IN THE SUPREME COURT OF OHIO
Demetrious Y. Smith, et al r^ A
Appellants On Appeal from the Hamilton County Court V. of Appeals, First Appellate District
Chase Finance, et al Court of Appeals Wells Fargo Case No. C0601069
Appellees
"NOTICE OF APPEAL", OF APPELLANTS DEMETRIOUS & AMY K. SMITH, and "REQUEST FOR EMERGENCY MOTION TO STOP COURT ORDERED EVICTION BASED ON VOID JUDGMENT"
Demetrious Y. Smith (Pro Se) Amy K. Smith (Pro Se) 4703 Winona Terrace Cincinnati, Ohio 45227 (513) 271-0077 (513) 551-8863 "PRO SE" in this APPEAL
Rose Ann Fleming, Esq. (#0041337) (Attorney of Record in prior Appeal Case No.: C0601069) 3855 Ledgewood Drive, Suite 13 Cincinnati, Ohio 45207 ^ (513) 924-8389 (513) 924-8389 (Fax) ON 17 ?007
Bricker & Eckler, LLP CLERK OF COURT Nelson Reid, Esq. (#0068434) SUPRENIE CClURi OF OHIO Vladimir P. Belo, Esq. 100 South Third Street Columbus, Ohio 43215 (614) 227-2300 (614) 227-2390(Fax) Trial Attorneys for Chase Finance LLC, f/k/a Chase Manhattan Mortgage Corporation
' Taft, Stettinius, & Hollister, LLP Gregory J. O'Brien, Esq. Patrick E. Noser, Esq. 425 Walnut Street, Suite 1800 Cincinnati, Ohio 45202 Counsel for Mortgage Electronic Registration Systems
Office of the U.S. Trustee Margaret Burks, Esq. 36 East 40s Street Suite 900 Cincinnati, Ohio 45202
Ohio Attorney General Marc Dann Consumer Protection Section 30 E. Broad St., 14'h Fl. Columbus, Ohio 43215-3400
Notice of Appeal of Demetrious Y. and Amy K. Smith
Appellants, Demetrious Y.and Amy K. Smith hereby gives notice of appeal to the Supreme
Court of Ohio from the judgment of the Hamilton County Court of Appeals, First Appellate
District, entered in the Court of Appeals case No. C0601069 on November 2, 2007.
This case raises an ineffective assistance of counsel (bankruptcy) claim, a substantial constitutional question; and is of public or great general interest.
Respectfully, Submitted,
CERTIFICATE OF SERVICE
We certify that a copy of this Notice of Appeal was sent by ordinary mail to counsel for Appellees, Rose Ann Fleming, Esq., Margaret Burks, Chapter 13 Trustee, and Ohio Attorney General, Marc Dann, Esq. APPENDIX E. CASE INFORMATION STATEMENT
In The Supreme Court of Ohio
` Case Information Statement
Case Name: ► )^ ^ t-^ ®^s ^m t, I J Case No.:
I G^^s.^ i^v^nc ^ % 1. Has this case previously been decided or remanded by this Court?- es q No
If so, please provide the Case Name: Case No.: Any Citation: II. Will the determination of this case involve the interpretation or application of any particular case decided by the Supreme Court of Ohio or the Supreme Court of the United States? Yes q No q ^ l_ ) ^ If so, please provide the Case Name and Citation: + O!'[T K/t aw
Will the determination of this case involve the interpretation or application of any articul r constitutional provision , statute, or rule ofcourt? Yes ^1 No q nj1 i'U 4-ffi^t^i'1e ^qLnG^i^e nnns en ^ J^(,^-t-- If so, please provid.e re appmpriate citaNon to the constitutional provi ion, statute, or court rule, as follows: „/ L 1 c--,L- Y/1L 4- U.S. ConsUtution: Artide . Section Ohro Revised Code: R.C. _. ^ Ohio Constitution: Artide . Section Court Rule: .Sho+^^ ^^ ^ United States Code: Title , Section. Ohio Admin. Code: O.A.C. L4-h.e_ `66y/t,.
III. Indicate up to three primary areas or topics of law involved in this proceeding (e.g., jury instructions, UM/UIM, search and seizure, etc.): ^h ^'^. , / I , , -7%, / ^. °'l a[' S'{'Cl9^o? r
IV. Are you aware of any case now pending or about to be brought before this Court that involves an issue substantially the same as, similar to, or related to an Issue In this case? Yes $^ No q // If so, please identify the Case Name: 0I7aA1L c^sr^^ +'r!SL!+`t"!yfJ Case No.: Court where Currently Pending: Issue:
ntact information for appellant or counsei: ^Q r,o ^_t^1^t^s ¢ m^ l^. Srn ^^pro sc S!3 -^^ /-©v7 Name Atty.Reg. # / Telephone # Fox#i ^^" 5O 3 ^ q an.s / Gr.^ ^^5`^ CC^ra, Add s Signature of app r counsel
Counsel for: City State Zip Code Attachment not scanned TABLE OF CONTENTS:
1. NOTICE OF APPEAL..... Crf-^:^... ..r ...... 1 ^6 e If-rF1p"I-Vr7-- ofc^ -271016^svcy •^,, II. TABLE OF CONTENTS ...... :...... 2
III. MEMORANDUM CONCERNING PUBLIC IMPORTANCE ...... 3
IV. MEMORANDUM IN SUPPORT OF JURISDICTION ...... 4
V. STATEMENT OF THE CASE ...... :...... 5
VI. EXHIBITS ...... :...... 6
VII. CERTIFICATE OF SERVICE ...... 7
TABLE OF AUTHORITIES
Definitions: EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC IMPORTANCE OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION
Our case is of great public importance because it deals with the topic of foreclosure that thousands of Ohioans are facing. The decision of this court will ultimately reveal if Ohio is sincere with the laws written to protect the consumer (debtor), or whether they are only lip service. Our history of fighdng for our civil and constitutional rights is long in the courts' of Hamilton County. Through our struggle for basic constitutional rights, it is our prayer that bias free behavior will become the norm from the courts in Ohio. Nothing is more basic than courtesy. A fundamental principle of. our constitutional government is that discriminatory treatment on the basis of race, gender, economic class, religion, or physical condition cannot and will not be tolerated. Bias damages a court in its fundamental role as a dispenser of justice. Judge Niehaus informed us that he'd look to see if we were served; only to return a verdict that if our attorney was served, then we were served, but the reality was that no one was served because there was never any hearing to be served to, which renders the judgment as void because we were denied due process of the law. Congress enacted State and Federal Statutes to be applicable for its citizens to use. All states have state procedures similar to F.R.C.P. 60(b), which can be used to attack void judgments, but unfortunately in Hamilton County, a person's rights are ignored. Blatant deprivations of the 14`h Amendment rights, that aren't fully reviewed on appeal are prime targets for more civil actions that derive from Civil Rights
Statutes which can annul judgments. Unfortunately it is difficult for most Minorities, and the poor to overturn state judgments in state court because 1) the state trial judges rarely declare a judgment issued by one of their own as void, 2) state appellate judges are
^ said to be more difficult and political, and 3) Ohio attomeys don't always go to the extra mile to fight for their clients zealously, which means if you do not have a lot of money, or leam some law for yourself, you will not receive a lot of representation. It seems Pro
Bono attorneys barely exist in Ohio. The fact that Judge Ralph Winkler, and Nelson Reid signed a summary judgment without any hearing scheduled, violated our 14°i amendment rights, creating the federal question "Were we, the Smith's deprived of our 14`n
Amendment rights in the Hamilton County Court of Common Pleas, and the Court of
Appeals; First District? Judges are charged with applying the law to the cases before them, which is not always an easy task. Where a result is mandated by statute, the judge is bound to apply the statute as written, without exception, however inappropriate or distasteful a judge may find the result. There are several constitutional questions our case involves, that include; 1) Don't we still have the right to due process of the law as written in the !4th Constitutional amendment?, 2) Did the Court of Appeals, Judge Ralph
Winkler, and Judge Niehaus depart from proper judicial procedure by allowing foreclosure and eviction when there was never any hearing conducted, and default/summary judgment was entered? 3) Is it a normal practice of Ohio courts' to not follow the law, but rather go along with their colleague's erroneous interpretation of the law at the debtors' expense? 4) Does Attomey General Marc Dann's order that the banks must show that they own the mortgage before they can foreclose apply to Minorities, and the poor? Rose Ann Fleming, Esq. pleaded numerous times in the court that Chase
Finance did not have the proper paperwork to indicate they were the owners of the mortgage, yet the courts' allowed them to proceed with foreclosure illegally. This
indicates a denial of our civil rights through improper paperwork, and a collaboration of judges and the courts' to seize Demetrious's properties with improper court procedures.
These conspirator acts of blatantly denying a person their civil rights, has unfairly caused many people to wind up homeless. Ohio's #1 foreclosure rate is dispropoitionately high compared to our #7 population size. Ohio is supposed to abide by the laws of the
Constitution, but a support system of court personnel, including judges disregard law in
Hamilton County, and intimidates those who want to abide by the law. The state and bankruptcy courts' have intertwined a foreclosure system that denies debtors' the opportunity to use foreclosure defense, and bankruptcy laws when applicable. Few people actually know their legal rights in Ohio and depend on their attorneys to defend them properly. Under the 5a' and the 14u' amendments, "No state shall deprive a person of life, liberty, or property without due process of the law". Chase Manhattan Finance conspired with judges and lawyers, and actually took possession of the Ehrling Rd. property house by force, and followed no law. F.R.C.P. 60 (b), newly discovered evidence, and 18 U.S.C.§ 242, "Conspiring with Immune Officials", reveals the dark side of how the courts make rulings contrary to law when dealing with Minorities, and the poor in Cincinnati. Currently our local courts have shown they side with the banks' no matter what the law says, and we pray honesty and integrity will be restored once again to our judicial courts. To further substantiate our pleas for the foreclosure sale to be set aside, we are including exhibits. There are other issues concerning this property we have been trying to get straightened out, and to allow the property to be taken without proper procedure, would only promote a continuum of improper behavior from the courts' that have had the upper hand in producing foreclosures whether justified or not. Conflicts of interest, with the bankruptcy court are a major problem for us, and we pray this statement
J-^ will not prejudice your decision while reviewing our case. It is no doubt that it is of public importance that this court can show it can be fair to all the citizens of Ohio, and treat them with dignity and respect. We pray this court will come to the conclusion that this sale was void, and "Set Aside the Foreclosure Sale, and issue an injunction to stop the improperly administered court ordered Eviction (set for January 14, 2008) from
Lerner, Sampson, and Rothfuss", which are not the attomeys of record for Chase
Finance. We need adequate representation to represent us, and request for court appointed
un-biased counsel to represent us in this matter. We pray this court also reviews our
entire case from the Bankruptcy Court, The Bankruptcy Appellate Panel, the Federal
District Court, and the U.S Court of Appeals. Under the Fair Housing Act, and the Civil
Rights Act of 1976, we should qualify for Court appointed counsel, and deserves Senate
review. Thank-you.
3^ IN THE SUPREME COURT OF OHIO
Demetrious Y. Smith, et al
Appellants On Appeal from the Hamilton County Court V. of Appeals, First Appellate District
Chase Finance, et al Court of Appeals Wells Fargo Case No. C0601069
Appellees
"MEMORANDUM IN SUPPORT OF JURSDICTION" OF APPELLANTS DEMETRIOUS & AMY K. SMITH
Demetrious Y. Smith (Pro Se) House Judiciary Committee Amy K. Smith (Pro Se) Washington, D.C. 4703 Winona Terrace Cincinnati, Ohio 45227 (513) 271-0077 (513) 551-8863 "PRO SE" in this APPEAL
Rose Ann Fleming, Esq. (#0041337) (Attorney of Record in prior Appeal Case No.: C0601069) 3855 Ledgewood Drive, Suite 13 Cincinnati, Ohio 45207 (513) 924-8389 (513) 924-8389 (Fax)
Bricker & Eckler, LLP Nelson Reid, Esq. (#0068434) Vladimir P. Belo, Esq. 100 South Third Street Columbus, Ohio 43215 (614) 227-2300 (614) 227-2390 (Fax) Trial Attorneys for Chase Finance LLC, f/k!a Chase Manhattan Mortgage Corporation
Taft, Stettinius, & Hollister, LLP
^1 Gregory J. O'Brien, Esq. Patrick E. Noser, Esq. 425 Walnut Street, Suite 1800 Cincinnati, Ohio 45202 Counsel for Mortgage Electronic Registration Systems
Office of the U.S. Trustee Margaret Burks, Esq. 36 East 4th Street Suite 900 Cincinnati, Ohio 45202
Ohio Attomey General Marc Dann Consumer Protection Section 30 E. Broad St., 14a' Fl. Columbus, Ohio 43215-3400
Memorandum in Support of Jurisdiction
The Supreme Court of Ohio herby hasjurisdiction over this case as an appeal of right, under App. R. 22 (E), from the judgment of the Hamilton County Court of Appeals, First
Appellate District, entered in the Court of Appeals case No. C0601069 on November 2,
2007.
This case raises a substantial constitutional question; and is of public or great general
interest.
Respectfully, Submitted,
CERTIFICATE OF SERVICE
We certify that a copy of this Memorandum in Support of Jurisdiction was sent by ordinary mail to counsel for Appellees, Rose Ann Fleming, Esq., Margaret Burks, Chapter 13 Trustee, and Ohio Attorney General, Marc Dann, Esq. .
