I. BRIEF BACKGROUND OF PROCEEDINGS

Appellant, Mr. Stegeman (hereinafter Appellant) 100% legally disabled adult

male, was served August 13, 2009 with Summons and Complaint for Foreclosure

on Personal Property under O.C.G.A. §44-14-230 (Doc. 1) in State Court, Civil

Action File No. 09A1175-3 (-3 assignment to State Court Judge Wayne Purdom).

On or around the first week of January, 2009 a man came to Appellant’s

property asking for Ms. Caffrey,(debtor of loan). Appellant told the man the

vehicle could be picked up anytime, as long as the ground was dry to avoid sinking

and getting stuck; the man was also informed that there were on-going proceedings

in which the vehicle was part of the subject. Appellant heard nothing further.

In response to Personal Property Foreclosure, Appellant filed the following:

Motion and Brief to Strike Affidavit of Thomas E. Austin, Jr.(Doc. 2)1; Motion for

Change of Venue (to Fulton County (Doc. 3)); Motion to Stay Foreclosure and All

Other Proceedings … (Doc. 4); Demand for Jury Trial (Doc. 5); Verified Answer,

Defenses and Counterclaim (Doc. 6); Motion and Brief for Appointment of

Counsel, Appellant just found out there is no Docket entry for Appointment of

1 Doc. 2, Doc. 3, etc. are numbered in correspondence with the Documents/No.s as

shown on the Docket Report from State Court.

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Counsel he has a stamped Filed copy by Clerk “J White” (Doc. 7)).

A hearing had been set for Monday, August 31, 2009. Late Sunday August 30 th

a tire on Mr. Stegeman’s wheelchair went flat. Mr. Stegeman was taken to the

Courthouse by caregiver Ms. McDonald; on the way, he called the clerk to advise

about the wheelchair, he learned from Purdom’s Clerk about Magistrate Court.

Ms. McDonald went into the Court and explained to Magistrate Judge LeShaw

that Mr. Stegeman was present, but had no way to get into the Courthouse. The

hearing was postponed for ten (10) days, until September 10, 2009. Opposing

counsel went to the parking lot and requested that their client be allowed to visit

and view the vehicle during the ten days postponed, Appellant agreed, no one came

September 9, 2009 Appellant filed a Supplemental, adding an Exhibit to the

Answer/ Counterclaim (Doc. 8); Amended his Answer and Counterclaim (Doc. 9).

When Appellant was at the Courthouse filing the documents the day before the

hearing, he questioned the Clerk about the Demand for Jury Trial, and was told

“that’s up to the Judge, you’ll have one if the Judge let’s you”; when trying to find

out why the hearing was to be before Magistrate Court, Appellant was told by the

Clerk “well you filed a Motion for Change of Venue”.

September 30, 2009 Appellant filed Affidavit of Poverty (Doc. 10); Motion to

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Proceed on Appeal in Forma Pauperis (Doc. 11) which was Granted October 6,

2009; and Notice of Appeal (Doc. 12) paid twenty-five dollars to the Appeals

Clerk. Appellant filed Amended Notice of Appeal October 9, 2009 (Doc. 13)

Appeal was Docketed in this Court October 16, 2009.

SPECIAL NOTE: Appellant has yet to receive Notice of Docketing; Appellant

twice performed an online Docket search after filing Doc. 13, the first time, he

searched under Appellant’s name (James Stegeman), the search had 0 results. The

second search was performed on or around October 27, 2009, after finding that the

State Court’s Docket Report reflected that “Notice of Docketing – Appeals;

Assigned Case No. A10A0420” was entered October 19, 2009. Appellant again

performed and got 0 results; he then searched under Appellee Heritage Bank’s

name; that was when Appellant found the Appeal had been docketed October 16,

2009. Appellant immediately emailed Clerk Mr. Martin about obtaining Notice of

Docketing.; Mr. Martin responded back and said he had mailed it to the proper

address, but that he would mail Appellant another one, which has never arrived.

Although Appellant received back his stamped Filed copy of Motion for

Extension to File Brief, which was mailed by the Court the day after Clerk Mr.

Martin responded that he would send another Notice. Appellant filed Motion for

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Extension of Time to File Brief on October 28, 2009, explaining lack of Notice of

Docketing, resulting in loss of twelve (12) of the twenty (20) days allowed for

filing Appellant’s Brief; nevertheless, to Appellant’s knowledge, there has been no

Ruling on the Motion, so Appellant has timely filed his Brief.

