IN THE STATE COURT OF DEKALB COUNTY STATE OF GEORGIA

HERITAGE BANK, Plaintiff CIVIL ACTION FILE NO: 09A11175-3 v

JAMES B. STEGEMAN, Defendant BRIEF IN SUPPORT OF MOTION TO STRIKE AFFIDAVIT OF THOMAS E. AUSTIN, Jr. COMES NOW, James B. Stegeman listed as Defendant1 and files Brief in Support of Motion to Strike Affidavit of Thomas E. Austin, Jr. on the grounds of false swearing and fraud upon the Court through deceit. Mr. Austin, Jr. has falsely sworn in the Affidavit attached2to Petition for Writ of Possession. First, Mr. Austin, Jr. swears that he “is making this Affidavit pursuant to O.C.G.A. Section 44-14-231 before a Judge of a Court of record within the state.” Neither a Judge, nor the Deputy Clerk of any Court signed the Affidavit; a Notary Public3 from Gwinnett Notarized the Affidavit.

Mr. Austin, Jr. then goes on to state that “James B. Stegeman is indebted to Plaintiff upon a Retail Installment Contract and Security Agreement…or in the
Mr. Stegeman is not the proper party to either the action on Foreclosure, or the action on Note.
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The last page attached, after the attached Exhibits, is the Affidavit referenced herein. A Notary Public cannot perform the swearing in recognized in Judicial proceedings.
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alternative, that Defendant is in possession of the collateral referred to in the Retail Installment Contract and Security Agreement.” BRIEF BACKGROUND August 3, 2009 Heritage Bank through attorney Thomas E. Austin, Jr. filed an action for Foreclosure of personal property and an action on Note listing Mr. Stegeman as Defendant. August 13, 2009 Mr. Stegeman was served with both the Foreclosure and Note actions. STATEMENT OF FACTS In 1998 Mr. Stegeman4and his elderly aunt Jean Caffrey visited John Bleakley RV Center. Based upon lies told by a salesman, Ms. Caffrey decided she would buy a 1998 Winnebago Brave SE. The salesman told Mr. Stegeman that he would have to be on the Credit application with Ms. Caffrey “Exhibit A”. Because Mr. Stegeman believed that the loan would never be approved, he agreed;5the salesman filled out the Credit application and had both Ms. Caffrey (principal) and Mr. Stegeman (co-signer) sign the application. Caffrey and Stegeman were not allowed to apply for the provision for death and disability listed on the contract which would have satisfied the debt in case of death or disability, nor were they allowed an Extended Warranty on the “vehicle”. Letter from Jeff Hollis to Service Administration Manager Winnebago Industries brings up deceit in the sale of, and the extended warranty in the last two paragraphs “Exhibit B” The loan was approved. June 2002 Ms. Caffrey was appointed a Guardian of Property for her Estate, Mr. Stegeman contacted Heritage Bank and informed them. The Guardian of Property failed to take over the payments to Heritage Bank forcing 4 Mr. Stegeman is One Hundred percent (100%) Federally disabled as recognized by ADA and the Social Security Act, thereby a member of a protected class.
Because Mr. Stegeman is disabled and his aunt, born in 1911 was obviously quite elderly, neither one had any visual proof of income sufficient to sustain payments for the loan, and Mr. Stegeman believed that the credentials of applicants for loans for that amount of money were checked, he was sure that the loan would be denied.