4r-;- STATEMENT OF THE CASE
Now come Amy and Demetrious Smith, asking this court for permission to intervene,
F.R.C.P.24 on our own behalf to timely file this "Notice of Appeal." We have been deprived of our constitutional due process rights by having our property seized without adequate notice, an opportunity to contest the action of summary judgment even though we provided genuine material evidence. Chase Finance's efforts to always win, The 5a' and the 14'' Amendments states that no person shall be deprived of property without due process of the law, nor deny to any person within its jurisdiction the equal protection of the laws. There are still many pending issues conceming these sales, which need to be resolved in front of an impartial tribunal. Justice can only be served in a court that follows just the law, rather than one that only protects their own. As a layperson, there is no way I can compete grammatically with a skilled lawyer, however, I believe I write in a style that is understandable. Indeed, it was shocking to come to the realization that there was no hearing at all, and anyone within their right mind would speak up against such a violation. This is America, and I know of no law that says a person has no rights other than to let their property be seized unlawfully. Chase Finance jumped the gun, and moved for confirniation of sale on the 10th day of the U.S. Court of Appeals decision, of the "Writ, and Motion to set Aside Foreclosure Sale, etc..."We asked for a
"Reconsideration En Blanc", which is still pending, and made it wrong for Chase Finance to sell the house to a third party before our time to appeal had expired. F.R.C.P. 24(a) states, "Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers to an unconditional right to intervene; or (c)
Procedure; When the constitutionality of an act of Congress affecting the public interest is drawn in question in any action in which the United States or an officer, etc..., or when the applicant has an interest in the litigation. Clearly it is of the public interest that this court would not be a major factor in Ohio's number one foreclosure rate, by disallowing due process rights, so a person's home would be unlawfully seized. Ohio should not be number one in foreclosure, if we are number seven in population. Something is wrong.
We pray that this court and look deeper than colleague brotherhood, by reviewing foreclosure defense laws (both state and federal), that were written to protect the consumers. It seems we are behind as a state when it comes to this litigation. A true review of our case and its' responses, will reveal a court system that is totally indifferent to the rights of Minorities, and the poor. This indifference has produced in Ohio a one sided court system, creating foreclosures at epidemic rates. Unfortunately, our courts have strayed away from advising "Pro Se" litigants of their rights, and many do not have the time to study law effectively enough to fight foreclosure against skilled, or
conspirator attomeys. Though we cannot say why Rose Ann Fleming, Esq. did not bring
up the issue about there being no summary judgment hearing, we can say through
studying law we knew we had to intervene and let it be known that the Ehrling property was being seized illegally. A review of motions in the Hamilton County Court of
Common Pleas, show discrepancies that prove there was an invalid lien on Ehrling. We
even had a PROFESSIONAL real estate attorney testify that the lien was invalid, only to
have Judge Niehaus say if your attomey was served, then you were served. The
statement to us that he would review our file, indicates that he did not do this. This is
only one example of indifference, we've endured showing how judge's side with their
colleagues, even if they are legally, and ethically wrong. The real answer is no one was served because there was there was never a hearing to go to on summary judgment.
Under rule 60(b), newly discovered evidence, it took a while to pour over the documents, to come to the conclusion there was no hearing. Not only were our 5v' and 140'
Amendment rights violated, so were our 15t Amendment rights of free speech. Our rights
to a fair trial have been violated, thus disallowing us an opportunity to be heard. We ask
this court to reverse the "Confirxnation of Sale", and place an "Injunction" to stop the
state court ordered eviction scheduled for January 14, 2008 until proper court procedure
can be carried out. Our transcripts will prove we have been denied the opportunity of
having a fair trial. Conflicts of interest, cover-up, and conspiracy to foreclose, has
deprived us from having the bankruptcy protection we paid for through Chapter 13. We
thank you so much for you consideration in this matter, and pray this Supreme Court be a
contributor of Ohio's high foreclosure rate by depriving us of the opportunity to defend
our property with a fair trial. The Attorney General has said a bank must be able to prove
they own the loan before it can foreclose. A denial of the right to litigate this issue will
cause irreparable harm of causing more emotional pain of witnessing otir property
improperly being seized with the aid of state government. We pray that this cottrt will
not discriminate against us, and that Attorney General Marc Dann's statement applies all
citizens of Ohio. We thank-this court for their consideration in this matter, and pray this
court is fair in allowing its citizens an opportunity to litigate the issues we have tried to
litigate for years. UNITED STATES COURT of APPEALS FOR THE SIXTH CIRCUTC 100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE CINCINNATI, OIUO 45202-3988
NO. 07-3938
DEMETRIOUS YADIRF SMITH AMY KATHLEEN SMITH Appellants "AMENDED MOTION TO SET ASIDE V. FORECLOSURE SALE"
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. CIO CHASE MANHATTAN FINANCE LLC Successor by merger to CHASE MANHATTAN MORTGAGE CORPORATION
Now come Demetrious Y. Smith, and Amy K. Smith to Propose an "Amended Motion to
Set Aside the Foreclosure Sale", (conducted on July 12, 2007)". Under the 5ei and the
14°i amendments, "No state shall deprive a person of life, liberty, or property without due process of the law". We pray for this foreclosure sale to be reversed, because documents will reveal that Chase Manhattan Finance, and Mortgage Electronic Registration
Systems, Inc., conspired with judges and lawyers, and actually took possession of this house by force, and followed no law. F.R.C.P. 60 (b), newly discovered evidence, and
18 U.S.C.§ 242, "Conspiring with Immune Officials", reveals the dark side of how
Minorities, and the poor are treated in Cincinnati. Currently our local courts have shown they side with the banks' no matter what the law says, and we pray honesty and integrity will be restored once again to our judicial courts. To further substantiate our pleas for the foreclosure sale to be set aside, we are including exhibits. We pray this court will come to the conclusion that this sale is invalid, and "Set Aside the Foreclosure Sale". We need adequate representation to represent us, and have written an added petition for court appointed un-biased counsel to represent us in this matter. Thank-you.
Sincerely, CERTIFICATE of SERVICE
This is to certify that aB the parties named below have received a copy of "Amended Motion to Set Aside the Foreclosure Sale", of the U.S. Court of Appeals; sent by regular mail this 23rd day of August, 2007.
Rose Ann Fleming, Esq. Nicholas Pantel, Esq. 3855 Ledgewood Dr.Suite 13 220 United States Courthouse Cincinnati, Ohio 45207 100 East Fifth Street Cincinnati, Ohio 45202
Nelson Marlin Reid, Esq., Bricker & Eckler Office of the U.S. Trustee (Representing Chase Manhattan Bank) Chapter 13 100 South Third St. Attn: Margaret Burks Columbus, Ohio 43215 36 East Fourth Street, Stc. 900 Cincinnati, Ohio 45202 Martha R. Spaner, Esq. John A. Polinko, Esq. Shapiro & Felty 1500 W. Third Street, Ste. 400 Cleveland, Ohio 44113 T1 II ^ ^ IN THE COURT OF COMMON PLEAS D71319916 HAMILTON COUNTY, OHIO
CHASE MANHATTAN MORTGAGE Case No.: A0408502 CORPORATION, et at Judge Ralph Winkler
Plaintiffs, Magistrate Richard Barnat
-vs- COGSO6s in0 cfv DEMETRIOUS SMITH, etat NOTICE OF APPEAL ^M y K.5'" , rb. w Defendants. e ^(IZiy^ LJ 0^ : Now conies Defendants, Demetrious Y. Smith and Amy K. Smith, and hereby
gives notice of appeal to the First District Court of Appeals from the Entry and Order,
entered by said trial on the 8.(h day of December, 2006;
Rose Ann Fleming, S.O. # 1004037 A Legal Professional Corporation ORIG MP, PARTIES, SUMMDNS 3855 Ledgewood Drive, Suite 13 MAIl. ( ) SHERIFF ( ) WAVE Cincinnati, Ohio 45207 ( ) PROCESS SERVER ( ) NONE Phone: 513-924-8389 CLERNS FEES TIC Fax: 513-745-4282 Email: SECURITY FOR CPST Attotney for DemetriousX. Smtth DEPOSITED BY And Amy K. Smith-; i FILtNG CODE C,
C ^_ N j -^^- D CERTIFICATE OF SERVICE . ^~
I HEREBY CERTIFY that a true copy of the above Notice of Appeal was served,-by regular mail upon Justin W. Ristau, Esq., Bricker & Eckler, LLP, 100 S. Third Street Columbus, Ohio 43215, this 401 day of December, 2006.
Rose Ann Fleming, S.Ct 00541337
18 EXHIBIT A 1 ^.i^------` ^ ^"tr2^! b[3^[^L^ CaJ,¢7' d F A^^^ IN THE COURT OF COMMON-PLEAS HAMILTON COUNTY, OHIO I D71382990 CHASE MANHATTAN MORTGAGE Case No.: A0408502 -_.. ` CORPORATION, C- D rii %0(0 9
And
Mortgage Electronic Registration Judge Ralph Winkler Systems, Inc. Plaintiffs, Magistrate Richard Barnat
-vs-
DEMETRIOUS SMITH
AND
AMY K. SMITH,
Defendants.
Now comes Defendants, Demetrious Y. Sniith and Amy K. Smith, and hereby
gives notice of appeal to the First District Court of Appeals from the Entry and Order,
entered by said trial on the .01^' day of December, 2006. L f( (
Rose Ann Fleming, S.Ct. # 1 043371 A Legal Professional Corporation ltis F1L,D 3855 Ledgewood Drive, Suite 13 ,? j z- COURT OF APPEAtS Cincinnati, Ohio 45207 Phone:513-924-8389 DEC 2 6 2006 Pax:513-745-4282 Email: ^ ORY wA Attomey for Demetrious Y. Smith HAMItTQN 00^ And Amy K. Smith
e^ o
>f'lf. 0 m n n N 6' py^,^ â `1 rIl 19 w EXHIBIT CJ I B CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the above Notice of Appeal was served by regular mail upon Justin W. Ristau, Esq., Bricker & Eckler, LLP, 100 S. Third Street Columbus, Ohio 43215, and Robert D. Ross, Esq., Gammell, Hoshorn, Kendo & Ross, LLP, 7925 Panrgon Road, Dayton, Ohio 45459 this ^Z4 day of December, 2006.
