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JAMES B. STEGEMAN, *
JANET D. MCDONALD *
Appellants *
*
* APPEAL CASE NO. A07A1846
vs. *
*
WACHOVIA BANK, N.A., et., al *
WACHOVIA SECURITIES, et., al. *
Appellees. *
Comes Now, Appellants in the above Appeal, and pursuant to Rule 37 of the
Rules of the Court of Appeals of the State of Georgia, timely file their Motion For
Court’s Judgment.
Appellants would like the Court to take Notice that the paperwork they
received was not signed by any of the three judges listed as having reviewed their
Appellants show in the following the basis for Granting their Motion For
Reconsideration.
Rule 37.(e) Basis for Granting.
One would believe this Honorable Court suggests that Judge Hunter and
Superior Court did not violate Rules of the State and Federal Courts as well as
State and Federal statutes involving the dismissed litigation, this Honorable Court
in essence is suggesting that the Civil action in fact was never pending Removal to
Federal Court; Wachovia was in fact in default and had failed to file a responsive
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Further, Plaintiff-Appellants listed several causes of action for which relief
could and should have been granted. Judge Hunter failed to address several causes
of action in her Order and the ones addressed were improperly addressed.
Judge Hunter’s Order signed April 12, 2007, pg. 2, ¶B states “Because the criminal
Plaintiff-Appellants will address these as Judge Hunter has listed them, under
¶6, ¶8: Doesn’t in itself provide for a cause of action, but Wachovia’s part resulted
¶9-10, and ¶13-14: Shows fraud with particularity and shows that Plaintiff-
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Appellants have the bank records reflecting these activities. Further, Wachovia
¶17: Shows that because of Wachovia’s part, they were part of a conspiracy to
defraud Plaintiff-Appellants, they breached their fiduciary duty, and neglected their
duty to have law enforcement officials look into the situation. Their acts resulted
PLEASE NOTE: Judge Hunter’s Order doesn’t properly address causes of action
which would show that Plaintiff-Appellants had in fact plead fraud with
following:
¶11: which shows fraud and how the fraud was committed (particularity);
¶12: shows that Plaintiff-Appellants were “Business Victims” which again shows
¶25: shows fraud and how the fraud was committed (particularity)
PLEASE NOTE: Judge Hunter’s Order does not address the following
paragraphs which would show not only fraud particularity, but intentional infliction
of emotional distress and which could have been proven with Plaintiff-Appellant’s
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documents:
Appellants should have listed the cause as libel per se, which they have the
paperwork to prove.
Judge Hunter’s Order signed April 12, 2007, pg. 2, ¶B states “Because the criminal
Plaintiff-Appellants will address these as Judge Hunter has listed them, under
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¶20: conspiracy to defraud, plead with particularity
full knowledge of the Georgia Court System. One cannot believe that with Mr.
Holley’s obvious credentials he erred when filing to the wrong judge, and would
have violated Rules, statutes, procedure, etc. and go into default unless he knew
that Judge Hunter would allow him to get away with it. An attorney in his position
and reputation would not take such a risk. Plaintiff’s Motion To Dismiss and
Strike From Record Wachovia’s Untimely Answer, Filed April 20, 2006, page 4,
first ¶.
Plaintiff-Appellants have shown and the record reflects that no doubt exists
that many Uniform Superior Court Rules, Rules of Civil Procedure in both State
and Federal Courts as well as statutes of State and Federal have been violated not
only by Wachovia,2 but Superior Court and Judge Hunter as well. Plaintiff-
1
“Selected as one of Georgia’s “Super-Lawyers” by Law & Politics Media and
Atlanta Magazine, March 2004, March 2005, and March 2006”. Taken from:
http://www.phrd.com/attorneys/attybio.asp?id=27.
2
Wachovia’s legal counsel is known to be one of “Georgia’s Super-Lawyers”
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Appellants have shown that their State and Federal Constitutional Rights of due
process have been violated. Appellant’s Brief filed June 11, 2007, pgs. 12-29.
been violated by Superior Court and Wachovia under Color of Law, which is a
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Council persons, Judges, Nursing Home Proprietors,
-8-
agency.”
3
http://www.fbi. gov/hq/cid/civilrights/statutes.htm
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same).” “Punishment varies from a fine or imprisonment
to death.”4
with disabilities;
4
*ref: http ://www.usdoj.gov/crtJcrim/241fin.htm
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(3) to ensure that the Federal Government plays a
disabilities”
The Federal government has been designated by Congress to play a key role
in the enforcing the standards and the fourteenth amendment on behalf of the
disabled because unlike racial and other minorities, the disabled have no advocates,
thereby the Federal government has been designated by Congress as the advocate
for disabled.
Rights thereof, they went on to remove the State’s Immunity from suit.5
5
Title 42, Chapter 126, Subchapter IV, §12202
State immunity. A State shall not be immune under the eleventh amendment to the
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Then congress went on to prohibit against retaliation and coercion.6
Further, this Honorable Court would have one believe that Judge Hunter’s
closing the case with restrictions to re-open the case while it was pending Removal
competent jurisdiction for a violation of this chapter . In any action against a State
both at law and in equity) are available for such a violation to the same extent as
such remedies are available for such a violation in an action against any public or
shall discriminate against any individual because such individual has opposed any
any individual in the exercise or enjoyment of, or on account of his or her having
other individual in the exercise or enjoyment of, any right granted or protected by
this chapter.
