Petition for Writ of Certiorari — Pamela M. Timbes, Petitioner v. Deutsche Bank National Trust Company, et al.

Supreme Court briefApr 25, 2018

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No.

n the Oupreme (Court of the Oniteb btateg

PAMELA M. TIMBES,

Petitioner,

DEUTSCHE BANK NATIONAL TRUST COMPANY,

as Indenture Trustee for American Home

Mortgage Investment Trust 2005-3,

OCWEN LOAN SERVICING, LLC, and

ALDRIDGE PITE, LLP, f.k.a. Aldridge Conners,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Pamela M. Timbes

304 Carnoustie

St. Simons Is., GA 31522

(912) 222-6773

ptimbes@gmail.com

Petitioner Pro Se

Becker Gallagher

Cincinnati, OH Washington, D.C. 800.890.5001

APR

OFFICE

SUPREM7

COURT

QUESTIONS PRESENTED FOR REVIEW

The Eleventh Circuit Order, App. A, squarely

conflicts with the precedents of this Court. This

Court's resolution of the circuit split is of national

importance in light of the improved economy; if left

unchecked the banks will continue the tactics which

resulted in the foreclosure debacle of the past years.

That the Eleventh Circuit Court of Appeals has applied

vastly different legal standards with regard to

application of the Rooker-Feldman' and Younger'

doctrines when removal to federal court of state-court

wrongful-foreclosure and fraud cases is initiated by the

bank, as opposed to removal by the party alleging the

wrongful foreclosure and fraud, demonstrates the

inconsistency within the Eleventh Circuit, as well as

inconsistency with the standards applied by other

circuits.

I. Whether the federal court lacks jurisdiction

under Article III of the Constitution over a state-filed,

wrongful-foreclosure lawsuit removed to federal court

under 28 US.C. Section 1441, which lawsuit challenges

a state-regulated, non-judicial foreclosure as void for

violation of Georgia law requiring that a valid

assignment be filed prior to foreclosure, and/or for

mortgage fraud under the Georgia RICO Act, and/or for

violation of the Trust's PSA; and whether it can be

considered exempt from 1) the Rooker-Feldman

doctrine when reversal of the state-regulated

Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

Younger v. Harris, 401 U.S. 37, 54 (1971).

foreclosure would be a necessary part of the relief

requested, and 2) the Younger doctrine when the

wrongful foreclosure proceeding itself is a "civil

enforcement proceeding" of O.C.G.A. § 44-14-162 (b) of

the type defined by this Court as being included under

Younger.'

A. The important state issue which needs to be

resolved by the state court and with which the federal

court has interfered: Whether a borrower subject to

Georgia law has standing to challenge an assignment

of security deed which is void ab initio for mortgage

fraud under the Georgia RICO Act and/or void ab initio

for violation of the Trust's PSA and/or which is facially

invalid for violation of a statutory protection, O.C.G.A.

§ 44-14-162 (b), and thereby injuring the borrower?

II. Whether Timbes' Fifth Amendment right to due

process was violated by the federal court's failure to

remand to state court the wrongful-foreclosure lawsuit,

by taking jurisdiction over the case and dismissing the

lawsuit on the basis that Timbes, the borrower, had no

standing to challenge Assignment of the security deed?

'Sprint Commc'ns, Inc. u. Jacobs, 134 S. Ct. 584, 187 L. Ed. 2d 505

(2013).

111

PARTIES

Petitioner is Pamela M. Timbes, citizen and

resident of Glynn County, Georgia.

Respondents are:

Deutsche Bank National Trust Company, as

Indenture Trustee for American Home Mortgage

Investment Trust 2005-3, having its principal place of

business at 1761 East St. Andrew Place, Santa Ana,

GA 92705. Deutsche Bank National Trust Company is

owned by Deutsche Bank Trust Corporation, which is

owned by Deutsche Bank Holdings, Inc, which is owned

Deutsche Bank Trust Corporation, which is owned by

Taunus Corporation, which is owned by Deutsche Bank

AG, a banking corporation organized under the laws of

the Federal Republic of Germany.