Rose Ann Fleming, S.Ct. #00541337
20 First DisGict Court ofAppeats AMENDE 510, C061069 Civil Docket I D71764760 (Must 8e Typed and Filed In duplieate i ^ _....^ Counse^ 1. Caw Captlon • , 7.AppealNo. 2. TrIW No. A0408502 Chase Manhattan Mortgage Corp., et a., a.TrlmJudge Ralph L. Winkler Plaintiffs/Appellees s. Reumd Appeata v. aOa4ufJudprnarM12/ 8/Ob , Demetrious X. and Amy K. Smith Order Appaaled From nafw antn/Ap pal rc 7. Date Appaat Fifad 8. Courlsal for AppaSant 8. Cauluellor AppNtaa Rose Ann Fleming, 0041337 Justin W. Ristau FlLE® e-Malladdroes [email protected] E4AoS addnM - Jristau®hrlCker rswCOUqTOFAppILALS 10(A) CMI Rule BF$ Myas, daes rha (udpment inaWde a amli0ratlan a( If muklple jWpntents or claims: 'NOJuatCausefor0etay?• JAN 'Yq Ae3 ZOoiIo Does Cird Rule 51-8 Appiy. Yes No ^^OtCRCGORYHARTM 11.Record hiAMtLTU There will be a parfial transafptof proceedh+gs filed. Yes ThepaAstobeonlendere:4 r. 1/ S- /^ 7)/^4/Ofi There vAlt be a complete trenscrpL of pmceedinga 81d -' -" Yes ireiYaer offhe atrow ere sppacadb ftie ooud repate(s cer6ficatfon bedowmust be coerqNetsd
If nedher o/tlw above are applicaDle then one of the fdlowing must be drded: ^ r.) r_ Therewi9beashtamentfifadpursuentloApp.R6(C) Yes 3=^^_ There edp be an agreed statement Ated purauant to App. R. 8(0) Yes c-)T YV There 1a ao traneoript, atetement ar e0tead ata4sment to be flted. Yes z ^u CffcknrJ anyor tpe aboue fMas wfp be deeoled auificlenf oompllanus witb A. R. 9(C)and tocel Rulgdo 71 = 12. Court RepoAers CertlBeattan S ^k. w The transcdpt as onlered conaists of approrNna6*.-Qaqes and pursuent to l.ocal Rule 10, the IranscdptqVfr^ba prepared eM ready tor tiinp on J:_0^^
Date: sipnmere: qCl /( ^^^lnlll s r- -
41. Natum of Appea) Please Chedr AY That Apply and Pravide SpeciBc Infdhnatlon Whsnever Space Is Provldcd. BE SURE TO NOTE IF THIS APPEAL 18 PURSUANT TO APP R.112 AOOPTION OR TERNINATION OF PAR6NTAL RIGHTS. kfnLl ) APP R.112 ADOPTION OR ( ) Insunnce TTlal Malters TEAMINATION OF PARENTAL RIGHTS ( ) W^dbrdrrenaM ( ) Ev4derRa i4^ ( ) ProoedudRrJas Jurylnstmcaans ^ ( ) Adrnaiaua0vs (X ) RealPraperty Exped 1NlGresses Altomey Fees ( g ) Summary Judgment C6N SaMce ( ) Tax ( ) WeigMOfEvfdenoe ConstlhiOorelLaw Tort Other: x Contraas IntenNonalTart-wodrp7ece ( 1 CoryorotlonslPartnershipa ( ) MaNradke ) Unertployment Campensatbn ( ) oamagee Na9qpence-Auto ) weiyralSulRclency of Evidance DedaratoryJudgment ( ) ke9lgenm - T WakersCompensation • Domeatlo Ralalldhs/Cldldren ( ) Product LbbNiy ) NMts ( . ) Child Support Slip and Fall ) z°°Mg ( 1 CustQdy Other Other: ( ' ) Depsndenry ONaca other. 1A ProWb)a hsuee forReWew 1. No statement on part of the Court that Plaintiff met its burden under Rule 56.' 2. That PiERS is nominee.; andnot a party to this action or holder of mortgage. l C.aa814 andbr80hde(a) to na nd.cussaa Rule 56 requirements for Plaintiff. t7. CsnlM1eate of 6arvlw I cat7fy that I hevo MaNed w WhenWee 0a%vere0 a copy of thb t!dr,et atatepipnt to aA cq^ recmd wfie parlbs M unrepeeenieC. DBIa: ^cL O1/ ^h gk^nehva; ffCLLt.ti/ /f +
23 ^ D7181S099 i ^ (ilnurt uf Apprals Ntrst A,pprllatr 19i^trirt nf
CRASE MAN9ATfAA ArE = ATTnN F'r AT • __p^alQtlff- `iC 061069 -'° ve. No. _ A-040R50Z _ DElO:T$IOUS SNITH ET AL Defendant
T[tAASCB.'PT OF T$E DOC'M AND TOOHNA.; ENTILES
HAMILTON COUNTY CLERK OF COURTS ^rn . J._.."4^ _. BOUND DOCUMENT CANNOT BE SCANNED Hamiltan county Court System
APPEARANCE DOCKET A 0408502 Print Date: 1/29/2007 Page 1 CMSR5143
Attorney - ANITA L MADDIX 74742 NELSON M REID 68434 NELSON M RE1D 68434 Attorney - Judge - RALPH E WINKLER 218
CHASE MANHATTAN MORTGAGE CORPORATION VS. DEMETRIOUS SMITH
Filed:10/20/2004 E511 - FORECLOSURE
Total Deposits $441.25- Total Costs $450.25
11920720 CHASE MANHATTAN MORTGAGE CORPORATION 11929010 MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC Plaintiff(s) vs. 11928721 DEMETRIOUS SMITH 11929021 AMY K SMITH 11929022 STATE OF ONIO DEPARTMENT OF TAXATION 11929026 JOHN DOE UNKNOWN OCCUPANT Defendant(s)
OPTICAL AVAIL. IMAGE NBR/•" DATE DESCRIPTION AMOUNT ______-______N 10/20/2004 FOREIGN PLAINTIFF FEES PAID 254.00- BY ANITA L MADDIX y 10/20/2004 CLASSIFICATION FORM FILED. N 10/20/2004 ORDER OF REFERENCE TO MAGISTRATE PER CASE NO. M-9600400.. Y 10/20/2004 COMPLAINT ILED N 10/20/2004 MONEY RECEIVED FROM L S R 5937 0.75- N 10/21/2004 CERTIFIED MAIL SERVICE ISSUED TO DEMETRIOUS SMITH Y ^ 10/21/2004 SUMMONS ISSUED BY CERTIFIED MAIL WITH WAIVER TO DEMETRIOUS SMITH Y 10/21/2004 WIMUQLE-X SSUED TO SHERIFF FOR DEMETRIOUS SMITH N 10/21/2004 CERTIFIED MAIL SERVICE ISSUED TO AMY K SMITH y 10/21/2004 SUMMONS ISSUED BY CERTIFIED MAIL WITH WAIVER TO AMY K MITH y 10/21/2D04 SUMMONS ISSUED TO SHERIFF FOR Y K SMITH N 10/21/2004 CERTIFIED MAIL SERVICE ISSUED TO STATE OF OHIO DEPARTMENT OF TAXATION y ( ^10/21/2004 -fSUMMONS ISSUED BY CERTIFIED MAIL WITH WAIVER TO STATE OF OHIO DEPARTMENT OF TAXATION N 10/21/2004 CERTIFIED MAIL SERVICE ISSUED Q TO JOHN DOE UNKNOWN OCCUPANT Y O 10/21/2009 fSUMM ISSUED BY CERTIFIED MAIL_WITH WAIVER TO JOHN DOE UNKNOWN OCCUPANT Y L_JJ 10/21/2004 (SUMMONS SSSUED TO SHERIFF FOR JOHN DOE UNKNOWN OCCUPANT 10/26/2004 /POSTAL RECEIPT RETURNED, COPY OF SUMMONS AND COMPLAINT DELIVERED TO JOHN DOE UNKNOWN OCCUPANT ON 10/23/04; FILED 10/27/2004 JUDGE ASSIGNED CASE ROLLED TO CRUSH/THOMAS/H PRIMARY y ((y 10/28/2004 ( POSTAL RECEIPT RETURNED, COPY OF SUMMONS AND COMPLAINT DELIVERED TO STATE OF OHIO DEPARTMENT OF TAXATION ON 26 Hamilton County Court Eystem
APPEARANCE DOCKET A 0408502 Print Date: 1/29/2007 Page 2 CMSR5143 l10/25/04, FILED Y 10/28/2004 RUMMONS aeTLiRNED AND ENDORSED BY SIMON LEIS, SHERIFF; SERVED: PERSONALLY UPON JOHN DOE,UNKN OCCUPANT 10/27/04. NITA GARR Y 10/28/2004 SUMMONS RETURNED AND ENDORSED BY SIMON LEIS, SHERIFF; SERVED: PERSONALLY UPON AMY 7C ITH 10/27/04. Y 10/28/2004 SIIMMONS RETURNED AND ENDORSED BY SIMON LEIS, SHERIFF; SERVED: RESIDENCE UPON DEMETRIOUS SMITH 10/27/04. Y 11/08/2004 ANSWeR Y 11/08/2004 NOTIFICATION FORM FILED. Y 11/12/2004 LETTER OM STATE OF OHIO Y 11/17/2004 PRT I FIFn MAIL SERVICE RETURNED; UNCLAIMED SERVICE TO DEMETRIOUS SMITH N 11/17/2004 REGULAR MAIL SERVICE ISSUED TO DEMETRIOUS SMITH Y 11/17/2004 &MMONS ISSUED BY REGULAR MAIL TO DEMETRIOUS SMITH 11/17/2004 ^'ERTIFICATE OF REGULAR MAIL FILED. DEMETRIOUS SMITH Y 0 11/22/2004 ANSWER OF AMY K. SMITH Y 11/24/2004 ERTIFIED^IAIL SERVICE RETURNED; UNCLAIMED SER V I CE AS TO AMY K SMITH N 11/24/2004 REOULAR MAIL SERVICE ISSUED ^ 0 AMY K SMITH Y 11/24/2004 SUMMONS ISSUSD BY REGULAR IL TO AMY K SMITH N 11/26/2004 CERTIFICATE OF REGULAR MAIL FILED. AMY K SMITH Y 12/06/2004 ANSWER T Q SUMMONS Y 12/21/2004 AFFIDAVIT IN SUPPORT OP MOTION FOR SUMMARY JUDGMENT Y 12/21/2004 MOTION OF COPLAINTIFFS, CHASE MANHATTAN MORTGAGE CORPORATION AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. FOR SUMMARY UDGMENT Y 12/21/2004 NOTICE O MOTION FOR SUMMARY JUDGMENT HEARING Y 1/14/2005 EFENDANT'S DEMETRIOUS AND AMY SMITH'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 1/17/2005 JUDGE REASSIGNED CASE TRANSFERRED FROM CRUSH/THOMAS/H PRIMARY 1/17/2005 JUDGE ASSIGNED CASE ASSIGNED TO WINKLER/RALPH/E PRIMARY Y 2/08/2005 N TIF ON F RM FILED. Y 2/08/2005 COPLAINTIFFS CHASEMANHATTAN MORTGAGE CORPOAATION.AND MORTGAGE ELECTRONIC REGISTRATION SYST8M5, INC. IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Y 6/15/2005 MOTION TO DISMISS SUMMARY JUDGMENT Y 10/04/2005 TICE OF SUBSTITUTION OF COUNSEL Y 10/16/2005 FIDAVIT OF DEMETRIOUS SMITH, DEBTOR, IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 27 Hamilton County Court System
APPEARANCE DOCKET A 0408502 Print Date: 1/29/2007 Page 3 CMSR5143 OPTICAL AVAIL. IMAGE NBR/•- DATE DESCRIPTION AMOUNT ______------_------Y 11/01/2005 NOTIFICATION FORM FILED. Y 11/23/2005 FOR EXTENSION OP TIME TO COMPLETE DISCOVERY AND FILE A MEMORANDUM IN OPPOSITION Y 11/25/2005 'A^FIDAVIT & REQUEST TO TRANSFER TO FEDERAL DISTRICT COURT Y 11/28/2005 EMORANDUM OFM CO-PLTF'S CHASE MANHATTAN MORTGAGE CORPORATION AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. IN OPPOSITION TO MOTION FOR EXTENSION OF TIME Y I 12/06/2005 MEMORANDUM OF PLAINTIFFS CHASE Ifh1E FINANCE LLS, SUCCESSOR IN INTEREST TO CHASE MANHATTAN MORTGAGE CORPORATION, AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS. INC. IN OPPOSITION TO MOTION TO STRIKE Y SUHPOENA FOR WITNESS ISSUED TO AMY SMITH ANSWER OF DEFENDANTS IN O`BPOSITION TO MOTION TO STRIKE N 12/27/2005 REGULAR MAIL SERVICE ISSUED TO MADDIX/ANITA/L N 12/27/2005 REGULAR MAIL SERVICE ISSUED TO REID/NELSON/M N 12/27/2005 REGULAR MAIL SERVICE ISSUED TO FLEMING/ROSE/ANN Y 12/27/2005 MAGISTRATE'S ORDER COPY OF MAGISTRATE'S ORDER SENT HY ORDINARY MAIL TO ALL PARTIES OR THEIR ATTORNEYS. N 12/27/2005 RTIFICATE OF REGULAR MAIL FILED. MADDIX/ANITA/L N 12/27/2005 CERTIFICATE OF REGULAR MAIL FILED. REID/NELSON/M N CERTIFICATE OF REGULAR MAIL FILED. FLEMING/ROSE/ANN Y SUHPOENAZOR WITNESSISSUED TO AMY SMITH Y MOTION TO STAY AND MOTION TO SET ASIDE MAGISTRATES DECISION Y M8MORANDUM OF PLAINTIFFS CHASE ROME FINANCE LLC, SUCCESSOR IN INTEREST TO CHASE MANHATTAN MORTGAGE CORPORATION, AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. IN OPPOSITION TO MOTION TO STAY AND MOTION TO SET ASIDE MAGISTRATE'S DECISION Y 1/19/2006 MAGISTRATE'S DECISION. COPY OF MAGISTRATE'S DECISION SENT BY ORDINARY MAIL TO ALL PARTIES OR THEIR ATTORNEYS AS NSTRUCTED PER PRAECIPE. N 1/19/2006 REGULAR MAIL SERVICE ISSUED TO MADDIX/ANITA/L N 1119/2006 REGULAR MAIL SERVICE ISSUED TO REID/NELSON/M N 1/19/2006 REGULAR MAIL SERVICE ISSUED TO FLEMING/ROSE/ANN 28 Hamilton County Court System
APPEARANCE DOCKET A 0408502 rint Date: 1/29/2007 Page 4 CMSRS143 OPTICAL AVAIL. IMAGE NBR/r+ DATE DESCRIPTION AMOUNT ------_------______N 1/19/2006 REGULAR MAIL SERVICE ISSUBD TO LAWRENCE BARON N 1/19/2006 CERTIFICATE OF REGULAR MAIL FILED. MADDIX/ANITA/L N 1/19/2006 CERTIFICATE OF REGULAR MAIL FILED. REID/NELSON/M N 1/19/2006 CERTIFICATE OF REGULAR MAIL FILED. FLEMING/ROSE/ANN N 1/19/2006 CERTIFICATE OF REGULAR MAIL FILED. LAWRENCE BARON Y 2/02/2006 DE .IECTION TO THE MAGISTRATE'S DECISION Y 2/06/2006 ICTr T,RAT ACTION HAS BEEN REMOVED y ^ 2/06/2006 TICE THAT ACTION HAS BEEN REMOVED N 5/03/2006 M NEY RECEIVED & COST PAID BY 186.50- LERNER SAMPSON & ROTHFUSS Y 8/22/2006 PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' OBJECTIONS TO THE MAGISTRATE'S DECISION Y ^ 9/05/2006 TION MOTION FOR LEAVE TO FILE REPLY TO FILE REPLY OUT OF TIME AND MOTION TO ORDER ,AND FILE TRANSCRIPTS Y 9/05/2006 MOTrON_FOR REVIEW y 5 9/18/2006 PLTF MEMORANDUM IN OPPOSITION ) TO DEF MOTION FOR LEAVE TO FILE REPLY OUT OF TIME Y 11/21/2006 4SUBPOENA FOR WITNESS ISSURD TO AMY SMITH Y 11/28/2006 M TION FOR CONTINUANCE Y ^ 11/29/2006 BPOENA F'OR WITNESS RETURNED AND ENDORSED AMY SMITH••. NOV ^ 21, 2006 Y 11/29/2006 M TION FOR CONTINUANCE Y 12/04/2006 NOTICE OF DISMISSAL 1'- 12/00/2006 ENTRY AND ORDER ADOPTING MACISTRATE'S DECISION Y KQ 12/20/2006 ^TICE OF APPEAL FILED. NO. "JO C661069 COPY SENT TO JUSTIN W ^ RISTAU ESQ Y d 12/26/2006 A ENDED NOTICE OF APPEAL
29 i / 14Fai^ IN THE COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO
CHASE MANHATTAN MORTGAGE CORPORATION, et at., Case No. A0408502
Plaintiffs, Judge Ralph Winkler
V. Magistrate Richard Bemat
DEMETRIOUS SMITH, et a!.
