IN THE MAGISTRATE COURT OF ________ COUNTY STATE OF GEORGIA ABC, Petitioner vs. DEF, Respondent CIVIL ACTION FILE NO.

: _______________

STATEMENT OF CLAIM/ MOTION TO SET ASIDE

COMES NOW, Petitioner ABC and pursuant to O.C.G.A. §15-10-43(g) files Motion to Set Aside as a new action, in which he Moves to have default judgment against him set aside. The Petitioner shows with specificity the grounds for which the Court may Grant his Motion. STATEMENT OF FACTS ABC is registered agent for, and owner of HIJ Services, Inc., a Georgia Corporation. ³Exhibit A´ ABC is not the proper party defendant to case No.: 09-M-31900: ³4F. Corporations. A corporation is a legal entity separate and distinct from its owners. The proper party is the legal name of the corporation. For example "John's Garage, Inc. You can get information on corporations from the Georgia Secretary of State «You should determine the correct legal name of the corporation, the county «, and the name and address of the Registered Agent.´

*http://www.gwinnettcourts.com/#courtsjudges_magistrate_faqs/ Also see ³Exhibit B´ MR. DEF v MR. ABC Respondent entered ³The Neat Game´ competition, featured in ³Makin It Right´, where he entered into a legal agreement with ³HIJ Services Inc´1 The complaint against ABC, filed by DEF failed to inform the Court (misrepresented) that the matter involved a Corporation (see ³Exhibit A´). One can easily see why he did not attach a copy of the agreement, or any other evidence to support the monetary claim. The Terms of Use/Contract/Agreement is attached hereto as ³Exhibit C´ and clearly states the following: ³ACCEPTANCE OF CONTRACT TERMS The following terms« a legal agreement (³Agreement´) between you and HIJ«By participating«you agree that you have read, understood, and agree to be bound by these terms and comply«IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THIS SITE«´ 2 ³Prizes, Winner Selection and Notification «The Neat Game reserves the right to provide a substitute Prize«´
1

Mr. ABC is registered agent for, and owner of HIJ Services, Inc. a Georgia Corporation. Mr. ABC is not the proper party defendant to case No.: 09-M31900: ³4F. Corporations A corporation is a legal entity separate and distinct from its owners. The proper party is the legal name of the corporation. For example "John's Garage, Inc. You can get information on corporations from the Georgia Secretary of State «You should determine the correct legal name of the corporation, the county «, and the name and address of the Registered Agent.´ *http://www.gwinnettcourts.com/#courtsjudges_magistrate_faqs/
2

First page, first paragraph
-2-

³General Conditions By entering the competition, entrants accept and agree« which shall be final«´ ³Obligations of the Grand Prize Winner «(C) «Winners assume sole liability for injuries, including personal injuries«caused or claimed to be caused by participating in this Competition,«loss«The Heat Game has the right to cancel, terminate, or modify this Competition«or other conditions«´ ³By entering into this Competition, each entrant«agrees to release and hold The Neat Game and its respective parents, subsidiaries, and affiliates and their employees, officers, directors, shareholders, agents, representatives and advertising, promotion, and fulfillment agencies, and legal advisors, harmless from any and all losses, damages, rights, claims and actions of any kind in connection with the Competition, or resulting from acceptance, possession, or use of«´ ³The Meat Game may at any time revise these Terms of Use by making amendments to the terms«By participating« you agree to be bound by any such revisions«periodically visit our website to determine the then current Terms of Use to which you are bound.´ ³This Agreement shall be construed«the parties irrevocably consent to bring any action to enforce this Agreement in the United States Federal and Georgia State Court located in DeKalb County«waive any defenses to jurisdiction or venue to lawsuits«All rights not expressly granted herein are expressly reserved«The heading in this Agreement are for purposes of reference only. Last updated: May 2007.´ The Respondent agreed to all terms, conditions, and responsibilities set forth in the Competition Terms of Use and Rules, see ³Exhibit C´ showing the Respondent¶s name and on the forms, and the ³I agree´ box which has a check mark in it. The Terms clearly stated that a legal agreement (³Agreement´) between you and HIJ«By participating«you agree that you have read, understood, and agree
-3-

to be bound by these terms and comply«IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THIS SITE«´ There is no excuse for failing to name the corporation as the defendant in Respondent¶s case. The agreement clearly stated that the prize could be substituted. Respondent and the Corporation were negotiating a substitute prize when Respondent suddenly filed suit against Mr. ABC in Gwinnett County Magistrate Court. Mr. DEF

violated almost every term of the agreement, obviously the reason Mr. DEF refused to have the agreement attached to his Statement of Claim. Respondent filed a case in Gwinnett Magistrate Court titled: Stephen D. DEF v. ABC and 123, Civil Action No.: 0X-M-XXXX on or around October 23, 2009. At some point, according to the Docket Report, the case closed, then reopened on or around December 02, 2009. Apparently the case was reopened when

Respondent Amended the complaint by removing/dismissing 123 as a defendant. The Court then apparently found ABC in default, a Default Judgment hearing for damages was held on February 11, 2010. Although Mr. ABC attended the hearing, the Court refused to allow Mr. ABC to present any evidence, the Agreement, or other documentation, because he was in Default. Mr. ABC was not allowed to show that he was Registered Agent and not the proper party defendant; that a corporation would have had to be named as defendant for there to be a proper suit.
-4-

