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SHERRY ANN JOHNSON, JOYCE ANN CRITTENDEN, Appellants VS. THE
BANK OF NEW YORK MELLON AS SUCCESSOR TRUSTEES, Appellee
Case No. A10A1390
COURT OF APPEALS OF GEORGIA
2010 GA App. Ct. Briefs 1390; 2010 GA App. Ct. Briefs LEXIS 610
April 6, 2010
Initial Brief: Appellant-Petitioner
VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: GA Court of Appeals:
Brief(s)
COUNSEL: [*1] Sherry A. Johnson, Joyce A. Crittenden, Pro se, Ellenwood, GA.
TITLE: Brief of Appellant
TEXT: I. STATEMENT OF CASE
The Bank of New York Mellon as successor trustees c/o McCurdy & Candler, LLC Appellee filed a
dispository warrant with the State Court of Dekalb County on January 26, 2010 demanding possession of
Appellants premises after an alleged foreclosure with Saxon Mortgage Servicing. Upon presentment of
court on February 17, 2010 the State Court of Dekalb County issued a judgement of Writ of Possession on
February 24, 2010 (7 days) against the Sherry A. Johnson and Joyce A. Crittenden, Appellants. Appellants have appealed to the Court of Appeals of Georgia.
II. STATEMENT OF FACTS
On February 16, 2010 a notice was given to the State Court that no dispute exist before the court for alleged
action case 10D41188, The Bank of New York Mellon as successor Trustees, c/o McCurdy & Candler,
LLC verses Sherry A. Johnson and Joyce A. Crittenden. There was an absence of ratification of commencement. All third parties are fired and notice was given.. Notice was given that acting parties bonds are at
risk in the instant matter. Upon inspection [*2] of case documents file # 10D41188 at the Office of the
Clerk of Dekalb County on February 16th, 2010 the day prior to court, I Sherry Johnson, Appellent, failed to
locate an entry on the docket sheet of a real party in interest having appeared by the filing of commencement
of an action and declared as fact:
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2010 GA App. Ct. Briefs 1390; 2010 GA App. Ct. Briefs LEXIS 610, *
1. No real party in interest has appeared of record
2. There exist no sworn claim/ratification of commencement
3. That there was not in said file a wet ink two party signed contract in support of the alleged
action upon which to create a dispute, and I, Sherry Johnson authorized representative for Legal
fiction SHERRY ANN JOHNSON believe that no such contract exist.
4. That no assignment of power of attorney that exist of record for a third party to make any
legal determination in the commercial affairs of alleged defendants SHERRY ANN JOHNSON
and JOYCE ANN CRITTENDEN
5. NO claim exists to support alleged case 10D41188
After case file inspection, Sherry added documents to the case file#10D41188 of court filings and correspondence mailings between Sherry A. Johnson and Joyce A. Crittenden, alleged defendants and Saxon
Mortgage Servicing [*3] real parties of interest. The correspondence between the two REAL parties
included TIMELY mailings of legal binding documents by the defendants to the Chief Financial Officer of
Saxon Mortgage Servicings. These legal binding documents are governed by the Uniform Commercial Code
and the Code of Federal Regulation the Bankers Acceptance Note and in accordance with "Public Policy"
established by HJR-192 31 USC 5103 and USC 8. Furthermore, these legal binding documents were NEVER
answered by Saxon Mortgage Servicing.
In court on February 17, 2010 at the State Court of Dekalb County, there was no real party of interest present
or authorized representative for the claim against the defendants. The judge further did not allow the defendant/s, Sherry A. Johnson to elaborate and dispute this claim or any of the documents presented in the case file
to dispute the illegal/alleged foreclosure. . The judge ordered a Writ against the defendants to vacate the
premises within 7 days
III. ENUMERATION OF ERRORS
1. The State Court erred by failing to show a ratification of commencement between the parties.
There were no real party in interest on the [*4] record
2. The State Court erred by not showing in the file a wet ink two party signed contract in support of the alleged action upon creating a dispute. I, Sherry Johnson, believe that no such contract exist
3. The State Court erred by not showing that a power of attorney exist of record for a third party to make any legal determination in the commercial affairs of alleged defendants SHERRY
ANN JOHNSON and JOYCE ANN CRITTENDEN.
