In the Supreme Court of Ohio

IN THE SUPREME COURT OF OHIO

IN RE: The State of Ohio, and also the CASE NO. 2017-0385 United States of America

STATE OF OHIO AND UNITED STATES EXTRAORDINARY ex rel. ORGINAL ACTION IN MANDAMUS GREGORY T. ACKERMAN, ET AL. 556 Shadowlawn Avenue Dayton, OH 45419 Phone: (937) 293-4267

Relators,

THE BANK OF NEW YORK MELLON, ﬂca The Bank of New York as Successor in interest to JP Morgan Chase Bank NA as Trustee for Bear Steams Asset- Backed Securities Trust 2005-SD1, Asset-Backed Certiﬁcates Series 2005-SD1 c/o Wells Fargo Bank, N.A. (SC) 3476 Stateview Boulevard Fort Mill, SC 29715 MAC # 7801-013

Respondent. **************#*******************************************k******************* RESPONSE TO A MOTION TO DISMISS **********#****************t***********#**********#*¥***************##********

Gregory and Joyce Ackerman Scott A. King (#0037582)

556 Shadowlawn Avenue Terry Posey, Jr, (#0078292) Dayton, OH 45419 Thompson Hine LLP,

Phone: (937) 293-4267 Austin Landing 1 Pro se Iitigatars as Relator 10050 Innovation Drive, Suite 400 Miamisburg, Ohio 45342 (937)443-6560 Counsel for Respondent RESPONSE TO A MOTION TO DISMISS

Relator, Gregory T. Ackerman, et al. moves the Court for an Order for further proceedings of

Greg and Ackerman’s Joyce “Peremptory writ in first instance” on the grounds that their “good cause” claims of a “priority of civil actions” involving issues of ‘insurance company fraud’ and

‘obstruction of justice’(fraud on the court) to their state (Ohio) regulated “business of insurance” case matters, while carrying an inviolate and preserved right in action to a “jury demand” action for a trial by jury, superseded this inappropriately invoked “bad faith”; frivolous and misleading foreclosure proceedings by Bank of New York Mellon.

Furthermore, “bad faith” this foreclosure proceedings by Bank of New York Mellon, and the lower courts determinations are prejudice, arbitrary and capricious, and it appears that a fair and

impartial trial cannot be had in the county in which the suit is pending.

A review de novo of this peremptory writ in the first instance, and remand to the lower court is appropriate action by this court for delivering justice at any time justice so requires.

Memorandum in support of this Response is attached.

Respectfully submitted, /it 7 /Lam. Gre T. Ackerrnan, Pro Se / Relator 556 S adowlawn Avenue Dayton, OH 45419 Phone: (937) 293-4267

Jiiycé L. Ackerrnan, Pro Se / Relator 556 Shadowlawn Avenue Dayton, OH 45419 Phone: (937) 293-4267 MEMORANDUM IN RESPONSE TO A MOTION TO DISMISS Now comes Relators again with “show cause”, for “good cause” purposes of public and great

general interest, to compel this paramount “Peremptory writ in first instance”, which is brought

in the name of the State of Ohio and United States on relation of Gregory T. Ackerman, ex rel.,

and raise a number of textbook, elementary, fundamental, substantive and substantial

constitutional questions for review and execution in favor of the Relators, and their civic peers.

I. CORRECT BACKGROUND

(a) Relators are “borrowers” to a mortgage loan a.nd loan modiﬁcation agreement from Wells

Fargo Home Mortgage and/or aka Wells Fargo Bank N.A. .

Wells (b) Fargo Home Mortgage and/or aka Wells Fargo Bank NA. is the loan service provider

and servicer, and receives all mortgage payments from the Relators, as “borrowers”.

Relator (c) encountered a ‘ﬁnancial hardship’; caused by an unexpected medical disability

matter of a family member, and further ‘ﬁnancial hardship” caused by alleged issues of

‘insurance company fraud’ and “fraud on the Court(s)”.

