You are on page 1of 6


Ben Michael Mayberry,and Shelly Denise Mayberry Defendants, ) ) ) ) ) ) ) ) ) )


___________________________________________________________________________ Ben Michael Mayberry,and Shelly Denise Mayberry Counter Plaintiffs vs. J. MARK OGLE, and MARI-JEAN OGLE Counter-Defendants ) ) ) ) ) ) ) ) )

Affidavit of Ben Michael Mayberry Supporting Motion to reconsider ruling STATE OF OKLAHOMA COUNTY OF TULSA ) ) )


PERSONALLY appeared before me, the undersigned authority in and for said county and state, Ben Michael Mayberry, who, having been being first duty sworn, deposes and says: 1. 2. I am a Defendant in the above action. I submit this affidavit in support of Defendant's This action was commenced by service of a summons and complaint on Affiant on or about Motion to reconsider ruling. 11-26-2012, at 9210 s Lakewood Ave. On 1-7-2013, Affiant filed his Answer, affirmative defenses and compulsory counterclaim and served the Answer on or about 1-7-2013, on alleged Plaintiff, by mailing a copy to Dwight L. Smith, alleged Plaintiff's attorney, at 1636 South Cincinnati Ave Tulsa, Oklahoma 74119.

3. 4.

The facts in connection with the cause of action alleged in the Complaint have no merit and are On 11-14-2012, Defendants challenged said alleged debt by Respondents and submitted a QWR

as follows: Letter Notice: Verification of Proof of Claim Requested, Accordance with Title 28 U.S.C. 1746 and under the Real Estate Settlement Procedures Act, codified as Title 12 2605 (e)(1)(B) (e) and Reg. X 3500.21(f)2 of the United States Code as well as a request under Truth In Lending Act [TILA] 15 U.S.C. 1601, et seq, that Defendants sent earlier to Plaintiff's by notary Presentment which Plaintiff's refused to answer also as required under 12 U.S.C. 2605(e), and defaulted on see attachment A. 5. On January 7th, 2013 Defendants filed their Verified Averse Claim for Fraud and Abuse of Process, Motion to Dismiss, Objection and Demand for Affirmative Relief in addition to Seven Affirmative Defenses which remain viable and still stand as alleged Plaintiff has failed to either factually refute the affirmative defenses or establish that they are legally insufficient. Defendants filed their compulsory counter claim as mandated persuant to O.S 12-2013 and FRCP Rule 13 and thier Claim in Recoupment under O.S Title 12(A) 3-305, 3-306 with clean hands and good faith, based on alleged Plaintiffs total failure to comply with the statutory and due process requirements mandated by law. The face of the record clearly shows these matters have not been adjudicated. 6. The face of the record clearly shows said judgment is not sustained nor founded on any evidence whatsoever as the alleged plaintif has not provided this court with any attached documents or any proof or evidence backing the alleged claim on attorney smiths naked assertions devoid of further factual enhancement and is contrary to law. 7. Although these issues were also raised by defendants Objection and affirmative defenses, the alleged Plaintiff adduced no evidence to disprove them. At the time of the ruling, the affirmative defenses were still viable. 8. Attorney Smith has never filed the mandatory Entry of Appearance as attorney for alleged Plaintiff as required by 12 O.S 2005.2. This appears to be a matter that cannot be ignored by the court, which even further affects the issue of the legitimacy of the filings of Attorney Smith as it appears to be mandatory that the filing of an Entry of Appearance by an attorney be filed before filing any pleadings in a case. The face of the record in this instant matter shows attorney Dwight L. Smith has failed to follow this statutory requirement, rendering all filings by Dwight L. Smith as nullities and striken because of the Madatory Nature of this Statutory Requirement. 9. Defendants Demand findings of fact and Conclusions of Law, The Case Law That Were Cited By The Defendants In Their Claims, Motions And Uncontested Affirmative Defenses Are Directly On Point To The Facts Of This Case. Without A Written Opinion Or A Disclosed Factual Basis For This

honorable courts ruling, or any case law cited by this Court for the Defendants to reference, it is impossible to determine the basis of this Court's ruling contrary to the controlling case law as due process requires discovery, admitted evidence, sworn witnesses and a hearing. No discovery has been conducted, no evidence has been admitted, no witnesses have testified. 10. The ruling by this honorable Court based on nothing more than unverified, undocumented, unsupported, untested and opposed allegations and opinions of attorney Dwight L.Smith is in direct contradiction to case law of the Oklahoma Supreme Court and even prior case law of this Court. 11. The only document upon which attorney Smith relied was the unverified and unsupported bare