4. The State Court erred by failing to allow the defendants to dispute the claim made by the alleged plaintiff.
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2010 GA App. Ct. Briefs 1390; 2010 GA App. Ct. Briefs LEXIS 610, *
5. The State Court erred by not issuing a Writ of Possession against the defendants for an illegal foreclosure and ordering them to vacate the premises.
V. ARGUMENT
The defendants, appellants in this matter timely filed and presented all supporting documents to the court
regarding this alleged/illegal foreclosure. The State Court or case file did not show proof on record that there
was a real party of interest against the alleged plaintiffs The Bank of New York Mellon as successor trustees c/o McCurdy & Candler, LLC and defendants, Sherry A. Johnson and Joyce A. Crittenden. There
was no sworn ratification [*5] of commencement on record or a wet ink two party signed contract in support of this claim. There was also no Power of Attorney allowing a third party to represent the defendants
because the defendants/appellants had fired all third parties prior to any court case. If the plaintiffs represented Saxon Mortgage Servicing, there was no contract in the record to support this claim as well. There
existed no real dispute against the parties before the court on record; and therefore fraud was committed by
the court when the court elected to proceed.
Furthermore, the defendants/appellants showed the courts proof and support of their claim that there was no
legal ground to foreclose. The defendants/appellants sent legal and binding correspondence between them
and the REAL parties of interest, Saxon Mortgage Servicing. The defendants/appellants, Sherry A. Johnson
and Joyce A. Crittenden filed timely legal documents to Larry Spangler, CFO of Saxon Mortgage Servicing
in which there was no answer to these documents and therefore, there was no legal grounds to foreclose.
Sherry A. Johnson and Joyce A. Crittenden appearing pro se herein as Defendants/Appellants/Debtors
are allowed [*6] greater latitude with respect to reasonableness of their legal theories (Patterson V. Aiker,
111 F.R.D. 354, 358 [N.D. GA 1986])". To the extent that Debtor did not confine strictly to the rules, specifically relating to formatting, Debtor respectfully apologizes to this court. In consequence, the court is supposed to judge the case based on its merits even if procedural errors are made. Therefore, the court must give
a Pro Se Debtor, "every favorable inference arising from his pro se status" (Hall v. Dworkin, 829 F. Supp.
1403, 1409 (ND NY 1993).
Despite Debtor's timely legal objections and defenses, the propose sale or illegal Foreclosure' of their property took place on January 5, 2010.
1. to 'set aside the sale of the Illegal Foreclosure of January 5, 2010;
1. to consolidate their 'affirmative defense adversary proceedings' and the motion filed for the
Order of Judgement on February 17, 2010 in State Court of Dekalb County (Docket
#10D41188) under rule 6004(b) since they are both governed by Rule 9014 and are considered
contested matter or core proceedings.
FUNDAMENTAL BASIS OF ARGUMENT
Ronald Dworkin regards law as an interpretive [*7] process under which individual rights are
paramount. Therefore, let us consider the following two situation by Dworkin:
First Quotation by Dworkin
"An impatient beneficiary under a will murder the testator. Should he be permitted to inherit?"
2. Debtor's Contextual Analogy of First Quotation
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2010 GA App. Ct. Briefs 1390; 2010 GA App. Ct. Briefs LEXIS 610, *
Saxon Mortgage Services, Inc. as an impatient beneficiary strips away Debtor's property rights
despite her timely legal objections and defenses. Should Saxon Mortgage Services, Inc. be
permitted to inherit the profit by selling Debtor's property?
3. Second Quotation by Dworkin
"A chess grand master distracts his opponent by continually smiling at him. The opponent objects. Is smiling in breach of the rule of chess?
4. Debtor's Contextual Analogy of Second Quotation
Saxon Mortgage Services, Inc. blind folded their eyes and put their two hands over their ears by
not answering to Debtor's timely legal objections and defenses by maintaining silence. Debtor
objects but no one is looking or listening. Is the silence of Saxon Mortgage Services, Inc. in
breach of the rules of law?