A. The Hearing

A hearing was held September 10, 2009 in Magistrate Court in Courtroom

1200C, first floor of DeKalb County Courthouse. To Appellant’s knowledge, there

is no transcript, he had planned to have one form memory and records filed in the

Court, pursuant to O.C.G.A. §5-6-41(c), but did not have time to prepare it and

have it to the trial Court in time to get it filed due to lack of Notice of Docketing

Appellant planned to prepare a transcript from recollection, and records filed in the

Court. If Motion for Extension is Granted, he will have the trial Court Certify and

submit to this Court the transcript.

Under Oath, while testifying in front of Judge LeShaw, opposing counsel twice

committed perjury, a fact pointed out to the Judge. Opposing counsel stated that

Appellant “had adverse judgments against him in another court”, which is

outrageous, scandalous, slanderous perjury; and also told the Judge there were no

proceedings for money damages against Appellant; Appellant provided the Judge

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with the Summons and Complaint served upon him with the Foreclosure Summons

During the hearing, Appellant asked the Judge about the Jury Demand and

Motions he filed, the Judge told him that “none of those matter”; then Granted

Appellee the Writ of Possession without considering Appellant’s Verified

Answers, Defenses and Counterclaims. The property foreclosed on still sits in

Appellant’s yard, no one has bothered to come check it out.

Opposing counsel said that someone would make arrangements to come check

out the vehicle and see if they wanted to take possession of it. Appellant requested

twenty-four (24) hours notice in case he had previously scheduled engagements2.

Opposing counsel called and made arrangements for Friday October 16, 2009

for the lady that was supposed to view the vehicle before the September 10 th

hearing. Appellant received no phone call and no visit from the lady.

Opposing counsel then called around mid-week the week of October 25 th 2009,

and Appellant told him that the lady who had hollered at, lied to him, and failed to

come to the property a week and a half before was not welcome to come to his

2 Appellant sees his Doctor every thirty days, and several times a year has ultra-

sound on his heart, as well as numerous other tests done several times a year; if he

misses one of those appointments, he is charged no less than $25.00 for each.

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home, that it would be Ok for someone else to come; then decided that because of

the Appeal, it would probably be better to wait. The vehicle had been available to

look at, anytime since April 2003 when they were notified that Ms. Caffrey had

passed away, up through October 16, 2009, but they didn’t worry about it.

Appellant had been willing to give the vehicle to Appellee without going to Court

and without having a Writ of Possession, not once did Heritage Bank bother to

contact him, yet they still mail to Ms. Caffrey.

II. JURISDICTION AND ENUMERATION OF ERRORS

Jurisdictional Statement

In accordance with and pursuant to The Court of Appeals of Georgia VI. Rule

22 (b) the Jurisdictional Statement is as follows:

This Court, rather than The Supreme Court has jurisdiction because this Appeal

does not fall within the guidelines shown within The Constitution of the State of

Georgia, Article VI, Section VI, Para. I et seq., which provides exclusive

jurisdiction to The Supreme Court in election contests, the construction of treaties

or the Constitutions of the State of Georgia and/or the United States and does not

challenge the constitutionality of a law, ordinance or constitutional provision.

Further, this Appeal does not fall under general appellate jurisdiction of the

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Supreme Court, which has general appellate jurisdiction over cases involving title

to land; equity; wills; habeas corpus; extraordinary remedies; divorce and alimony;

all cases certified to it by the Court of Appeals and all cases in which a sentence of

death was or could be imposed.

Enumeration of Errors

1. The trial Court erred in refusing to allow Appellant the Jury trial he

Demanded (Doc. 5), a non-amendable defect, the results of which are

violations of: due process of law, Appellant’s statutory, Civil and

Constitutional Rights, as well as Rights under ADA Title II causing injury

and harm to Appellant and his property.

2. The trial Court erred and caused injury/harm to Appellant and his property

by transferring the case from State Court to Magistrate Court; transferring to

a different Judge without following the Court’s procedure for transfers to a

different Judge, and also erred by failing to notify Appellant about the

transfer. Furthermore the counterclaim raised equitable issues, involving

amounts in excess of $15,000.00, for which Magistrate Court lacks

jurisdiction; and if a transfer were to have taken place, the transfer should

have been from State Court to Superior Court, not to Magistrate Court,

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thereby violating Uniform State Court Rules, procedural due process, and

Appellant’s Rights.

3. Refusing to address and/or Rule on any and all of Appellant’s Motions and

Counterclaim is an error, shows bias/prejudice, and a blatant disregard for

Appellant’s Rights to due process of law and Rights to a fair and impartial

tribunal thereby injuring and harming Appellant and his property.

4. The trial Court erred, causing injury and harm to Appellant and his

property by failing to have Motion for Appointment of Counsel anywhere in

the record or on the Docket Report, thereby not having to consider the same,

violating procedural due process and is not judicial in nature.

