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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA LUTHER, D• THOMAS, M=AS, Clerk AT LANTA DIVISION T
APR 0 4 2096
JAMES B. STEGEMAN, )
JANET D. MCDONALD, ) Plaintiffs
CIVIL ACTION FILE NO.: 1 :06-CV-00247-WSD
WACHOVIA BANS, NATIONAL, ) ASSOCITAION, et al ) WACHOVLA SECURITIES )
PLA INTIFF'S INITIAL DI SCLOSURES
Pursuant to Fed. R . Civ . P. 26(a)(1) and LR 26. 1, Plaintiffs, James
B. Stegeman and Janet D . McDonald makes the following initial disclosures : (1) What Wachovia did : Breach of contract ; breach of fiduciary duty, fraud, malicious slander : June 2002 Wachovia removed all funds from CAP Premier Bank acct.# : 4802298204 containing brokerage # : 573 1 6672 titled Janet D . McDonald and James B . Stegeman Joint Tenants With Rights of Survivorship and placed into a
closed CAP Premier Bank acct .#: 4800508691 and Investment acct . # :
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19524U58 that had been titled Jean S . Caffrey and James B . Stegeman, Joint Tenants With Rights of Survivorship and transferred all of the Plaintiffs assets . The Plaintiffs, upon discovering unauthorized activity in their accounts had attorney Mr . Sam Appel freeze the accounts to which the funds had been transferred.
On or around June 28 , 2002, while accounts frozen and without proper
authorization, Wachovia removed $14,943 .00 the CAP Bank account # : 4800508691, Brokerage acct .#: 19524058 which showed $258,173 .85, showing no marginal loan against it . Wachovia changed the address, de-linked all accounts, de-linked Mr. Stegeman from the accounts . Wachovia then re-closed the CAP Bank account # : 4800508691, leaving only brokerage acct . # : 19524058 . All the while, Wachovia refused all information about the accounts to the Plaintiffs . Early July, Financial advisor, Senior Vice President Wachovia Securities, Mr. Busch informed Plaintiffs the accounts had disappeared from computer system and said that he was no longer allowed to talk to Plaintiffs about the accounts .
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August 2002, Wachovia records shows Mr . Joyner's name and his Social Security Number as the owner . Financial advisor, Mr. Busch called, asked Mr . Stegeman what he had signed to authorize removal of Mr. Stegeman's name. Mr. Stegeman advised he had signed nothing . Mr. Busch had Mr . Stegeman's name put back on the account. The accounts were still said to be frozen. Jean Caffrey, Mr. Stegeman's Aunt passed away April 17, 2003 . The accounts at that time titled Jean S . Caffrey and James B. Stegeman Joint Tenants With Rights of Survivorship . Wachovia refused to release the accounts . March 24, 2004 Plaintiffs were given the Bank records subpoenaed by attorney Ms. Williams . Records show two (2) different sets of Mutual Fund
acquisitions for $200,000 .00 each . The real acquisitions were dated May 08, 1997 . The forged acqui sitions dated July 26 , 1997. Duplicate statements
subpoenaed show acquisition date of August 30, 1997 . Wachovia inserted forged documents, changed the date of acquisition, not using enough care to have the same wrong date used . The Plaintiffs got the first properly titled statement November 2005 . The balance showed $409,9SS .43, which would have been correct. When trying to
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access the account, they were told the account was worth $287 .00 . They have been denied all access to the account, denied the right to close the account .
Wachovia violated an Order by Judge Hunter dated August 09, 2005 to
give all documents pertaining to the accounts so that the Plaintiffs can prove what happened to the accounts . Wachovia refuses . Wachovia continually falsifies Ms. Caffrey as owner of the accounts knowing it to be a lie . They have forged documents, illegally changed Bank records, acquisition dates, re-issued stocks, sold Mutual Funds , added a marg inal loan while insisting to The Untied States Securities and Exchange Commission there was no marginal loan, allowed illegal access to accounts, changed the address without authorization, refused to release an account that was Joint Tenants With Rights of Survivorship upon the death of Ms . Caffrey, refuses information needed to prosecute the individuals for the crimes . Made numerous false statements about Plaintiffs) to The Untied States Securities and Exchange Commission, to The OCC, NYSE, etc .