5. Fraud On The Court By An Officer Of The Court As Basis To Set Aside The Illegal Foreclosure
all [*8] attorneys are considered as officers of the court. Whenever any officer of the court
commits fraud during a proceeding in the court, he/she is engaged in "fraud upon the court". In
Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated "Fraud upon
the court is fraud which is directed to the judicial machinery itself and is not fraud between the
parties or fraudulent documents, false statements or perjury. ... It is where a member is corrupted or influenced or influence is attempted)".
"Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace that
species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by
officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d
689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, P 60.23. The 7th Circuit further stated
"a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final."
"Fraud upon the court" makes void the orders and judgments of [*9] that court. It is also clear
and well-settled law that any attempt to commit "fraud upon the court" vitiates the entire proceeding. (See In re Village of Willowbrook, 37 Ill. App.2d 393 (1962) ("It is axiomatic that
fraud vitiates everything."); Dunham v. Dunham, 57 Ill. App. 475 (1894), affirmed 162 Ill. 589
(1896); Skelly Oil Co. v. Universal Oil Products Co., 338 Ill. App. 79, 86 N.E.2d 875, 883-4
(1949)). Under Federal law, when any officer of the court has committed "fraud upon the
court", the orders and judgment of that court are void, of no legal force or effect.
6. Homestead rights and Federal Rule Civil Procedure 60(b)
Debtor does not in anyway waive her homestead rights (State, ex rel., O'Brien v. Superior
Court, 173 Wash. 679, 24 P.2d 117 (1933); State, ex rel., White v. Douglas, 6 Wn.2d 356, 107
P.2d 593 (1940)). Thus, the illegal foreclosure be vacated under rules allowing vacating judgments, e.g. F.R.Civ.P 60(b).
7. Analogous Cases For Basis to Set Aside the 'Illegal Foreclosure Sale'
Anyone having an interest in the real property security, [*10] including the borrower, may
restrain the non-judicial foreclosure of a deed of trust on any proper ground (See, e.g., Reiserer
v. Foothill Thrift and Loan, 208 Cal.App.3d 1082, 256 Cal.Rptr. 508 (1989) (unpublished
opinion); Metropolitan Life Insurance Company v. La Mansion Hotels & Resorts, Ltd., 762
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S.W.2d 646 (Tex.App.1988); Bekins Bar V Ranch v. Huth, 664 P.2d 455 (Utah 1983); National
Life Insurance Co. v. Cady, 227 Ga. 475, 181 S.E.2d 382 (1971); Peoples National Bank v.
Ostrander, 6 Wn.App. 28, 491 P.2d 1058 (1971).
See, generally, note, Court Actions Contesting The Nonjudicial Foreclosure of Deeds of Trust
in Washington, 59 Wash.L.Rev. 323 (1984); Restraining Orders in Non-Judicial Deed of Trust
Foreclosures, Property Law Reporter, June 1987 (Vol. 3 Nos. 4 & 5)). Proper grounds to set
aside this illegal foreclosure include: (1) there is no default on the obligation, Salot v. Wershow,
157 CA.2d 352, 320 P.2d 926 (1958) and (2) proposed conduct of the sale is defective, Crummer v. Whitehead, 230 CA.2d 264, 40 CR 826 (1964) are analogous to Debtor's situations since
she [*11] has timely and legally rescinded the mortgage per TILA, see Exhibit A.
8. Debtor's Mortgage & Note Were Timely & Properly Rescinded per TILA A mortgage and a
note are two different documents. The note is the pledge that you will pay back the money you
"borrowed" to purchase your house. The mortgage is the instrument used to establish your
house as collateral. In the event you do not comply with the provisions of your note, the mortgage is the instrument used to establish the right to foreclose. The note dictates what terms and
conditions fees, late charges, etc. can be imposed. The note dictates when a "default" can be
declared. The note dictates when a mortgage can be accelerated. The note dictates when foreclosure proceedings can commence. The note dictates if the money must be applied to P&I
first, or fees first.