(d) Relators are currently engaged in the ‘business of insurance” with Fortis Beneﬁts Insurance

Company (now called Assurant Inc.) to protect their ﬁnancial interest and wellbeing.

(e) Regretfully, the Relator’s “business of insurance” matters were breached by the insurance

company, as the ﬁduciary, and continue to this day to perform “bad faith” acts, with malice, against the insured party (Ackerman) for the past 21 years.

(0 Relators were forced to ﬁle a legal compla.int(s) against Fortis Beneﬁts Insurance Company

called (now Assurant Inc.) with “Jury Demand(s)” as proper civil actions for executing their

“inviolate” “preserved” and “Trial by Jurv” action in the Montgomery County Common Pleas court in 2000 at Case No. Case # 2000CV1472 (Judge Mary Katherine Huffman), and later removed to federal U.S. District Court Southern District of Ohio in Dayton, Ohio; Case #

3:00CV 00277 (Judge Walter H. Rice and Magistrate Judge Micheal Merz), E Court of

Common Pleas, Montgomery County Ohio, Case # 2003CV-9499 (Michael Krumholtz) and ,

later removed to federal U.S. District Court Southern District of Ohio in Dayton, Ohio Case #

3:04—O033 (Judge Thomas M. Rose).

For “good cause” the (g) Relators hold and retain a “Jury Demand” civil action mm legal rights

under the “in Constitution of the United States, order to form a more perfect union, establish

justice, insure domestic tranquility, provide for the common defense, promote the general

" and 1’ welfare, secure the blessings of liberty to ourselves and Constitution of the State of Ohio

in order to protect “certain inalienable rights, among which are those of enjoying and defending

life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining

happiness and safeg/”2, as American citizens and Ohio citizens, respectively.

Relators have not (h) had their day in Court with iurv trial action(s) with their community civic

mers for the past 17 vears of everlasting litigations, upon their “original instant action” to their

valuable ‘right in action’ to their written and expressed “Jury Demand(s)”, for a “Trial by Jury”

action(s), to discover all genuine issues of disputed material facts for ajury to decide, and thus

ﬁnd proper remedies of relief for the insured party while engaged in their state regulated

’ Constitution the United “We of States; Preamble. the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common promote defense, the general welfare, and secure the blessings of liberty to ourselves and our do " posterity, ordain and establish this Constitution for the United States of America.

2 Constitution of Ohio; Bill of Rights; 1.01 Inalienable Rights (1851)

“All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting " property, and seeking and obtaining happiness and safety. “business of insurance” legal case matters.

(i) This fundamental, substantive and substantial constitutional elements of law and “procedural

defect” to the “insured party’s jury trial action in the “business of insurance” are a gross

“deprivations of rights under the Constitution of the United States”, and Constitution of the

States of Ohio, and are in fact claims involving insurance and ﬁnancial matters in this

foreclosure civil action.

Relator’s “deprivation rights” (j) of under the Constitution of the United States is also violation

of law against the United States.

(k) Furthermore, Relators state regulated “business of insurance” case matter has a “priority of

civil action(s)”, and supersedes all other civil actions of the Relators as a matter of federal law

involving both the State of Ohio and Federal “Jury Demand” civil actions in the “business of

Insurance”, and currently is a violation of rights under the Constitution of the United States, as

originally addressed in the Relators / Defendant’s simple “Answer” claims ﬁled with the trial

court in the “ﬁrst instance”.

Relators (1) restate herein their speciﬁc, individual, unique and independent “Show Cause to

Compel Peremptory Writ in First Instance”, ﬁled March 20, 2017 with this court.