(2) The Plaintiffs have been unable to find case law where a bank totally
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removed the owners names . The contract Wachovia provided, signed by the Plaintiffs states : "We are joint tenants with right of survivorship and not tenants in common, so that in case of the death of one of us the entire account shall become the property of the survivor or survivors" . OCGA7-1-814 . : Once established, the terms via multiple-party account can be changed only : (2) By presentation to the financial institution of a modification agreement in a form
satisfactory to the financial institution and signed by all parties with a present
right of withdrawal . Wachovia had no legal grounds to change the names of the McDonald\Stegeman CAP Premier account June 2002 to Ms . Caffrey and Mr . Joyner as Guardian of Property for Caffrey and this is an act for which relief can be granted'
'RALSTON v. ETOWAH BANK et al . A92A194b.; ETOWAH BANK v . CARSON et al . A92A1947. (207 Ga. App. 775) (429 SE2d 102) (1993) "the Bank improperly changed the terms of the joint account by adding Ralston without compliance with OCGA 7-1-814", "this is not a case where the Bank is protected from liability for payments made to a proper party." "Therefore the Bank's actions could constitute not only a breach of its contractual obligations under the joint account as; but also a tortious breach of the public policy imposed under OCGA 7-1-814" . O.C.G.A. 14-5-8 : "Whenever Securities issued by domestic or foreign corporations are or have been issued to two or more persons in joint tenancy are owned by such persons in joint tenancy with rights of survivorship."
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The CAP Premier had no cash, taking cash is borrowing against the securities . The accounts had been opened that way in 1997 to guarantee
protection of the assets .
Wachovia claims that Mr. Joyner changed the address and manipulated the accounts . In reality when Ms . Caffrey was part owner, she did not possess the authority to change an account belonging to the Plaintiff's . The guardian of Caffi'ey did not either. z Wachovia had the legal documents, they are in Certified Bank Records : (a) Mr. Stegeman is an original owner, he alone controlled the account (Mr . Busch's deposition dated July 2003). (b) Mr.
Stegeman had a Special Durable Power of Attorney filed with DeKalb County
and Wachovia . (c) Ms . Levelsmier deposition dated March 23, 2004 states that to change the names on the accounts, there has to be a notarized directive. Ms. McDonald, had a Notarized directive signed by Ms . Caffrey in 1999 therefore the CAP Premier account was owned by Mr. Stegeman and Ms . McDonald. Mr.
I In Moore et al . v. Self. A96A0662 (222 Ga . App . 71) (473 SE2d 507) (1996): "a guardian was appointed did not terminate the joint tenancies" and "Of course, a guardian's authority over property held by the ward in a joint tenancy with rights of survivorship is not equal to the personal authority which was possessed by the ward prior" .
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Stegeman had signed the papers agreeing to Ms . McDonald's ownership3 (d) Wachovia allowed someone to present a Temporary Guardianship paper, that
was not signed by a Judge, make changes to the CAP Premier accounts .