The statute and regulation specify that the security interest, promissory note or lien arising by
operation of law on the property becomes automatically void. (15 U.S.C. § 1635(b); Reg. Z §§
226.15(d)(1), 226.23(d)(1). As noted by the Official Staff Commentary, the creditor's interest in
the property is "automatically negated regardless [*12] of its status and whether or not it was
recorded or perfected." (Official Staff Commentary §§ 226.15(d)(1)-1, 226.23(d)(1)-1.).
ARGUMENT
The first quotation mentioned above by Dworkin is "drawn from the New York Decision of
Riggs v. Palmer in 1899. The will in question was validly executed and was in the murderer's
favour. But whether a murderer could inherit was uncertain: the rules of testamentary succession provided no applicable exception. The murderer should therefore have a right to his inheritance. The New York Court held, however, that the application of the rules was subject to the
principle that 'no person should profit from his own wrong'. Hence, a murderer could not inherit
from his victim."
According to Dworkin, in the second quotation, "the referee is called upon to determine whether smiling is in breach of the rules of chess. The rules are silent. He must therefore consider the
nature of chess as a game of intellectual skill; does this include the use of psychological intimidation? He must, in other words, find the answer that best 'fits' and explains the practice of
chess."
Debtor is a victim of Predatory Lending (See Motion on 'Relevant Evidences') [*13] and
Mortgage and Mail Fraud. As illustrated above in Debtor's contextual analogy, they have been
injured as a result of Saxon Mortgage Services, Inc. and other creditors wrongdoings. Debtors
are victims of predatory lending and mortgage fraud.
1. Irrefutable Facts
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Saxon Mortgage Services, Inc. failed to respond to Debtor's timely TILA notice of rescission
and the Mortgage Fraud issue as a defense to foreclosure. As Georgia is a non-judicial foreclosure jurisdiction, Debtor will lose her rights of due process, if an entry to set aside the illegal
foreclosure sale by this Court is not granted. The whole purpose of the law is that Saxon Mortgage Services, Inc. are responsible for the harm that arise out of their act. It should not fall on
the Debtor, the innocent victim of that act who have acted timely to protect her property interests.
2. Affirmative Defenses based on TILA
The first circuit court of appeals has unequivocally stated that any violation of TILA, regardless
of the technical nature of the violation, must result in a finding of liability against the lender.
Bizier v. Globe Financial Services, Inc., 654 F.2d 1, 3 (1st Cir. 1981). TILA is a remedial [*14]
statute which is designed to balance the scales "thought to be weighed in favor of lenders," and
is therefore to be liberally construed in favor of borrowers. Id. A creditor who fails to comply
with TILA in any respect is liable to the consumer under the statute, regardless of the nature of
the violation or the creditor's intent. Thomka v. A.Z. Chevrolet Inc., 619 F.2d 246, 249-50 (3d
Cir. 1980). Even if the borrower can demonstrate no actual damages, TILA's penalties are applied regardless of whether the borrower was misled or injured. See, Griggs v. Provident Consumer Discount Co., 680 F.2d 927, 932-33 (3d Cir.), vacated on other grnds, 459 U.S. 56, 103
S.Ct. 400, 74 L.Ed.2d 225 (1982).
This strict compliance rule is what makes TILA so effective. "This strict interpretation of the
TILA has largely been responsible for the TILA's success in achieving widespread compliance
with its requirements." In re Brown, 106 B.R. 852, 857 (Bankr. E.D. Pa. 1989).
3. TILA and the Courts
This rule is inviolate and is followed by courts in all jurisdictions. See, e.g., Smith v. Fidelity
Consumer Discount Co., 989 F.2d 896, 898 (3rd Cir. 1990) [*15] (The federal Truth in
Lending Act (TILA) achieves its remedial goals by a system of strict liability in favor of consumers when mandated disclosures have not been made); Lewis v. Dodge, 620 F.Supp. 135,
138 (D. Conn. 1985); In re Porter, 961 F.2d 1066 (3rd Cir. 1992); Rowland (John M., Carol
S.) v. Magna Millikin Bank of Decatur, N.A., 812 F.Supp. 875 (C.D. Ill. 1992) ("even technical
violations will form the basis for liability"); New Maine Nat. Bank v. Gendron, 780 F.Supp. 52
(D. Me. 1992); Dixon v. S & S Loan Service of Waycross, Inc., 754 F.Supp. 1567 (S.D. Ga.
