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Appellants *
vs. *
WACHOVIA BANK, N.A., et., al *
Appellees *



Appellants filed a timely Motion For Reconsideration December 17, 2007

pursuant to Georgia Court of Appeals Rule 37, Appellees filed their Response

December 27, 2007.

Appellants MOVE this Honorable Court to Grant their Motion For

Reconsideration; Appellants MOVE this Honorable Court to Reverse Superior

Court’s Order. Among the reasons for granting Appellant’s Motion For

Reconsideration: “the Court overlooked material fact in the record”; “a statute or a

decision which is controlling authority would require a different judgment from

that rendered”; “erroneously construed or misapplied a provision of law or a

controlling authority”.
Lack of action by this Honorable Court would lead one to conclude that The

Georgia General Assembly and or Congress have amended the Constitutions and or

statutes by removing liability of tortfeasors and removing the Right to relief for

law-abiding, tax-paying citizens with no criminal record, who have not been

charged, arrested or convicted of any crimes, yet who have become victims with

their property seized and damaged without due process of law and having been

subjected to various tortious and fraudulent actions.

Controlling Authorities – Provisions of Law

Appellants have been denied the Georgia and United States’ Constitutional

Right of due process of law; they have been denied the Constitutional guarantees

of the right to “be heard”, and not to be “treated differently” by the Courts than

others in the same situation.

Appellees in this matter have continually been allowed to do as they please.

Appellees are not above having to abide by the rules, regulations, procedures,

statutes. Appellants will show in the following that even the State of Georgia has

had to follow the same rules, regulations and procedures as the normal litigant, yet

Appellees are treated with preference.

Motions To Dismiss and Defaults

The trial Court improperly granted Appellee’s Motion To Dismiss and the

case should be remanded to Superior Court with instructions to the trial Court

Judge. Superior Court held Appellants to “stringent” rules, procedures, and

statutes to the point that bias, prejudice and discrimination is obvious. Shown

below, even the State of Georgia has been held to “stringent” rules, regulations,

procedures and statutes; Wachovia is not above the law and favoritism should not

be shown to these Appellees.


Azarat Marketing Group, Inc. v. Georgia Department Of

Administrative Affairs, 245 Ga. App. 256, 245 Ga. App. 256, 537

S.E.2d 99, 537 S.E.2d 99 VERSUSLAW (Ga. App. 07/06/2000);

Reversed; The opinion of the court was delivered by: Ellington,


at [15]: “…the trial court failed to consider the evidence

presented in the light most favorable to Azarat as non-movant,

*fn1 the trial court erred in allowing the State to claim res

judicata …”; “Res judicata is an affirmative defense that must

be raised in a timely filed responsive pleading. OCGA § 9-11-8


at [16]: “(b) The trial court also erred in finding that a "general

conclusory statement" in the pleadings that there had been a

breach of contract fails to state a cause of action …”

at [17]: “[A] defendant in default is in the position of having

admitted each and every material allegation of the plaintiff's

petition except as to the amount of damages alleged. The default

concludes the defendant's liability, and estops him from offering

any defenses which would defeat the right of recovery. (Citations

and punctuation omitted.) Cohran v. Carlin, 254 Ga. 580, 585 (3)

(331 SE2d 523) (1985). See also OCGA § 9-11-55 (a).”

at [19]: “In this case, Azarat's complaint shows that (1) there

was an agreement for it to sell the State 36 computers for a total

price of $33,984.00; (2) the computers were delivered as

promised; (3) all conditions precedent to Azarat's right of

recovery have occurred; and (4) the State has refused to pay for

the computers pursuant to its agreement. These allegations were

sufficient to state a cause of action for breach of contract and

were deemed admitted by the State's default. See OCGA §§ 9-11-

8 (a) (2); 9-11-55 (a); see also Morgan v. Ga. Vitrified Brick &c.

Co., 196 Ga. App. 779, 780 (1) (397 SE2d 49) (1990) (all doubts

resolved in favor of plaintiff on a motion to dismiss for failure to

state a claim).”

See also:

Jesson v. GCH & Associates, Inc., 248 Ga.App. 97, 545

S.E.2d 645 VERSUSLAW (Ga.App. 02/16/2001); The opinion of

the court was delivered by: Johnson, Presiding Judge. At [15]:

“The trial court also found correctly that Jesson's remedy was to

move to open the default pursuant to OCGA § 9-11-55 (b).”