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in Federal Court is of no consequence. The reality of the matter is this: 1) Judge
Hunter violated both Superior Court and Federal Court Rules; 2) Judge Hunter
signed an order without jurisdiction to do so; 3) the closing of the case in Superior
Court under Judge Hunter while Removal was filed under Judge Castellini (along
with the obvious assumption that Superior Court and Wachovia believed the case
would stay in Federal Court and be dismissed under Castellini) would prohibit
Plaintiff-Appellants from ever being able to re-file the case in either Superior or
Federal Courts.
The Appellants have shown without doubt that Wachovia violated both
Georgia and U.S. Banking Laws, and violated laws concerning The United States
they changed the records of accounts held by Wachovia but said it could not be
fraud because they own the computers, the network, the system and the employee
7
Undisputed Facts because Wachovia admitted the allegations
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and the employee had authorization by the owners of the computers, network,
on Plaintiff-Appellant’s accounts.
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documentation8 to perform such acts to Plaintiff-
Appellant’s accounts.
previous civil action, through his attorney asked Superior Court Judge Hunter to
freeze the accounts held at Wachovia until a determination of who owned the
accessed, the names and addresses on the accounts changed, a checking account
closed. Wachovia does not dispute this, but claims they did not wrong.
Appellees claim that there can be no relief from the violation of State and
Federal laws. This is incorrect as “tort” is a cause of action for which relief can
8
Wachovia agrees this would take a Court Order. A Superior Court or a higher
Court would be the only Courts with jurisdiction to give such an Order.
9
Plaintiff-Appellant McDonald was not part of that Civil action.
10
Because of this, Judge Hunter could be said to have a personal interest in the
case, Wachovia could easily blame her for the theft of Plaintiff-Appellant’s assets
and holdings. This is viewed as another reason why she ignored the request
disqualify herself, the Motion to Recuse and Dismissed the case knowing Plaintiff-
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and should be granted and Wachovia could reasonably have seen that injury would
11
Citing Tucker Federal Sav. & Loan Ass'n v. Balogh, 228 Ga. App. 482, 484
(491 SE2d 915) (1997); see also Coleman v. Atlanta Obstetrics & Gynecology
Group, 194 Ga. App. 508, 510 (1)(390 SE2d 856) (1990).
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ruling, as a matter of law, that those acts and omissions
intervening act.”12
Banking; they have shown breach of contract, fraud, theft of resources, slander and
defamation (even though Superior Court failed to address several of the listed
causes of action).
12
See Schernekau v. McNabb, 220 Ga. App. 772, 773 (470 SE2d 296) (1996)
(proximate cause is properly reserved for the jury and can only be appropriately
13
Using past decisions of this same Appeals Court of Georgia to cite
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The decisions made by both Superior Court and this Honorable Appeals
Court would have one come to the conclusion that both Judge Hunter and
Wachovia are above the law, have immunity for illegal acts and violations of
Plaintiff-Appellant’s Rights, and aren’t required to abide by the same laws as the
rest of society. The Plaintiff-Appellants, as Pro Se litigants, have 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
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admitted." "From this vantage point, courts are reluctant
(1957).;
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"It could also be argued that to dismiss a Civil Rights
14
U.S. Law Books : Pro Se Federal Decisions
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Appellants have failed to find any Statute, Rule or Decision that states that
The Georgia and United States Constitutions Bill of Rights only pertain to certain
individuals or only the privileged; that equality is only for a select few; that
Government.
that states immunity is to be given to any banking institution or that state that
Wachovia especially is immune from liability when violating the laws of the State
of Georgia, actions for breach of contract, slander, defamation. And because many
accounts took place over long distance telephone and US Postal Services to
different departments of Wachovia in other states, the matter turned into Federal
BANKING LAWS:
Wachovia and Judge Hunter would have everyone believe that as “business
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See Gerber & Gerber, P.C. v. Regions Bank; and vice
versa. 266 Ga. App. 8; 596 S.E.2d 174; 2004 Ga. App.
Decided.
Co. of Ga. Bank &c. v. Port Terminal &c. Co., 153 Ga.
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App. 735, 739-741 (1) (266 S.E.2d 254) (1980)
account.”
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JOINT TENANTS WITH RIGHTS OF SURVIVORSHIP
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Accounts that are titled Joint Tenants15 With Rights of Survivorship demands
that all owners of the accounts will have had to agree and together request
authorizations, such statutes demand that a Superior Court Order must be provided
to change the name and address on an account and to close any account. Wachovia
freely admits that this is what the statutes say, yet at the same time they also admit
Court order and at the request of one “John Joyner”. Wachovia then goes on to
15
Black’s Law Dictionary, 7th Edition, pg.1477 describes Joint Tenancy:
“joint tenancy. A tenancy with two or more co-owners who take identical interests
simultaneously by the same instrument and with the same right of possession * A
joint tenancy differs from a tenancy in common because each joint tenant has a
tenancy in common. “The rules of a joint tenancy are these: The joint tenants must
get their interests at the same time. They must become entitled to possession at the
same time. The interests must be physically undivided interests, and each
undivided interest must be an equal of the whole … Thomas F. Bergin & Paul G.