Ocwen Loan Servicing, LLC, having its principal

place of business at 1661 Worthington Road, Ste. 100,

West Palm Beach, FL 33409, is a limited liability

company whose sole member is Ocwen Mortgage

Servicing, Inc., which is owned by Ocwen Financial

Corporation, a publicly-traded company.

Aldridge Pite, LLP, f.k.a. Aldridge Conners, is a

high-volume foreclosure law firm who has its principal

place of business at 15 Piedmont Center, 3575

Piedmont Road, NE, Ste. 500, Atlanta, Georgia.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ......i

PARTIES .................................iii

TABLE OF AUTHORITIES ..................vi

OPINIONS BELOW .........................1

JURISDICTION ............................1

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE .................3

REASONS FOR GRANTING THE PETITION FOR

WRIT OF CERTIORARI ...................7

THE FEDERAL COURT LACKS JURISDICTION

UNDER ARTICLE III OF THE CONSTITUTION

OVER THE PRESENT STATE-FILED, WRONGFULFORECLOSURE LAWSUIT . ................. 7

THE FEDERAL COURT SHOULD HAVE

ABSTAINED UNDER THE YOUNGER

DOCTRINE . ......................... 7

THE FEDERAL COURT SHOULD HAVE

REMANDED UNDER THE ROOKER -FELDMAN

DOCTRINE . ........................ 18

THE COURT SHOULD REVERSE THE DECISION

BELOW BECAUSE IT SQUARELY CONFLICTS

WITH CONTROLLING PRECEDENT . ......... 27

TIMBES' FIFTH AMENDMENT RIGHT TO DUE

PROCESS WAS VIOLATED . ............... 28

CONCLUSION ............................30

I!4

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the Eleventh Circuit

(September 6, 2017) ...........App. 1

Appendix B Order in the United States District

Court for the Southern District of

Georgia Brunswick Division

(January 13, 2017) ...........App. 12

Appendix C Judgment in the United States

District Court for the Southern

District of Georgia Brunswick Division

(January 20, 2017) ...........App. 20

Appendix D Order Denying Petition for Rehearing

and Petition for Rehearing En Banc in

the United States Court of Appeals

for the Eleventh Circuit

(November 28, 2017) .........App. 22

Appendix E Assignment of Security Deed

App. 26

Appendix F Summary of Prospectus

Supplement ................App. 28

TABLE OF AUTHORITIES

CASES

Aboyade-Cole Bey v. Bank Ati.,

No. 6:09-cv-1572-Orl-3 1GJK, 2010 WL3069102

(M.D. Fla. Aug. 2, 2010) ...................19

Acuna v. Brown & Root, Inc.,

200 F.3d 335 (5th Cir. 2000) ............12, 28

Ames v. JP Morgan Chase Bank, N.A.,

783 S.E. 2d 614 (Ga. 2016) ............ passim

Ash v. Redevelopment Auth. of Philadelphia,

143 F.. App'x 439 (3rd Cir. 2005) ............24

Bank of American Nat'l Assoc. v. Bassman FBT,

L.L.C., et al.,

981 N.E.2d 1 (Iii. App. Ct. 2012) ............13

Barberi v. New Century Mortg. Corp.,

No. 3:12cv435/MCR/EMT, 2013 WL 1197732

(N.D. Fla. Feb. 20, 2013) ...................9

Brown v. Freedman,

474 S.E.2d 73-(Ga. Ct. App 1996) ...........14

Burns v. Windsor Ins. Co.,

31 F.3d 1092 (11th Cir. 1994) ...........12, 28

Casale v. Tillman,

558 F.3d 1258 (11th Cir. 2009) .............19

Caterpillar, Inc. v. Lewis,

519 U.S. 61 (1996) ........................7

Chambers v. NASCO, Inc.,

501 U.S. 32 (1991) ....................16, 28

Vii

Conte v. Mortg. Elec. Registration Sys.,

Civ. A. No. 14-6788, 2015 WL1400997

(E.D. Pa. Mar. 27, 2015) ..................26

Culhane v. Aurora Loan Services of Nebraska,

708 F.3d 282 (1st Cir. 2013) ...............13

D'Lil v. Best Western Encina Lodge & Suites,

538 F.3d 1031 (9th Cir. 2008) ...........29, 30

Distant v. Bayview Loan Servicing, LLC,

No. 09-61460-CIV, 2010 WL 1249129

(S.D. Fla. Mar. 25, 2010) ..................19

District of Columbia Court of Appeals v. Feldman,

460 U.S. 462 (1983) .................. passim

Doscher v. Menifee Circuit Court,

75 Fed. Appx. 996 (6th Cir. 2003) ............ 9

Egana v. HSBCMortg. Corp.,

669 S.E.2d 159 (Ga. Ct. App. 2008) ..........14

Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280 (2005) ......................18

