regard to the property securing the debt, it is not notice with respect to the

debt itself which is intangible property, subject to the Uniform Commercial Code. Groover v. Peters, 231 Ga. 531, 202 S.E.2d 413 (1973). Pindars 21-45. In paying the secured indebtedness, the burden rests on the debtor to determine whether the person to whom he pays is the holder of the instrument or his authorized agent. [T]he borrower must be as careful in repaying the debt as the lender presumptively was in making the loan. If the note and deed have been assigned, the burden rests on the borrower to determine that fact, and pay only the party entitled to the payment. Groover v. Peters, 231 Ga. 531, 202 S.E.2d 413 (1973). Pindars 21-45. Appellant in the Appeal at bar, has been forced into proceeding in propria persona, due to an unscrupulous attorneys actions in the Superior Court of Forsyth County. Mr. Calomeni, knew he did not have permission to obligate Wiley Coyote to a settlement where Wiley Coyote would receive no consideration whatsoever. And even so, Wiley Coyote has seen, where in other Courts, when a settlement is as one-sided as the one involved here, the trial court judge, himself, will reject such a settlement. Before the settlement hearing, the trial judge had allowed the withdrawal of Mr. Calomeni from representation of Wiley Coyote, and was well aware that

Wiley Coyote was proceeding in propria persona, and opposing counsel were allowed to take advantage of Wiley Coyote because of it. The Appellant, proceeding in propria persona, has 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 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 . "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. IN RE LAW SUITS, 235 Ga. App. 551, 510 S.E.2d 91 (Ga. App. 12/02/1998) VERSUSLAW, at [235 Ga. App. Page 556] [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.)"; *f n14: at[47] *fn14 OCGA 9-15-2 (d). CONCLUSION AND PRAYER Wiley Coyote has shown that he filed the Superior Court civil action before there was a Magistrate Court action filed. Appellee have misled the Court in several instances, that is only one instance. This Courts Ruling begins This case originated as a dispossessory proceeding in magistrate court. The statement is incorrect. Appellant filed the Superior Court action one month prior to Appellee filing the Magistrate dispossessory action. Appellant PRAYS that this Honorable Court will GRANT Motion for Reconsideration.


Respectfully submitted, this 29th day of May, 2012,

By: _________________________ WILEY COYOTE, Pro Se 4745 Springwood Trace Cumming, GA 30041

CERTIFICATE OF SERVICE I hereby Certify, that I have, this 29th day of May, 2012, served a true and correct copy of the foregoing Appellants Motion for Reconsideration upon the Appellees, through their attorney on file, and by causing to be deposited with USPS, First Class Mail, proper postage affixed, and mailed as follows: Linda S.. Finley, Esq. BAKER DONELSON, BEARMAN, CALDWELL AND BERIKOWITZ, P.C. Ste 1600 Monarch Plaza 3414 Peachtree Road, N.E. Atlanta, GA 30326 Denise R. Griffin. Esq. SHAPIRO & SWERTFEGER, LLP 295 South Culver St., Suite B Lawrenceville, GA 30046

___________________ Wiley Coyote