1990); Woolfolk v. Van Ru Credit Corp., 783 F.Supp. 724 (D. Conn. 1990) (same with Unfair
Debt Collection Practices Act); Morris v. Lomas and Nettleton Co., 708 F.Supp. 1198 (D. Kan.
1989); Jenkins v. Landmark Mortg. Corp. of Virginia, 696 F.Supp. 1089 (W.D. Va. 1988);
Laubach v. Fidelity Consumer Discount Co., 686 F.Supp. 504 (E.D. Pa. 1988); Searles v.
Clarion Mortg. Co., 1987 WL 61932 (E.D. Pa. 1987); "Liability will flow from even minute
deviations from requirements of the statute and Regulation [*16] Z." Dixon v. S & S Loan
Service of Waycross, Inc., 754 F.Supp. 1567, 1570 (S.D. Ga. 1990); Shroder v. Suburban
Coastal Corp., supra. at 1380; Charles v. Krauss Co., Ltd., 572 F.2d 544 (5th Cir.
1978).Shroder v. Suburban Coastal Corp., 729 F.2d 1371, 1380 (11th Cir. 1984); Goldberg v.
Delaware Olds, Inc., 670 F.Supp. 125 (D. Del. 1987); Curry v. Fidelity Consumer Discount
Co., 656 F.Supp. 1129 (E.D. Pa. 1987); Laubach v. Fidelity Consumer Discount Co., 1986 WL
4464 (E.D. Pa. 1986); In re Wright, 133 B.R. 704 (E.D. Pa. 1991); Moore v. Mid-Penn Consumer Discount Co., 1991 WL 146241 (E.D. Pa. 1991); In re Marshall, 121 B.R. 814
(Bankr.C.D. III. 1990); In re Steinbrecher, 110 B.R. 155 (Bankr.E.D. Pa. 1990); Nichols v.
Mid-Penn Consumer Discount Co., 1989 WL 46682 (E.D. Pa. 1989); In re McElvany, 98 B.R.
237 (Bankr.W.D. Pa. 1989); In re Johnson-Allen, 67 B.R. 968 (Bankr.E.D. Pa. 1986); In re
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Cervantes, 67 B.R. 816 (Bankr.E.D. Pa. 1986); In re McCausland, 63 B.R. 665, 55 U.S.L.W.
2214, 1 UCC Rep.Serv.2d 1372 (Bankr.E.D. Pa. 1986); [*17] In re Perry, 59 B.R. 947
(Bankr.E.D. Pa. 1986); In re Schultz, 58 B.R. 945 (Bankr,E.D. Pa. 1986); Solis v. Fidelity
Consumer Discount Co., 58 B.R. 983 (E.D. Pa. 1986).
4. HOEPA Disclosures Affirmative Defense
HOEPA disclosure notice must be delivered to Debtor at least three business days prior to the
closing of the loan. 15 U.S.C. § 1639(b); 12 C.F.R. 226.31(c). The notice must inform the
Debtor that she need not enter into the loan, and that if she does enter the loan, she could lose
her home and any money she has put in it. 15 U.S.C. § 1639(a); 12 C.F.R. 226.32(c)(1). The
notice must also include an accurate statement of APR, monthly payment and balloon payment
amount, and maximum payment amount on a variable-rate loan. 15 U.S.C. § 1639(a)(2); 12
C.F.R. 226.32(c)(2)-(4); Official Staff Commentary 12 C.F.R. 226.32(c)(3)-2.
Failure to deliver the required HOEPA notice or inclusion of a prohibited term triggers an extended (three-year) right of rescission (described above). 15 U.S.C. § 1639(j) [*18] ; 12
C.F.R. 226.23(a)(3) n.48.; Bryant v. Mortgage Capital Resource Corp., 2002 U.S. Dist. LEXIS1566 (N.D. Ga. Jan. 14 ,2002); In re Barber, 266 B.R. 309 (Bankr. E.D. Pa. 2001); In re
Jackson, 245 B.R. 23 (Bankr. E.D. Pa. 2000); In re Murray, 239 B.R. 728, 733 (Bankr. E.D.