5. The trial court erred by Granting a Writ of Possession without following

statutorily mandated procedures, thereby causing injury to Appellant and his

property and violated Appellant’s statutory, Civil, and Constitutional Rights,

as well as Rights under ADA Title II.

6. The trial Court erred by failing to sanction opposing Counsel when

during the hearing, after being shown, concrete evidence that opposing

counsel had perjured himself, thereby undermining the Judicial system, and

being an Officer of the Court perjured himself in an attempt to obtain a

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Ruling in his favor, resulting in fraud upon the Court; the Court failed to

hold the attorney in contempt, and/or sanction the attorney/officer of the

Court in any manner what-so-ever, which shows bias/prejudice against

Appellant causing him and his property injury.

III. ARGUMENT AND CITATIONS OF AUTHORITIES

1. Demand for Jury Trial

Ignoring Appellant’s written Demand for a Jury Trial constitutes a

“nonamendable defect”, see Redding v. Commonwealth of America, 143 Ga. App.

215, 216 (1) (237 S.E.2d 689) (1977), disapproved on other grounds in Wise,

Simpson &c. Assoc. v. Rosser White &c., Inc., 146 Ga. App. 789, 795-796 (247

S.E.2d 479) (1978) (holding that the failure to conduct a jury trial was a

nonamendable defect where no waiver of jury trial appeared of record). See also

Coker v. Coker, 251 Ga. 542 (307 S.E.2d 921) (1983); Scott v. W. S. Badcock

Corp., 161 Ga. App. 826 (289 S.E.2d 769) (1982).

Appellant timely filed Verified Answers, Defenses and Counterclaims, in

compliance with and pursuant to O.C.G.A. § 44-14-232 (b): “within seven days

from the date of the actual service” as required. Along with Answers and

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Counterclaims, Appellant filed Demand for Jury Trial (Doc. 5)3. Before the

hearing date, Appellant questioned the Clerk about the Jury Demand, she told

Appellant “You will get a Jury trial if the Judge let’s you have one”. When

Appellant brought up his filings and Demand during the hearing, he was told by

the Judge: “that don’t matter”. Because of the Jury Demand, Magistrate Court

should have transferred it to State or Superior Court. See O.C.G.A. §15-10-14(a)

“There shall be no jury trials in the magistrate court.” One would come to the

conclusion that is the very reason that State Court gave it to Magistrate Court.

There are plenty of Personal Property Foreclosure cases that have had Jury

trials in State or Superior Court; see 02/13/79 Walker v. First National Bank Cobb

County, (1979) .GA. 293 <http://www.versuslaw.com>, 253 S.E.2d 442, 149 Ga.

App. 52: “After a jury trial, the bank obtained a verdict granting possession and

foreclosure in accordance with the provisions of the Personal Property Foreclosure

Act (Code Ann. § 67-701 et seq.)”; See also BCS Financial Corporation v. Sorbo,

3 Appellant has a Stamped Filed Copy, and would like to trust that the trail Court

included the document with the Records submitted to this Court, but Appellant has

lost all faith in the Judicial System, therefore has doubts whether or not the

Document was submitted to this Court.

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et., al., A94A0488.(213 Ga. App. 259) (444 SE2d 85) (1994) “petition for

foreclosure of a 1988 Redman Lakeside mobile home” “The jury subsequently

returned a verdict in favor of Sorbo on his counterclaim for $10,000, and also

awarded Sorbo title to the mobile home”

February 13, 1979. The Constitution of Georgia as well as the Civil

Practice Act guarantee the right of a jury trial to civil litigants. See Raintree Farms

v. Stripping Center, 1983.GA.1020 <http://www.versuslaw.com>, 166 Ga. App.

305 S.E.2d 660, 848 (judgment reversed) in holding:

“Constitution 1976, Art. VI, Sec. XV, Par. I (Code Ann. § 2-4401)

(unchanged, insofar as relevant here, in the Constitution of Georgia of

1982, effective July 1, 1983); OCGA § 9-11-38 (formerly Code Ann.

§ 81A-138 (Ga. L. 1966, pp. 609, 652)). The right may be "expressly

waived" by "written stipulation filed with the court…" OCGA § 9-11-

39 (formerly Code Ann. § 81A-139 (Ga. L. 1966, pp. 609, 652))”

This Court has repeatedly held that denying a litigant the Constitutional and

statutory Right to a Jury trial is a nonamendable defect must be reversed.

2. Transfer State Court to Magistrate Court Which Lacks Jurisdiction

"When a question of law is at issue, . . . this Court applies the "plain legal

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error" standard of review." (Citation and punctuation omitted.) Suarez v. Halbert,

246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).

