IN THE COURT OF APPEALS OF GEORGIA

APPEAL NO. A12A1421

_______________________________________________

WILEY COYOTE APPELLANT

vs.

LOGO BANK, N.A., ET., AL,. APPELLEE

__________________________________________________________________

APPELLANT’S MOTION FOR RECONSIDERATION

Wiley Coyote, Appellant In Propria Persona

4745 Springboard TraceSlumming, GA 30040

COMES NOW, Appellant Wiley Coyote (“Appellant”, “Plaintiff” or Wiley

Coyote”) who timely, pursuant to, and in accordance with, Georgia Court of

Appeals, Rule 37(a), and (b) files Appellant’s Motion for Reconsideration.

I. THIS COURT’S ORDER DISMISSING THE APPEAL

Plaintiff shows this Honorable Court, Wiley Coyote, January 25, 2010, had

filed a Civil Action in Superior Court of Forsyth County.

With only an Assignment, without a transfer, there was a non-judicial

foreclosure and Sale Under Power, by an entity who was not the holder in due

course [R8-16]. Without having obtained a Writ of Possession from either State

or Superior Court, there was a Dispossessory action filed February 23, 2010,

against Wiley Coyote in Magistrate Court, while there was an on-going Superior

Court action concerning the Title to the Real Property, which Appellees had actual

knowledge.

Although Wiley Coyote did Appeal the Magistrate Court’s ruling to

Superior Court of Forsyth County [R6], that is where the relationship of the two

cases should have ended. Wiley Coyote was contesting the non-judicial Sale

Under Power in Superior Court, which has exclusive and original jurisdiction over

title to real property. Opposing counsel complain that Wiley Coyote could not

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defend against the Dispossessory action, with the counterclaim that Wiley Coyote

filed in Magistrate Court, but as shown in Setlock v. Setlock, 286 Ga. 384, 386,

688 S.E.2d 346 (2010). “Each magistrate court and each magistrate thereof shall

have jurisdiction and power over...[t]he trial of civil claims in which exclusive

jurisdiction is not vested in the superior court and the amount demanded or the

value of the property claimed does not exceed $15,000.00…[and][t]he issuance of

writs and judgments in dispossessory proceedings.” OCGA § 15-10-2(5) and (6).

However, “[f]or the purpose of enabling all persons owning real estate within this

state to have the title thereto settled and registered [,] ․ the superior court of the

county in which the land is located shall have exclusive original jurisdiction of all

petitions and proceedings had thereupon.” (Emphasis supplied.) OCGA § 44-2-60.

Wiley Coyote had to bring his counterclaims in a Court which lacked jurisdiction,

because that is where the Plaintiff in that case had filed for dispossession.

“Thus, here, although the magistrate court had jurisdiction over Steven's

dispossessory action, it did not have jurisdiction to render a binding judgment on

Eugene's Lake House counterclaims which included claims for declaratory

judgment, to quiet title, and an injunction, and which sought money damages that

exceeded the $15,000 jurisdictional limit of the magistrate court. See Myers v.

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North Ga. Title & Tax Free Exchange, LLC., 241 Ga.App. 379, 380(1) (527

S.E.2d 212) (1999). Indeed, unlike in the cases cited by Steven in his brief, here,

Eugene did not “choose” the magistrate court as the forum within which to bring

his Lake House counterclaims, thereby binding him to any judgment rendered in

the magistrate court and preventing him from later re-asserting his claims in a

future action”. See Mahan v. Watkins, 256 Ga.App. 260 (568 S.E.2d 130) (2002)

(where plaintiffs brought a suit in magistrate court that included equitable claims

over which magistrate court had no jurisdiction, plaintiffs' attempt to re-assert

these equitable claims in subsequent superior court case was barred by res judicata,

as “the [plaintiffs] chose the [magistrate court as their initial] forum and were

bound by the limitations of the court that they chose”) (footnote omitted). See also

Green v. Bd. of Dirs. of Park Cliff Unit Owners Ass'n, 279 Ga.App. 567 (631

S.E.2d 769) (2006) (condo owner who filed suit for money damages in magistrate

court could not later assert equitable claims in superior court based on same set of

facts). To the contrary, Eugene was the defendant in the dispossessory action here.