Upon (in) this correct background information and review de novo, this court shall ﬁnd a gross

“obstruction of justice” to these insurance case matters that raises a substantial constitutional question and violation of a citizen’s “right” to a “jury demand” process to a trial byjury under the Constitution of tl1e United States, which furthermore caused a foreclosure case matter delay, and thus now “show is clear cause” to the additional harm caused against the Relators in these misleading and bad faith foreclosure proceedings. (n) Respondent (a Bank) is a mortgage investor who ﬁled an inappropriate and illegal foreclosure

civil action against the Relators whom maintained a valid and binding business relationship with

Wells Fargo Home Mortgage and/or aka Wells Fargo Bank N.A. in order to keep their home

during a “financial hardship” caused by alleged issues of ‘insurance company fraud’ and “fraud

on the Court(s)”. ARGUMENT

(1) Respondent has performed “bad faith”; egregiously, inappropriately and illegally pursued

this foreclosure civil action against the Relators for nearly eight years; without merit, good cause

or any valid show cause in their foreclosure complaint while the Relator has a continuous valid

and binding mortgage business relationship with Wells Fargo Home Mortgage and/or aka Wells

Fargo Bank NA. .

(2) Pursuant to Respondent’s “bad faith” foreclosure matter, “deception” is not discovered until

late or the close to ending of the matter at issue. The Relators have “claimed” that the business

relationship with lender and loan service provider (Wells Fargo Home Mortgage and/or Wells

Fargo Bank NA.) is valid and binding, and that Bank of New York Mellon (a bank investor) has

“deceived” the court(s), Officers of the Courts, and the Ohio taxpayers.

(3) The Respondent presented this foreclosure complaint in ‘bad faith” while the Relator

continued to exercise their customer relationship with Wells Fargo Home Mortgage and/or Wells

Fargo Bank N.A., as their mortgage lender and customer service representative, for executing a valid and binding loan modiﬁcation “Agreement” for future mortgage payments to be delivered to Wells Fargo Home Mortgage and/or Wells Fargo Bank NA.. Thus, the Respondenfs

” ” foreclosure “complain in its whole is found to be in “bad faith” and “moo to all courts of law, including tis Motion to Dismiss by Respondent. Emphasis added (4) Respondent and their legal representatives “bad faith” actions in this case matter are

frivolous in conduct, deceptive, inappropriate, misdirected and misleading in ﬁling this

foreclosure compliant against the Relators. If the Respondents has any issues, they should

properly ﬁle a complaint against ant Wells Fargo Home Mortgage and/or Wells Fargo Bank

N.A.), not against the Relators.

(5) The court shall consider and redress all acts of “bad faith” and “deception” in the

adjudication process and protection of the Realtor’s rights under the Constitution of the United

States, at any timejustice so requires.

(6) Relators again restate their show cause to their claims and the reasons for the relief

requested and the facts relied upon at The Supreme Court of Ohio at Case No. 2017-0385 ﬁling

of their “Show Cause to Compel Peremptory Writ in First Instance”.

Professional Misconduct

(a) Furthermore critical to the judiciary and this peremptory writ in ﬁrst instance in this

foreclosure action are Judge Dennis J. Langer’s and other judges’ disloyalty to the court(s) of law carrying rules of law, ignorance to the Relator’s essential elements of facts and motions, and furthermore professional misconduct alleging “failure of service in public duties and office”.

(b) Speciﬁcally, Judge Dennis J. Langer, and others, “shows cause” to an overwhelming level of prejudice and gross failure to support and defend the Constitution of the United States upon the Relator’s compelling original instant “Answer” with “Claims of Unconstitutionality”.

Actions which are clearly prejudicial and errant to the proceedings, arbitrary and capricious acts against the parties and courts, and violations against the government of the United States while under “Oath of Ofﬁce”.

See: Oath of Office; Constitution of the State of Ohio; Article XV — Miscellaneous; “Every person chosen or appointed to any oflice under this state, before entering upon the discharge of its duties, shall take an oath or aflirmation, to support the Constitution of the ” United States, and of this state, and also an oath of oflice.

discovered upon his “pattems” to ignore the Relator’s favorable essential elements of facts as

evidence to the Relator’s “established mortgage loan”, and timber ignorance to the facts

expressed by the Relators paramount constitutional “priority in civil actions” for “good cause”,

and public interest, upon the Relator’s issues of deprivation of rights under the Constitution of

the United States.