There is no mistake, the Complaint for Foreclosure on Personal Property

pursuant to O.C.G.A. §44-14-230, clearly shows it was filed in State Court of

DeKalb County, and assigned to State Court Judge Wayne Purdom.

O.C.G.A. § 44-14-230 “(a) Any person holding a security interest on

personal property …governed by this part or by Title 11, the

"Uniform Commercial Code," and wishing to foreclose the security

interest shall be authorized to foreclose the security interest …which

execution shall command the sale of the secured property …, together

with the costs of the proceedings to foreclose the security interest in

accordance with the procedure specified in this part, together with an

order directing the defendant or the party in possession to turn over to

…the property sought to be foreclosed upon as provided for in

subsection (d) of Code Section 44-14-233.

O.C.G.A. §44-14-233(c) “The defendant may answer either in writing

or orally…The answer may contain any legal or equitable defense or

counterclaim…, a trial of the issues shall be had in accordance with

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the procedure prescribed for civil actions in courts of record…, the

trial shall not be held before seven days have elapsed from the date

the defendant files his answer.”

The vehicle which is the subject of the foreclosure is worth more than $15,000;

Appellant’s defenses and counterclaims contained equitable and legal claims and

was for monies in excess of $15,000; Magistrate Court lacked jurisdiction to hear

the case. Furthermore, Appellant Demanded a Jury Trial, and was not provided

with a Notice of transfer from State Court to Magistrate Court. In fact, Appellant

has found nowhere that a case transfers from State to Magistrate Court. There are

several cases which are transferred from Magistrate Court to State or Superior

Court, but Appellant found none the other way around.

On the seventh day, after being served with Summons and Complaint for

Personal Property Foreclosure, Appellant filed Demand for Jury Trial (Doc. 5), and

several motions, one of which was Motion for Change of Venue (Doc. 3) to a

different, neutral County citing bias/prejudice against him in State Court.

The Clerk, when questioned why the case was being heard in Magistrate Court

told Appellant “well, you filed a Motion for Change of Venue”. Appellant has

been unable to find any citations where a Motion for Change of Venue involved a

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case being transferred from State Court to Magistrate Court, thereby making

citations very difficult to obtain and the transfer impossible to properly argue.

Nevertheless, the Motion was never Ruled on and the record shows no reason,

or authorization for the transfer from State Court to Magistrate Court. In reality

the Uniform Magistrate Court Rules are silent on the matter, the only thing

remotely close in Magistrate Court Rules is “O.C.G.A. § 5-10-44 (b) The judge

shall conduct the trial in such manner as to do substantial justice between the

parties according to the rules of substantive law. All rules and regulations relating

to pleading, practice, and procedure shall be liberally construed so as to administer

justice”.

Appellant found several cases that were transferred from Magistrate Court to

State or Superior Court, usually due to the counterclaim, and several of these cases

had to do with writs of possession; but there just are none where the State Court

transferred to Magistrate Court a case where 1) a Jury Trial had been Demanded;

2) there was a counterclaim with issues that only a Jury could decide; 3) there

were issues involving equitable claims; and 4) where the monetary value of the

personal property to be foreclosed was in excess of $15,000.00. It would be hard to

believe that this has not happened before and this is a question of first impression.

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Appellant has thoroughly researched the situation, and given the short period of

time, due to the Clerk’s having failed to provide Appellant with Notice of

Docketing; together with the fact that the Appeal search engine has association

with Appellee’s, rather than Appellant’s name. Appellant ended up with only

seven (7) out of the twenty (20) days to prepare and file his Brief.

Even after this Court’s Clerk assured Appellant that another Notice would be

mailed, Appellant has still yet to receive the Notice; Appellant has received back

his stamped Filed copy of the Motion for Extension to file his Brief, but not the

Notice of Docketing.

3. Refusal to Address and/or Rule on Motions and Counterclaim

This appeal presents a question of law concerning whether or not the trial court

can refuse to address and rule on a party’s Answers, Defenses, Counterclaims, and

Motions; as such, this Court owes no deference to the trial court's ruling and should

apply the "plain legal error" standard of review. Suarez v. Halbert, 246 Ga. App.

822, 824 (1) (543 SE2d 733) (2000). Moreover, "[w]here it is apparent that a trial

court's judgment rests on an erroneous legal theory, an appellate court cannot

affirm. [Cit.]" Gwinnett County v. Davis, 268 Ga. 653, 655 (492 SE2d 523)

(1997).

