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No.

17-929

IN THE
Supreme Court of the United States
_________________________

IN RE DANIEL L. JUNK AND CHRISTINE H. JUNK

_________________________

ON PETITION FOR WRIT OF MANDAMUS TO


THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

_________________________

PETITIONERS’ REPLY BRIEF

_________________________

DANIEL L. JUNK, PRO SE


CHRISTINE H. JUNK, PRO SE
2827 Chateau Circle S.
Upper Arlington, Ohio 43221
Telephone: (614) 648-5062
djunkman@icloud.com
christinejunk@mac.com

Petitioners Pro Se
i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii


PRELIMINARY STATEMENT ................................. 1
PETITIONERS’ REPLY ARGUMENT ..................... 2
I. BOTH THE DISTRICT COURT AND THE
BANKRUPTCY COURT BELOW LACKED
CONSTITUTIONAL AUTHORITY TO GRANT
CITIMORTGAGE ANY RELIEF AS A
CREDITOR OF THE ESTATE ........................ 2
II. DISALLOWANCE OF CITIMORTGAGE’S
CLAIM WILL RESULT IN A DISTRIBUTION
TO PETITIONERS ........................................... 7
CONCLUSION ......................................................... 12
APPENDIX:

CITIMORTGAGE SUPPLEMENTAL RESPONSE


TO REQUEST PURSUANT TO C.F.R. §§
1024.35 AND 1024.36.............................. App. 1
ORDER OF THE SOUTH CAROLINA COURT OF
APPEALS GRANTING THE JUNKS'
MOTION TO WITHDRAW CONSOLIDATED
APPEAL AS NON-FINAL NON-
APPEALABLE ORDERS DATED
FEBRUARY 20, 2015 .............................. App. 4
ii
TABLE OF AUTHORITIES

Cases

Allen v. Wright, 468 U.S. 737 (1984) ......................... 6

Bankers Life & Cas. Co. v. Holland,


346 U.S. 379 (1953) ................................................. 6

Clapper v. Amnesty International,


133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) ............. 5, 6

DaimlerChrysler Corp v. Cuno,


547 U.S. 332 (2006). ................................................ 7

De Beers Consol. Mines, Ltd. v. United States,


325 U.S. 212 (1945) ................................................ 8

Ferens v. John Deere Co.,


494 U.S. 516, 110 S.Ct. 1274, 108 L.Ed.2d 443
(1990) ....................................................................... 5

Friends of the Earth, Inc. v. Laidlaw Environmental


Services (TOC), Inc., 528 U.S. 167 (2000) .............. 6

In re Aja, 442 B.R. 857 (1st Cir. B.A.P. 2011)......... 10

In re Brown, 851 F.3d 619 (6th Cir. 2017) ................ 1

In re Coudert Bros. LLP,


673 F.3d 180 (2d Cir. 2012) .................................... 5

In re Cynthia Carrsow-Franklin, --- B.R. ---- 2015,


WL 364719 (Bankr. S.D.N.Y 2015) ........................ 4
iii
In re El San Juan Hotel,
809 F.2d 151 (1st Cir. 1987) ................................. 10

In re Envirodyne Industries, Inc.,


183 B.R. 812 (Bankr. N.D.Ill. 1995) ....................... 5

In re Manville Forest Products Corp., 89 B.R. 358


(Bankr. S.D.N.Y. 1988), aff’d, 99 B.R. 542
(S.D.N.Y. 1989), aff’d, 896 F.2d 1384
(2d Cir. 1990) ........................................................... 4

In re Porter v. Mid-Penn Consumer Discount Co.,


961 F.2d 1066 (3d Cir. 1992) .................................. 3

In re Robbins,
310 B.R. 626 (9th Cir. BAP 2004) ........................... 5

In re Troutman Enter., Inc.,


286 F.3d 359 (6th Cir. 2002) ................................. 10

In re Unioil, Inc.,
962 F.2d 988 (10th Cir. 1992) ................................. 4