He raised his counterclaims in response to an action that was initially filed by

Steven in the magistrate court. To avoid potential waiver of his counterclaims that

arose out of the transaction or occurrence that was the subject matter of Steven's

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dispossessory action, Eugene was required to raise them in magistrate court. See

OCGA 15-10-45(a) (compulsory counterclaims in magistrate court). However, the

statutory requirement for Eugene to raise his compulsory counterclaims in

magistrate court did not somehow confer jurisdiction in that court to resolve these

claims over which, by law, it had no jurisdiction. See OCGA §§ 15-10-2, 44-2-60.

Due to the magistrate court's lack of jurisdiction over the Lake House

counterclaims raised by Eugene, it was not a “court of competent jurisdiction” to

resolve these claims on the merits, and the doctrine of res judicata did not bar

Eugene from re-asserting these same claims in superior court. See Brown Realty

Assoc. v. Thomas, 193 Ga.App. 847(2) (389 S.E.2d 505) (1989) (Where party

asserted as a defense in magistrate court dispossessory action that property had

been fraudulently sold, res judicata did not bar the party from re-asserting this

claim in superior court, because “[s]uperior courts have exclusive jurisdiction in

cases respecting title to land…[and][r]es judicata only applies if the [prior]

judgment is from a court of competent jurisdiction”) (citations and punctuation

omitted). Accordingly, the superior court erred in determining that the Lake House

claims asserted in Eugene's Petition to Quiet Title were barred by res judicata.

Further, until there would be a ruling on the Title issue, and whether or not

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Appellees had standing to execute a non-judicial foreclosure and Sale Under

Power, the Dispossessory action, should have been stayed. Wiley Coyote contends

that the way the Superior Court combines the two cases, violates the Due Process

Clause, and robs a party of their Right to a fair and impartial tribunal.

In a Dispossessory action, there is supposed to have been a legal, valid non-

judicial foreclosure, by an entity with standing to foreclose, and a legal and binding

Sale Under Power, conducted in good faith, where the seller obtained the greatest

amount of money possible for the property. Then, and only then, can the purchaser

seek a Writ of Possession, then a Dispossessory Order. Thereby, there is not true

contest in the Magistrate Court, there is only one way the Magistrate Court can

rule, that is for the party seeking dispossession. There is a Landlord/Tenant

relationship, with the one still living at the property, deemed a tenant at sufferance.

Then, when it is appealed to Superior Court, that Superior Court Judge, has already

had his mind made up, that the party is a tenant at sufferance, which only comes

about with a lawful foreclosure and Sale Under Power. It prejudices the already

filed, and on-going Superior court action, where it is being argued that the

foreclosing entity, is the one in the wrong. It taints the on-going Superior Court

action, when the Magistrate Appeal is consolidated with the on-going Superior

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Court action.

After the consolidation takes place, the Court allows the opposing party to

begin filing everything under just the Appeal Case No; and the two cases are

fought tangled together, even though, until the title issue has been resolved, the

dispossession issue should be stayed.

There is great confusion, and a party’s Civil and Constitutional Rights Under

the Due Process Clause, are violated when the Superior Court consolidates the

Magistrate Court Appeal, with the on-going Superior Court, Wrongful Foreclosure

Action. The Superior Court, nevertheless consolidates the Dispossessory Action,

with the Wrongful Foreclosure action, and the Court almost always ends ruling on

both actions in one Order. By so doing, the losing party is effectively estopped

from appealing to the Court of Appeals, or the Supreme Court; thereby denying the

Right to Appeal the Superior Court action, because when it gets to the appellate

court, the appeal is dismissed, with the claim that the appeal is a magistrate court

dispossessory action, and the Appellant did not adhere to the seven days, and/or the

ruling is not directly appealable, and the Appellant failed to file an application for a

discretionary appeal. The exact, very thing that happened in the Appeal at bar.