Defendants,
ENTRY AND ORDER ADOPTING MAG[STRATE'S DECISION
This matter is before the Court on Defendants Demetrious Smith and Amy K. ^.. Smith's ("Defendants") itiotion to set aside the Magistrate's December 27, 2005 order,
Defendants' objection to the Magistrate's January 19, 2006 decision, and various other
pending motions filed by Defendants.
This Court has reviewed the comprehensive findings of fact and conclusions of
law reached by Magistrate Bemat and considered de nova all of the filings in this matter.
Upon consideration of the foregoing, this Court finds as follows:
1. That Demetrious Smith executed a promissory note (the "Note") with Aegis
Funding Corporation in the amount of $85,400.00 on or about January 29, 2003.
2. To secure repayment of the Note, Demetrious and Amy Smith executed and
delivered to co-plaintiff Mortgage Electronic Registration Systems, Inc.
("MERS") a mortgage for the real property located at 5555 Ebrling Road,
Cincinnati, Ohio 45227 (the "Mortgage").
1 180196M 30 3. The Mortgage was duly recorded on February 14,2003.
4. The Note was subsequently assigned to MERS, who is now the holder of both the
Note and the Mortgage.
5. That co-plaintiff Chase Home Finance LLC, successor by merger to Chase
Manhattan Mortgage Corporation ("Chase") is the servicer of the loan at issue in
this case.
6. That Plaintiffs have presented sufficient evidence to establish that Defendants
have'defaulted under the terms of the Note and Mortgage, that MERS elected to
accelerate the entire balance due, and that PlaintifFs are entitled to judgment as a
matter of law on Counts One and Two of their Complaint.
7. Defendants failed to plead any valid affirmative defenses with sufficient
specificity to pursue such defenses in this matter.
8. Defendants have presented no evidence to create a genuine issue of material fact
in this matter.
Accordingly, this Court agrees with the conclusions of the Magistrate set forth in
both the December 27, 2005 order and the January 19, 2006 decision.
IT IS THEREFORE ORDERED that Defendants' motion to set aside the
Magistrate's December 27, 2005 order shall be and hereby is DENIED.
IT IS FURTHER ORDERED that Defendanls' objection to the Magistrate's
January 19, 2006 decision shall be and hereby is OVERRULED.
IT IS FURTHER ORDERED that aIl other pending motions flled by
Defendants are hereby DENIED,
2 1801963v1 31 DISCUSSION
Demetrious Smith admits to having defaulted on the Note." The answer, signed by Amy Smith, amounted to a general denial of the complaint and an assenion that she and her husband Demetrious wcre the victims of predatory lending.13 The couri construes the predatory lending claim to be an affirmative defense as defined under Civil
Rule 8(C). "A paily seeking to assert an affirmative defense pursuant to Civ.R. 8(C) is instructed by the language of the rule that the listed affirmative defenses must be 'set forth affirmatively': Courts construing this language have determined that a party must set forth the listed affirmative defenses with specificity or else they are waived."t°
Because the Smiths failed to set forth the affirmative defense with speciticity, they have waived their right to pursue the defense in the instant case.
The Smiths have in turn ftled a verified complaint against Chase, MERS and others alleging fraud and violations of the consumer protection statutes.ts The sole issue is whether the Smiths' separate cause of action against the movants and others creates a genuine issue of material fact sufficient to defeat the instant motion. Clearly it does not.
While the Smiths are free to prosecute their separate fraud cause of actio», that action cannot become a legal impediment to the instant foreclosure. Viewing the evidence ntost strongly in the Smiths' favor, the court finds no genuine issue of material fact remains to be litigated, and that Chase and MERS are entitled to judgment as a matter of law.
tr / Aff. of Demetrious Smith, 139. t' / Aaswer of Amy Smith. In their Memorandum in (lpposition, the defendants also requested relicf Prom jidgmem based solely upon the alleged predalory practices allegedly committed by the movants. / 1'aylor er a7. v Mei7dla Huron Hoepual ofC/evefand Clinic Nealth System (Nov. 13, 2000), 142 Ohio App.3d 157, 157 (App. g Dist.) (citations omitred). t' / Mem. in Opp.; Ex. A(Compl., Ham. Cnty. Case No. A0410302, filed Dec. 27, 2004).
3 37 DECISION
Plaintiff Bank One, N.A.'s Motion for Summary Judgment is GRANTED.
Judgment against Demetrious Smith in the amount of $85,014.08, plus interest at the rate of 9.36% per annum from September 1, 2003, plus court costs, advances for taxes, and other charges as allowed bylaw. If this decision is adopted by the court, plaintiff shall be pennitted to file its praecipe for sale and proceed consistent with the Ia^a this state.
RICHAIM A. BERNAT MAGISTRATE COURT OF COMMON PLEAS
Copies sent by Clerk of Courts to:
Rose Ann Fleming, Esq. Nelson M. Reid, Esq, 3855 Ledgewood Drive Bricker & Eckler LLP Cincinnati, Ohio 45207 1000 South 3id Street Columbus, Ohio 43215-4291 Lawrence C. Baron, Esq. Assistant Prosecuting Attomey Anita Mattox, Esq. 230 East 9'h Street, Suite 700 Lerner Sampson & Rothfuss Cincinnati, OH 45202 P.O. Box 5480 Cincinnati, Ohio 45201-5480 NOTICE
Objections to the Magistrate's Decision must be filed within fourteen days of the
6iing date of the Magistrate's Decision. If this decision contains findings of fact and conclusions of law, a party shall not assign as en-or on appeal the court's adoption of any finding of fact or conclusion of law in this decision unless the party timely and specifically objects to that finding or conclusion as required by Civ. R. 53(E)(3).
CERTI FICATE OF SERVICE
I HEREBY CERTIFY THAT COPIES OF •THE FOREGOING DECISION HAVE BEEN SENT BY ORDINARY MAIL TO ALL PARTIES OR THEfR ATTORNEYS AS PROVIDED ABOVE.
Date)^ ^^Deputy Case 1:06-cv-00038-SJD-TSH Document 6-1 Filed 01/24/2006 Page 1 of 2 ",^IVED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO ;'i,iNIINI, Clerk c,,:Camv,,Ti, oHiO NOTICE OF REMOVAL TO FEDERAL COURT
Notice of Removal Based on Diversity of citizenship and Federal Question 28 U.S.C.A.: 1441 110 6c p U 3 8 A The case being sought to be removed is: I DLOTT CHASE MANHATTAN MORTGAGE GRP. Case #A0408502 MORTGAGE ELEC. REG. SYS. ^ ^,;;;; ^ PLAINTIFFS JUDGE RALPH E WINKLER vs MAGISTRATE BERNAT 3= v DEMETRIOUS SMITH, et al. DEFENDANTS iv Defendant, Demetrious Smith, et at., hereby files this Notice of Removai bri ^',,^ Diversity of Citizenship and Federal Question to the United States District Court for the Southem District of Ohio Division from the Hamilton County Court of Common Pleas, where action is now pending as provided by Title 28, U.S. Code, Chapter 89 and states: 1. Demetrious Smith is the defendant in the above entitled action. ;:.,c t(/!`r 2. The Foreclosure action was commenced in the Hamilton County Court of I : lii v Common Pieas on 10/20/2004. 3. It is under Fed. Civil Rule 60 (b), due to circumstances beyond our control (excusable neglect due to the fact we were never informed of possibly litigating in a federal forum, our contested matters), newly discovered evidence, fr aud, etc... , r^d-I 4. Without effective counsel to advise us as clients we have been denied due process to protect our properties, under the Constitutional Amendments 5 & 14. i 5. The loan has very questionable documents including an application for a loan in t' Demetrious's name AFTER he had closed. In addition it was a HOEPA loan, jtittG which has federal mandated guidelines before it can be issued, that weren't A ``'^ a^ received. 6. We claim equitable tolling began when we had actually learned of our rights as bankruptcy debtors in July 2005. We also claim violations of the Fair Housing Act, Equal Credit Act, Unfair and Deceptive Acts and Practices, Truth in Lending, (W'' _- - vJh ^' RICO, and unconscionability. Our claims are based on the cases of Matthews vs. t;,4^^ J43iY 3 ^^_{J'Tv-.u^G"(j,
I A^^^ 1G$1 45
^ E1(HIBIT e ^. Case 1:06-cv-00038-SJD-TSH Document 6-1 Filed 01124/2006 Page 2 of 2
New Century Mortgage, 185 F. Supp, 2d 874, Nahas vs. First National Bank, 930 F2d 608, Demetrious's disability, and other cases.
In our pleading we ask this court to consider the exception to the well pleaded complaint rule: "a plaintiff cannot thwart the removal of a case by inadvertently, mistakenly or fraudulently concealing the federal question that would have appeared if the complaint had been well pleaded." 1 A Moore's Federal Practice: 0.160...Nahas vs. First National Bank, 930 F2d 612.
As laypeople we do not have the advantage that lawyers have because they already know the law. Unfortunately in our county many people wind up being victims to foreclosures needlessly when they were taken advantage of. We are trying so desperately to have a trial to bring out the facts, in our quest for justice. We want this court to know that we are sincere in our allegations, and are fighting for an opportunity to be heard. It is our prayer that this court will give us the chance. Thank-you.
46 IN THE COURT OF COMMON PLEAS ^^ f-f 18 17-^ HAMILTON COUNTY / ^f-Pss
CHAF,E MANHATTAN BANK JUDGE WI•NKLER Plaintiffs
Vs.
DEMETRIOUS SMITH, et al., Defendants MOTION FOR REVIEW
Now come, Dentetrious and Amy K. Smith, being duty sworn and cautioned do hereby declare the following statements to be true.