Garry v. Geils,

82 F.3d 1362 (7th Cir. 1996) ...............18

Gray v. Pagano,

287 Fed. Appx. 155 (3rd Cir. 2008) .........8, 9

Harper v. Chase Manhattan Bank,

138 F. App'x 130 (11th Cir. 2005) ........19, 22

Haynes v. McCalla Raymer, LLC,

793 F.3d 1246 (11th Cir. 2015) .....6, 12, 13, 14

Viii

Ins. Corp. of Ireland, Ltd. v. Compagnie des

Bauxites de Guinee,

456 U.S. 694, 102 S. Ct. 2099, 72 L. Ed. 2d 492

(1982) ..................................7

In re James,

940 F.2d 46 (3d Cir. 1991) .................26

Johnson v. U.S. Dept of Agric.,

734 F.2d 774 (11th Cir. 1984) ..............28

In re Knapper,

407 F.3d 573 (3rd Cir. 2005) .............24, 25

Livonia Properties Holdings, LLC v. 12840-12976

Farmington Rd. Holdings, LLC,

399 Fed. Appx. 97 (6th Cir. 2010) ...........13

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ......................29

Magor v. GMAC Mortg., L.L. C.,

456 F. App'x 334 (5th Cir. 2011) ............24

Medina v. Clinton,

86 F.3d 155 (9th Cir. 1996) ................30

Middlesex County Ethics Comm. v. Bar Assn.,

457 U.S. 423, 102 S. Ct. 2515 (1982) ..........8

Owen Equip. & Erection Co. v. Kroger,

437 U.S. 365 (1978) ........................7

Paletti v. Yellow Jacket Marina, Inc.,

2010 WL 3402271 (11th Cir. Aug. 31, 2010)... 24

Parker v. Potter,

368 F. App'x 945 (11th Cir. 2010) ........19, 22

Perkins--v. Beltway Capital, LLC,

773 F. Supp. 2d553 (E.D. Pa. 2011) .........26

In re Porovne,

436 B.R. 791 (Bankr. 14 W.D. Pa. 2010) ......25

Powell v. Powell,

80 F.3d 464 (11th Cir. 1996) ...............18

Prindable v. Association of Apartment Owners of

2987 Kalakaua,

304 F. Supp. 2d 1245 (D. Haw. 2003) ......... 9

Redner v. Citrus County, Florida,

919 F.2d 646 (11th Cir. 1990) ...............9

Rene v. Citibank NA,

32 F. Supp. 2d 539 (E.D.N.Y. 1999) .........20

Robinson v. Porges,

382 F. App'x 133 (3rd Cir. 2010) ............25

Rooker v. Fid. Trust Co.,

263 U.S. 413 (1923) .................. passim

Ruhrgs A. G. v. Marathon Oil,

526 U.S. 574 (1999) ......................30

In re Rusch,

No. 09-44799, 2010 WL 5394789

(Bankr. D.N.J. Dec. 28, 2010) ..............21

Russell Corp. v. Am. Home Assur. Co.,

264 F.3d 1040 (11th Cir. 2001) ..........11, 28

Saker v. Nat'l City Corp.,

90 F. App'x 816 (6th Cir. 2004) .............25

Samuel-Bassett v. KIA Motors Am., Inc.,

357 F.3d 392 (3d Cir. 2004) .............12, 28

Sergeon v. Home Loan Center, Inc.,

No. 3:09-cv-01113-J-32JBT, 2010 ............9

Shaffer v. Heitner,