“Under OCGA § 9-11-55 (b), a prejudgment default may be

opened on one of three grounds if four conditions are met. The

three grounds are: (1) providential cause, (2) excusable neglect,

and (3) proper case; the four conditions are: (1) showing made

under oath, (2) offer to plead instanter, (3) announcement of

ready to proceed with trial, and (4) setting up a meritorious

defense. . . . Generally, the opening of a default rests within the

sound discretion of the trial court. However, compliance with the

four conditions is a condition precedent; in its absence, the trial

judge has no discretion to open the default. *fn2”; “*fn2

(Citations and punctuation omitted.) Stewart v. Turner, 229 Ga.

App. 119, 121 (2) (493 SE2d 251) (1997).”

See also:

"Under the Civil Practice Act a motion to dismiss a

complaint for failure to state a claim upon which relief may be

granted should not be granted unless averments in the complaint

disclose with certainty that plaintiffs would not be entitled to

relief under any state of facts that could be proven in support of

the claim." Hardy v. Gordon, 146 Ga. App. 656, 657 (247 SE2d

166) (1978).”;

"While conclusions may not generally be used in affidavits to

support or oppose summary judgment motions [cit.], conclusions

may generally be pleaded under the Civil Practice Act. 'Under

this "notice" theory of pleading it is immaterial whether a

pleading states "conclusions" or "facts" as long as fair notice is

given, and the statement of claim is short and plain.' [Cit.] '(T)he

true test is whether the pleading gives fair notice and states the

elements of the claim plainly and succinctly, and not whether as

an abstract matter it states "conclusions" or "facts".' [Cit.]

'(T)here are no prohibitions in the rules against pleading

conclusions and, if pleaded, they may be considered in

determining whether a complaint sufficiently states a claim for

relief. It is immaterial whether an allegation is one of fact or

conclusion if the complaint effectively states a claim for relief.' 1

Kooman, Federal Civil Practice, 250. Accord, Davis &

Shulman's Georgia Practice & Procedure 2-5 (4th Ed. 1975)."

Guthrie v. Monumental Properties, 141 Ga. App. 21, 23 (232

SE2d 369) (1977).”

It has clearly been shown that Appellees had defaulted not only in Superior

Court, but upon Removal to Federal Court failed to timely file an answer in that

Court as well. Superior Court failed to follow procedure concerning default giving

Appellees more lee-way than this Honorable Court in the past, allowed the State of

Georgia. Appellees failed to file a Motion To Open Default in either Court.

The trial Court violated procedure and statutes when grating Appellee’s

“Motion To Dismiss”. There were questions of disputed material fact, Appellants

could prove many of the counts in their complaint and The Georgia General

Assembly has deemed that “tort” is a recoverable cause of action.

See White v. Johnson, No. 58117, 1979. GA. 1553 VL, at

[18] (259 S.E.2d 731)(1979) (Ga. App. 345 Sept 14,

1979) “… and did not allege the circumstances

constituting the fraud with particularity as required by §

9B of the Georgia Civil Practice Act (Code Ann. §81A-

109(b)). Appellant’s contention is without merit since “n

Cochran v. McCollum, 233 Ga. 104 (210 S.E.2d 13) it

was held where there is a failure to plead fraud with

particularity that the correct remedy is not a motion to

dismiss or strike but a motion for more definite statement

under CPA §12(e) (Code Ann §81A-112(e)).” Scroggins

v. Harper, 144 Ga. App. 548, 549 (241 S.E.2d

648)(1978). The record contains no motion for a more

definite statement and, therefore, the trial court did not

err in denying appellant’s motion to strike.””

Material Fact in the Record

Before filing this Civil action and continuing to date, Appellees have cast

aspersions, demeaned, slandered, defamed the characters of Appellants for the sole

purpose of bringing bias and prejudice in the Courts against the Appellants, thus

ensuring unsuccessful legal action against them. The tortious acts of Appellees

must not be ignored, the Appellants are not the first victims of the fraudulent

scheme bestowed upon them; should this Honorable Court fail to act, they will not

be the last victims.

The Appellant’s complaint alleges causes of action for “tort” in nature and

stated several times that they possess supporting, concrete evidence in support of

their allegations. Appellees are aware of the supporting evidence due to discovery

performed and Superior Court is well aware of the evidence due to Superior Court

civil action #: 02-cv-9732-8,1 Joyner v. Stegeman in which there was a Motion to

Compel hearing against Appellees as a non-party. Before filing this action,

Appellants had obtained critical evidence against Appellees in which to prove

allegations in their complaint.