(d) Furthermore, Judge Dennis Langer and otherjudges failure “to perform their duties” in these

case matters according to the general public interpretation of State of Ohio and federal

constitutional and statutory rules of law (Ackermans interpretation as well), is clearly

demonstrating gross prejudice against; the legal parties, the courts, and the Ohio taxpayers of the

courts. Now nearly 8 years of litigation to illegally to attempt to take the Relator’s home without

merit or good cause and is considered a gross perversion of justice.

(e) Furthermore, Judge Dennis Langer, and others, allege “misconduct in office”3 and

questionable actions fail to avoid impropriety and the appearance of impropriety, fail to uphold

3 Ohio Revised Code. 3.07 Misconduct in office - forfeiture. “Any person holding oﬂice in this state, or in any municipal corporation, county, or subdivision thereof coming within the oﬂicial

classification in Section 38 of Article II, Ohio Constitution, who willfully and flagrantly exercises authority or power not authorized by law, refuses or willfully neglects to enforce the law or to perform any oflicial duty imposed upon him by law, or is guilty of gross neglect of duty, gross immorality, drunkenness, misfeasance, malfeasance, or nonfeasance is guilty of misconduct in oflice. Upon complaint and hearing in the manner provided for in sections 3. 07 to 3_.1Q inclusive, of the Revised Code, such person shall have judgment offorfeiture of said oflice with all its emoluments entered thereon against him, creating thereby in said oflice a vacancy to be filled as prescribed by law. The proceedings provided for in such sections are in addition to impeachment and other methods of removal authorized by law, and such sections do not divest ” the governor or any other authority of the jurisdiction given in removal proceedings. the independence, integrity, and impartiality of the judiciary, and failure to perform hisjudicial

duties impartially, competently and deliberately, and should be subjected to the Board of

Professional‘ conduct.

(f) Furthermore, Judge Dennis Langer, and others, decisions are unsupported by their prejudice,

arbitrary and capricious ﬁndings, and his ﬁndings are unsupported by the preponderance

evidence of the Relator’s favorable essential elements of facts to the trial court.

(g) There is no legally valid excuse for the trial court(s) or the appellate court to continually

refuse to address and execute the Relator’s “priority in civil actions” carrying a gross deprivation

of rights under the Constitution of the United States, and no valid excuse delay this mandamus to

stay and “withdraw” the Sheriff Sales, return deposits to winning bidders, and remand these “bad

faith” foreclosure proceedings to the trial court for additional “Trial by Jury” action on all

genuine issues of material facts, and available counterclaims and cross claims as a matter of law.

(h) This courts review de novo of these foreclosure proceedings and “intervention” under into

the Relator’s deprivation of “rights under the Constitution of the United States” is appropriate

and necessary for public and great general interest of the Judiciary.

‘SUPREME COURTRULES FOR THE GOVERNMENT OF THE JUDICIARY OF OHIO RULE

1. Professional Responsibility and Judicial Ethics. Section 1. Applicability. The Ohio Rules of Professional Conduct, eflective February 1, 2007, as amended, shall be binding upon all persons admitted to practice law in Ohio. The willful breach of the Rules by a Justice, judge, or candidate for judicial ofiice shall be punished by reprimand, suspension, disbarment, or probation as provided in Gov. Jud. R. 11 and Gov. Bar R. V. The Code of Judicial Conduct, as adopted by the Supreme Court, eflective December 20, 1973, and set fizrth in 36 Ohio State 2d Reports, as amended, shall be binding upon all judicial oflicers of this state and candidates for judicial oflice. The willful breach of the Code shall be punished by reprimand, suspension, disbarment, or probation as provided in Gov. Jud. R. 11 and Gov. Bar R. V, or by retirement, removal, or suspension from office, as provided in Gov. Jud. R. III.