433 U.S. 186 (1977) .......................8

Simpson v. Putnam Cnty Nat'l Bank of Carmel,

20 F. Supp. 2d 630 (S.D.N.Y. 1998) ..........20

Smith v. HSBC Bank USA, N.A. et al.,

No. 16-11045 (11th Cir. Feb. 13, 2017) ........27

Smith v. Wayne Weinberger, P.C.,

994 F. Supp. 418 (E.D.N.Y. 1998) ...........21

Sprint Commc'ns, Inc. v. Jacobs,

134 S. Ct. 584, 187 L. Ed. 2d 505 (2013)

ii, 8, 10

Triggs v. John Crump Toyota, Inc.,

154 F.3d 1284 (11th Cir. 1998) ..........11, 28

Tropf v. Fidelity Nat'l Title Ins. Co.,

289 F.3d 929 (6th Cir. 2002) ...............20

Vasquez v. Deutsche Bank National Trust Company,

N.A.,

441 S.W.3d 783 (Tex. App.-Houston [1st Dist.]

2014, no pet.) ...........................13

Velardo v. Fremont Inv. & Loan,

298 F. App'x 890 (11th Cir. 2008) ........19, 22

Ware v. Polk Cnty. Bd. of Cnty. Comm'rs,

2010 WL 3329959 (11th Cir. Aug. 25, 2010)

...

Wells Fargo Bank, N.A. v. Erobobo, et al.,

2013 WL 1831799 (N.Y. Sup. Ct.

April 29, 2013) ..........................15

You v. JP Morgan Chase Bank, N.A.,

293 Ga. 67 (2013) .........................14

Younger v. Harris,

401 U.S. 37 (1971) ................... passim

Zipper v. Todd,

No. 96 Civ. 5198 (WK), 1997 WL 181044

(S.D.N.Y. Apr. 14, 1997) ..................21

CONSTITUTION

U.S. Const. Amendment V ............ii, 2, 28, 29

U.S. Const. Art. III ..................... passim

U.S. Const. Art. III, section 2 ..................2

STATUTES

12 U.S.C. § 1818(b) ..........................4

12 U.S.C. § 1867(d) ..........................4

28 U.S.C. § 1254(1) ..........................2

28 U.S.C. .§ 1441 ....................... passim

N.Y. Est. Powers & Trusts Law § 7-2.4 .........15

O.C.G.A. § 16-4-8 (2003) .....................17

O.C.G.A. § 16-8-102(1) ......................16

O.C.G.A. § 16-8-102(2) ......................17

O.C.G.A. § 16-8-102(4) ......................17

xii

O.C.G.A. § 16-8-102(5)

O.C.G.A. § 23-2-114 .........................14

O.C.G.A. § 44-14-162 (b) ................. passim

OTHER AUTHORITIES

THE FEDERAL COURTS LAW REVIEW,

Volume 5, Issue 2, 2011 ...................23

OPINIONS BELOW

The unpublished Order of the United States Court

of Appeals for the Eleventh Circuit, No. 17-10556,

affirming the judgment of the district court, was filed

on September 6, 2017. [App. A].

The unpublished Order of the United States Court

of Appeals for the Eleventh Circuit, No. 17-10556,

denying petition for rehearing, was filed on November

28, 2017. [App. DI.