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Appellant filed several Motions at the same time he filed a Verified Answers,

Defenses, Counterclaims and Demand for Jury Trial. Nothing Appellant filed was

addressed or Ruled on, Jury Demand was ignored, none of the Motions, Answers,

Defenses, Counterclaims were addressed or Ruled on. Appellant has found

nothing in caselaw where the trial court quite literally ignored everything filed by

one of the parties. Appellant was treated with disparate treatment by both State

Court and Magistrate Court; he was treated differently than others similarly

situated, he was not afforded the same protections and Rights as others; due

process of law has been grossly violated, making the Ruling Void.

Both the Georgia and United States Constitutions guarantees due process, that

the procedure will be fair, before a citizen will be deprived of “life”, “liberty” or

“property”, and guarantees that a citizen will not be deprived of “life”, “liberty” or

“property” without due process of law (reasonable notice and opportunity to be

heard). Magistrate Court violated procedural and substantial due process, as well

having denied Mr. Stegeman a disabled adult male, “equality”, and “meaningful

access to the courts”. In RE: Law Suits of Anthony J. Carter (two cases) 235 Ga.

App. 551, 510 S.E.2d 91, (1998), it was held:

at [31]: "Both the Georgia and United States Constitutions prohibit

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the state from depriving `any person of life, liberty, or property,

without due process of law.' United States Const., amend. XIV, sec. 1;

see also Ga. Const., [Art. I, Sec. I, Par. I]. The fundamental idea of

due process is notice and an opportunity to be heard." *fn14 As stated

in Citizens &c. Bank v. Maddox, *fn14 "[t]he benefit of notice and a

hearing before judgment is not a matter of grace, but is one of right."

"A party's cause of action is a property interest that cannot be denied

without due process. (Cit.)" *fn14”

Further, O.C.G.A. §15-6-21(d) “If any judge repeatedly or persistently fails

or refuses to decide the various motions, demurrers, and injunctions coming before

him …such conduct shall be grounds for impeachment and the penalty therefor

shall be his removal from office.” See also: Andrus v. Andrus, 659 S.E.2d 793,

290 Ga.App. 394 (Ga.App. 03/20/2008) held: “[13] We are guided by our opinion

in Carnes Brothers v. Cox, 243 Ga. App. 863 (534 SE2d 547) (2000) … In Carnes

Brothers, we found that a trial court's failure to comply with the requirement of

OCGA § 15-6-21 (c), that it provide counsel with notice of its orders, provides

justification for the trial court to later set aside such an order under OCGA § 9-11-

60 (g)*fn3 . Id. at 864… it failed to comply with OCGA § 15-6-21 (c). As a result,

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we affirm that portion of its order setting aside and vacating its November 24, 2003

dismissal order.”

Mr. Stegeman, a disabled adult/member of a protected class, depends

heavily upon the Courts and it’s Judges to honor their Oath of Office; abide by,

uphold, and honor The State of Georgia Constitution and The Constitution of the

United States; to protect his Civil and Constitutional Rights; to ensure that he is

treated fairly; and to guarantee that his case will go before a fair and impartial

tribunal.

“Every person in Georgia has a constitutional right of unfettered

access to the courts” Ga. Constitution 1983, Art. I, Sec. I, Par. I, (“No

person shall be deprived of life, liberty, or property except by due

process of law.); Par. XII (“No person shall be deprived of the right to

prosecute or defend, either in person or by an attorney, that person’s

own cause in any of the courts of this state.”)” Rice v. Lightmas, 259

Ga. App. 380, 577 S.E.2d (Ga.App. 2003)

See also:

In RE: Law Suits of Anthony J. Carter (two cases). 235 Ga. App.

551, 510 S.E.2d 91, 1998. GA.0042498 “As stated in paragraph 12 of

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the Georgia Bill of Rights, a person has a right to represent himself or

herself in court. "This provision was `primarily intended to guarantee

the right of self-representation in the courts of this State . . .' [Cit]…

Secondly, the very first provision of the Bill of Rights in "`[t]he

constitution of this state guarantees to all persons due process of law

and unfettered access to the courts of this state. (Cit.)’” These

fundamental constitutional rights require that every party to a lawsuit .

. . be afforded the opportunity to be heard and to present his claim or

defense, i.e., to have his day in court. (Cits.)'" “So it is that meaningful

access to the courts must be scrupulously guarded, as it is a

constitutional right universally respected where the rule of law

governs. "Those regulations and restrictions which bar adequate,

effective and meaningful access to the courts are unconstitutional.

(Cits.)"”

4. Refusing to File and/or Consider Motion for Appointment of Counsel

Appellant is 100% (percent) disabled within the guidelines of The Social

Security Act, and Americans With Disabilities Act. As a disabled adult receiving

Supplemental Security Income, Appellant is qualified, eligible for, and has a right

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of legal assistance through Georgia’s Legal Assistance programs which do receive

Federal funding. Appellant has repeatedly attempted to get assistance through

Georgia’s Legal Services programs and has been wrongly denied.