Wachovia has a duty to the public and it's customers to protect accounts held at
their Bank. 4
As shown in "Certification of Records" from Wachovia Bank, N .A. Legal
Order Processing Subpoena Department P .O . Box 7618 PA4292 Philadelphia,
PA 19101, phone # : 267-321-3612, signed by Joseph Ayala as Custodian of
Records for Wachovia Bank and dated March 17, 2004 subpoenaed
By attorney Pattie J . Williams and records subpoenaed by attorney Mr . Stephen Apolinsky between the dates of January 03, 2005 and August 2005 :
3 Rawlins v Campbell A3 1A0048. (199 Ga . App .472)(405 SE2d 111)(1991) : "Once establ ished, the terms of a multiple party account can only be changed by(2) By presentation to the financial institution of a modification agreement in a form satisfactory to the financial institution and signed by all part ies with a present right of w i thdrawal ." (Emphasis supplied .) 4 Baldw in v. Roberts, 212 Ga. App . 546, 547 (2) (442 SE2d 272) (1994).Duty to disclose is not, however, the only element that must be shown to establish constructive fraud. "'The tort of fraud has five elements : false representation by a defendant, scienter, intent ion to induce the plaintiff to act or regain from acting, justifiable reliance by [the] plaintiff, and a damage to [the] plaintiff' "Baldwin v . Roberts, 212 Ga. App . 546, 547.. (2) (442 SE2d 272) (1994) .
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a) January 1998, Ms . Caffrey signed a Special Durable Power of Attorney with a "death clause" and a "disabled clause" . It could only be revoked by a Superior Court Judge . It was not . b) April 1999, Ms . Caffrey signed and had Notarized, a Directive relinquishing all of Caffrey's interest in the FirstUnion\Wachovia CAP Bank and Brokerage accounts to Janet D . McDonald. c) June, 2002 a transfer into the names of the legal owners was made . d) Attorney representing Mr. Stegeman and Ms. McDonald, Mr. Sam Appe l, notified Wachovia that there was a risk of McDonald\Stegeman accounts being accessed illegally and asked to have a "freeze" put on the accounts in a letter to Cindy Wall, Regional Manager . Mr. Serge, Compliance Analyst confirmed by letter to Mr. Appel . McDonald\Stegeman's statements were illegally sent to the address of the Law Office of Joyner in Burnett in Decatur, GA. Neither Mr. Joyner nor Wachovia had permission to change the address on the accounts . e) June 14, 2002 Mr . Joyner sent an uncertified, unsigned by a Judge, copy of the Temporary guardianship appointment, accompanied by a letter to
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Wachovia Maintenance department stating that the mail at 5190 Sheppard
Court, Stone Mountain, GA 30083 was at risk of being stolen .
f) Wachovia changed the address on the mail being sent to the Plaint iffs, 821 Sheppard Rd, Stone Mountain, GA 30083, to where statements had been sent since the opening of the accounts . g) Certified Bank records show that Wachovia employees discussed how to access the accounts, agreeing that all accounts tied to the CAP Premier account would have to be De-linked, Mr . Stegeman de-linked from the
accounts . These accounts had been verified as frozen .
h) Bank records show that $14,963 .00 cash was removed by Mr . Joyner while the account was frozen . The records show that more than once there was a discussion of where the money went . i) Certified Bank records show Mr . Joyner had Mr . Stegeman and Ms . McDonald's names removed from the accounts, closed the CAP Bank account leaving only a brokerage account . The old account number was reopened, and transferred while accounts frozen . j) Certified Bank records show that Mr . Joyner's name and Social Security number alone were on the account, the accounts still supposed to be frozen .
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k) Records show "re-issue" on stocks and Mutual funds, who signed for this?