9 Writ of Mandamus Is Appropriate

l) Relators have a clear legal right under the Constitution of the United States to a “Trial by

Jury” action in the “business of insurance”, which has not been executed or validated by the

courts to this day.

2) The ofﬁcers of the courts have a clear legal duty to support and defend the Constitution of the

United States and Constitution of the State of Ohio for their constituents.

3) Relators have no adequate remedy in the ordinary course of law and the Ohio statutes provides

for a writ of mandamus in the first instance to require a public office or the person responsible

for the jury demand action (State of Ohio public office, representatives, agencies, and all Judges

of the judiciary) to comply with the legal obligations under Ohio law and Federal law.

4) Relators “business of insurance” case matters have a clear show cause “priority in civil

actions” over the Respondents frivolous conduct and contemptuous “bad faith” foreclosure

proceedings, and must remand to the lower court, so as to stay the proceedings, and withdraw the

all civil actions of the foreclosure proceedings back to its “original instant action” for proper

adjudication, and counterclaims, at any time justice so requires.

5) The issuance of a writ of mandamus for stay of Sheriff Sale(s) and further proceedings will

serve the public interest and provide a public beneﬁt by promoting and encouraging compliance

of law in the future.

6) The issuance of a writ of mandamus will serve the public interest and provide conﬁdence in the judiciary to perform their duties and execute proper intervention while under oath to support and defend the Constitution of the United States.

10 7) The issuance of a writ of mandamus will serve the public and great general interest of the

taxpayers of the courts upon correcting these errant case matters before the State of Ohio and

Federal Courts.

Wherefore the above stated reasons and rational presented in the Relator’s peremptory writ

in the ﬁrst instance , the Relators also motions and moves this appellate court to remand this

prejudicial, arbitrary and capricious case matter to an alternative trial court upon a change of

venues pursuant to Civ.R. 3(C) 5, and next execute a stay of the Respondent’s egregious and

“bad faith” foreclosure proceedings for counterclaims and cross at Case No. 2009cv03 1 94 until

the Relator’s pending “priority civil actions” are properly resolved with a jury trial action.

And furthermore upon remand to the lower court, to compel the trail court and Montgomery

County Sheriff to withdraw the foreclosure Sheriff Sale(s) (2ct), and retum the down payment

deposits by the winning bidders with appropriate interest (2ct); Two Sheriff Sale(s) depositing;

$7300.00 (Fresh Zone Products, Inc.) a.r1d $5000.00 (Greg and Joyce Ackennan), plus applicable

interest for “good cause”.

The Relator also moves this court for further paramount “intervention” under Ohio Civ.R. 24

~ ~ Intervention and FRCP 24 Intervention, upon the Relators “original instant actions” in the

“business of insurance” legal matters and their “priority of civil actions with “jury demand(s)”, and to support and defend the Constitution of the United States and Constitution of the State of

5 Civ. R. RULE 3. Commencement of Action; Venue... Change of “Upon (C) venue. ). . . 4) motion of any party or upon its own motion the court may transfer any action to an adjoining county within this state when it appears that a fair and impartial trial cannot be had in the county in which the suit is pending.”

11 Ohio as a matter of fundamental, substantive and substantial law as dictated in the Seventh

5 Amendment and Fourteenth Amendment7 of the Constitution of the United States.

The Relators “show cause” to this peremptory writ of mandamus via a “priority of civil

actions” with “good cause shown if a right under the Constitution of the United States or a

Federal Statute would be maintained in a factual context that indicates that a request for

expedited consideration has merit.”

See: 28 US. Code § I 65 7 - Priority of civil actions. (a) “Notwithstanding any other provision of law, each court of the United States shall determine the order in which civil actions are heard and determined, except that the court shall expedite the consideration of any action brought under chapter 153 or section 1826 of this title, any action ﬁwr temporary or preliminary injunctive relief or any other action if good cause therefor is shown. For purposes of this subsection, “good cause” is shown if a right under the Constitution of the United States or a Federal Statute (including rights under section 552 of title 5) would be maintained in a factual context that indicates that a request for expedited consideration ” has merit.