This appeal presents a question of law concerning whether or not the trial court

can refuse to have filed and showing on the Docket, and fail to address a party’s

Motion for Appointment of counsel; and whether or not the Magistrate Court can

refuse to address and rule on the Motions and Counterclaim; as such, this Court

owes no deference to the trial court's ruling and should apply the "plain legal error"

standard of review. Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733)

(2000).

Traynor v. Turnage, 108 S. Ct. 1372, 485 U.S. 535 (U.S. 04/20/1988)

[ 485 U.S. Page 555] "No otherwise qualified individual with

handicaps . . . shall, …be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance or under any

program or activity conducted by any Executive agency. . . ."

Without representation by legal counsel, it is next to impossible for a pro se

litigant to be taken seriously, and the chances that they will prevail even with a

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meritorious claim are heavily diminished. In Dreyer v. Jalet, 349 F.Supp. 452, 486

(S.D.Tex.1972), affirmance order, 479 F.2d 1044 (CA5 1973) it was held: "[I]f a

civil action brought by an indigent acting pro se, including prison inmates, has

merit … then counsel should be appointed to properly present the claim." In

Bounds v. Smith, et., al., 97 S. Ct. 1491, 430 U.S. 817 (U.S. 04/27/1977), 52 L. Ed.

2d 72, (1977) [ 430 U.S. Page 826] it was stated: “If a lawyer must perform such

preliminary research, it is no less vital for a pro se … despite the ‘less stringent

standards’ by which a pro se pleading is judged”, Haines v. Kerner, 404 U.S. 519,

520 (1972). Although there is a continued assurance that pro se litigants will be

treated fairly, the promise has yet to be forthcoming.

The Georgia Supreme Court’s Equal Justice Committee On Civil Justice’s

“Minutes” of the December 4, 2006 Meeting addressed the need for counsel in

civil cases: “…in August 2006, the ABA endorsed the right to counsel in certain

civil cases, also known as the civil Gideon…The kinds of cases of which the ABA

endorses a civil right to counsel…”

“The ABA’s principles endorse the inclusions of all persons in a state’s system

for the delivery of civil legal aid, including …the disabled…vulnerable

populations…” “Fourth,…promote …the judiciary and court personnel in

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reforming rules, procedures and services to expand and facilitate access to

justice…to support pro se litigants.” “Clients that most touch the public’s

sympathy are children,…and the disabled.” “Ms. Fairbanks…defined an equal

justice community as ‘a group of individuals and organizations united through

common, expressed vision and a shared set of values, who are bound together by a

sense of fidelity to the promise of justice and equality, and who are willing to put

personal, professional and organizational allegiances aside in pursuit of a common

justice ideal.’” “An equal justice community requires…‘You have to walk the

walk, not just talk the talk.’”.

Further, over the years, the United States Supreme Court found the following

on property interests as shown in Logan v. Zimmerman Brush Co. et., al, 102 S.

Ct. 1148, 455 U.S. 422 (U.S. 1982):

“the types of interests protected as ‘property’ are varied and, as often

as not, intangible, relating ‘to the whole domain of social and

economic fact.’ National Mutual Insurance Co. v. Tidewater Transfer

Co., 337 U.S. 582, 646 (1949) (Frankfurter, J., dissenting); Arnett v.

Kennedy, 416 U.S. 134, 207-208; and n. 2”

at [55]: *fn4 “Two years ago, in Martinez v. California, 444 U.S.

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277, 281-282 (1980), the Court noted that ‘[arguably],’ a state tort

claim is a ‘species of 'property' protected by the Due Process Clause."

Logan v. Zimmerman Brush Co. et., al, 102 S. Ct. 1148, 455 U.S. 422

(U.S. 1982) .

“a child’s entitlement to a public school education Goss v. Lopez

1975, and continued gas and electric service conditioned upon

payment of proper charges” Memphis Light v. Craft, et., al, 98 S.Ct.

1554, 436 U.S. 1 (U.S. 1978) .

It has been long realized by many Pro Se litigants that they are looked upon

with bias/prejudice by not only attorneys, but Judges as well. Many times, Pro Se

litigants have been subjected to harsher, stricter standards than attorneys; they

receive Rulings with no findings of fact, or caselaw; the Court’s Opinions are

“Unpublished”, marked “Do Not Publish”, or contain one sentence rulings,

“Motion is Denied”, and their Rights to Appeal are hindered and tampered with.