Non-reviewability under Section 1452(b) pertains only to actions properly removed, however; where the action is removed to the wrong court, the remand order is reviewable. [In re Devs., 1nc.,803 F. 2d]
We are seeking to have this case as well as the others classified as adversary hearings. The determination of the validity of liens as made herein is a core proceeding under 28 U.S.C. § 157 (b)(2)(F), and the court has jurisdiction over this action pursuant to 28 U.S.C. § 1334. Numerous foreclosure cases litigated in bankruptcy courts are listed throughout "Bankruptcy Reporter" books. Defendant Jeff Henry's whose federal criminal case no. 1:05-cr-0073 was indicted for mortgage fraud. Defendant National Mortgage (who hired Defendant Henry as a mortgage broker, though he was unlicensed) didn't get indicted along with Defendant Jeff Henry. We, the Smith's, along with Dihann Summers, (another bankruptcy debtor that had a complaint against Defendant Henry filed in state court with her bankruptcy court appointed attorney), and Sharon Feagin never got an opportunity to litigate our mortgage fraud complaints against Defendant Henry while they were going through litigation. Both Dihann Summers, and Sharon Feagin both lost their homes (sold fraudulently from Defendant Henry, to foreclosure, however the lack of representation actually trying to bring defenses to the debtors advantage is very rare in Cincinnati. Through studying the law I became aware of other federal and bankruptcy litigation in June 2005, and have been fighting, for our right to due process every since. I've witnessed how the state court unfairly treats ntinorities(mostl), Blacks) when it comes to foreclosures. This is why Ohio has the number one foreclosure rate in the nation, and Hamilton County is leading this region in foreclosures. We believe this court erred when remand was granted for the following reasons. 1. We believe our civil rights have been denied according to Fed. Bankruptcy Rule 7008 which states every complaint; counter-claim, or third party complaint is to contain a statement whether the case was core or non-core. We have yet to have a hearing to present our issues on abstention. 2. Bankruptcy Rule 9027 Any party who has filed a pleading in connection with the removed claim shall file whether the claim or cause is core or non-core. The disputed issues over the real estate taxes, broken chain of title, unconscionable loan, and undisclosed construction loans were contested matters Rule 9014 that made this case core that should have been in an adversary hearing. 3. Rule I 1 USC § 558 Defenses of the estate says , The estate shall have the benefit of any defense available to the debtor, includirtg statute of limitations, statute of frauds, usury, and other personal defenses. A viai ver of any such defense by the debtor after the conunencement of the case does not bind the case. 4. Did we, the Smith's receive biased procedural treatment of our bankruptcy case due to the fact Judge Aug presided over the Ehrling property with the previous owner's bankruptcy case. It is law that ajudge should recuse himself §544 if there was the slightest bit of financial interest which could affect impartiality. 1 5. Closing instructions say there was a construction letter, we the Smith's were not informed about. It is ^against Ohio Consumer and federal law to issue payment for construction without infotming the buyer th^t this type of payments is being made off of their loan, because the money was allocated for repairs. 6. Demetrious Smith was a victim of reverse red-lining. He worked hard to make the payments until these unconscionable loans left him with no equity for fix-up money. No regard was given on how high the mortgage bill was, he was pressured into believing he could make it work. Meanwhile these big banks take advantage of those that don't have the education or expertise to arrive at a fair bargain(adhesions). 7. Closing papers from Aegis Funding show much emphasis was put into getting the H:UD Form 1003, and 1007 filled out. Also the Yield Spread Premium figures are blacked out from Aegis. What was there to hide? What did Aegis mean by middle man purchase? It is our belief that someday this case will be heard through history about two debtors who fought to preserve their constitutional rights of the 5"' and 14th Amendments. It is also our belief that this case will put an end to the stigma that Minorities won't fight back to keep their properties. We are requesting an oral hearing conceming the "remand" back to state court. We, the Smith's have never had a chance to fully come face to face with a Federal Judge, (or for that matter any judge), to really discuss the matters we're disputing. It seems the real things we wanted to have litigated were not brought up, or we were cut off until a future date. We are asking for this court to review ALL the facts before we are sent to state court that seems to have an unbroken record to not listen to any debtor defenses. As recently as March 23, 2006, the Cincinnati Enquirer's Headline, states, "Foreclosures keep on Rising". Hamilton County's cases jump; Ohio's rate worst in the U.S... While this headline might be startling to some people who live here, it is not to those of us that have been fighting against being defrauded only to be ignored. The courts in Cincinnati have been unfairly denying the debtor the opportunity to raise defenses and we ask this court to help us take a step in the.,right direction. Our rights have been infringed upon by the bankruptcy court here. The advent of our bankruptcy court system ii€^re a! the S.D. of Ohio referring "flipping" cases automatically to state court denies the debtor the protection of the bankruptcy court. The 1984 Bankruptcy Amendments specifically require a debtor's attorney to certify that the debtor has received an explanation of the relief available under the different Chapters of the Code. The statement from. our Trastee, about "flipping" (fraud) cases being handled in state court verifies that this county has a long way to go with informing debtors of their rights, or following proper procedure. According to N.C.L.C.'s Consumer Bankruptcy Law and Practices pgs 54-60; there are litigation advantages in the bankruptcv forum. Opting for bankruptcy is the opportunity to litigate disputes with creditors in a federal court. which has at least initial jurisdiction over such disputes after a case has been filed. In some places the bankruptcy court may provide a far more sympathetic fotlun than the local state court, and it may be far more familiar with the applicable law. It may also offer procedural advantages, such as greater discovery rights or the ability to serve distant defendants. Other rights such as statutes of limitations or sovereign immunity may also be affected to the client's advantage. Special care must also be taken to inquire into debts likely to be treated differently in bankruptcy. Unpaid taxes must be carefully analyzed to deteruiine their discharge ability and priority status. W;ten we first filed our voluntary bankruptcy petition on January 7, 2004, state court litigation was not a'sar.a;ay in progress for the three rental properties. When state court litigation is already in progress, the (h3tklrruptcy court may grant relief from the stay on facts sirnilar to those which woulcl justify abstention under ttlt: stziytAte, (in re: Kissinger, 72 F.3d 107 (9`h Cir. 1995 or Tuscon Estates, Inc., 912 F. 2d 1 162(9`s Cir. 1990). On ihe other hand, the bankruptcy court may well be persuaded to determine a dischargability issue itself in a teial before allowing the debtor to be subjected to proceedings in other courts (NCLC Consumer Bankntptcy Law and Practice.pg. 143). It is unknown to us as to whether other debtors have had their rights concealed frorit them or not. We do know that two other debtors whom we know personally, were left uninformed of their tights in bankruptcy and have subsequently lost their homes. Their petitions say Chapter 13, however they,got the rights of someone that filed a Chapter 7. I've asked so many times for a hearing on the property real estate taxes on Ehrling, and the other properties. We've been consistently ignored. We have disputed the real estate tax since January 2004. Unless it is written down in black and white that the debt is forgiven, then it is assumed we still owe it. We've been given a bill this year for Ehrling and Beech. We are seeking to void the liens on these properties, and we must have these issues straightened out about what we do and don't owe on the real estate property tax. Again we request a hearing on this matter. With this plea for review of the remand order we are including an exhibit of documentation that show why we are requesting an oral hearing. The way the courts here in Cincinnati have overlooked our case, it's as though we're not considered to be human. Upon review of the circumstances that led us to state court, we find it odd that even though the state court knows we are current bankruptcy Chapter 13 debtors, and yet there was never any mention as to whether our foreclosure case was core or non-core. It's as though our judicial system has become a "Foreclosure Mill" that doesn't consider any debtor defenses. We're told that our case should be litigated in state court, however there are plenty of adversary foreclosure cases that have been litigated in bankruptcy court. In fact, there have been adversary hearings from our Trustee Margaret Burks to avoid mortgages against a couple of our defendants in our civil case. These defenses we wanted to use, but she said we had to litigate in state court. We feel we've been discriminated against conceming our rights, and intend to pursue any CIVIL RIGHTS claims that pertain. We do not understand our Chapter 13 Trustee Margaret Burks comments about she oversees "Flipping" cases in state court. The only thing we've seen is the debtor lose ownership and a very weak defense put up by a court appointed attorrtey from the bankruptcy court here. All along the bankruptcy and state court knew our defendant Jeff Henry was indicted by the F.B.I. for mortgage fraud, yet we never got a chance to confront him during his litigation which could have saved us time and money. This was an "t)bstr+.tction of Justice", U.S.C. 18 232. Also there are funds in the Victims Restitution Award for victims.
P:rplr,-xi?tg is the way the courts have sided with the banks and our civil rights are totally ignored. It seems like the banks are getting double paid. The banks get paid off of the PMI money when the debtor defaults, and possibly again if they are granted restitution from the Federal Victims Restitution Award. We've read where big banks hide behind their subsidiary banks that give predatory loans.
So far, 1, Amy K. Smith have ltad over $16,000.00 taken out of my wages to pay into a fund that hasn't performed the duties thev were hired to fulfill. The Bankruptcy Trustee Margaret Burks has yet to formally address our concems over the real estate tax issue. Just telling us not to worry about the property tax bill is not good enough, especially when we are getting one from the county for the Ehrling property for $6347.99. The real estate tax has always been disputed from day one of our voluntary petition. The trustee gets paid out of my funds to look into and take care of these matters. The nature of these sales, the way we've received improper mortgage servicing, as well as misappropriated spending of my Chapter 13 proceeds leads us to believe her impartiality might be questioned concerning our case. Also, the way these houses were tran,:fhrred from state foreclostire via the bankruptcy court leads me to believe there is some sort of RICO conspiracy going on. This is also why we sought to have our case moved to another venue. 3 It's a troubling feeling to have a loan from Chase Manhattan, a major bank, which hid behind their smaller subsidiary, Aegis Funding just to pretend they weren't the ones issuing a predatory loan. Then to see we're fighting to litigate in what is supposed to be an impartial bankruptcy court, because books say the debtor can use more defenses in bankruptcy court. However we aren't afforided.the use of the bankruptcy court here, because of conflicts of interest. This is why we asked for "Change of Venue", because of the circumstances involved, we have no one here to litigate impartially in front of. If bverything was done in fairness with these loans, we wouldn't be fighting to retain ownership. We ask for the rigbt to use our rights. We don't want to be left with nothing after being cheated in the first place. There's been an all out effort to take our properties regardless of what the law says. There seems to be an uninterrupted pattern of the state court seizing debtors' properties regardless of what the defense is. At the crossroads in our litigation, there's a lot at stake. We were stuck with the bill, yet the title company and other spent the majority of the construction money. Demetrious was enticed to sign by the offer of fix-up money, bowever it wasn't nearty enough. On the Ehrling property Demetrious onlv received $500.00 out of what seems to be $76,000 according to Mr. Demus's appraisal based off of the cost approach. The construction loan part of the transaction was concealed from us, and Demetrious would have never signed for others to make that much profit while he was burdened with tenant complaints that they weren't getting enough heat. It is our intent to do all we can to save our properties. The way debtors are sent to state court and lose their homes equates to a prearranged set up that needs investigated. We thought we closed with Aegis Fuuding on 1-29-03, however Aegis had an application for loan approval (to be submitted), for Demetrious on 2-5-03. This is what we meant about the chain of title being broken, and the deed wasn't perfected at the time we Gled bankruptcy(Section 344(a)(3), which makes the mortgage voidable. Conspiracy(RICO) is a major factor in this transaction because both entities worked together to conceal the truth about this loan, and to take advantage of Demetrious's naivety. Chase owned the property all along and even put Demetrious down as the borrower on 10-30- 02, way before he even knew the house existed. Also the contract was not signed by Demetrious and Ohio law says there must be a written contract for the mortgage to be valid. We'd like to have a bearing on review face to face to determine if we could have our case remanded to baxa±,.rol3tcy court where the litigation would be payable for us as Chapter 13 debtors. It is our assaamvtion that our case can be labeled as a core proceeding.
So far, all we've received from the courts here was biased treatment. We ask for this court to not just give the property to Chase Manhattan without allowing us the rights to litigate our defenses, as Hamilton County Court of Common Pleas usually does. We seek the opportunity to be able to litigate in front of an impartial jury or court whether in this city or a city nearby (if necessary).Thank-you. Dear Fellow Ta.xpaver: For your convenience, offce hours will be extended on the last day of this cotlecuon period. On June 20 the Treasurer's Office will be openom 7:30 a.m. to 5:30p.m., and a deposit box will be available in the lobby of the County Administration Building until midnight on the payment deadline date.
Also remember you can always communicate with the Treasurer's Office by using ROBERT A. GOERING our web address:http 3/wrvw.hamiltoncountyohio.gov/treasurer/ BAMILTON COUNTY TREASURER ...p.Robert A. Goering, Treasurer
BOOK FLAT PARCEL PROPERTY OWNER PROPERTY DESCRIP'TION 520-0242-0063-00 SMITH DEMETRIOUS EHRLING RD 56.85 X 153.26 IRR LOT 51 THE COLONY SUB BLK A 'rAIQNG DISTRICT/CLASS
005 RESIDENTIAL STUB # 3763944
ASSESSED VALUE FULL TAX REDUCI'ION EFFECTIVE TAX MARKET VALUE (35"/, O5lMARKET) RATE (mills) FACTOR RATE (milLs) EAtv[T TT;JOtT" BUILDING 54,100 18,940 99.08 0.370382 62.382598 TOTAL 69,000 24,160 CALCULATIONS TAX DISTRIBUTION- SECOND HALF ZRO-SS REAL ESTATE TAYr 2393.78 SCHOOL DISTRICT 4555.82 - REDUCTION FACTOR AMOUNT 886.60 TOWNSHIP 2044.95 - 10% ROLLBACK 150.72 CITYNiLLAGE - 2.5% ROLLBACK JOINT VOCATIONAL SCHOOL COUNTY GENERAL FUND 300.57 - HOMESTEAD 17.29 HALF YEAR REAL ESTATE TAXES 678_23 COUNTY VOTED BOND DEBT HLTH/HOSPITAL CARE-DRAKE 93.67 HLTHlHOSPITAL CARE-INDIGENT 213.17 MENTAL HEALTH LEVY 164.00 + CURRENT ASSESSMENT MENTAL RETARDATION LEVY 403.68 + DELINQUENT ASSESSMENT 2.69 PARK DISTRICT 104.30 + DELINQUENT REAL ESTATE 7618.38 CRIME INFORMATION CENTER 19.56 CHILDREN SERVICES 220.90 SENIOR SERVICES 101.93 ZOOLOGICAL PARK 34.47 AMOUNT DUE BY 06/20107 8299.30 MUSEUM CENTER 22.30
(Please detsch this portion and cenua with yaur paymrnt) ROBERT A. GOERING, HAMILTON COUNTY TREASURER BNKRPT/FORECL REAL ESTATE TAX BII.L- SECOND HALF 2006
005 376394-4 376394 008299301 376394 4 - STUB # 2
--'-"""""3o1Gfi 452 Smith Demetrious 4703 Winona Te Make checks payable tu: Robert A. Goering, Treasurer Cincinnati OH 45227 q Pay with NOVUS card? See reverse side. IT IS FURTHER ORDERED that this Court hereby adopts the Magistrate's
January 19, 2006 decision. Plaintiffs' motion for summaryjudgment shall be and hereby
is GRANTED.
Accordingly, judgment is hereby ENTERED on Count One against Demetrious
Smith and in favor of MERS in the amount of $85,014.08 plus interest at the rate of
9.36% per annum from September 1, 2003, plus court costs, late charges as provided in
the mortgage deed, advances made by Plaintiffs for the payment of •taxes, assessments,
insurance premiums and costs incurred for the protection of the real property.
Judgment is further ENTERED on Count Two against Demetrious and Amy
Smith in favor of MERS for a decree of foreclosure of MERS's mortgage lien upon the
real property and an order for sale.
Plaintiffs shall prepare and circulate an appropriate Decree of Foreclosure and
Ordcr for Sale reflecting this Court's decision and ordering the sale of the subject
premises.
IT IS SO ORDERED
Approved:
(0 cker & Eckler LLP 100 S. Third Street Columbus,.OH 43215 1 (614) 227-4857 Fax: (614) 227-2390 Attomey for Plaintiffs
3 1eo 967vt 32 DEC2720o5 COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO
CHASE MANHATTAN Case No. A0408502 MORTGAGE CORP., Judge Nadel P(aintiff, V.
DEMETRIOUS SMITH, et al., MAGISTRATE'S ORDER
Defendants.