Jesinoski, et ux., v. Countrywide Home Loans, Inc.,


et al.,
135 S.Ct. 790, 190 L.Ed.2d 650 (2015) .......... passim

Junk v. CitiMortgage, Inc. (In re Junk),


512 B.R. 584 (S.D. Ohio 2014) ................................ 2

Lujan v. Defenders of Wildlife,


504 U.S. 555 (1992) ................................................. 6

Nortex Trading Corp. v. Newfield,


311 F.2d 163 (2d Cir.1962) ..................................... 4
iv
Rivers v. Roadway Exp., Inc.,
511 U.S. 298 (1994) ............................................... 10

Roche v. Evaporated Milk Assn.,


319 U.S. 21 (1943) ................................................... 8

TVA v. Hill, 437 U.S. 153 (1978) ............................. 12

United States v. Duell, 172 U.S. 576 (1899) ............. 9

United Student Aid Funds, Inc. v. Espinosa,


559 U.S. 260, 130 S.Ct. 1367, 176 L.Ed.2d 158
(2010) ....................................................................... 6

Van Dusen v. Barrack, 376 U.S. 612 (1964) ............. 5

Veal v. American Home Mortgage Servicing, Inc., et


al. (In re Veal), 450 B.R. 897 (9th Cir. 2011) ......... 5

Will v. United States,


389 U.S. 90 (1967) ................................................... 8
Statutes

11 U.S.C. § 363(m) ..................................................... 4

11 U.S.C. § 704(a)(5) ................................................ 12

11 U.S.C. § 1111(a)..................................................... 7

15 U.S.C. § 1635(a)............................................ passim

15 U.S.C. § 1635(b)............................................ passim

15 U.S.C. § 1640 ............................................. 6, 15, 16


v

28 U.S.C. § 1334(c)(1) ......................................... 11, 13

28 U.S.C. § 1334(d)................................................... 11

Other Authorities

3 Collier on Bankruptcy ¶ 502.01 ............................. 8

Black’s Law Dictionary 1709 (9th ed.2009) ............ 10

Black’s Law Dictionary 1822 (3d ed.1933) .............. 10

Restatement (Second) of Judgments 22


§ 12 (1980) ............................................................. 10

Rules and Regulations

Fed. R. Bankr. P. 3001(b) .......................................... 7

Fed. R. Bankr. P. 3003(c) ........................................... 7

Fed. R. Bankr. P. 3007(b) .......................................... 8

Fed. R. Bankr. P. 7001(2) .......................................... 8

Rule 12(b)(6), S.C.R.P. ............................................. 15

12 C.F.R. Appendix Supplement I to Part 226 ......... 5

12 C.F.R. § 226.15(d)(1)1 ..................................... 5, 15

12 C.F.R. § 226.15(d)(2) ................................... 5, 6, 15

12 C.F.R. § 226.15(d)(3) ................................... 5, 6, 15


vi
12 C.F.R. § 226.23(d)(1)1 ............................... 5, 15, 16

12 C.F.R. § 226.23(d)(2)1 ................................. 5, 6, 15

12 C.F.R. § 226.23(d)(2)3 ................................. 5, 6, 15


1
PRELIMINARY STATEMENT

The instant petition before this Court is not a


substitute for an appeal that could have been taken
but was not. 1 Rather, petitioners look to this Court
to vacate a United States District Court’s
unpublished, statutorily non-appealable final
judgment affirming the bankruptcy court’s order of
abstention, constituting a remarkably direct and
constitutionally impermissible extension of the
judicial function into the legislative process.
Petitioners respectfully ask this Court to exercise its
mandamus jurisdiction to vacate the district court
judgment’s impermissible usurpation of power in
violation of the tripartite nature of our Constitution.