Pa. 1999). In addition to regular TILA monetary damage remedies (see above), HOEPA violations give rise to "enhanced" monetary damages under 15 U.S.C. § 1640(a)(4), namely, all
payments made by the borrower. In re Williams, 291 B.R. 636, 663-64 (Bankr. E.D. Pa. 2003).
As with any TILA violation (see above), the rescission remedy runs against any assignee of the
loan. 15 U.S.C. § 1641(c). In addition, where the loan documents demonstrate that the loan is
covered by HOEPA coverage, assignees "shall be subject to all claims and defenses with respect to that mortgage that the consumer could assert against the creditor." 15 U.S.C. §
1641(d)(1). This provision mirrors the FTC Holder Rule and creates assignee liability for all
state and federal claims and defenses.
5. [*19] Breach of Fiduciary Duties (Trustee in the following is referring to Saxon Mortgage
Services, Inc.)
The breach proximately caused the injury to the Debtor since she was misled as to the true
terms of the loan since the secure loan was a higher-than-par rate and the broker pocket a
yield-spread premium (a commission on the higher rate) from the lender since it was acting as
finder. (Martin v. Heinold Commodities, Inc., 163 Ill. 2d 33, 53, 205 III. Dec. 443, 643 N.E.2d
734 (1994)). At the time of the closing, Debtor did know the true meaning of "yield-spread
premium" on the loan documents and is a violation of RESPA.
A. "Hostility or Indifference to Rights of Debtor - In Dingus, supra, at 289, it is stated: In an
action to set aside a foreclosure sale under a deed of trust, evidence showing that the trustee
was hostile and wholly indifferent to any right of the mortgagor warrants setting aside the sale.
Lunsford v. Davis, 254 S.W. 878 (Mo. 1923)."
B. Failure to meet these requisites may render the trustee's sale void. In Cox v. Helenius, 103
Wn.2d 383, 693 P.2d 683 (1985), the court concluded that a trustee's sale was void under circumstances [*20] where the borrower had filed an action contesting the obligation and that
action was pending at the time of the trustee's sale. The action was filed after service of the notice of default but before service of the notice of foreclosure and trustee's sale.
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C. Saxon Mortgage Services, Inc., transfer the note after Debtors have exercised their legal
rights to rescind the mortgage and the note. Thus, Saxon Mortgage Services, Inc. the trustee
was not properly appointed and do not have the authority to act and foreclose on Debtor's property.
6. Fraud On The Court By An Officer Of The Court and The Illegal Foreclosure based on Previously Statement provided in Federal Courts
Debtors belief in the Justice System whereby all parties whether Attorneys or individual such as myself,
self-represented, will not, in any way, grossly file and provide false statements in order to achieve one's end.
The unthinkable had happened in Magistrate Court; Counsel for Saxon Mortgage Services, Inc. has provided,
in bad faith, not only misstatements of facts but also less than candid, inaccurate and absolutely false information to mislead the court, he has no firsthand knowledge of the facts, and [*21] plaintiff had not received
any correspondence from Counsel stating he was the attorney for Saxon Mortgage Services, Inc. improper
service.
Based on personal ethic and principle, Debtor stands by the motto that the 'truth will set them free' or the
truth shall prevail. For that matter, Debtor repudiated the fact that Counsel for Saxon Mortgage Services, Inc.
had to result to smear tactics in his January 26, 2010 Motion for dispossessory silencing the debtor's rights
have been committed. Also, Saxon Mortgage Services, Inc. knowingly accepted the "fruits of the fraud"
(Moore v. Pinkert, 28 Ill. App. 2d 320, 333, 171 N.E. 73 (1960); Pulphus v. Sullivan, No. 02 C 5794, 2003
U.S. Dist. LEXIS 7080, at **61-62 (N.D. Ill. April 25, 2003)).