Upon review of the filings and the arguments subjudice, the court hereby denies defendant Denietrious Smith's Motion to Strike the AfEdavit of Robin Thompson. 'fhe case is next set for a hearing on a motion for summary jndgment before the Common
Pleas Magistrate on January 5, 2006 at 9:15 a.m.
ff IS SO ORDERED.
RICH'ARD A. BERNAT, MAGISTRATE, COURT OF COMMON PLEAS
Copies sent by Clerk of Couris to:
Rose Ann Fleming, Esq.. Nelson M. Reid, Esq. 3855 Ledgewood Drive, Suite 13 Bricker & Eckler LLP Cincinnati, Ohio 45207 100 South 3° Street Cotumbus, Ohio 43215-4291 Anita L. Maddix, Esq Lemer Sampson & Rothfuss P.O. Box 5480 Cincinnati, Ohio 45201 -5480 IIUIUIHH
33 NOTICE
Copies of this Order Itave been niailed to the parties or their counsel. This Order is effective immediately. Either party may appeal this Order by filing a Motion to Set the
Order Aside within ten days of the date this Order is fried. The pendency of a Motion to
Set the Order Aside does not stay the effectiveness of this Order unless the Magistrate or
Judge grants a stay.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT COPIES OF THE FOREGOING ORDER HAVE BEEN SENT BY ORDINARY MAIL TO ALL PARTIES OR THEIR ATTORNEYS AS PROVIDED ABOVE.
Date: 12- 21 "U Deputy CI
E N `^^-6i, E69 DEC 2 7 2005 Inace /1 St COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO
CHASE MANHATTAN Case No. A0408502 MORTCAGE CORP., et al., Judge Winkler Plaintiffs, V.
DEMETRIOUS SMITH, et al., MAGISTRATE'S DEC[SION
Defendants.
RENDEREDTHIS `q DAYOFJANUARY,2006. 0
This foreclosure matter came before the court upon co•plaintiffs Chase•Manhat^n .,,.. ^ Mortgage Corporation ("Chase") and Mortgage Electronic Registration Sys&!^s, Inc4s 6i'y ("MERS") Motion for Summary Judgment. A hearing on the motion was hel^efore4he 42 Common Pleas Magistrate on January 6, 2006, at which time the matter was taken u-0er
submission.
BACKGROUND
The uncontroverted evidence indicates defendant Detnetrious Smith executed a
protnissory note ("Note") with Chase in the amount of $85,400.00 on or about January
29, 2003.1 To secure repayment of the Note, co-defendants Demetrious and Amy Smith
executed and delivered to MERS a mongage for real property tocatcd at 5555 Ehrling
Road, Cincinnati, Ohio 45227 ("the Property").' The mortgage was duly recorded
February 14, 2003.3 The movaats aver that the defendants defaulted on the Note t As a
result of the default, the movants elected to accelerate the remaining balance. The
'/Comp1., gx. A; Aff. of Robin Thompson, Ex. A. = f Compl., Ex. t;, Aff. of Robin Thompson, Ex. B. °/Id A / AfC of Robin Thompson at 14, I 1W11111i
5 35 movants pray that the court enter judgment on the mortgage, that the mortgage be foreclosed, that their lien be adjudged a valid first lien upon the property, and that the property be sold at auction and apply the proceeds of sale to the satisfaction of the aforementioned Note together with all costs and fees to which it is entitled S
SUMMARY JUDGMENT STANDARD
Pursuant to Rule 56(C), summary judgment may be granted wlten the moving party demonstrates that (l) no genuine issue of any material fact remains to be litigated,
(2) the moving party is entitled to judgment as a matter of law, and (3) when viewing the evidence most strongly in favor of the nonntoving party, it appears that reasonable minds can come to but one conclusion, and that conclusion is adverse to the nonmoving pany.6
The moving party "bears the initial burden of informing the trial court of the basis for lhe motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claim."7 Doubts must be resolved in favor of the nontnoving party.t A nonmovant may not rest on the mere allegations or denials of his pleadings, but must set forth specific faces showing there is a genuine issue for trial.9 If the moving party satisfies its initial burden, "the nonmoving party then has a reciprocal burden ,.. to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entared against the nonmoving party."10
However, summaryjudgment must be awarded with caution."
I Campl. at 4-5. ° 1 Srate ez rel. Grady v. Stare Emp. Relaiions Bd. (1997), 78 Ohio St.3d 181. 187. r l Dresher v. Burl (1996), 75 Ohio St.3d 280, 293. r/ Mvrphy v. Reynoldrburg (1992), 65 Ohio St.3d 356, 358-59. 'I Chanry v. Clar$ Ciry,4gricu1rura1Sac y ( 1993), 90 Ohio App.3d 421, 424. l Dresher, supra, at 293. L Norris v Ohio Srandard Oil Co. (1982), 70 Ohio S1.2d 1, 2.
2 36 Page 1 of2
The Fearing Couple This article was submitted by Mr. and Mrs. Fearing of Woodland Hills, CA.
?t h&s been reported that ba,nkruptcy trustees ate illegally sglliixg,property uneter- coltsr and clai}n of bffci4riglit, while the courts are deS elopiirg doetrtiies to retidetaPpehls to thase unlawful activities inoot. (See 'MaoY' on this r$.itd for'orieexample)
Linked to this article are three pdf files comprising the Petition for Writ of Certiori filed with the Supreme Court on November 7, 2005. The first_file consists of the Petition. The second file is Appendices, and the third file consists of Exhibits submitted with the Petition.
WHY THIS IS IMPORTANT, IF NOT CRITICAL:
1) Baplcruptcy "trustees" and their attor.tteys; for self se,rvitig, selfenrrclqmentpurposes, are selliiig propexty that is not "pPOperty of the estate.',' They are selling propert^ belonging to rtbsts (see ^3ouble Dipping for one example) and now, the homesteads direct(y bwried, and prgperly exen}ptect, by individual debtors.
2) In an attempt to hide this blatantly illegal "trustee" activity, the same "trustees" ar.e filing motions to dismiss the Debtor's appeal of the "trustee's" illegal activity, citing 11 U:S.C. 363(m), as though this section of the Bankruptcy Code was actually a "bankruptcy mootness rule."
3) The supposed "bankruptcy mootness rule" is NOT really any "rtile" at all. It is a fictional doctrine, developed to diminish the size of Appellate caseloads at the expense, primarily, of individual debtors who have claimed exemptions, and who are then summarily ignored by bankruptcy "trustees" and courts.
3) The Circuit Courts are split on the interpretation and intent of 11U.S.C. 363(m).
4) The Fearing Debtors hope that the Supreme Court will issue a Writ of Certiori, hear their underlying case, and thereby address this alleged illegal and continuing "trustee" deception. In so doing, the Supreme Court will use supervisory powers to not only right the alleged specific wrongful taking of the Fearings' homestead without due process,of law, but clarify for other bankruptcy "trustees," and for all the courts, including Bankruptcy, District, and Circuit Courts, and the Judges who sit therein, the proper limits on the "authority" and "power" of bankruptcy "trustees."
5) The Petition for Writ of Certiori argues that the true power and jurisdiction of bankruptcy "trustees," courts and judges, is limited to dealing with "property of the estate," and does not extend to ANY other property. The "trustee," according to the true meaning of 11 U.S.C. 363(m), cannot shield from appellate review, the sale of ANY other property than "property of the estate."
It is clear, however, that such "trustees" do so attempt to shield their illegal activity from appellate review. Solely to build their own fees, these "trustees" atteinpt to sell any and all property that they gan get their hands on. They will do so by any means. Tliit such is thg case shbuld be crystal clear from any reasonable review of the sale bf pcoperty owned ^y aTxust (VFItY IIVPORTANTLY the case of Double Dipping," where property orvned by a 1 ivst was soid, Yni blvbd tlie ^ame ^irrii; Rein EvaM & Sestanovich, now reiiained Moldo, Davidson, Fraoli,Sgror 8c Sestatiovich.) Now, thls very sattte trustee" fitm, is allegedly attemptirig to go eveti furtl;er fhari beftzr'e by sellii'ig tfie h'earmgs' exenpt homestead for the ficm's personal gain. The Fearjngs attach a"t'ee applicatton;" mExJ36jt 16 to their Petition for Writ ofCeftiori, that allegedly shows tho extent to which this same firtri dontinties the IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO 4 ^? Y'^I HAMILTON COUNTY, OHIO ''r//q. 3
^
CHASE MANHATTAN MORTGAGE . APPEAL NO. C-o61o69 CORPORATION and TRIAL NO. A-04085o2 MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,.INC., D E C I S I O N.
Plaintiffs-Appellees,
vs.
DEMETRIOUS Y. SMITH and AMY K. SMITH,
Defendants-Appellants.
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 2, 2007
Br•icker & Eckler LLP, Nelson M. Reid, Vladimir P. Belo, and Justin W. Ristau, for Plaintiffs-Appellees,
Rose Ann Fleming, for Defendants-Appellants.
Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
MARK P. PAINTER, Judge.
{11} Defendants-appellants Amy K. and Demetrious Y. Smith borrowed
$85,400 to buy a house, signed a promissory note, and secured the note with a mortgage on the house. The Smiths soon defaulted. Chase Manhattan Mortgage
Corporation (Chase), the servicer of the loan, and Mortgage Electronic Registration
Systems, Inc. (MERS), the holder of the note and the mortgage, brought a foreclosure action against the Smiths.
{¶2) The trial court entered summary judgment for Chase and MERS. The
Smiths have appealed. We affirm.
I. Hefty Loans Lead to Bankruptcy and Legal Action
{¶3} In January 2003, the Smiths purchased a house on Ehrling Road in
Cincinnati. They planned to use the house as rental property. Demetrious signed a promissory note for $85,400 with Aegis Funding Corporation and secured the note by giving a mortgage on the Ehrling property to MERS. The mortgage was recorded. A
clause on the first page of the note stated that the lender was entitled to transfer the
note. Sometime after the closing, Aegis transferred the note to MERS, and Chase
became the servicer of the loan. (A loan servicer provides administrative services after
the closing, such as maintaining payment records and sending statements.)
{14} The Smiths filed for bankruptcy in 2004. In their Chapter 13 bankruptcy
plan, the Smiths had agreed to surrender the Ehrling property to Chase. The bankruptcy
court granted Chase relief from the Smiths' automatic stay, which allowed Chase and
MERS to bring a foreclosure action on the Ehrling property.
{¶5} The Smiths' pro se answer asserted that they were victims of predatory
lending. The Smiths specified that Demetrious had been sold four houses in one year,
2 OHIO FIRST DISTRICT COURT OF APPEALS
that the houses had been sold at inflated prices, that the inflated prices had left no equity for repairs, that the cost of the repairs had forced them into bankruptcy, and that because of the "deception perpetrated on" them, legal action would be forthcoming. The
Smiths did not assert any counterclaims.
{16} Chase and MERS moved for summary judgment in December 2004. The motion was accompanied by an affidavit from Robin Thompson, who stated that she was a foreclosure specialist for Chase, that she was personally familiar with the Smiths' account, and that the Smiths were in default on the note.
{¶7} The Smiths responded to the summary-judgment motion with a verified complaint from a separate lawsuit. The verified complaint had been sworn in the presence of a notary. The complaint stated that the Smiths had purchased four houses; that Jeffery Henry had assisted the Smiths in purchasing the homes; that Henry had identified himself as a mortgage broker; and that Henry had failed to disclose to the
Smiths both that he had been denied a license to be a loan officer because of his criminal record and that Henry and his wife, Angela Henry, had ownership interests in the properties that he had presented to the Smiths for purchase.
{18} The complaint further alleged that Henry had been an agent of Chase and
MERS, that an appraiser had inflated the value of the homes, and that Chase and MERS, along with other entities, had engaged in "flipping"-selling real estate to vulnerable, unsophisticated persons at prices well above the fair market value, knowing that the buyers would be unable to make the loan payments.
{¶9} The complaint stated that the Ehrling property had been appraised and sold at an inflated price. It stated that Angela Henry had purchased the Ehrling property in April 2002 for $48,ooo, and that an appraiser had later valued the house at
3 OHIO FIRST DISTRICT COURT OF APPEALS
$103,ooo. The Smiths bought the property in January 2003 for $85,40o-less than ten months after Angela had paid only $48,000 for the same property.
{¶10} The Smiths filed a motion to strike Thompson's affidavit in support of summary judgment. A magistrate denied the motion. The Smiths hired an expert to research the Ehrling property records. The expert could not find anything that indicated that Chase had an interest in the property-the mortgage holder was MERS. The Smiths then moved to set aside the magistrate's decision. The trial court affirmed the magistrate's decision.
{¶11} In January 2oo6, the magistrate granted summary judgment to Chase and MERS.
{¶12} The Smiths filed a notice of removal to federal court in February 2oo6.
The federal court remanded the case to state court in August 2oo6-Chase and MERS were awarded attorney fees.
{¶13} In December 2oo6, two years after Chase and MERS had first filed for summary judgment, the trial court affirmed the magistrate's summary judgment ruling and entered judgment for Chase and MERS. The Smiths have appealed.
fl. Assignments of Error
{¶14} The Smiths assert three assignments of error, alleging that the trial court erred by (i) refusing to strike Thompson's affidavit; (2) granting summary judgment to
Chase and MERS; (3) entering a final order during the pendency of an appeal with the
Bankruptcy Appeals Panel concerning the Ehrling property.
llt. Thompson's Affidavit
{¶15} Although the brief is not very clear as to which ruling the first assignment of error refers, we assume that the first assignment of error concerns Thompson's affidavit and that the second deals with the entry of summary judgment.