1 Petitioners’ sole argument in their appeal to the BAP was


that the order was constitutionally void because the South
Carolina litigation was not ended by a final non-appealable
state court order as required by the Sixth Circuit’s mandate in
this case. The BAP dismissed the appeal as statutorily moot
under 11 § U.S.C. 363(m) because petitioners were denied a
stay of the bankruptcy proceedings pending appeal and their
appeal sought to overturn the sale. The only issue that could
have been appealed to the Sixth Circuit from the BAP order
was the settlement and compromise’s distribution of the
escrows and settlement payment so long as that appeal did not
disturb the sale to CitiMortgage as a “good faith purchaser.” In
re Brown, 851 F.3d 619, 622 (6th Cir. 2017). Had petitioners
taken that appeal, the Junks would have been conceding
CitiMortgage had standing both as a party in interest under 11
U.S.C. §1109(b) and Article III – which they do not. Petitioners
have contested CitiMortgage’s standing going on nine years,
and should not have to concede that argument to invoke this
Court’s mandamus jurisdiction.
2
PETITIONERS’ REPLY ARGUMENT

I. BOTH THE DISTRICT COURT AND THE


BANKRUPTCY COURT BELOW LACKED
CONSTITUTIONAL AUTHORITY TO GRANT
CITIMORTGAGE ANY RELIEF AS A
CREDITOR OF THE ESTATE

CitiMortgage comes before this Court in open


violation of the law under 15 U.S.C. § 1635(b), 12
C.F.R. §§ 226.15(d)(1)1; 226.15(d)(2); and,
226.15(d)(3) in addition to C.F.R. §§ 226.23(d)(1)1;
226.23(d)(2)1; and 226.23(d)(2)3, with the temerity
to argue it is well-entitled to relief as a secured
creditor of the Junks’ estate. Rescission under 15
U.S.C. § 1635(a) is a non-judicial event – it’s effective
upon mailing as a matter of law – and in almost nine
years, CitiMortgage has never sought to vacate the
Junks’ rescission. Junk v. CitiMortgage, Inc. (In re
Junk), 512 B.R. 584, 592 (S.D. Ohio 2014) see also
Jesinoski, et ux., v. Countrywide Home Loans, Inc.,
et al., 135 S.Ct. 790, 190 L.Ed.2d 650 (2015) (per
curiam).
As contained in the Official Staff Interpretations
in 12 C.F.R. Appendix Supplement I to Part 226, 2
upon notice of rescission the creditor’s interest in the
property is “automatically negated regardless of its
status and whether or not it was recorded or
perfected. Under § 226.15(d)(2), however, the
creditor must take any action necessary to reflect the
fact that the security interest no longer exists.”

2https://www.law.cornell.edu/cfr/text/12/appendix-
Supplement_I_to_part_226,
3
(Official Staff Interpretations 12 C.F.R. §§
226.15(d)(1)1, 226.23(d)(1)1.).

CitiMortgage’s claimed security interest is void


and of no legal effect irrespective of its non-response
to the Junks’ notice of rescission under Section
1635(a). Strict construction of Regulation Z would
dictate that the voiding be considered absolute and
not subject to judicial modification. It is clear from
the statutory language that the court’s modification
authority extends only to the procedures specified by
15 U.S.C. §1635(b).

Non-compliance with Section 1635(b) is a


violation of the statute which gives rise to a claim for
actual and statutory damages under 15 U.S.C. §
1640. Once the court finds a violation such as not
responding to the Section 1635(a) rescission letter
and failing to take action as required by Section
1635(b), C.F.R. §§ 226.15(d)(2); 226.15(d)(3);
226.23(d)(2)1; and 226.23(d)(2)3, no matter how
technical, the courts below had no discretion with
respect to liability. See In re Porter v. Mid-Penn
Consumer Discount Co., 961 F.2d 1066, 1078 (3d Cir.
1992).

Not only is CitiMortgage’s claimed security


interest void ab initio as a matter of law,
CitiMortgage admittedly is not now and never has
been the creditor for the refinance debt obligation at
any time since the Junks initiated litigation to quiet
title to their property on September 11, 2009. (App.
1-3). As a result, the only party that lacks standing
before this Court is CitiMortgage.
4
CitiMortgage lacks standing as both a party in
interest under 11 U.S.C. §1109(b) and Article III.
Petitioners did not list CitiMortgage as a creditor for
the rescinded refinance debt obligation. The only
claim listed by Petitioners in their schedules for
CitiMortgage is as disputed and contingent. See 11
U.S.C. § 1111(a).