Haskell, Preface to Estates in Land and Future Investments 55 (2d ed. 1984)
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state that Plaintiff-Appellants cannot show a relationship between John Joyner16
and Wachovia. In other words, anyone can walk into Wachovia, and as long as
they have a name, address and account numbers, they can change the name,
address, etc. on anyone’s account and access that account with no questions asked.
Appellant’s Brief and Reply Brief cited prior, existing controlling authority,
using caselaw and precedents set by The Court of Appeals of Georgia, yet The
Court of Appeals of Georgia now disregard their own previous judgments. In other
words, The Court Of Appeals of Georgia is saying Justice in Georgia does not exist
Not one Judge signed the document Appellants received affirming Superior
Court’s decision.
16
The only document provided to Wachovia to set this into action was not a legal
document needed to perform the acts of removing names, adding names, changing
addresses, Wachovia admits to do that one would have to have a Court Order.
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STATUTES
state a claim upon which relief can be granted, … the motion shall be treated as
one for summary judgment and disposed of as provided in Code Section 9-11-56,
and all parties shall be given reasonable opportunity to present all material made
DEFAULT
within the time required by this chapter, the case shall automatically become in
the showing shall be made under oath, shall set up a meritorious defense shall offer
admitting that “Wachovia” was in default. Default estops the defendant from
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filing an Affirmative response, yet Wachovia was allowed to file offering defenses
which would defeat the right of recovery. Wachovia’s legal counsel, when
referencing the default and the opening thereof, uses the term “as a matter of
District Court, then in Superior Court again, just that they “opened default as a
matter of right”.17
See Cochran v. Carlin 254 Ga. App. 580, 585 (3) (331
17
The term “as a matter of right” can be used when Removal to U.S. District Court,
but proper procedure still must be followed (U.S. District Court Rules of Civil
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failed to file an effective answer, appellant was in
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SE2d 523)(1985).” “In this case, …complaint shows that
Ga. Vitrified Brick & Co., 196 Ga. App. 779, 780 (1)
MOTION TO DISMISS
Plaintiffs were not treated with favor and or with the assumption that all allegations
were true which is mandated by both Superior Court Rules of Civil Procedure and
Appellants were denied their Right to present “all material made pertinent”,
the allegations of their complaint were not viewed “in the light most favorable to
them”
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Appellants were treated unfairly and with bias in Superior Court when
at a hearing before Superior Court decided the case was without merit. 3)
Superior Court as a defendant, Motioned Superior Court for a Stay on that action,
the Motion was ignored. Quite simply, Superior Court retaliated by Dismissing the
case as there were pertinent issues of material fact that only a Jury could have
See Brown v. Dorsey, 625 S.E.2d 16, 276 Ga. App. 851
18
Quoting Ga. Military College v. Santamorena, 237 Ga. App. 58 (514 SE2d 82)
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who filed them, and all doubts … must be resolved in the
dismiss.”20
Appellants have the evidence21 to prove their allegations, yet Superior Court
denied Appellants their Right to present their evidence and the Right to be heard.
Superior Court refused to have hearings for which Plaintiff-Appellants had asked.
See: Pruitt v. Tyler 351 S.E.2d 539, 181 Ga. App. 174
20
Quoting Common Cause/Ga. V. Campbell, 268 Ga. App. 599, 601 (2) (602 SE2d
333)(2004)
21
Certified Bank Records, Certified Depositions of Sr. Vice President Wachovia
etc.
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(Rules). But see Sentry Ins. v. Echols, 174 Ga. App. 541
existing.")”
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This Court references evidence, the only evidence Wachovia filed was their
default in U.S. District Court. Wachovia was estopped from filing an affirmative
defense because they were in default. Because they filed an improper response,
the wrong answer, they failed to file an answer period. This Honorable Court has
taken the same position as the Superior Court and denied Plaintiff-Appellants their
Procedure, Uniform Superior Court Rules, statutes of the State of Georgia and
The cases cited by Superior Court and Judge Hunter in the Findings of Fact
and Conclusions of Law were the exact ones Wachovia had used, the wording was
almost exact. The problem is that the caselaw didn’t pertain to Plaintiff-
Appellant’s case.
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overruled except for relying on a case that has been
overturned.”22
CONCLUSION
have filed within the required period of time, and have shown just cause for
reconsideration.
By: _________________________
JAMES B. STEGEMAN, Pro Se
821 Sheppard Rd
Stone Mountain, GA 30083
(770) 879-8737
22
From: Benchbook For US District Court Judges
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By: _________________________
JANET D. MCDONALD, Pro Se
821 Sheppard Rd
Stone Mountain, GA 30083
(770) 879-8737
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