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ARGUMENT AND CITATION OF AUTHORITY

“The United States Supreme Court has made clear that ‘a fair trial in a fair

tribunal is a basic requirement of due process’ in administrative adjudicatory

proceedings as well as in courts” Michigan Dept. of Soc. Sercs. V. Shalala, 859 F.

Supp. 1113, 1123 (W.D. Mich. 1999) (quoting Withorow v. Larkin, 421 U.S. 35,

36, 95 S.Ct. 1456, 1459, 43 L.E.d.2d 712 (1975)) Thus stated Justice Kennedy in

his concurring opinion in the recent Supreme Court case construing the analogous

federal statute on judicial disqualification, ‘[i]f through obduracy, honest mistake,

or simple inability to attain self knowledge the judge fails to acknowledge a

disqualifying predisposition or circumstance, an appellate court must order recusal

no matter what the source.’ Liteky v. U.S., 510 U.S. 540, 563, 114 S.Ct.1147,

1161, 127 L.Ed.2d 474 (1994) (Kennedy J. concurring) This is because, as our

court of appeals has declared, ‘litigants ought not have to face a judge where there

is a reasonable question of impartiality…’ Alexander v. Primerica Holdings, Inc.,

10 F.3d 155, (3rd Cir. 1993). D.B. v. Ocean Tp. Bd. Of Educ., 985 F.Supp. 457

(D.N.J. 1997) (Bold emphasis added.)

Both conflicting evidence and credibility are matters reserved only for a

jury as fact trier. In Therrell v. Marble Holdings, Crop., 96 F.2d 1555 (11th Cir.

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1992) this Court held: “Credibility is a matter solely for the jury. ‘It is the

function of the jury as the traditional finder of the facts, and not the court to weigh

conflicting evidence and inferences, and determine credibility…’ Buckley, 785

F.2d at 1527 (quoting Boeing, 411 F.2d at 375).”

Appellant contends that the Assignment is a fabricated, falsified, forged

document. Fabricated evidence, constitutes fraud upon the court. That is which

fraud will dictate that the Ruling must be set aside. As the district court explained

in United States v. International Telephone & Telegraph Corp., 349 F.Supp. 22,

29 (D.Conn.1972), aff'd without opinion, 410 U.S. 919, 93 S.Ct. 1363, 35 L.Ed.2d

582 (1973): “Generally speaking, only the most egregious misconduct, such as …

the fabrication of evidence by a party in which an attorney is implicated, will

constitute a fraud on the court. See Hazel-Atlas Glass Co. v. Hartford-Empire Co.,

322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944); Root Refin. Co. v. Universal

Oil Products, 169 F.2d 514 (3d Cir. 1948) 7 J. Moore, Federal Practice, ¶ 60.33 at

510-11.” See Bulloch v. United States, 763 F.2d held the following: “Fraud on

the court… is directed to the judicial machinery itself … H.K. Porter Co., Inc. v.

Goodyear Tire & Rubber Co., 536 F.2d 1115 (6th Cir.). It is thus fraud where the

court or a member is corrupted or influenced or influence is attempted or where the

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judge has not performed his judicial function--thus where the impartial functions of

the court have been directly corrupted.” "Since attorneys are officers of the court,

their conduct, if dishonest, would constitute fraud on the court." Porter, 536 F.2d

at 1119.”

“Fraud upon the court” has been defined by the 7th Circuit: “…fraud which

does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of

the court so that the judicial machinery cannot perform in the usual manner its

impartial task of adjudging cases that are presented for adjudication.” Kenner v.

C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23"

“A court should be cautious in exerting its inherent power and ‘must comply

with the mandates of due process” First Bank of Marietta v. Hartford

Underwriters Insurance Company, 2002 U.S. App. LEXIS 21117, -25; 2002 FED

App. 0356P (6th Cir. 2002); In Re Atlantic Pipe Corp., 304 F.3d 136, 143 (1st

Cir. 2002).