CitiMortgage has no right to appear before this


Court or the courts below seeking any relief against
the estate as a creditor claiming on its own behalf,
let alone as a secured creditor. See In re Cynthia
Carrsow-Franklin, --- B.R. ---- 2015, WL 364719, *3,
(Bankr. S.D.N.Y 2015) citing In re Unioil, Inc., 962
F.2d 988, 992 (10th Cir. 1992) (proof of claim “which
did not even indicate [claimant’s] representational
capacity much less disclose the identity of the true
creditor, was defective” under Fed. R. Bankr. P.
3001(b)); cf. In re Manville Forest Products Corp., 89
B.R. 358, 376‐77 (Bankr. S.D.N.Y. 1988), aff’d, 99
B.R. 542 (S.D.N.Y. 1989), aff’d, 896 F.2d 1384 (2d
Cir. 1990) (applying Fed. R. Bankr. P. 3003(c), which
pertains to cases under chapters 9 and 11 of the
Bankruptcy Code, to preclude filing of proof of claim
in unauthorized capacity).

CitiMortgage sued the Junks’ estate by filing its


proof of claim. O’Neill v. Continental Airlines In re
Continental Airlines, 928 F.2d 127, 129 (5th Cir.
1991) (“[T]he filing of a proof of claim is analogous to
the filing of a complaint in a civil action, with the
bankrupt’s objection the same as the answer.”). See
also Nortex Trading Corp. v. Newfield, 311 F.2d 163
(2d Cir.1962), cf 3 Collier on Bankruptcy ¶ 502.01, at
502-16. The mere fact that the claims objection was
5
conducted in the form of an adversary proceeding
rather than by motion does not change that
conclusion. In re Envirodyne Industries, Inc., 183
B.R. 812 (Bkrtcy.N.D.Ill.1995). Petitioners’ objection
to CitiMortgage’s proof of claim on behalf of the
estate as debtors-in-possession (“DIP”) was required
to be brought by way of adversary proceeding under
Rules 3007(b) and 7001(2) Fed. R. Bankr. P.

Because CitiMortgage attached the state court


foreclosure action complaint to its twice-amended
proof of claim, CitiMortgage voluntarily submitted to
the change of venue of its South Carolina litigation
to the bankruptcy court in Ohio. In re Coudert Bros.
LLP, 673 F.3d 180, 190-191 (2d Cir. 2012) citing Van
Dusen v. Barrack, 376 U.S. 612, 638, (1964), cf
Ferens v. John Deere Co., 494 U.S. 516, 524, 110
S.Ct. 1274, 108 L.Ed.2d 443 (1990). The two
proceedings became one in the same. Id.

The case-or-controversy requirement of Article III


requires CitiMortgage establish its standing to sue.
Clapper v. Amnesty International, 133 S.Ct. 1138,
185 L.Ed.2d 264 (2013); see also, Veal v. American
Home Mortgage Servicing, Inc., et al. (In re Veal),
450 B.R. 897, 917 (9th Cir. 2011) (“. . . a challenge to
the movant's standing . . . is an independent
threshold issue. Simply put, the colorable claim
standard set forth in [In re] Robbins, [310 B.R. 626,
631 (9th Cir. BAP 2004)] does not free
[CitiMortgage] from the burden of establishing its
status as a real party in interest allowing it to move
for relief from stay, as this is the way in which
[CitiMortgage] satisfies its prudential standing
requirement.”).
6
Before a federal court can exercise its judicial
power over any dispute, there must be a justiciable
case or controversy as required by Article III. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 590 (1992);
Friends of the Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., 528 U.S. 167, 212 (2000); Allen
v. Wright, 468 U.S. 737, 751 (1984). “[T]he plaintiff
must have suffered an ‘injury in fact’ — an invasion
of a legally protected interest which is (a) concrete
and particularized and (b) actual or imminent, not
conjectural or hypothetical.” Id. at 560.