The unpublished Order of the United States District

Court for the Southern District of Georgia, Brunswick

Division, No. CV 216-31, denying Plaintiff's motion to

remand the Complaint which had been removed by

Defendants from Superior Court of Glynn County,

Georgia, No. CE16-000.01-063, and granting

Defendants' motions to dismiss the Complaint, was

filed on January 13, 2017. [App. B].

Judgment of the United States District Court for

the Southern District of Georgia, Brunswick Division,

No. CV 216-31, was entered on January 20, 2017.

[App. C].

JURISDICTION

The United States Court of Appeals for the

Eleventh Circuit entered its Order Appeal No. No. 1710556-CC on September 6, 2017, App. A; Petition for

Rehearing and Rehearing en Banc having been denied

on November 28, 2017, App. D. This Court extended

the time, No. 17A812, to file this Petition for Writ of

Certiorari to April 27, 2018.

The jurisdiction of the Court is invoked under 28

U.S.C. Section 1254(1) and under Article III of the

United States Constitution.

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const. Art. III, section 2:

The judicial Power shall extend to all Cases,

in Law and Equity, arising under this

Constitution, the Laws of the United States, and

Treaties made, or which shall be made, under

their Authority; to all Cases affecting

Ambassadors, other public Ministers and

Consuls; to all Cases of admiralty and maritime

Jurisdiction; to Controversies to which the

United States shall be a Party; to Controversies

between two or more States; between a State

and Citizens of another State; between Citizens

of different States; between Citizens of the same

State claiming Lands under Grants of different

States, and between a State, or the Citizens

thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public

Ministers and Consuls, and those in which a

State shall be Party, the Supreme Court shall

have original Jurisdiction. In all the other Cases

before mentioned, the Supreme Court shall have

appellate Jurisdiction, both as to Law and Fact,

with such Exceptions, and under such

Regulations as the Congress shall make.

U.S. Const. Amendment V.

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall

private property be taken for public use, without

just compensation.

STATEMENT OF THE CASE

On June 23, 2005 Pamela M. Timbes entered into a

mortgage agreement with American Home Mortgage

Acceptance, Inc. The Security Deed with regard to the

subject property at 304 Carnoustie, St. Simons Island,

GA 31522 is recorded in Deed Book 1706, Page 178,

Clerk's Office, Superior Court of Gynn County, Georgia.

On November 19, 2010, filed on December 2, 2010,

an Assignment of Security Deed, "Assignment",

App. E, was allegedly executed by Mortgage Electronic

Registration Systems, Inc., "MERS", as nominee for

American Home Mortgage Acceptance, Inc.

transferring the security deed to Deutsche Bank

National Trust Company, as Indenture Trustee for

American Home Mortgage Investment Trust 2005-3.

The signatures on the Assignment are those of

Elizabeth Boulton as Assistant. Secretary for MERS

and Michelle Halyard as Assistant Secretary for

MERS; however, neither party was ever an Assistant

Secretary for MERS and are, in fact, known "robo"

signers.4 The Assignment was executed five (5) years

after the closing, App F, of the referenced Trust in

violation of the Trust's PSA.

On January 5, 2016 Deutsche Bank National Trust

Company, as Indenture Trustee for American Home

Mortgage Investment Trust 2005-3, wrongfully

foreclosed on Pamela Timbes' home at 304 Carnoustie,

St. Simons Island, GA in violation of O.C.G.A. § 44-14162(b) .which requires that a valid Assignment had to

be filed prior to the foreclosure sale.'

Aldgridge Pite LLP utilized documents prepared by the nownotorious fraudulent, robo-signing affidavit mill Lender Processing

Services, "LPS" (±7k/a as Fidelity National Foreclosure Solutions

and several other names) out of Mendota Heights, MN and

Jacksonville, FL. The Assignment of Security Deed recorded

December 2, 2010 (Dkt.1-1, .16) was prepared and signed by

Lender Processing Services (LPS). LPS is a known document

fabricator for lenders and law firms. Michelle Halyard and

Elizabeth Boulton signed as assistant secretary; they were

employees of LPS with no authority. American Home Mortgage

filed a lawsuit against LPS for robo signing. The FDIC also filed

suit against LPS- for other frauds.