Among Appellant’s evidence: The Original agreements and contracts from

the opening of the accounts, Certified Bank Records showing fraud and

mismanagement of accounts; Certified depositions by Senior VP Wachovia

Securities and Senior Compliance Officer stating exactly how the accounts came

about, how the accounts were opened, and to whom the accounts belonged; the

Judge Hunter was presiding Judge, therefore the claim in her Order Dismissing

the case dated April 12, 2007 states on page 1, second ¶: “Plaintiffs allege…”;

Plaintiffs had some undefined relationship…”; “… some disagreement with certain

actions taken by the court appointed guardian…” These statements are false, Judge

Hunter presided over the case for two years and had full knowledge of the events

alleged in the complaint. Further, after two and a half years when the Guardian

could produce no evidence against Stegeman, he backed out of the case, and

Appellants regained what was left of their assets.

lack of Court Orders setting aside Stegeman’s Durable Power of Attorney2 and the

notarized Directive from Caffrey to McDonald.

To address what Appellees and Superior Court contend is confusion of

“account and account(s)” in the complaint, a CAP Account is comprised of more

than one account number, and along with the fact that Certified Bank Records

indicate that the Appellees had moved the assets numerous times and different

account numbers one might surmise as an effort to hide the assets, then in the end

there was only one account.

Appellees would have the Courts believe that: “the funds and property in

Plaintiff’s accounts emanated from Ms. Jean Caffrey”3; and they go on to state:

“Despite the Temporary Guardianship Letter…”4; Appellees continue: “To this end

Plaintiffs appear to complain that Wachovia and Mr. Joyner acted without proper

Special Durable Power of Attorney on file at DeKalb County Courthouse dated

January 21, 1998 Book 9791 pgs. 22-24 as well as Wachovia Bank and Wachovia


pg. 2, I. Summary of Alleged facts, 2nd¶ of “Wachovia Bank, National

Association’s Memorandum of Law In Support Of It’s Renewed Motion To

Dismiss Complaint” dated April 13, 2006

documentation to change both names and addresses on accounts, deny Plaintiffs

access to the accounts, de-link the accounts, close the accounts and sell mutual

funds from the accounts.”5

The reality is that legal documentation shows that: “the funds and property

in Plaintiff’s accounts” belonged to Appellants; a Temporary Guardianship Letter

amounts to nothing without a Judge’s signature and Seal, the document has no

legal significance; and such a document presented by someone that Appellees

claim to have no relationship with does not replace a Court Order and clearly

shows that not only did Appellees have some kind of relationship with, but at the

direction of John Joyner breached the fiduciary duty that banks owe their


pg. 2, I. Summary of Alleged facts, 3rd¶ of “Wachovia Bank, National

Association’s Memorandum of Law In Support Of It’s Renewed Motion To

Dismiss Complaint” dated April 13, 2006

pgs. 2-3, I. Summary of Alleged facts, 3rd¶ of “Wachovia Bank, National

Association’s Memorandum of Law In Support Of It’s Renewed Motion To

Dismiss Complaint” dated April 13, 2006

Appellees admit they had no Court Order signed and sealed by a Judge

appointing a County Guardian, no Court Order dismissing a legal notarized

directive from Caffrey to McDonald, no Court Order allowing access to

Appellant’s accounts, and no Court Order dismissing Stegeman’s special Durable

Power of Attorney. Further, they can provide no evidence that McDonald,

Stegeman or Caffrey agreed to allow the “Guardian” access to any of the accounts

held by Appellees. Without Court Orders or permission, Appellees can prove no

legal authorization that would enable them to take any action regarding Appellant’s


Doctrine of Separation of Powers and Rule of Stare Decisis

Neither the Superior Court nor this Honorable Court has the power to

change, inflate or diminish the meaning of either Georgia law or The State of

Georgia Constitution or decisions of the Supreme Court. See the following:

2003 Ga. App. LEXIS 1463,*264 Ga. App. 252, 590 S.E.2d

386, 2003 Fulton County D. Rep. 3600 at [*27]: “The three

justice plurality opinion in Thompson v. Crownover is not

authority to the contrary. Because the Court of Appeals is bound

by the Georgia Constitution and the doctrine of stare decisis to

follow the decisions of the Supreme Court, we are not at liberty

to decline”

See also [*32]: “to follow the "patent defect" rule as decided

by that Court. Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI.

Accordingly, Bastien, 209 Ga. App. 881 (434 S.E.2d 736) and

Watts v. Jaffs, 216 Ga. App. 565 (455 S.E.2d 328) (1995) (which

relied on Bastien and the three justice plurality in Thompson v.

Crownover to reach a similar result), should be overruled to the

extent they contravene the decisions of the Supreme Court

establishing and applying the "patent defect" rule in tort claims

by tenants against landlords. n25”

See also Etkind et al v. Suarez et al S98G1978 (271 Ga. 352)

(519 SE2d 210) (1999) V/LEX which shows: “More

importantly, the doctrine of separation of powers is an immutable

constitutional principle which must be strictly enforced.