The courts below exercise of their coercive power


over petitioners and their estate absent a case or
controversy between CitiMortgage and the estate
violates fundamental separation of powers
principles. Clapper, 133 S.Ct. at 1148-1150, supra.
Any order by the courts below granting CitiMortgage
relief in the Junks’ bankruptcy proceeding without
Article III jurisdiction is void therefor. United
Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260,
130 S.Ct. 1367, 1377, 176 L.Ed.2d 158 (2010) (“A
void judgment is a legal nullity. See Black’s Law
Dictionary 1822 (3d ed.1933); see also id., at 1709
(9th ed.2009). Although the term ‘void’ describes a
result, rather than the conditions that render a
judgment unenforceable, it suffices to say that a void
judgment is one so affected by a fundamental
infirmity that the infirmity may be raised even after
the judgment becomes final. See Restatement
(Second) of Judgments 22 (1980); see generally id., §
12.”).

CitiMortgage’s willful and continued violations of


the law over the past almost nine years, has cost the
7
state courts of South Carolina, the federal courts, the
unsecured creditors of the Junks’ estate and the
Junks personally, an incalculable amount of time,
resources, money and emotional distress.
CitiMortgage has willfully and knowingly
misrepresented its capacity – claiming to be the
Junks’ creditor with a security interest in the Junks’
South Carolina property when it is not as a matter of
law – not only before this Court, but before every
court in which it has appeared since it substituted
into the South Carolina consolidated quiet
title/foreclosure action for the original foreclosure
plaintiff, Respondent herein, Bayview Loan
Servicing, LLC (“Bayview”) as “owner” of the
rescinded refinance debt obligation in March 2010.
Because CitiMortgage’s security interest is void ab
initio as a matter of law coupled with the fact that
CitiMortgage is admittedly not the Junks’ creditor
(App. 1-3), neither the bankruptcy court nor the
district court possessed the constitutional authority
under Article III to grant CitiMortgage any relief
against the estate.

II. DISALLOWANCE OF CITIMORTGAGE’S


CLAIM WILL RESULT IN A DISTRIBUTION
TO PETITIONERS

CitiMortgage asserts petitioners lack standing to


appeal because they were converted from chapter 11
to chapter 7 under the Bankruptcy Code.
CitiMortgage also argues this Court’s mandamus
jurisdiction is not available to petitioners because, as
chapter 7 debtors, they didn’t appeal an order below.
Petitioners respectfully submit that the logic of
CitiMortgage’s argument speaks for itself.
8
Under 28 U.S.C. § 1334(d), petitioners are
precluded by statute from appealing the United
States District Court’s September 2, 2015, final
judgment affirming abstention to the circuit court or
this Court. Sitting in equity, the courts below
granted CitiMortgage’s motion to abstain on DIP’s
objection to CitiMortgage’s claim against the estate
as a secured creditor under 28 U.S.C. § 1334(c)(1),
ignoring congressional mandates under 15 U.S.C. §§
1635(a) and (b) and this Court’s unanimous holding
in Jesinoski, supra. As a result, this case presents
the type of extraordinary circumstances in which
this Court exercises its discretionary authority to
issue a writ of mandamus in aid of its appellate
jurisdiction.

“The writ of mandamus has traditionally been


used in the federal courts only ‘to confine an inferior
court to a lawful exercise of its prescribed
jurisdiction or to compel it to exercise its authority
when it is its duty to do so.’” Will v. United States,
389 U.S. 90, 95 (1967) citing Roche v. Evaporated
Milk Assn., 319 U.S. 21, 319 U.S. 26 (1943). “While
the courts have never confined themselves to an
arbitrary and technical definition of ‘jurisdiction,’ it
is clear that only exceptional circumstances
amounting to a judicial ‘usurpation of power’ will
justify the invocation of this extraordinary remedy.”
Id. citing De Beers Consol. Mines, Ltd. v. United
States, 325 U.S. 212, 325 U.S. 217 (1945). “And the
party seeking mandamus has ‘the burden of showing
that its right to issuance of the writ is clear and
indisputable.’” Id. (emphasis in original). Citing
Bankers Life & Cas. Co. v. Holland, 346 U.S. 379,
9
384 (1953); United States v. Duell, 172 U.S. 576, 582
(1899).