Consent Orders, including Cease and Desist Orders, were entered

by Board Of Governors Of The Federal Reserve System; Federal

Deposit Insurance Corporation; Officer Of Comptroller Of The

Currency; and Office Of Thrift Supervision against MERS and all its

members, including Respondent, pursuant to section 7(d) of the

Bank Service Company Act (12 U.S.C. § 1867(d)), and Cease and

Desist Orders, under section 8(b) of the FDI Act (12 U.S.C.

§ 1818(b)) following a federal investigation on April 13, 2011. The

Cease and Desist Order found that MERS and others engaged in

"unsafe and unsound banking practices," including exactly the type

of actions complained of here, as a matter of routine practice. These

Orders required MERS and the member banks to correct the

violations, but none of those federal Orders were heeded in this case.

On January 7, 2016 Timbes filed in the Superior

Court of Glynn County, Georgia her Amended

Complaint, Dkt. 13.6 Claims included, inter alia,

Mortgage Fraud under the Georgia RICO Act, Fraud

Upon the Court, Void Assignment of Deed to Secure

Debt Filed in County Records.

On February 24, 2016 all Defendants filed Notice of

Removal of the Superior Court Case CE16-00001-063

to the U.S. District Court Southern District of Georgia

which was filed as Case CV216-31.

On February 29, 2016 Timbes filed Motion to

Remand (Dkt. # 5) on the ground that the District

Court lacked subject-matter jurisdiction under the

Rooker-Feldman and Younger doctrines, and moved to

stay ruling on Defendants' motions to dismiss pending

ruling on the motion to remand.

On January 13, 2017 the District Court issued an

Order, No. CV216-31, App. B, denying Pamela Timbes'

Motion to Remand; granting Defendants' Motions to

Dismiss; and ignoring Pamela Timbes' motion to stay

ruling. Plaintiffs case was ordered closed. Judgment•

was entered on January 20, 2017, App. C.

On February 2, 2017 Timbes filed her timely Notice

of Appeal to the Eleventh Circuit Court of Appeals,

Dkt. #24, from the January 13, 2017 Order of Judge

Lisa Godbey Wood.

On September 6, 2017, after briefing in Case 1710556, a panel decision, App. A, was issued affirming

'Docket

Numbers referenced are those in U.S. District Court Case

2:16-cv-31 unless otherwise noted.

1.1

the U.S. District Court decision. The Eleventh Circuit

Court of Appeals panel stated:

Rooker-Feldman does not apply because there is

no state-court judgment that could be reviewed,

and Younger does not apply because there is no

pending state-court or court-like proceeding with

which the federal district court could interfere

by exercising jurisdiction over the case. Order at

p.6.

Because Ames does not cast doubt on Haynes's

interpretation of Georgia state law, Timbes lacks

standing to challenge the allegedly forged

assignment. Order at p. 11.

On November 28, 2017 the Eleventh Circuit Court

denied Timbes' Petition for Rehearing and Rehearing

En Banc, App. D.

On February 5, 2018, No. 17A812, this Court

granted an extension of time to file this Petition by

April 27, 2018.

This timely Petition for Writ of Certiorari is

presently before the Court.

REASONS FOR GRANTING THE PETITION

FOR WRIT OF CERTIORARI

THE FEDERAL COURT LACKS JURISDICTION

UNDER ARTICLE III OF THE CONSTITUTION

OVER THE PRESENT STATE-FILED, WRONGFULFORECLOSURE LAWSUIT.