According to case law, debtor has claimed her property as exempt was not objected by neither the Trustee
nor the creditors. Thus, the property or claim will be deemed exempt, even if there is no basis for the exemption. (Taylor v. Freeland & Kronz, 503 U.S. 638, 643-45 (1992)). Thus, Counsel of Saxon Mortgage Services, Inc. is acting maliciously by providing the court with absolutely false information. [*22]
VII. CONCLUSION
Defendants/Debtors, here as appellants cannot undo the damages that preceded. But, however, harsh as it
may seems, the law provides Debtors with the right to cancel from the time they catch any technical violation
they have 3 years to the right to cancel. Thus, Debtor's TILA right to cancel notice was timely sent to Saxon
Mortgage Services, Inc. on January 1, 2010. Therefore, Debtor's right to cancel has precedence, negated any
foreclosure actions and voided the security interest in their property.
For that matter, Saxon Mortgage Services, Inc. [cannot be allowed]:
1. to profit from the Predatory Lending practices.
2. to remain 'silent' on the issues of mortgage fraud and TILA right to cancel
3. to continuously defying, trampling and usurping Debtor's rights and the rule of law
4. to commit 'Fraud' upon the court by approving the 'illegal foreclosure'.
Further, given Saxon Mortgage Services, Inc. recalcitrance in refusing to honor this clearly valid assertion of
federally mandated rights, it is appropriate in this instance to give effect to the clear language of § 1635(b),
and declare that the tender obligation has been vitiated [*23] by the lender's violation of TILA, requiring
the intervention of this court in a matter which is clearly not subject to either factual or legal dispute.
Where a debtor rescinds a contract, courts have held that the rescission effectively voids the security interest,
rendering the debt, if any, unsecured. See, e.g., In re Perkins, 106 B.R. 863, 874 (Bankr. E.D.Pa. 1989). See
also, In re Brown, 134 B.R. 134 (Bankr. E.D.Pa. 1991); In re Moore, 117 B.R. 135 (Bankr.E.D. Pa. 1990); In
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re Brown, 106 B.R. 852, 862 (Bankr.E.D. Pa. 1989). The creditor would then be entitled to payment upon the
same terms as other unsecured creditors.
"Once the court finds a violation, no matter how technical, it has no discretion with respect to liability." In re
Wright, supra. at 708; In re Porter v. Mid-Penn Consumer Discount Co., 961 F.2d 1066, 1078 (3d. Cir.
1992); Smith v. Fidelity Consumer Discount Co., supra. at 898. "Any misgivings creditors may have about
the technical nature of the requirements should be addressed to Congress or the Federal Reserve Board, not
the courts. This is an ongoing case in State [*24] Court, the lower Magistrate Court lacks proper jurisdiction
for the case to be heard see attached court case #10D41188, filed in the State Court of Dekalb County January 26, 2010, Defendants are actually the Plaintiff in State Court, whereas Saxon Mortgage Services, Inc. is
acting in a malicious way to defraud lower Magistrate Court in the actual facts of this case. Sherry A. Johnson and Joyce A. Crittenden Defendants/Appellants in every way have tried to settle claim via private remedy, which was ignored by Saxon Mortgage Services, Inc. in every way, see attached Exhibit B.
Requested Relief
WHEREFORE, the Debtor/defendants/appellants respectfully requests that this honorable Appeals court;
a. reverse The Writ of judgment by the State Court for the illegal foreclosure sale. We request a Jury Trial and that this honorable Appeals Court will Grant the Objection to the Sale,
Grant the Motion to Set Aside the illegal foreclosure Sale and:
b. to declare that the Debtor has validly rescinded the transaction, the illegal foreclosure sale
is therefore void and unenforceable per TILA enacted by Congress;
c. to declare that the Creditors' failure [*25] to honor the Debtor's valid rescission notice in
accordance with the dictates of 15 USC § 1635 and M.G.L c. 140D § 10 vests in the Debtor the
right to retain the net loan proceeds and that the Creditors has no allowable unsecured claim in
this case;
d. to set aside the sale of the Illegal Foreclosure of January 5, 2010 and award damages for
wrongful foreclosures
Respectfully submitted this 6th day of April, 2010
By: /s/ [Signature]
Sherry A. Johnson, Pro se
By: /s/ [Signature]
Joyce A. Crittenden, Pro se
4003 Ambrose Way
Ellenwood, GA 30294
404-454-9770
[SEE FORM 2-PAUPER'S AFFIDAVIT IN ORIGINAL]