As DIP, with all the powers and duties of a


trustee, petitioners had a duty to object to
CitiMortgage’s twice amended claim under 11 U.S.C.
§ 704(a)(5). Petitioners’ stated plan as DIP was to
avoid CitiMortgage’s statutorily void lien and sell
the South Carolina property to pay unsecured
creditors, with the surplus distribution coming back
to petitioners. Although petitioners have since been
converted to chapter 7 with a Trustee appointed –
which is not the focus of this petition – the effect is
still the same if the law under Sections 1635(a) and
(b) is applied upon reconsideration of CitiMortgage’s
motion to abstain under 28 U.S.C. 1334(c)(1).

Petitioners filed their chapter 11 petition in June


of 2013. Petitioners were converted to chapter 7 on
January 13, 2015, the same day this Court issued its
unanimous Jesinoski opinion. As a result of
CitiMortgage’s baseless claim as a secured creditor
of the estate, petitioners have remained in an open
bankruptcy for over four-and-a-half (4 ½) years with
over three of those years as a converted chapter 7
debtor. Without CitiMortgage obstructing the
liquidation of the estate with its baseless claim as a
secured creditor of the estate, the Trustee could have
liquidated the property years ago and paid the
unsecured creditors 100% of their claims with a
surplus distribution to petitioners.

CitiMortgage argues petitioners lack standing


because they were converted to chapter 7. “[T]o have
standing to appeal a bankruptcy court order, an
10
appellant must have been directly and adversely
affected pecuniarily by the order.” In re Troutman
Enter., Inc., 286 F.3d 359, 364 (6th Cir. 2002)
(internal quotation marks omitted). Parties may
appeal a bankruptcy court order “when it diminishes
their property, increases their burdens or impairs
their rights.” Id. “Generally, an insolvent chapter 7
debtor does not have standing to appeal.” In re Aja,
442 B.R. 857, 861 (1st Cir. B.A.P. 2011) citing In re
El San Juan Hotel, 809 F.2d 151, 154–55 (1st Cir.
1987). “The exceptions to the general rule are [1)] if
the appeal would result in a distribution to the
debtor or [2)] if the debtor’s discharge would be
affected.” Ibid.

Petitioners have a clear and indisputable right to


have the law under Sections 1635(a) and (b) applied
to the estate’s objection to CitiMortgage’s claim
before any court below can exercise its equitable
powers to abstain. As this Court has explained,

when this Court construes a statute, it is


explaining its understanding what the
statute has meant continuously since the
date when it became law. . . . Thus, it is not
accurate to say that the Court's decision . . .
'changed' the law that previously prevailed . .
. when the case was filed. Rather, given the
structure of our judicial system, [a Supreme
Court] opinion [interpreting a statute] finally
decide[s] what [the statute] had always
meant and explain[s] why the Courts of
Appeals ha[ve] misinterpreted the will of the
enacting Congress. Rivers v. Roadway Exp.,
Inc., 511 U.S. 298, 313 n.12 (1994).
11
This Court’s unanimous holding in Jesinoski did not
create new law.

Pursuant to this Court’s Rule 15.2, CitiMortgage


makes no objections to petitioners’ statements of the
law in its brief in opposition nor does it cite any
misstatements of fact in the petition. Petitioners,
however, respectfully object to CitiMortgage’s
statement that this Court’s unanimous
interpretation of 15 U.S.C. § 1635(a) as set forth in
Jesinoski, supra, is inapposite to this petition based
on a compulsory counterclaim under Section 1640
that was dismissed by the state court at the pleading
stage pursuant to Rule 12(b)(6), S.C.R.P. (Opp. Brief
p. 15). That order was a non-final, non-appealable
order. (App. 4-7). 3