Stephen Elias who had been with Nolo Press, the nation’s leading publisher of self-

help law books, back in 1997, in an article Bias Against Pro Per Litigants… stated:

“From the moment they first contact the court system, most people

who want to represent themselves, without a lawyer, encounter

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tremendous resistance. Within the closed universe of the courts, this

bias is as pernicious as that based on race, ethnic origins or sex.”

“People who cannot afford a lawyer are a rebuke to the organized

bar’s monopoly…, because that monopoly is morally—if not legally

—justified…the ABA has admitted that 100 million Americans can’t

afford lawyers.”

5. Statutorily Mandated Procedure

This appeal presents a question of law concerning court jurisdiction of

O.C.G.A. § 44-14-231, as such, the Court of Appeals owes no deference to the trial

court's ruling and should apply the "plain legal error" standard of review. Suarez v.

Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000). Moreover, "[w]here it

is apparent that a trial court's judgment rests on an erroneous legal theory, an

appellate court cannot affirm. [Cit.]" Gwinnett County v. Davis, 268 Ga. 653, 655

(492 SE2d 523) (1997).

Appellees filed a Complaint for Personal Property Foreclosure in State Court of

DeKalb County citing O.C.G.A. §44-14-230. Appellant, pursuant to the Rules that

accompany O.C.G.A. §44-14-230, filed a Verified Answers, Defenses, and

Counterclaims with Exhibits of evidence in support of Appellant’s claims; along

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with several Motions and Demand for Jury trial. Appellant utilized all of the

defenses available under statute, so as not to waive any of the defenses. The court

ignored all of Appellant’s “defenses, and claims which if proven would amount to

setoffs (see OCGA 44-14-234), determined that plaintiff was entitled to a writ of

possession.” (Smith v. General Motors Acceptance Corp. 72201. (178 Ga. App.

848) (344 SE2d 768) (1986)):

“Defendant having answered and pleaded his defense, the action

should have proceeded under the provisions of the Civil Practice Act

("CPA"). OCGA §44-14-233. However characterized, the court's

order granting plaintiff a writ of possession was not proper under the

CPA. Also, we reject plaintiff's suggestion that the hearing under

OCGA §44-14-232 is substantially similar to a summary judgment

hearing. See generally Jordan v. Farmers &c. Bank, 138 Ga. App. 43

(225 SE2d 498); Cavender v. First Nat. Bank, 173 Ga. App. 660 (327

SE2d 789). Under the particular facts and circumstances of the case

sub judice the superior court erred in granting the writ of possession to

plaintiff.”

Further, the Magistrate Court’s refusal to address, rule on, or consider

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Appellant’s filings is gross error and results in disparate treatment of Appellant; he

was treated differently than others similarly situated, and denied what others in

similar situations have been afforded, resulting in discrimination and injury to

Appellant and his property. See BCS Financial Corporation v. Sorbo, et., al.,

A94A0488. (213 Ga. App. 259) (444 SE2d 85) (1994) in addressing defenses in

Personal Property Foreclosure:

“under OCGA 44-14-233, in answering a petition in a forfeiture

action, a defendant may assert any legal or equitable defenses or a

counterclaim, and by implication, such defenses will be considered in

the determination of whether a foreclosure petition should be

granted.”

"The proceeding is statutory, and must be strictly construed and observed."

Young v. Cowles, 128 Ga. App. 770 (197 S.E.2d 864) (1973). Without Notice,

and Opportunity to Respond, the case suddenly went before the Magistrate Judge

for hearing. Clearly, an action filed pursuant to O.C.G.A. §44-14-230 in State

Court, and after a defendant files Verified Answers, Defenses, and Counterclaims

pursuant to the statute, cannot be suddenly sent to Magistrate Court where the Civil

Practice Act does not even apply!

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6. Officer of the Court/Fraud Upon the Court

At the Magistrate Hearing, opposing counsel, in an act of bad faith, and with

intent to prejudice and harm Appellant, made two statements that, as an Officer of

the Court, and while under Oath, not only resulted in perjury, but because it was

used as an attempt to obtain a Ruling in his favor, constitutes Fraud Upon the

Court.

“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.” Black’s Law Dictionary, 7th Ed, pg.

671

“A trial court also is authorized “[t]o preserve and enforce order…to prevent…

hindrance to its proceedings.” Robinson v. Becker, Ga. App. (SE2d) (Case No.

A03A2524, 2004). “It is the responsibility of the trial court to ensure that the

system is not manipulated by any party…” Carson v. State, Ga. App. (SE2d)

(Case No. A031403, 2003);

This enumeration of error shows that the Magistrate Court showed obvious bias

and prejudice against Appellant, with actual knowledge of perjury by Appellee’s

counsel, and as such, this Court owes no deference to the trial court's ruling and

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should apply the "plain legal error" standard of review. Suarez v. Halbert, 246 Ga.