1) Duplicate statements subpoenaed from Wachovia show the original opening
date on the accounts changed, dividends falsified . m) Bank records contain forged acquisitions a few months after the original acquisitions . Nancy Levelsmier deposition addresses the documents as "real" acquisitions . Mr. Stegeman and Ms . McDonald possess the original documents and copies of the forged documents . n) Nancy Levelsmier in deposition replies about the changing of names on the accounts : "The Bank made a mistake ." o) Mr. James Bunch in deposition states that in 25 years he has never seen a bank or brokerage firm perform these activities. Even though Wachovia claims that the actions listed above along with the violations of state law, are acts under which relief cannot be granted . The Plaintiffs have shown and can show that Wachovia's actions are actions for which relief can be granted . Wachovia complains that the "numerous statutes and causes of action", these are listed in the complaint because it shows "malice" in what Wachovia has done that does properly allege a claim for relief . Many of the statutes listed are of criminal in nature, the Plaintiffs realize this is
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not a criminal prosecution . The statutes show the extent of the malice, disregard for it's customers and contempt of Wachovia . The Plaintiffs reserve the right to amend the original complaint as needed from findings of discovery or other means that the Plaintiffs are yet unaware . Wachovia complains that the "numerous statutes and causes of action fails to properly allege a claim for relief" . Wachovia contends that they are above the law,, if they insist there is no claim for relief . Wachovia is also fully aware that the Plaintiff's lack of knowledge of Procedure in US District Court gives Wachovia the advantage . Wachovia further knows that the Plaintiff s have been denied all access to the funds in their account titled Janet D . McDonald and James B. Stegeman Joint Tenants With Rights of Survivorship, that Mr . Stegeman is a handicapped, legally disabled adult, therefore denying access to the Plaintiffs account denies the Plaintiffs opportunity to employ legal counsel in this matter. The complaint filed lists many of the codes, standards, usages which are applicable, Wachovia does not deny that they are guilty of the violations, but claim the violations lack grounds from which the Plaintiffs can be granted relief .
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The names and if known, address and telephone number of each
individual likely to have discoverable information that you may use to support your claims or defenses, unless solely for impeachment, identifying the subjects of the information is set forth in Attachment A . (4) The Plaintiffs has not at this time designated any expert witnesses pursuant to Fed . R. Evid. 702, 703, or 706. (5) Janet D. McDonald and James B . Stegeman have in their possession, custody, or control the documents identified in Attachment C that they may use to support their claim unless solely for impeachment, including subjects of information.
(6) The Plaintiffs are providing a computation of any category of damages
claimed . In addition the Plaintiffs are including a copy of, or describing by category and location of, the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered, and making such documents or evidentiary material available for inspection and copying as under Fed .R.Civ.P. 34. Damages by category :
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Financial loss, property loss, Credit destruction, personal loss, privacy loss, loss associated with health, loss of trust associated with bank's duties . (Any copies and descriptions to Initial Disclosures are attached as Attachment D .) (7) The Plaintiffs have no insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in this action or to indemnify or reimburse for payments made to satisfy the judgment . (8) The Plaintiffs know of no persons or legal entities who have a subrogation interest in the cause of action set forth in Plaintiffs cause of action .
This 3dday of April, 2006.
B, Stegen)~kff; Pro Se 821 Sheppard Road Stone Mountain, GA 3083 (770) 879-8737 anet D . McDonald, Pro Se
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STATE OF GEORGIA DEKALB COUNTY BEFORE ME, the undersigned Notary, on this 3`d day of April, 2006, personally appeared JAMES B . STEGEMAN and JANET D. MCDONALD, known to me to be credible persons and of lawful age, who being by me first duly sworn, on their oath, deposes and says : That all of the information provided in THE PLAINTIFF'S INITIAL DISCLOSURES are true and correct to their ledge and belief.
JANET D,IVIC DONAL D 821 Sheppard Rd821 Sheppard Rd Shone Mountain, GA 30083 ~ Stone Mountain, GA 30083 (770) 879-8737 (770) 879-8737
Subscribed to and worn Before me this K •day Of April, 20O6 . .,r.
Notary Public My Commission Expires :
~. , .
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Attachment A : Individuals Likely to Have Discoverable Information* Wachovia Bank Defendants Although attorney Stephen Apolinsky unsuccessfully subpoenaed the defendants several times to gain records, he was denied all of the records . The Plaintiffs have requested the documents authorizing the closing of accounts, etc and other actions of the defendants, to no avail . Wachovia Securities, LLC 250 East Ponce de Leon Ave Decatur, GA 30030 Mr. Apolinsky subpoenaed records from Wachovia Securities and just as Wachovia Bank refused all of the records . The Plaintiffs have requested documents pertaining to the accounts, denied to them .