“The general rule is that an original writing must be produced and its

execution proven” Daniel F. Hinkel, Pindar’s GEORGIA REAL ESTATE LAW

AND PROCEDURE (6th Ed. 2006) (“Pindar’s”) §19-34 Execution of Deeds,

Formal Requisites. “The reason [such testimony is not excluded] is obvious; such

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an instrument requires proof of execution before it can be admitted [into] evidence,

but, because this is so, it does not follow that it must be conclusively taken as ...

genuine.” McArthur v. Morrison, 107 Ga. 796, 798, 34 S.E. 205 443*443 (1899).

In fact, upon proof of execution, “the genuineness of the instrument may be

attacked by competent evidence on the trial of the case in which the instrument is

sought to be used. Its admission is not decisive of its genuineness.” Id. Thus, a

jury could still conclude that the instrument or the signature on it was forged. See

id. See also Rumsey, Agnor's Ga. Evidence § 12-4, (3rd Ed.).

Further, there was an Assignment with no transfer. A new party under

O.C.G.A. §13-4-5 (GCA §20-115), “if new parties are introduced so as to change

the person to whom the obligation is due, the original contract is at an end.”

Further, The security interest of the grantee is freely assignable, but for full effect

as such, there must be a valid assignment of the indebtedness as a chose in action,

together with a transfer of title to the land and the power of sale and other rights set

forth in the instrument.1 A defective title may pass only an equitable title.

Chapman v. McPherson, 184 Ga. 613, 192 S.E.2d 423 (1937). Pindar’s §21-45.

1 There was an Assignment, but there has not been “a transfer of title to the land

and the power of sale and other rights set forth in the instrument.”

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Although it is customary to make the assignment of the original security

deed, endorse the note, and make a manual delivery of both documents to the

assignee, an assignment by separate instrument. Where the assignment is

delivered, it is effective even though the original documents are retained; but such

an assignments does not make the transferee a “holder in due course” so as to

immunize him against defense between the original parties. Tallahassee Bank &

Tr. Co. v. Raines, 125 Ga.App. 263, 187 S.E.2d 320 (1972); “and payments made

to the original grantee without notice of the assignment may be valid, although

nonproduction of the note raises a presumption against authority to receive

payment. O.C.G.A. 10-6-57 (GCA §4-308). It is true though, that in a contested

foreclosure, it would be necessary to produce the note”. Weems v. Coker, 70 Ga.

746 (1883).

Moreover, a Georgia Court has jurisdiction to set aside an assignment by a

nonresident of a note and security deed conveying Georgia property. Regante v.

Reliable Triple CEE of North Jersey, Inc., 251 Ga. 629, 308 S.E.2d 372 (1983).

Although recording of an assignment will be constructive notice to third persons

with regard to the property securing the debt, it is not notice with respect to the

debt itself which is intangible property, subject to the Uniform Commercial Code.

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Groover v. Peters, 231 Ga. 531, 202 S.E.2d 413 (1973). Pindar’s §21-45.

In paying the secured indebtedness, the burden rests on the debtor to

determine whether the person to whom he pays is the holder of the instrument or

his authorized agent. “[T]he borrower must be as careful in repaying the debt as

the lender presumptively was in making the loan.” If the note and deed have been

assigned, the burden rests on the borrower to determine that fact, and pay only the

party entitled to the payment. Groover v. Peters, 231 Ga. 531, 202 S.E.2d 413

(1973). Pindar’s §21-45.

Appellant in the Appeal at bar, has been forced into proceeding in propria

persona, due to an unscrupulous attorney’s actions in the Superior Court of

Forsyth County. Mr. Calomeni, knew he did not have permission to obligate

Wiley Coyote to a settlement where Wiley Coyote would receive no consideration

whatsoever. And even so, Wiley Coyote has seen, where in other Courts, when a

settlement is as one-sided as the one involved here, the trial court judge, himself,

will reject such a settlement.