Petition to foreclose and instead of attaching the mandatory evidence in support of the unverified claim, attorney Dwight L.Smith Expected This Court To Just Take His Word For It and apparently the court did. 12. Although all these issues were also raised by Defendants Verified Adverse Claim and Defendants

un contested affirmative defenses, alleged plaintiff adduced no evidence to disprove them. Alleged plaintiff and attorney Dwight Smith as a result of Actual and Constructive Fraud and Fraud on the court, have Unclean Hands and as a Restrictive Maxim of Equity are Collaterally Estopped from invoking Equity Jurisdiction and Jurisprudence. 13. There is no support anywhere in the record as no evidence or testimony was presented or

received by or to this honorable court, by attorney Smith as there was no supporting evidence, and or affidavit/verification, not a single supporting document attached to the defective petition and claim of default rendering absolutly nothing on the record to qualify as summary judgment evidence. 14. Accordingly, the one document essential to the alleged Plaintiffs claim of defendants alleged

default of a debt was never presented or received by or to this honorable court, and therefore, not a part of any required summary judgment evidence upon which the court could base its judgment. Moreover, attorney Dwight Smith had no personal knowledge of the alleged claim in the unverified and un supported defective petition which was filed into this court by attorney Dwight Smith. 15. Alleged Plaintiff has wholly failed to not only establish by proper evidence that it has standing

to bring this action, but has failed to establish any evidence at all to bring this action and also succeeded in avoiding scrutiny of the Court in a last minute attempt to manipulate the court and deny Defendants thier due process rights by law, hence, have actually gotten away with not having to prove any alleged claim as demanded by defendants and mandated by law. As a result Defendants were deprived access to court on their compulsory counter claim in which plaintiff failed to factually refute any part of defendants compulsory counter claim. 16. This Court has knowledge that Ben Michael Mayberry and Shelly Denise Mayberry's procedural

due process rights require opportunity to present evidence on their claims. Ben Michael Mayberry and Shelly Denise Mayberry's verified adverse Claim for Fraud and Abuse of Process, Motion to Dismiss, Objection and Demand for Affirmative Relief in addition to Seven Affirmative Defenses is procedurally proper, placing substantive fact issues before this Court via unrebutted affidavits. See attachments "B" and "C." Affiant is competent to testify to the facts stated. 17. The facts stated above are known by me to be true, of my own personal knowledge. DATED: February ___, 2013 BY:___________________________________ Ben Michael Mayberry 9210 s Lakewood Ave Tulsa, Oklahoma 918-734-3422ry

Page 1 of 2

CERTIFICATE OF MAILING I, Ben Michael Mayberry, do hereby solemnly declare that on February 20th, 2013, I did cause to be delivered by Certified Return Receipt Mail, a true and correct copy of the foregoing instruments, Affidavit of Ben Michael Mayberry Supporting Motion to reconsider ruling to the parties and locations listed below:

TO: DWIGHT L. SMITH. 1636 SOUTH CINCINNATI AVE. Tulsa, Oklahoma 74119 Certified Mail # ___________________________ By:______________________________________
Ben Michael Mayberry, All Rights Reserved

Jurat Before me______________________________a Notary Public in and for Tulsa County, State of Oklahoma; appeared Ben Michael Mayberry, who making himself known to me did affirm and subscribe hereto verifying the facts herein and the exhibits attachment hereto on this the 20th day of February 2013. ____________________________ Notary Seal My commission expires _______________________

Page 2 of 2