•

The constitutional limitations on federal jurisdiction

make federal courts "courts of limited jurisdiction,"

Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365,

374 (1978) (jurisdiction lacking), as opposed to state

courts, which are generally presumed to have subjectmatter jurisdiction over a case. This Court has made

it clear that judgments must be vacated for lack of

jurisdiction. See e.g., Caterpillar, Inc. v. Lewis, 519

U.S. 61, 76-77 (1996) (". . ..if, at the end of the day and

case, a jurisdictional defect remains uncured, the

judgment must be vacated."); See also Ins. Corp. of

Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456

U.S. 694, 701-03, 102 S. Ct. 2099, 2103-05, 72 L. Ed.

2d 492 (1982).

A. THE FEDERAL

COURT SHOULD HAVE

ABSTAINED UNDER THE YOUNGER

DOCTRINE.

A wrongful foreclosure lawsuit filed in the state

court, and removed to federal court under 28 U.S.C.

Section 1441, which challenges a state-regulated nonjudicial foreclosure as void for violation of Georgia law

requiring that a valid assignment be filed prior to

foreclosure, and/or for mortgage fraud under the

Georgia RICO Act, and/or for violation of the Trust's

PSA, cannot be exempt from the Younger doctrine

when the wrongful foreclosure proceeding itself is a

[Si

"civil enforcement proceeding" of O.C.G.A. § 44-14-162

(b) of the type defined by this Court as being included

under Younger.'

1. The important state issue which needs to be

resolved by the state court and with which the federal

court has interfered: Whether a borrower subject to

Georgia law has standing to challenge an assignment

of security deed which is void ab initio for mortgage

fraud under the Georgia RICO Act and/or void ab initio

for violation of the Trust's PSA and/or which is facially

invalid for violation of a statutory protection, O.C.G.A.

§ 44-14-162 (b), and thereby injuring the borrower?

The U.S. District Court erred in taking jurisdiction

over the present case and the Eleventh Circuit erred in

affirming, because this case is of important state

interest, and under the YoungerDoctrine, the federal

Court must abstain from interference with state judicial

proceedings. See Middlesex County Ethics Comm. V.

Bar Assn., 457 U.S. 423, 437, 102 S. Ct. 2515, 2524

(1982). Under the Younger doctrine, a federal District

Court must abstain from hearing a federal case when

that case interferes with state judicial proceedings.

Courts have determined that cases involving property

rights, particularly foreclosure actions and related

matters, involve important state interests. See Shaffer

v. Heitner, 433 U.S. 186, 207-208 (1977) (recognizing a

state's "strong interests in assuring the marketability

of property within its borders and in providing a

procedure for peaceful resolution of disputes about the

possession of that property."); Gray v. Pagano, 287 Fed.

Commc'ns, Inc. v. Jacobs, 134 S. Ct. 584, 187 L. Ed. 2d 505

(2013).

Appx. 155, 157-158 (3rd Cir. 2008) (affirming district

court's abstention under Younger where state-court

foreclosure action was pending and "[amy relief that

could be granted by the district court would directly

impact Pennsylvania's interest in protecting the

authority of its judicial system"; Doscher v. Menifee

Circuit Court, 75 Fed. Appx. 996 (6th Cir. 2003)

(affirming district court's application of Younger

abstention and finding important state interest in

mortgage foreclosure); Wrongful foreclosure issues are

considered important state interests; Prindable v.

Association of Apartment Owners of 2987 Kalakaua,

304 F. Supp. 2d 1245, 1262 (D. Haw. 2003) (finding

foreclosure and ejectment proceedings are important

state interests under the Younger doctrine).

Courts in the Eleventh Circuit have abstained

under Younger: See e.g., Barberi v. New Century

Mortg. Corp., No. 3:12cv435/MCRJEMT, 2013 WL

1197732, at *3 (N.D. Fla. Feb. 20, 2013) ("... Many

courts recognize that state mortgage foreclosure actions

implicate important state interests." (citation omitted));

Sergeon v. Home Loan Center, Inc., No. 3:09-cv-0 1113J-32JBT, 2010 ("Before proceeding with an analysis of

the application of the Younger factors to this case, the

Court notes that there are a multitude of federal cases

recognizing that Younger abstention is appropriate

when granting the relief requested in a federal court

action would have the effect of interfering with an

ongoing state court mortgage foreclosure action.").