CitiMortgage’s statement, id., is a misstatement


of the law under 15 U.S.C. §§ 1635(a) and (b), 12
C.F.R. §§ 226.15(d)(1)1; 226.15(d)(2); and,
226.15(d)(3) in addition to C.F.R. §§ 226.23(d)(1)1;
226.23(d)(2)1; and 226.23(d)(2)3, and this Court’s
unanimous interpretation of Section 1635(a) in
Jesinoski, supra. Upon the Junks’ exercise of their
rescission right, CitiMortgage’s security interest, if it
ever had one, was “automatically negated regardless
of its status and whether or not it was recorded or
perfected[]” as a matter of law pursuant to 15 U.S.C.
§§ 1635(a) and (b), and 12 C.F.R. §§ 226.15(d)(1)1
and 226.23(d)(1)1. There exists no state court order
vacating the Junks’ rescission – which became
effective upon mailing in March 2009 as a matter of

3 CitiMortgage does not argue the Rooker-Feldman doctrine


precludes any federal court review because there are no final,
non-appealable state court judgments in this case.
12
law. The state court master-in-equity’s dismissal of
a compulsory counterclaim pursuant to 15 U.S.C. §
1640 at the pleading stage, cannot modify the
effectiveness of the Junks’ March 2009 statutory
rescission.

The statutory language is clear that a court’s


modification authority extends only to the
procedures specified by 15 U.S.C. § 1635(b).
CitiMortgage has never been a creditor of the Junks
or their estate, let alone a secured creditor, at any
time since the Junks filed their action to quiet title
to their property in South Carolina on September 11,
2009. (App. 1-3). Petitioners timely exercised their
rescission right under Section 1635(a) and have a
clear and indisputable right to the operative legal
consequences that timely rescission entails under
the separation of powers doctrine. Once the
meaning of an enactment is discerned and its
constitutionality determined, the judicial process
comes to an end. TVA v. Hill, 437 U.S. 153, 194
(1978).

CONCLUSION
The joint petition for a writ of mandamus should
be granted.
Respectfully submitted,
DANIEL L. JUNK, pro se
CHRISTINE H. JUNK, pro se
2827 Chateau Circle S.
Upper Arlington, Ohio 43221
Telephone: (614) 648-5062
djunkman@icloud.com
App. 1

Nelson Mullins
Nelson Mullins Riley & Scarborough LLP
Attorneys and Counselors at Law
1320 Main Street / 17th Floor / Columbia, SC 29201
Tel: 803.799.2000 Fax: 803.255.9040
www.nelsonmullins.com

Brian P. Crotty
(Admitted in PA & SC)
Tel: 803.255.9422
Fax: 803.255.9040
brian.crotty@nelsonmullins.com

August 28, 2014

Via Federal Express and U.S. Mail

Daniel L. Junk
Christine Junk
181 Old Field Way
Okatie, SC 29909

Daniel L. Junk
Christine Junk
2827 Chateau Circle S.
Upper Arlington, OH 43212

RE: Letter to CitiMortgage dated August 14, 2014

Mr. Junk,

We have been asked to respond on behalf of


CitiMortgage, Inc. ("CMI") to your letter dated
App. 2
August 14, 2014, received by CMI on August 18,
2014.

To the extent your obligation has been discharged or


is subject to an automatic stay of a bankruptcy order
under Title 11 of the United States Code, this notice
is for compliance and informational purposes only
and does not constitute a demand for payment or an
attempt to collect any such obligation.

CMI received your letter dated July 23, 2014, on


July 28, 2014, and CMI acknowledged receipt on
July 29, 2014. Moreover, CMI responded to your
letter dated July 23, 2014, on August 8, 2014. After
further review, CMI qualifies its response in its
August 8, 2014 letter by stating that, while CMI
purchased the Note from the original lender and
was the owner of the Note, on or about April 2009,
as part of an internal transaction involving CMI and
its related entity Citibank, NA, ownership of the
Note was internally transferred to Citibank, NA
whose address is Citibank, N.A., (CBNA) Other Hold
Portfolio, Corporate Accounting, 1000 Technology
Drive, O'Fallon, MO 63368-2240. CMI remains the
holder of the Note and the servicer of this loan. CMI
has determined that no further response to your
August 14, 2014 letter is required. See 12 C.F.R. §
1024.36(f)(i).