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Mr. Stegeman to continue making payments so that his credit would not be ruined. Because of his disability, Mr. Stegeman knew that should he get a bad credit rating, it would remain for the rest of his life, he would have no way to recover his rating. April 2003, Ms. Caffrey passed away. Mr. Stegeman again contacted and informed Heritage Bank; they were advised that Mr. Stegeman was not the Administrator, or executor of the Estate, and not named in the new Will. Heritage advised Mr. Stegeman to send them a Death Certificate, which he did.6 Mr. Stegeman can only guess why Heritage Bank failed to file the debt with the Estate. Mr. Stegeman’s attorney at that time advised that he needed to continue payments until the Estate took care of the debt. After a year’s time, Mr. Stegeman no longer had legal counsel, and the Administrator of Caffrey’s Estate filed to be dismissed swearing that he had satisfied all debts of the Estate. Mr. Stegeman filed Objection on the grounds that the debts of the Estate had not been satisfied, thereby the Administrator had committed perjury. October 2005 the Administrator filed Motion for Summary Judgment on the Objection to Discharge and was granted Summary Judgment in his favor. Mr. Stegeman file Notice of Appeal on the Ruling, paid the Appellate fees. After time passed for which Notice of Appeal could timely be filed, the Probate Court sent the Appellate fee back and said that they would not allow an Appeal. Mr. Stegeman filed in Superior Court an action listed as Appeal/Void Judgmentat Law, civil action no.: 05-cv-13909-9. There was no ruling for over three years, then the action was dismissed. Mr. Stegeman filed Notice of Appeal, and Motion to Proceed on Appeal in Forma Pauperis.7 “Exhibit C” ARGUMENT AND CITATIONS OF AUTHORITY
Ms. McDonald’s Notarized Affidavit and a copy of the receipt for Death Certificates she purchased for Mr. Stegeman is attached to Mr. Stegeman’s Responsive Pleading to the Foreclosure.
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Notice of Appeal and Motion to Proceed on Appeal in Forma Pauperis were timely filed July 16, 2009. To date, there has been no Ruling on Motion to Proceed on Appeal in Forma Pauperis.
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An Affidavit must be from first-hand knowledge, and must be truthful. Mr. Austin, Jr. has falsely sworn in the Affidavit attached8 to Petition for Writ of Possession, the Affidavit must be stricken. “Malloy v. Cauley, et., al., GA.207 <http://www.versuslaw.com>, 314 S.E.2d 464, 169 Ga. App. 623 “Nevertheless, the trial court's action was fully warranted based upon appellant's presentation of an affidavit containing a statement she knew to be false and other statements she knew to be based upon other than personal knowledge. The sanctions imposed did not exceed what is authorized by the statute.” ‘"An affidavit in support of a motion must set forth such facts as would be admissible in evidence [OCGA § 9-11-56 (e) (Code Ann. § 81A-156)], and to the extent that it contains material which would not be admissible in evidence it is subject to a motion to strike." Vaughn & Co. v. Saul, 143 Ga. App. 74, 78 (237 S.E.2d 622) (1977).”’ See also: Dearing v. State of Ga., 243 Ga. App. 195, 201 (1) (532 SE2d 751) LAWSKILLS (2000): holding that a false verification by oath constitutes perjury See also O.C.G.A. §16-10-71. (a) A person to whom a lawful oath or affirmation has been administered or who executes a document knowing that it purports to be an acknowledgment of a lawful oath or affirmation commits the offense of false swearing when, in any matter or thing other than a judicial proceeding, he knowingly and willfully makes a false statement. Neither of the below sworn to statements can be from first-hand knowledge: “is making this Affidavit pursuant to O.C.G.A. Section 44-14-231 before a Judge of a Court of record within the state.”9 “James B. Stegeman is indebted to Plaintiff upon a Retail
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The last page attached, after the attached Exhibits, is the Affidavit referenced herein.