4 OHIO FIRST DISTRICT COURT OF APPEALS
{116} With respect to the first assignment, it appears that the Smiths are arguing that Thompson's affidavit was improper because Chase was not a real party in interest, that the affidavit contained hearsay, and that the affidavit did not comport with the best evidence rule.
{1[17} To back up the assertion that Chase was not a real party in interest, the
Smiths' attorney hired an expert to research whether Chase had been assigned the mortgage. But from the beginning of its involvement in the loan, Chase was the loan servicer-Chase never claimed to hold the mortgage.
{¶18} MERS was the mortgage holder-this has remained constant throughout.
MERS also owned the note on the loan. As the mortgagee and the holder of the note,
MERS was the real party in interest. Civ.R. 17 only requires that "[e]very action shall be prosecuted in the name of the real party in interest", This requirement was met; thus, the real-party-in-interest argument has no merit.
{¶19} Even if the real-party-in-interest argument had some merit, it would not aid the Smiths on this issue. An affiant need not be a party to an action. Thompson had knowledge about the principal amount of the loan, the interest due, the payments, and the default. An affidavit must be based on personal knowledge, but the rule says nothing about the affiant being a party to the action.2
{120} The Smiths also argue that the hearsay3 and best evidence4 rules barred
Thompson's affidavit. Not so.
{1121} As a foreclosure specialist at the company that serviced the loan,
Thompson was familiar with the Smiths' account. The affidavit did not offer an out-of- court statement-Thompson spoke from her personal knowledge. Thus, the affidavit did
1 Civ.R. 17(A). 2 Civ.R. 56(E). 3 Evid.R. 803(6). 4 Evid.R.loo2.
5 OHIO FIRST DISTRICT COURT OF APPEAI.,S
not contain hearsay. Further, because Thompson did not testify to the contents of any written documents, the "best evidence rule" was not implicated. The trial court did not err in considering the affidavit.
{¶22} The Smiths' first assignment of error is overruled.
IV. Summary Judgment
{¶23} The magistrate granted summary judgment to Chase and MERS; the trial court affirmed the magistrate's ruling.
{124} The Smiths argue that the court erred because it granted summary judgment to Chase when it was not a real party in interest, because it ruled that the
Smiths had failed to plead their affirmative defense-fraud-with particularity, and
because it rejected the verified complaint as an affidavit to oppose summary judgment.
{125} The trial court properly granted summary judgment if Chase and MERS
demonstrated that (i) there was no genuine issue as to any material fact; (2) Chase and
MERS were entitled to judgment as a matter of law; and (3) reasonable minds could
only reach a conclusion that was adverse to the Smiths.5 We review a trial court's grant
of summary judgment de novo.6
{¶26} The Smiths argue that because Chase was not the holder of the mortgage
or the note, it was not a real party in interest and thus was unable to bring the
foreclosure action against the Smiths. We have already addressed the real-party-in-
interest argument-MERS was the real party in interest and was present in this case.
Even if the Smiths had offered a valid argument, the real-party-in-interest defense had
been waived. It was not until at least a year after the original complaint had been filed
that the Smiths raised a question about the real party in interest.
5 State ex rel. Segedy u. Arts Residential Roofing, 107 Ohio St.3d 256, 2005-Ohio-6429, 838 N.E.2d 653, at ¶14. 6 Sharonuille v. Am. Employers Ins. Co., io9 Ohio St.3d i86, 2oo6-Ohio-2180, 846 N.E.2d 833, at ¶5.
6 OHIO FIRST DISTRICT COURT OF APPEALS
{¶27} The Smiths also contend that the court erred by granting summary judgment because they asserted an affirmative defense, fraud. Chase and MERS counter that the Smiths' defense of predatory lending was predicated upon a catchphrase rather than a true defense, and that fraud was not pleaded with particularity.
{¶28} The Smiths were required to plead any affirmative defenses in their answer to Chase and MERS's complaint.7 And because the Smiths alleged fraud, their answer had to state with particularity the circumstances that constituted the fraud.8
Such circumstances generally include the time, place, and content of a false representation, what the representation entailed, and what the wrongdoers received as a
result of the misrepresentation.9
{¶29} If the allegations in the verified complaint are true, the Smiths may have been defrauded. But fraud could not have been a defense in this foreclosure case. The
Smiths did not adequately allege fraud against Chase and MERS in their answer. The
Siniths' answer stated that they were victims of predatory lending, that they were sold
four houses in a year, and that the houses were overpriced. The answer did not indicate
when the allegedly fraudulent transactions had occurred. It did not specifically allege
that Chase or MERS had received any benefits from the fraud. It did not say what false
representation had been made to them, or by whom.'o
{¶30} The Smiths' answer was filed pro se. While some leniency toward pro se
litigants might be appropriate at times, in general pro se litigants must follow the same
rules as represented litigants." The Smiths effectively asserted no defenses and did not
7 Civ.R. 8(C) and 12(B). e Civ.R. 9(B). 9 L. E. Sommer Kidron, Inc. u. Kohler, 9th Dist. No. o6CAoo44, 20o7-Ohio-885, at ¶27. 10 See, e.g., Coroles v. Sabey (Utah App.2003), 79 P.3d 974. "ArkwrightMut. Ins. Co. v. Toler•, ist Dist. No. C-o2o589, 2003-Ohio-2202, at 1I15.
7 OHIO FIRST DISTRICT COURT OF APPF.AI: S
deny that they had defaulted on their loan. Chase and MERS were entitled to summary judgment. There was no issue of material fact for a jury to decide.
{131} Even if the Smiths had alleged fraud with specificity, the verified complaint was not sufficient to avoid summary judgment. The verified complaint was a sworn statement. An affidavit is a "declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths, such as a notary public."12
The verified complaint was sufficient to serve as an affidavit. But an affidavit to oppose summary judgment must be made on personal knowledge.13
{132} The verified complaint alleged some facts that were based on the Smiths' personal knowledge. But as to Chase and MERS, the verified complaint was lacking.
Chase and MERS were mentioned only in conclusory statements that were not based on personal knowledge. For example, the complaint alleged that Henry was an agent of
Chase and MERS, and that Chase and MERS had known that the loan would force the
Smiths to seek bankruptcy. But it offered nothing to show that the Smiths personally knew this to be true. An allegation does not equate with personal knowledge.
{133} We overrule the Smiths' second assignment of error.
- V. Stay of Final Order
{¶34} The Smiths argue that a final order from the trial court should not have been issued because their appeal to the Bankruptcy Appeals Panel (BAP) on. reimposing the automatic bankruptcy stay was still pending.
{¶35} When a party files for bankruptcy, an automatic stay is imposed, prohibiting most creditors from pursuing any action to collect from the debtor.14 The bankiuptcy court has the power to lift the stay. In this case, the bankruptcy court lifted
12 Black's Law Dictionary (8 Ed.2004) 62. 13 Civ.R. 56(E). 14 Section 362, Title ii, U.S.Code.
8 OHIO FIRST DISTRICT COURT OF APPEALS
the Smiths' automatic stay in accordance with their Chapter 13 repayment plan, which allowed Chase and MERS to file their foreclosure action.
{¶36} The bankruptcy court lifted the stay as to Chase and MERS in October
2004. The Smiths did not object until almost two years later, in August 2oo6, when the
Smiths moved to reimpose the automatic stay. The bankruptcy court denied the Smiths' motion; the Smiths appealed to the BAP. In July of this year, the BAP affirmed the denial. The Smiths then appealed to the United States Sixth Circuit Court of Appeals, where the bankruptcy case is currently pending.
{¶37} The Smiths waited two years to object to the bankruptcy court lifting the automatic stay. Both the bankruptcy court and the BAP refused to reinstate the stay.
We refuse to provide a means for the Smiths to continue to avoid the bankruptcy court's order. The Smiths' third assignment of error is overruled.
{¶38} For the foregoing reasons, we affirm the trial court's judgment.
Judgment affirmed.
SUNDERMANN and DINKELnCKER, JJ., concur.
Please Note: The court has recorded its own entry on the date of the release of this decision.
9 Rose Ann Fleming BAR ID:I10041337 ROSE ANN PLEMING, PROFESSIONAL CORPORATION 3855 Ledgewood Drive, Suite 13 Cincinnati, OH 45207 Phone: 513-924-8389 Fax513-924-8389 Email^ [email protected]
COiJRT OF COMMON PLEAS
HAMILTON COUNTY, OHIO
CHASE MANHATTAN MORTGAGE COPRORATION, Irrial Court Case No. A 0408502 AND MORTGAGE ELECTRONIC REGISTRATION SYSTEM,
Plaintiffs, ^VIOTION TO SET ASIDE SALE VS. DEMETRIOUS Y. SMITH AND AMY K. SMITH,
Defendants.
Come now the Defendants, Demetrious Y. Smith and Amy K. Smith, to move this I Court to set aside the sheriffs sale of subject property, 5555 Ehrling Road, Cincinnati, Ohio,
45227 which occurred on July 12, 2007. For reasons more fully explained in the supporting
Memorandum, the sale should be set aside for several reasons: 1) the Defendants were not served with Notice for the Order of Sale filed on April 23, 2007; 2) the price of the property was set at 4t1°/it or so below the purchase price offered to Defendant Demetrious Y. Smith, and on w}ito,fw-pt:ice of the Note was offered and therefore was outrageously low, or the purchase prjFe ,w„as outrageously unfair and deceptive; 3) the holder to the note was not present at the sale
and has beet3 absent from the entire foreclosure action; the PlaintifEs did not have standing to
bring this action. WHEREFORE, because of the above procedural errors, Defendants request that the sale
be set aside.
Respectfully submitted,
/s/Rose Ann Fleming Rose Ann Fleming BAR ID:#0041337 ROSE ANN FLEMING, PROFESSIONAL CORPORATION 3855 Ledgewood Drive, Suite 13 Cincinnati, OH 45207 Phone: 513-924-8389 Fax: 513-924-8389 Email: Fleiniiiu^;xavier.edu
MEMORANDUM IN SUPPORT OF MOTION TO SET ASIDE SALE OF 5555
EHRLING AVENUE, CINCINNATI, 0I1I0 45227
T'he property at 5555 Ehrling Avenue, Cincinnati, Ohio 45227 was sold at a Sheriff's
Sale on July 12, 2007.
There were certain procedural errors that occurred that should cause this Court to invalidate the sale. The Defendants can meet the standard of relief set out in GTE AUTOMATIC
ELECTRIC, INC., APPELLEE, V. ARC INDUSI'RIF.S, INC., APPF,LLANT, 47 Ohio St. 2d 146;
351 N.E.2d 113; 1976 Ohio LEXIS 682 (No. 75- l011, Supreme Court of Ohio July 21, 1976,
Decidbd). In Syllabus 2, the Ohio Supreme Court stated:
To prevail on a motion brought under Civ. R. 60(B), the movant must demonstrate that: ( l ) the party has a nreritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ. R. 60(B)( 1) through ( 5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are C iv, R. fi0(B)L), (1-j or C)J, not [***4] more than one year after the judgment, order or proceeding was entered or taken.
First, Defendants can succeed on the merits, if the sale is set aside. Lack of standing and an outrageously low sales price, combined with lack of Notice on Order of Sale provide sufficient reasons to set aside the sale and to believe that the Defendants have a meritorious claim if relief is granted under R. 60(B).
Second, the Defendants are entitled to having the sale of 5555 Ehrling Road, Cincinnati,
Ohio 45227, set aside based on Rule 60(B) because of :
(A) Mistakes under Rule 60(B)(1) such as
(1) Failure to give ttotice of Order of Sale to the Defendants on April 20,
2007 or April 23, 2007, and
(2) Sale at an outrageously low price in comparison to the amount of the
Note and Mortgage that was the alleged cause of the disclosure.
(B) Misrepresentation under Rule 60(B)(3).
(3) Plaintiffs did tiot ltave standing to bring this action under R. 60(B)(3).
Third, the Defendants' motion to set aside is timely. Rule 60(B)(t)-(3) provides that a motion must be brought within a year. The Defendants have brought their motion within a week.
ARGUMENT
First, the Defendants were given no notice of the Decree of Foreclosure and Order of Sale issued by the Court on April 20, 2007, and of record on April 23, 2007, at the request of the
Plaintiffs without notice of a hearing, or notice of the request for the Order to the Defendants.
(Exhibit A). Hence, Defendants had no opportunity to file a tnotion to set aside. Since the Order on file lacks any notice to the Defendants, it is per se ineffective. Further, Defendants received no service of Plaintiffs' filings on May 17, "Executiotl", "Sheriff's Sale, Real Estate" and "Praecipe" . Further there is no notice issued by the Court of the "Inquisition" as to the appraiser's price of this property filed on June 7, 2007. (Exhibits B, C, D, and.E).
The Defendants have entered an appearance in this action and have responded to every pleading of Plaintiffs. This SherifPs Sale of July 12, 2007, is tantamount to the taking of property without notice which is a violation of the fifth and fourteenth amendments of the United
States Constitution and of the Constitution of the Article I of the State of Ohio. It is clear from
Ihe record that the Defendants were given no notice of the Order of April 20, 2007 from Judge•
Winkler. There is no signature froni Defendants' Counsel on the Order because she never saw the Order stamped April 20, 2007, and there is no certification from Plaintiffs' Counsel that it was ever submitted to the Defendants' counsel for her approval.