“good For cause” purposes of Relator’s claim in peremptory writ of first instance mandamus

under Ohio Revise Code 2731.06 Peremptory writ in first instance, “when the right to require the performance of an act is clear and it is apparent that no valid excuse can be given for not doing

it, a court, in the first instance, may allow a peremptory mandamus”.

See again; 2731.06 Peremptory writ in first instance. When the right to require the performance of an act is clear and it is apparent that no valid excuse can be given for not

doing it, a court, in the first instance, may allow a peremptory mandamus. In all other cases an alternative writ must ﬁrst be issued on the allowance of the court, or a judge thereof

5 Constitution of the United States; Bill of Rights: Amendment VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. 7 Constitution of the United States,‘ Bill of Rights Amendment XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall state any deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

12 lt’s never too late to start over, at any time, and “In real life the Jury decides the ending”, and thus fair and prudent justice will eventually prevail for “good cause”. Emphasis added.

CONCLUSION

The Relator prays the Supreme Court of Ohio to affirm this valid “show cause” action to their peremptory writ of first instance upon their priority of civil actions carrying a great deprivation of rights under the Constitution of the United States, and further afﬁrrn the State of Ohio duty and honor of intervention to recovery Re1ator’s long standing deprivation of rights carrying a heavy loss of life, liberty and property upon their fundamental and substantial constitutional questions of their basic civil rights under the Constitution of the United States of America, and

Constitution of the State of Ohio, as a matter of prudent justice at any time justice so requires, and there will be peace when this courts actions are done. K Respectfully submitted, /7—{ *3 /‘L

Grego . Ackemian, Pro Se / Relator 556 Sha wlawn Avenue Dayton, OH 45419 Phone: (937) 293-4267

Jdyce /L. Ackerman, Pro Se / Relator 556 Shadowlawn Avenue Dayton, OH 45419 Phone: (937) 293-4267

13 CETIFICATE OF SERVICE

WE, Greg T. Ackerman and Joyce Ackerman , do swear or declare that on this date of J. I (7 , we will give notice to each party to the above proceeding or that party’s counsel, and on every other person required to be served, a copy of this “Response to Motion to Dismiss” by hand delivery, or by depositing them in an envelope containing the above documents in the United States mail, properly addressed to each of them and with first-class postage prepaid, or by delivery to a third-party commercial carrier for delivery within 3 calendar days.

Charming L. Ulbrich, Trial Counsel

Richard Mark Rothfuss II Legal Department William P. Leaman, Wells Fargo Bank, N.A. (SC) Ellen L. Fomash 3476 Stateview Boulevard Lemer, Sampson & Rothfuss Fort Mill, SC 29715 MAC # 7801-013 120 E. Fourth Street

Cincinnati, Ohio 45202 Michael J. Newman (513) 241-3100 Angela Logan Edwards Michael W. Hawkins Scott A. King and Terry Posey, Jr. Patrick W. Michael Thompson Hine LLP, Dinsmore & Shohl, LLP

Austin Landing I 255 E. Fifth St., Suite 1900 10050 Innovation Drive, Suite 400 Cincinnati, OH 4520 Miarnisburg, Ohio 45342

Mr. Greg Ackennan

President / Statutory Agent Fresh Zone Products, Inc. 556 Shadowlawn Ave. Dayton, Ohio 45419

1/ We declare under penalty of perjury that the forgoing is true and correct. gal Executed on 3 l 20 l é , I Respectfully submitted,

~~ . Ackerman, Pro Se / Relator ~ 556 Shadowlawn Avenue Dayton, OH 45419 Phone: (937)293-4267 P ~/

o e L. Ackerman, Pro Se / Relator 556 Shadowlawn Avenue Dayton, OH 45419