Neither a Judge, nor the Deputy Clerk of any Court signed the Affidavit; a Notary Public from Gwinnett Notarized the Affidavit.
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Installment Contract and Security Agreement…or in the alternative, that Defendant is in possession of the collateral referred to in the Retail Installment Contract and Security Agreement.” Furthermore, it was held in Crossley v. Liberman, 90 B.R. 682 (E.D. Pa. 1998) that “An attorney pursuing a debtor…is required to be truthful”. An affidavit filed pursuant to O.C.G.A. §9-11-5610 “made in bad faith” or solely for the purpose of delay, “the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party may be adjudged guilty of contempt;” Mr. Austin, Jr.’s Affidavit must by stricken. Plaintiff Moves this Court to strike the Affidavit and find opposing counsel and or the Plaintiff in contempt as sanction. See O.C.G.A. §9-11-56: “Affidavits made in bad faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this Code section are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party may be adjudged guilty of contempt.”

Mr. Stegeman has the understanding that when the principal defaults that a cosigner may be held liable for payments, he is not aware that death is default and has found no caselaw that supports death as default. While Ms. Caffrey was alive, there was no default. Furthermore, Ms. Caffrey was the principal on the agreement, her death does not constitute default. Upon Ms. Caffrey’s death, her Estate, not Mr. Stegeman
The Courts have consistently used the guidelines of O.C.G.A. §9-11-56 Affidavits for all other forms of affidavits.
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became responsible for the debt. Mr. Austin, Jr. has just ignored the facts just as Heritage Bank did. Thereby Mr. Austin, Jr.’s Affidavit is in bad faith. Attempting to make Mr. Stegeman responsible for the Plaintiff’s own negligence is not acceptable in any civilized society. For an Officer of the Court to make deceitful representations to this Honorable Court is “fraud upon the Court”. “falsum (fal-sәm or fawl-sәm), n. [Latin] Roman law. 1.A false statement. 2. A crime involving forgery or falsification.” Black’s Law Dictionary Seventh Edition, p. 619 “false statement. 1. An untrue statement knowingly made with the intent to mislead. See PERJURY. 2. Any one of three distinct federal offenses: (1) falsifying or concealing a material fact by trick, or scheme, or device; (2) making a false, fictitious, or fraudulent representation; and (3) making or using a false document or writing. 18 USCA § 1001” Black’s Law Dictionary Seventh Edition, p. 619 “fraud on the court. A lawyer’s or party’s misconduct in a judicial proceeding so serious that it undermines or is intended to undermine the integrity of the proceeding. ● Examples are … and introduction of fabricated evidence.” Black’s Law Dictionary, 7th Edition, pg. 671 Mr. Austin, Jr. suggests to this honorable Court that Mr. Stegeman by himself took out a loan for a “vehicle” and that Mr. Stegeman is solely approved for the loan. In fact, Mr. Stegeman has shown that the Credit Application clearly shows that Mr. Stegeman admitted he did not at any time have enough income to support the approval of such loan. See: Wills et al. v. McAuley 65128., 166 Ga. App. 4 (303 SE2d 26) (1983): “[13] After discovery, … imposition of sanctions … Plaintiff's motion … assertion that defendant Wills had "knowingly perjured himself" … prayed for the striking …, entry of judgment
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by default against him and the award of reasonable expenses in ascertaining facts made necessary by the alleged perjury.”’ “[14] The trial court … found that defendant Wills swore falsely…” “The trial court found … Wills' false swearing was deliberate, without excuse, in an attempt to secrete facts from the trial court” “The trial court ordered the striking of the answer …, and entry of judgment by default, … "for costs of this action plus any and all damages which may be assessed …” McAuley v. Wills, et al.1983 Ga.. 873 (305 S.E.2d 120), 251 Ga. 41 (1983) “[6] Application for certiorari to the Court of Appeals of Georgia -- 166 Ga. App. 4.” “[10] … application hereby denied” “[12] SMITH, Justice, Dissenting.” “[13] I would grant the petition for certiorari. Although I agree with the result reached by the Court of Appeals, I would grant and write to emphasize … Remedies such as criminal prosecution for perjury … should be utilized in this and similar cases.” CONCLUSION Mr. Stegeman has shown this Court that the Affidavit of Mr. Austin, Jr. was solely to place responsibility upon Mr. Stegeman, who is not the proper party as a defendant. The Plaintiff ignored their responsibility of filing as a creditor when Ms. Caffrey passed away because the Plaintiff knew it would be easier to ignore their obligation. The Affidavit must be stricken as shown in the above paragraphs. Respectfully submitted this 20th day of August, 2009, By: _______________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Road Stone Mountain, GA 30083 (404) 300-9782

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IN THE STATE COURT OF DEKALB COUNTY STATE OF GEORGIA

HERITAGE BANK, Plaintiff CIVIL ACTION FILE NO: 09A11175-3 v

JAMES B. STEGEMAN, Defendant

CERTIFICATE OF SERVICE

I Certify that I have this 20th day of August, 2009 served upon the Plaintiff, a true and correct copy of the foregoing Brief in Support of Motion to Strike Affidavit of Thomas E. Austin, Jr. through their attorney on record by causing to be deposited with the U.S.P.S., First Class Mail, proper postage affixed thereto, addressed as follows: Thomas E. Austin, Jr. 3490 Piedmont Road, N.E. Suite 1005 Atlanta, GA 30305
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_______________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd. Stone Mountain, GA 30083 (404) 300-9782

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