McCutcheon v. Smith, 199 Ga. 685, 691 (2) (35 SE2d 144)

(1945). Under that doctrine, statutory construction belongs to

the courts, legislation to the legislature. We can not add a line to

the law, nor can the legislature enlarge or diminish a law by

construction.” ‘[Cits.]” Modern Homes Constr. Co. v. Burke,

219 Ga. 710, 715 (135 SE2d 383) (1964).” And: “Courts like

individuals, but with more caution and deliberation, must

sometimes reconsider what has been already carefully considered

and rectify their own mistakes…”

Georgia and Federal Constitutions

Appellants have been victims of an unconstitutional and illegal taking of

property. Superior Court failed to protect the property when the protection from

waste was requested, and the Appellees admittedly aided a County Guardian6 in the

illegal seizure and taking of the assets.

Certified Bank records clearly show, and Appellees freely admit a lack of legal

documentation appointing Guardian (Appellants will hereinafter refer to John

Joyner as “John Joyner”, “Joyner”, “Guardian” or “the Guardian”). Clearly,

Appellees had no legal documentation enabling the seizure or access to Appellant’s

assets, thereby Appellees breached their contract with and their fiduciary duty to

Appellants, both recoverable causes of action for which Appellees are liable.

Appellants were denied their Right to produce evidence in support of the

complaint, the only hearing that had a date set was cancelled by the trial Court,

what the hearing set was to address was changed and a decision made while

Appellant’s supporting briefs and documents were held un-filed in the Court.

The Appellants claimed to have a contract, Appellees claimed Appellants

had no contract. There should have been a hearing, a hearing had been set, no

objection to a hearing was filed. The hearing was requested in order for Appellants

to present their evidence and since there appears to have been rebutted evidence, a

hearing should have been had to make the determination.

Our Georgia Constitution provides:

“No person shall be deprived of life, liberty, or property, except

by due process of law.” Code Ann. 2-103. The Federal

Constitution’s equivalent of this is contained within the Fifth and

Fourteenth Amendments. The Georgia Constitution also

provides: “Legislative acts in violation of this Constitution, or

the Constitution of the United States, are void, and the Judiciary

will so declare them.” Code Ann. 2-402

See also:

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

(Ga. App. 12/02/1998) VERSUSLAW, at [235 Ga. App. Page

556] [31]: "Both the Georgia and United States Constitutions

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

property, without due process of law.' United States Const.,

amend. XIV, sec. 1; see also Ga. Const., [Art. I, Sec. I, Par. I].

The fundamental idea of due process is notice and an opportunity

to be heard." *fn14 As stated in Citizens &c. Bank v. Maddox,

*fn14 "[t]he benefit of notice and a hearing before judgment is

not a matter of grace, but is one of right." "A party's cause of

action is a property interest that cannot be denied without due

process. (Cit.)"; *fn14: at[47] “*fn14 OCGA § 9-15-2 (d).”


Appellants have clearly shown that the trial Court as well as Appellees

violated rules and statutes; Appellees defaulted in both US District Court as well as

Superior Court 7; The Appellants in this matter have been held to a more

“stringent” standard than have the Appellees showing prejudice, bias,

discrimination toward the Pro Se Appellants which in turn has shown them

inequality in the Courts.

It is up to this Honorable Court to ensure fairness and to see that Rules,

Regulations, Procedures and Statutes are abided by and all parties treated equally.

This Honorable Court so far has failed to do this.

Appellants MOVE this Honorable Court to Reconsider it’s Order, Reverse

Superior Court’s Order and find in favor of the Appellants.

Respectfully Submitted this 3rd day of January, 2008

When making statements about US District Court, Appellees clearly perjured

themselves by claiming Fed. R. Civ. P. 81(c) controlled when their responsive

pleading was due and claiming that the Court allowed them longer to file an

answer than 30 days see Appellee’s Brief, pg3, 2nd ¶; Appellees further perjured

themselves by claiming that they didn’t know when US District Court Remanded

the case when it was sent to them the same day electronically see Appellee’s Brief

pg.4, fn2.

BY: ___________________________
821 Sheppard Rd
Stone Mountain, GA 30083
(770) 879-8737

BY: __________________________
821 Sheppard Rd
Stone Mountain, GA 30083
(770) 879-8737


I hereby certify that I have this 3rd day of January 2008, served a copy

of the within and foregoing REPLY TO DEFENDANT/APPELLEE’S


Appellees/Defendants in this matter through their attorney by causing to be

deposited in the U.S. Mail, proper postage prepaid, a true and correct copy of same

addressed to each of their attorneys as follows:

William J. Holley, II
Jodi Emmert Zysek
1500 Marquis Two Tower
285 Peachtree Center Avenue, NE
Atlanta, GA 30303


821 Sheppard Rd
Stone Mountain, GA 30083
(770) 879-8737