Guardian of Ms. Ca£frev 150 East Ponce de Leon Ave . Decatur, GA 30030 (404) 377-12 00 Mr. Joyner may have knowledge regarding paperwork giving him authority to access the accounts, the re-issuance and sale of Mutual Funds and Stock that are missing, $14,943.00 that disappeared from the accounts.
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Frank Lilli g. Iii
Administrator of Caffrey Estate 4831 Thornhill Drive Acwort , , GA 34101 It is believed that Mr. Lillig may have information regarding the accounts. He was the last one that the Plaintiffs know of that discussed the accounts and or Mr. Stegeman to Wachovia Bank . Mr. Lillig, III went into the Austell Branch of Wachovia and stated that Mr . Stegeman was being investigated by the DeKalb County District Attorney's Office, which was totally untrue . *Because of Wachovia's refusal to release documents to the Plaintiffs, and Plainti ffs have no knowledge of circumstances that led Wachovia to make the decisions regarding the accounts that they made, the Plaintiffs reserve the right to add additional persons in the future.
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Attachment C - Documents held by Plaintiffs*
(1) Original Account opening documents from the original StegemanlCaffrey CAP (Bank and investment) Premier Account.
(2) Durable Power of Attorney signed by Ms . Caffrey & Affidavit of
Hilda Lesley who notarized document. (3) Notarized Directive signedd by Ms . Caffrey relinquishing her share of all Wachovia accounts & letter about the document and transfer of accounts from attorney Pattie Williams to Wachovia . (4) Opening documents for transfer to McDonald\Stegeman account . (5) (6) Certified Bank records subpoenaed by attorney Pattie Williams Records and duplicate statements subpoenaed by attorney Stephen Apolinsky . (7) Order signed by Judge Hunter August 09, 2005 Motion to Compel Hearing. (8) (9) Original acquisition documents for Mutual Funds dated May 1997 . Letter from attorney Sam Appel to Cindy Wall asking to freeze accounts, letter from Mr . Serge to Mr. Appel verifying freeze of accounts, stating no further disbursements would be made .
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(10) Subpoena and deposition of Mr . Busch dated 07, 2003 ( 1 1) Deposition of Nancy Levelsmier dated March 2004 (12) Documents to and From Comptroller of the Currency ( 1 3) Documents from Comptroller of the Currency acquired by FOIA (14) Documents to and from Securities and Exchange Commission (15) Letter from Mr . Apolinsky reference - legal investigation and findings ( 1 6) Numerous subpoenas Mr . Apolinsky to Wachovia Bank and Wachovia Securities (17) (18) Motions to Compel and Sanctions filed by Mr . Apolinsky Inventory by Guardian of property of Caffrey as filed with DeKalb County Probate Court which never shows the CAP Premier or Mutual Funds . *Plaintiffs reserve the right to add to the documents list as records and or documents are u ncovered or discovered t hat the Plaintiffs at this time are unaware.
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CERTIFICATE OF SERVICE
I hereby certify that this 3"d day of April, 2006 served a true and copy of the foregoing PLAINTIFF'S INITIAL DISCLOSURE upon the defendants in th is matter by caus ing to be deposited, in the U.S. Mail proper postage paid to the defendants through each attorney separately as listed on file as follows : PARKER, HUDSON, RAWER, DOBBS, LLP William J. Holley, 11 Jodi Emmert Zysek 1500 Marquis Two Tower 285 Peachtree Center Avenue, N.E.
A tlanta , GA 3 0303
Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (770)879-$737
D. MCDONALD, Pro Se 821 Sheppard Rd
Stone Mountain, GA 30083 (770) 879-8737
Subscribed to an worti ig Before me this 3 ~ day Of April , 2006 .
Notary Publi c
My Commission Expires .