As CMI is the servicer of the loan and because this


loan is in litigation we request that any further
communications relating to this loan be directed or
copied to the undersigned counsel for CMI.

As to any other requests that may be contained in


your letter, CMI has determined that any such
App. 3
requests do not qualify as a request related to the
servicing of your mortgage loan. Therefore, no
response is required.

Sincerely,

/s/

Brian P. Crotty

BPC:mja

cc: A. Parker Barnes (via U.S. Mail only)


Jennifer Brunner (via U.S. Mail only)
Rick L. Brunner (via U.S. Mail only)
Peter Contreras (via U.S. Mail only)
Kaitlin M. Madigan (via U.S. Mail only)
Patrick M. Quinn (via U.S. Mail only)
Susan L. Rhiel (via U.S. Mail only)
Kristin Radwanick (via U.S. Mail only)
App. 4
EXHIBIT A

The South Carolina Court of Appeals

CitiMortgage, Inc., Respondent,

v.

Daniel L. Junk and Christine H. Junk, and Oldfield


Community Association, Defendants,

Of Whom Daniel L. Junk and Christine H. Junk are,


Appellants,

Daniel L. Junk and Christine H. Junk, Counterclaim


Appellants,

v.

CitiMortgage Inc., Counterclaim Respondent,

Daniel L. Junk and Christine H. Junk, Third-Party


Appellants,

v.

Riley Pope & Laney, LLC, Heidi Carey, Esq., Roy


Laney, Esq., T. Lowndes Pope, Esq., Bayview Loan
Servicing, L C, Merscorp, Inc., Mortgage Electronic
Registration Systems, Inc., Citi Master Servicing,
Citigroup Global Markets Realty Corp., Citigroup
Mortgage Loan Trust, Inc., John Does 1-5,000,
Jennifer Oakes, Robert G. Hall, Security
Connections, Inc., Krystal Hall, Danielle Sterling,
App. 5
ABC Appraisal Group, Inc., Mark A. Ruplinger,
Linda Heller, Harry Jones, Colonial Coast Title
Agency, Inc., Lawyers Title Insurance Corporation,
Corelogic, Inc., and American Home Mortgage
Holdings, Inc., Third-Party Respondents. AND
CitiMortgage, Inc., Respondent,

v.

Daniel Junk aka Daniel L. Junk, Christine H. Junk,


and Oldfield Community Association, Defendants,

Of whom Daniel L. Junk and Christine H. Junk are


Appellants.

Daniel L. Junk and Christine H. Junk. Counterclaim


Plaintiffs,

v.

CitiMortgage, Inc., Counterclaim Respondent. AND


CitiMortgage, Inc., Respondent,

v.

Daniel Junk aka Daniel L. Junk, Christine H. Junk,


and Oldfield Community Association, Defendants,

Of whom Daniel L. Junk and Christine H. Junk are


Appellants.

Daniel L. Junk and Christine H. Junk. Counterclaim


Plaintiffs,
App. 6
v.

CitiMortgage, Inc., Counterclaim Respondent.

Appellate Case No. 2012-210910

ORDER

Appellants' motion to withdraw their appeal


pursuant to Rule 260(c), SCACR, is granted.
Remittitur will be sent down as provided in Rule
221, SCACR.

/s/ Jasper Cureton


FOR THE COURT

Columbia, South Carolina

FILED
February 20, 2015

cc:
Daniel L. Junk
Brian Patrick Crotty, Esquire
A. Parker Barnes, Jr., Esquire
Amanda Coney Williams, Esquire
Susan Taylor Wall, Esquire
Michael J. Anzelmo, Esquire
John Thomas Lay, Jr., Esquire
Childs Cantey Thrasher, Esquire
Elizabeth Van Doren Gray, Esquire
Tina Marie Cundari, Esquire
App. 7
James Y. Becker, Esquire
Hamilton Osborne, Jr., Esquire
Sean Michael Bolchoz, Esquire
Demetri K. Koutrakos, Esquire
Benjamin Rush Smith, III, Esquire
Jerri Ann Roseneau
Daniel L. Junk