Before the settlement hearing, the trial judge had allowed the withdrawal of

Mr. Calomeni from representation of Wiley Coyote, and was well aware that

Wiley Coyote was proceeding in propria persona, and opposing counsel were

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allowed to take advantage of Wiley Coyote because of it.

The Appellant, proceeding in propria persona, has been treated with bias

and inequality; both procedural and substantiative due process Rights have been

denied; and the guarantees of both The State of Georgia Constitution and The

United States Constitution have not been upheld by the Courts.

Picking v . Pennsylvania Railway, (151 F2d. 240 Third Circuit Court of

Appeals. “In Picking, the plaintiffs civil rights was 150 pages and described by a

federal judge as ‘inept.’ Nevertheless, it was held: ‘where a Plaintiff pleads pro-se

in a suit for protection of civil rights, the court should endeavor to construe

plaintiffs pleading without regard to technicalities.’”

In Walter Process Equipment v . Food Machine 382 U.S. 172 (1965) it was

held that in a “motion to dismiss, the material allegations of the complaint are

taken as admitted.” “From this vantage point, courts are reluctant to dismiss

complaints unless it appears the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief'” (See Conley vs. Gibson, 355 U .S.

(1957).;

In Puckett v. Cox, it was held that a pro-se complaint requires less stringent

reading than one drafted by a lawyer (456 F2d . 233 (1972 Sixth Circuit U.S.C.A.)

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said Justice Black in Conley v . Gibson, 355 U.S. 41 at 48 1957 “The Federal

Rules rejects the approach that pleading is a game of skill in which one misstep by

counsel may be decisive to the outcome and accept the principle that the purpose

of pleading is to facilitate a proper decision the merits .”

According to rule 8(f) FRCP “all pleadings shall be construed to do

substantial justice.” The Court also cited Rule 8(f) FRCP, which holds that “all

pleadings shall be construed to do substantial justice .”

"It could also be argued that to dismiss a Civil Rights action or other lawsuit

in which a serious factual pattern or allegation of a cause of action has been made

would itself be violative of procedural due process as it would deprive a pro se

litigant of equal protection of the law visa vis a party who is represented by

counsel . In a fair system, victory should go to a party who has the better case, not

better representation.”

IN RE LAW SUITS, 235 Ga. App. 551, 510 S.E.2d 91 (Ga. App.

12/02/1998) VERSUSLAW, at [235 Ga. App. Page 556] [31]: “Both the Georgia

and United States Constitutions prohibit 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

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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: at[47] “*fn14

OCGA § 9-15-2 (d).”

CONCLUSION AND PRAYER

Wiley Coyote has shown that he filed the Superior Court civil action before

there was a Magistrate Court action filed. Appellee have misled the Court in

several instances, that is only one instance.

This Court’s Ruling begins “This case originated as a dispossessory

proceeding in magistrate court.” The statement is incorrect. Appellant filed the

Superior Court action one month prior to Appellee filing the Magistrate

dispossessory action.

Appellant PRAYS that this Honorable Court will GRANT Motion for

Reconsideration.

Respectfully submitted, this 29th day of May, 2012,

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By: _________________________ WILEY COYOTE, Pro Se

4745 Springwood TraceCumming, GA 30041

CERTIFICATE OF SERVICE

I hereby Certify, that I have, this 29 th day of May, 2012, served a true and

correct copy of the foregoing Appellant’s Motion for Reconsideration upon the

Appellees, through their attorney on file, and by causing to be deposited with

USPS, First Class Mail, proper postage affixed, and mailed as follows:

Linda S.. Finley, Esq.BAKER DONELSON, BEARMAN, CALDWELL AND BERIKOWITZ, P.C.Ste 1600 Monarch Plaza3414 Peachtree Road, N.E. Atlanta, GA 30326

Denise R. Griffin. Esq.SHAPIRO & SWERTFEGER, LLP295 South Culver St., Suite BLawrenceville, GA 30046 ___________________

Wiley Coyote

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