2) The Plaintiffs repurchased the property at an outrageously low price of $63,750.
(Exhibit F). This property is in foreclosure as a result of Aegis Funding Corporation's selling it to Demetrious Smith for $100,300 based on a grossly inflated appraisal price $ 103,000 (Exhibit
G) obtained in January, 2003. The Note was issued by Aegis Funding Corporation to
Demetrious Y. Smith in the amount of $85,400. Aegis Funding Corporation had knowledge, or should have had knowledge, that at the time that Demetrious signed the note atid the n ortgage that he could not meet the monthly payments due to his social security disability income of
$1,182 per month, and his other liabilities. (Exhibit G). In fact, Demetrious Smith and his wife,
Amy K. Smith were forced into Chapter 13 Bankruptcy, filed January 7, 2004. (See U.S.
Bankruptcy Court, Southern District of Ohio, Case No. I:-4-bk-I0066).
The Court may take judicial notice that this sale is duplicative of the sale of the same real estate by Chase Manhattan Bank, of which both Aegis Funding Corporation and Chase
Manhattan Corporation are wholly owned subsidiaries. In 2002, Chase Manhattan Bank repurchased this property as a Sheriff s sale for $32,000. It had lent $48,000 on it.(Exhibit H). Chase sold it to one Jeff Henry for $66,000. Henry gave it to his wife Angela, who sold it to
Demetrious Smith for $100,300. (Exhibit 1). The loan was premised on a falsified the amount that Demetrious Smith brought to the table (Exhibit G), Aegis Funding Corporation knew, or should have known, that the last sale of this property within 90 days of the sale to Demetrious
Smith was for $0.00 and the sale before that was for.$32,000, nevertheless lent money in the amount of $85,400 on a Note signed by Demetrious Smith with a mortgage given on said property. This is a classic case of predatory lending, and, as such is fraudulent per se, and this sale must be set aside so that is property may not be recycled.
3) The note holder is an essential party and is missing from this action. The Defendant
Mortgage Electronic Registration Systems, Inc. was named as nominee for the mortgage, but there is no indication at the time of filing the foreclosure action, that the Note was assigned to
Mortgage Electronic Registration System, Inc. (Exhibit J- Complaint in Foreclosure with Note
Exhibit A and Mortgage Exhibit B).
Ohio requires that the holder of the note file the foreclosure action, even when Mortgage
Electronic Registration System, Inc., holds the mortgage. The court may take judicial notice that
Aegis Funding Corporation is not, and never has beeti, party.to the foreclosure action. The Court
may take judicial notice and nowhere does the record contain a notice of the transfer of the note
to Mortgage Electronic Registration Systetn, Inc. At the Hearing oti July 2, 2007, G. Robert
Hines testified as an Expert Witness that he had examined the title and the Note and Mortgage
and found the Chase had no interest in the property and that Mortgage Electronic Registration
System, Inc. had been named nominee for the Mortgage. Aegis Funding Corporation is holder of
the Note and there is no evidence in the Record to indicate ottlerwise. (Hines, G. Robert,
Testimony, Hearing July 2, 2007, Transcript, pp. 43-45), The sale on the 12`h day of July, 2007 has provided an opportunity for a self-serving. unfair, deceptive and illegal recovery of the property at 5555 Ehrling Road, Cincinnati, Ohio
45227.
WHEREFORE, the Defendants respectfully ask the Court to set aside this sale.
Respectively submitted,
/s/Rose Ann Fleming Rose Ann Fleming BAR [D:#0041337 ROSE ANN FLEMING, PROFESSIONAL CORPORATION 3855 Ledgewood Drive, Suite l3 Cincinnati, OH 45207 Phone: 513-924-8389 Fax: 513-924-8389 Email: Flemine6i4xavier.edu
CERTIFCATE OF SERVICE
I HEREBY CERTIFY that a true copy of the above was served on Nelson M. Reid, Esq. and
Justin W. Ristau, Esq., Attorneys for the Plaintiffs, at their law offices at Bricker & Eckler, LLP,
100 South Third Street, Columbus, Ohio 43215-4291, by [J.S. Regular Mail, this 181h day of
July, 2007.
/s/Rose Ann Fleming Rose Ann Fleming, 0041337 IN THE FIRST DISTRICT COURT OF APPEALS HAMILTON COUNTY, OH10 D76178255
Chase Manhattan Finance, et al. "REPLY TO CHASE FINANCE l t Appellants ' RESPONSE" CONCERNING OUR Oo "MOTION AGAINST vs. pfrG "$ CONFIRMATION OF THE SALE ^^6Q^qY „AR^A ri DUE TO INVALIDATY OF SALE" ^"Motion to Intervene" and, "Motion for Reconsideration" Demetrious Smith, et al. ^a^ Case No. C0601069 Appellees
Now come Amy and Demetrious Smith, to reply to Chase Manhattan Finance's Objection of our "Motion against Confirmation, etc..." To say that our motion makes no sense, is to say that the
Constitution of the United States makes no sense. Clearly under the 5'h and the 14'h Amendments, it states that no person shall be deprived of property without due process of the law, nor deny to any person within its jurisdiction the equal protection of the laws. There are still many pending issues concerning these sales, which need to be resolved in front of an impartial tribunal. Justice can only be served in a court that follows just the law, rather than one that only protects their own. As a layperson, there is no way I can compete grammatically with a skilled lawyer, however, I believe I write in a style that is understandable. Indeed, it was shocking to come to the realization that there was no hearing at all, and anyone within their right mind ^ Id ^= against such a violation. This is America, and I ktiow of no law that says itp ersohashts other than to let their property be seized unlawfully. Chase Finance a^r "ped !be gmoved for confirmation of sale on the I O`h day of the U.S. Court of Appeals 2iision^of rit, and Motion to set Aside Foreclosure Sale, etc..."We asked for a 11^ w 'R^conaratin Blanc", which is still pending, and made it wrong for Chase Finance to sell co the house to a third party before our time to appeal had expired. F.R.C.P. 24(a) states, "Upon timely application anyone shall be permitted to intervene in an action: ( 1) when a statute of the United States confers to an unconditional right to intervene; or (c) Procedure; When the constitutionality of an act of Congress affecting the public interest is drawn in question in any action in which the United States or an officer, etc..., or when the applicant has an interest in the litigation. Clearly it is of the public interest that this court would not be a major factor in Ohio's number one foreclosure rate, by disallowing due process rights, so a person's home would be unlawfully seized. Ohio should not be number one in foreclosure, if we are number seven in population. Something is wrong. We pray that this court and look deeper than colleague brotherhood, by reviewing foreclosure defense laws (both state and federal), that were written to protect the consumers. It seems we are behind as a state when it comes to this litigation. A true review of our case and its' responses, will reveal a court system that is totally indifferent to the rights of Minorities, and the poor. This indifference has produced in Ohio a one sided court system, creating foreclosures at epidemic rates. Unfortunately, our courts have strayed away from advising "Pro Se" litigants of their rights, and many do not have the time to study law effectively enough to fight foreclosure against skilled, or conspirator attomeys. Though we cannot say why Rose Ann Fleming, Esq. did not bring up the issue about there being no summary judgment hearing, we can say through studying law we knew we had to intervene and let it be known that the Ehrling property was being seized illegally. A review of motions in the Hamilton County Court of Common Pleas, show discrepancies that prove there was an invalid lien on Ehrling. We even had a PROFESSIONAL real estate attomey testify that the lien was invalid, only to have Judge Niehaus say if your attorney was served, then you were served. The statement to us that he would review our file, indicates that he did not do this. This is only one example of indifference, we've endured showing how judge's side with their colleagues, even if they are legally, and ethically wrong. The real answer is no one was served because there was there was never a hearing to go to on summary judgment. Under rule 60(b), newly discovered evidence, it took a while to pour over the documents, to come to the conclusion there was no hearing. Not only were our 5'h and 14u' Amendment rights violated, so were our 1S1 Amendment rights of free speech. Our rights to a fair trial have been violated, thus disallowing us an opportunity to be heard. We ask this court to reverse the "Confirmation of Sale" until proper procedure can be carried out. We thank you so much for you consideration in this matter. ^ ^^ CERTIFICATE of SERVICE
This is to`vcrtify that all the parties named below have received a copy of "Reply to Chase Finance's Response etc...", sent by regular mail or personal delivery this 6th day of December 2007.
Nicholas Pantel, Esq. 220 United States Courthouse 100 East Fifth Street Cincinnati, Ohio 45202
Nelson Marlin Reid, Esq., Brlcker & Eckler (Representing Chase Manhattan Bank) 100 South Third St. Columbus, Ohio 43215
Martha R. Spaner, Esq. John A. Polinko, Esq. Shapiro & Felty 1500 W. Third Street, Ste. 400 Cleveland, Ohio 44113
Office of the U.S. Trustee Chapter 13 Attn: Margaret Burks 36 East Fourth Street, Ste. 900 Cincinnati, Ohio 45202 SIMON L. LEIS, JR. SHERIFF HAMILTON COUNTY, OHIO
JUSTICE CENTER ROOM 110 1000 SYCAMORE STREET SEAN D. DONOVAN CINCINNATI, OHIO 45202-1336 CHIEF DEPUTY (513) 946-6400 FAX: (513) 946-6402
December 12, 2007 CASE # A0408502
CHASE MANHATTAN MORTGAGE CORP VS DEMETRIOUS SMITH
DATE SOLD 07/12/2007
On order from the Court of Common Pleas of Hamilton County, Ohio, we have sold at public sale the property you now occupy. This sale was held on the date shown above and a new purchaser gained title to the property you now occupy at: r 5555 EHRLING RD COLUMBIA TWSP In order that thenew purchaser may be put into possession of the property, it is necesisary for you and all occupants to v*ate the premises. You must vacafe lheproperty before:
MIDMGHT, 01/14/2008
FAILURE TO VACATE THE,PROPERTY BY THIS DATE WILL RESULT IN A SET-OUT. (IF ANY DAMAGE IS DONE TO THE PROPERTY PRIOR TO YOUR OUT DATE YOU WILL BE SET OUT IIvIMEDIATELY) We hope this action does not become necessary. Thank you for your cooperation in this matter.
SIMON L. LEIS, JR. SHERIFF Hamilton County, Ohio
By
SGT. R[CK SNOW Execution Officer 946-5340
Attolney or Contact Person: LSR Phone #: 241-3100
COL. RAMON HOFFBAUER MAJOR JAMES R. DATTLO JOSEPH M. SCHM1ffr"L MAJOR KEITH R. GROPPE PATROL DNISION RECORDS DIVISION DIRECTOR CORRECTIONS DIVISION ORGANIZED CRIME DIVISION/RENU PHONE. 825-I500 PHONE:946-6249 PHONE: 946-6600 PHONE352.3673 FAX595-8526 FAX:94ti-6229 FAX946-6616 FA%:3524828
MAJOR DALE MENKHAUS MAJOR H. BRUCE KNOX CAPTAIN LLOYD ZOEL(NER CONNIE M. BERNARD COURT SERVICES DIVISION TECFVdOLOGY/INTEGRITY DIVISION (.'RIMINAL INVFSHGATION SECFION FISCAL OFFICER PHONE9465322 PHONE: 9466651 PHONE: 851-6000 PHONE: 946-6407 FAX:946-5321 FAX:946-6655 FAX 595-8525 FAX:9466402 STEPHEN S. BARNhTr GAIL G. WRIGIR' EDWIN H. BOLDT MAJOR BRUCE A. TAYLOR DIRECTOR OF COMMUNHY RELATIONS SHERIFFS COUNSEL SHERIFF'S COUNSEL ELECTRONIC MONITORING UND' PHONE: 9466408 PHONE: 9466404 PHONF 9466611 PHONE:607-0160 FAX: 946-6402 FAX: 946b402 FAX: 9466616 FAX946-6402 CERTIFICATE OF SERVICE
We oertify that a copy of this Memorandum in Support of Jurisdiction was sent by ordinary mail to counsel for Appellees, Rose Ann Fleming, Esq., Margaret Burks, Chapter 13 Trustee, and Ohio Attorney General, Marc Dann, Esq. .
Pro Se
Demetrious Y. Smith (Pro Se) House Judiciary Committee Amy K. Smith (Pro Se) Washington, D.C. 4703 Winona Terrace Cincinnati, Ohio 45227 (513) 271-0077 (513) 551-8863 "PRO SE" in this APPEAL
Rose Ann Fleming, Esq. (#0041337) Office of the U.S, Trustee (Attorney of Record in prior Appeal Case No.: C0601069) Margaret Burks Esq 3855 Ledgewood Drive, Suite 13 36 East 4a' Street Cincinnati, Ohio 45207 Suite 900 (513) 924-8389 Cincinnati, Ohio 45202 (513) 924-8389 (Fax)
Bricker & Eckler, LLP Ohio Attorney General Marc Dann Nelson Reid, Esq. (#0068434) Consumer Protection Section Vladimir P. Belo, Esq. 30 E. Broad St. 14s` Fl. 100 South Third Street Columbus, Ohio 43215-3400 Columbus, Ohio 43215 (614) 227-2300 (614) 227-2390 (Fax) Trial Attorneys for Chase Finance LLC, f/k/a Chase Manhattan Mortgage Corporation
Taft, Stettinius, & Hollister, LLP Gregory J. O'Brien, Esq. Patrick E. Noser, Esq. 425 Walnut Street, Suite 1800 Cincinnati, Ohio 45202 Counsel for Mortgage Electronic Registration Systems
^