The Court awarded Mr. DEF $5,000.00, plus $500.00. The Docket Report reflects that same day, February 11, 2010, Mr. DEF requested a fifa, and post judgment interrogatories to Mr. ABC. ARGUMENT AND CITATIONS TO AUTHORITY Although the Supreme Court agrees with the Court of Appeals that ³proceedings in magistrate court are not directly subject to the Civil Practice Act by the express language to that effect in OCGA § 15-10-42´; ³some procedural rules, other than those limited matters set forth in OCGA § 15-10-40 et seq., « must apply to magistrate court proceedings´ W. Gerry Howe v. William Douglas Roberts, et., al., Supreme Court of Georgia No. 46899, (385 S.E.2d276), (259 Ga. 617) (1989). In the Howe case, Howe named Roberts as a defendant rather than the corporation. The Magistrate Court dismissed Roberts, the individual, due to being an improper party defendant, which was affirmed by the State Court, Court of Appeals of Georgia and The Supreme Court of Georgia. In the case at bar, the Magistrate Court has obviously decided that neither the Rules of Magistrate Court, nor the Civil Practice Act pertained, and the Court ignored that the case named an individual rather than the corporation as defendant. Although Petitioner has not waived the argument of proper service, and in no way relinquishes jurisdiction, either personal or subject matter, to this
-5-

Court, he addresses the following, only for the sake of arguendo.

The

following arguments and citations are in no way to be construed as Petitioner acting as the Corporation or for the sake of the Corporation; Petitioner is acting only in his individual capacity. The facts remain clear, the trial Court allowed an improper party defendant to be sued. The Court appears to have issued a fifa, and post judgment interrogatories to be levied upon the Petitioner. For these reasons alone, Petitioner addresses the following arguments: Improper Service/Improper Venue/Lack of Jurisdiction It has been long held that when suing a corporation, the proper party to the suit is not the individual that owns the corporation or the registered agent, but the corporation. The ³cardinal rule of corporate law is that a corporation possesses a legal existence separate and apart from that of its officers and shareholders, the mere operation of corporate business does not render one personally liable for corporate acts. Sole ownership of a corporation by one person or another corporation is not a factor´ Dews v. Ratterree, 246 Ga.App. 324, 246 Ga.App. 324, 540 S.E.2d 250, 540 S.E.2d 250 (Ga.App. 10/06/2000). Further, as was held in Dearth v. Collins, 441 F.3d 931 (11th Cir. 03/06/2006) ³Under Georgia corporate law,« individual shareholders and officers of a
-6-

corporation are "shielded by the corporate veil, in the absence of fraud or abuse of the corporate form." Moore v. Barge, 210 Ga. App. 552, 554, 436 S.E.2d 746, 749 (1993). Fraud/Misrepresentation to the Court to Obtain a Ruling The Terms of Use and Contract Agreement entered into between the Corporation and Respondent specified ³a legal agreement (³Agreement´) between you and HIJ´; ³«The Meat Game reserves the right to provide a substitute Prize«´; ³By entering the competition, entrants accept and agree« which shall be final«´ Respondent failed to state the facts of the contract, and alleging that the amount of prize money was contractually agreed upon. Respondent further misrepresented the fact that a corporation was involved, and/or that there were ongoing negotiations about substitution of the prize. Apparently Respondent failed to inform the Court that the Agreement also stipulated ³the parties irrevocably consent to bring any action to enforce this Agreement in the United States Federal and Georgia State Court located in DeKalb County´. Furthermore, a Ruling against Petitioner, an improper party to the suit, makes the Judgment not merely voidable, but it is void; "a judgment is void on its face when there is a non-amendable defect appearing on the face of the record or pleadings which is not cured by verdict or judgment and the pleadings
-7-

affirmatively show that no legal claim in fact existed." Id. at 444. Wasden v. Rusco Indus., 233 Ga. 439, 445 (211 SE2d 733) (1975); See also Ricks v. Liberty Loan Corp., 146 Ga. App. 594 (1 & 2) (247 SE2d 133) (1978) (cert. den.). Liquidated/Unliquidated Damages At the hearing for damages, the Court refused to review the contract, or consider anything that Petitioner would have said. Instead, the Court ruled against Petitioner without allowing him the opportunity to provide evidence. It was held that a judgment is void where ³the magistrate awarded « the full amount of his claim even though his claim was unliquidated and he presented no evidence«. because no evidence and no proof of damages were presented«The magistrate also admitted that the judgment had no legal basis and was void, «´ Davalos v Perdue (449 S.E.2d 861) (215 Ga. App.) (1994). CONCLUSION AND PRAYER FOR RELIEF Petitioner in this matter has made argument showing that Mr. DEF sued the individual rather than the corporation. Mr. ABC believes that the act of attempting to sue him personally was an act of fraud and fraud upon the court. Further Mr. ABC has shown this Honorable Court why the Judgment against him should be set aside and that it would not be an abuse of discretion to set aside the judgment. Petitioner prays that this Court will consider his Statement of claim/Motion
-8-

to Set Aside Judgment and find in his favor in the interest of justice.

Respectfully submitted this 15th day of March, 2010

By: ________________________ Mr. ABC, Pro Se 4567 Ha Ha Ha Lane. Hootie, GA 30000 (555) 555-5555

STATE OF GEORGIA COUNTY OF _________ ABC, being first duly sworn on oath, says the foregoing is true and correct to his knowledge and belief.

______________________ ABC

Sworn and subscribed before me this ____ day of ________, 2010

_______________________ Notary public

-9-