App. 822, 824 (1) (543 SE2d 733) (2000).

See The Supreme Court of Georgia’s holdings in Green v Green, No.

93A0780 (1993) GA.2404 <http://www.versuslaw.com>, 437 S.E.2d 457, 263 Ga.

551, citing Evanoff v. Evanoff, 262 Ga. 303, 304-305 (418 S.E.2d 62) (1992)

(Benham, J., Concurring). “In the present case, appellee's counsel has taken a

position equivalent to that of appellee's counsel in Evanoff, … the notions of

fundamental fairness that lie at the heart of the principle of due process of law,

requires that attorneys, as officers of the court, make a good faith effort to ensure

that all parties … have a full and fair opportunity to be heard. *fn4 Given all the

circumstances …especially the lengths to which appellee's counsel went to ensure

that this case was tried in the absence of appellant, …Spyropoulos, supra, required

that the judgment be set aside.”

See: Wills et al. v. McAuley 65128., 166 Ga. App. 4 (303 SE2d 26) (1983):

“[14] “The trial court found … Wills' false swearing was deliberate, without

excuse,… ordered the striking of the answer …, entry of judgment by default, …

for costs of this action plus any and all damages which may be assessed …”

Petition for Cert to The Supreme Court of Georgia, was denied, but see Justice

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Smith and Justice Hill’s dissent on denial of Petition: In Justice Smith’s Dissent,

“[13] I would grant the petition for certiorari. Although I agree … I would grant

and write to emphasize … criminal prosecution for perjury ….” McAuley v. Wills,

et al. 1983 Ga.. 873 (305 S.E.2d 120) 251 Ga. 41 (1983)

Denying disabled, pro se litigants meaningful access to the Courts falls within

violations of Constitutionally guaranteed Rights see Tennessee v. Lane 541 U.S.

513 (2004); U.S. v. Georgia, “…interference with access to the judicial process,

and procedural due process violations…”

Tennessee v. Lane, 541 U.S. 513 (2004) Justice Stevens delivered the opinion

of the Court. “Title II of the Americans with Disabilities Act of 1990 (ADA or

Act), 104 Stat. 337, 42 U. S. C. §§12131–12165, provides that “no qualified

individual with a disability shall, ……denied the benefits of the services, programs

or activities…, or be subjected to discrimination by any such entity.”’

“The Due Process Clause also requires the States to afford certain civil litigants

a “meaningful opportunity to be heard” …’ Boddie v. Connecticut, 401 U. S. 371,

379 (1971); M. L. B. v. S. L. J., 519 U. S. 102 (1996). Pg.20: “The unequal

treatment of disabled persons in the administration of judicial services has a long

history, and has persisted despite several legislative efforts to remedy the problem

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of disability discrimination.”

See also: U.S. v. Georgia 04-1203 (2006), Goodman v. Georgia 04-1236 (2006)

Justice Stevens with Justice Ginsberg concurring: “…interference with access to

the judicial process, and procedural due process violations…”

CONCLUSION

Appellant has shown that without authorization and/or notification, a case

brought in State Court was transferred to Magistrate Court, which guaranteed that

Appellant’s Verified Answers, Defenses, Counterclaims, Motions, and his Demand

for Jury Trial would not be considered or Ruled on, and for which Magistrate

Court lacks jurisdiction. Appellant MOVES this Court to reverse and remand with

instructions to the state court to transfer the case to Fulton County State or

Superior Court where Appellant will have a fair and impartial tribunal to preside,

and a Jury trial on the issues.

Respectfully Submitted, this 3rd day of November, 2009,

By: _____________________________ JAMES B. STEGEMAN, Pro Se

821 Sheppard Rd. Stone Mountain, GA 30083

(404) 300-9782

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IN THE COURT OF APPEALS OF GEORGIA

No. A10A0420_____________________________________________________

JAMES B. STEGEMAN Appellant,

Versus

HERITAGE BANK Appellee

CERTIFICATE OF SERVICE

I Certify that I have this 3rd day of November, 2009 served upon Appellees,

a true and correct copy of the foregoing Appellant’s Brief through their attorneys

on record by causing to be deposited with the U.S.P.S., Certified Mail: 7007 0710

0002 1509 6616, proper postage affixed thereto, addressed as follows:

Thomas E. Austin, Jr.3490 Piedmont Road, N.E.Suite 1005Atlanta, GA 30305

_______________________________JAMES B. STEGEMAN, Pro Se

821 Sheppard Rd.Stone Mountain, GA 30083

(404) 300-9782

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