In Redner v. Citrus County, Florida, 919 F.2d 646

Cir. 1990) the Court stated:

(11th

• . . .A state's trial and appeals process is

considered "a unitary system," and Younger

prevents a federal court from disrupting the

process while a case is on appeal. See New

Orleans Public Service, Inc. v. Council of New

109 S.Ct. 2506,2518,

Orleans, 491 U.S. 350,

105 L.Ed.2d 298 (1989). Thus, as long as a

federal challenge to a state statute or local

ordinance "relate[s] to pending state

proceedings, proper respect for the ability of

state courts to resolve federal questions

presented in state court litigation mandates that

the federal court stay its hand." Pennzoil Co. v.

Texaco, Inc., 481 U.S. 1, 14, 107 S.Ct. 1519,

1527, 95 L.Ed.2d 1 (1987).

In Sprint Commc'ns, Inc. v. Jacobs, 134 S. Ct. 584,

187 L. Ed. 2d 505 (2013) the Court defined the civil

proceedings to be included under Younger:

"Circumstances fitting within the Younger doctrine.....

'civil enforcement proceedings,' and 'civil proceedings

involving certain orders that are uniquely in

furtherance of the state courts' ability to perform their

judicial functions.' ." Sprint, at 588.

Enforcement of OCGA § 44-14-162 (b) is critical to

ensure that only the record holders of deeds initiate

foreclosure proceedings. As the Georgia Supreme Court

noted in its recent decision, Ames v. JP Morgan Chase

Bank, N.A., 783 S.E. 2d 614 (Ga. 2016):

[Footnote] 7 The legislature has indicated its

desire to ensure that only the record holders of

deeds initiate foreclosure proceedings. OCGA

§ 44-14-162 (b) requires that "[tihe security

instrument or assignment thereof vesting the

secured creditor with title to the security

instrument shall be filed prior to the time of sale

in the office of the clerk of the superior court of

the county in which the real property is located,"

and the stated legislative purpose of this

provision is to "require a foreclosure to be

conducted by the current owner or holder of the

mortgage, as reflected by public records,". Ga. L.

2008, p. 624. 1. Because Chase recorded its

assignment as required and the Arneses have

not brought a distinct challenge under this

statute, we need not decide whether § 44-14-162

(b) could ever provide a debtor with standing to

challenge a foreclosure based on an unrecorded

or facially invalid assignment. [Emphasis

added.]

Pamela Timbes has challenged under OCGA § 4414-162 (b); therefore, the Georgia Supreme Court has

left no question whether or not the present wrongful

foreclosure case is of important state interest with

regard to enforcement of O.C.G.A. § 44-14-162 (b).

Ames v. JP Morgan Chase Bank, N.A., supra.

Consequently, there should also be no question as to

the application of the Younger Doctrine to the present

case. Upon removal of the complaint from state court,

the District Court, therefore, should have abstained

under Younger and should have remanded the

complaint to the state court, because 28 U.S.C. Section

1441 is to be strictly construed against removal. In the

context of actions removed from state court, the

removing party bears the burden of demonstrating the

federal court's jurisdiction and that removal was

proper. Triggs v. John Crump Toyota, Inc., 154 F.3d

1284, 1287 n.4 (11th Cir. 1998). In Russell Corp. v. Am.

Home Assur. Co., 264 F.3d 1040, 1050 (11th Cir. 2001)

the Court held:

Federal courts are courts of limited jurisdiction,

and there is a presumption against the exercise

of federal jurisdiction, such that all

uncertainties as to removal jurisdiction are to be

resolved in favor of remand. Burns v. Windsor

Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994).

See also Acuna v. Brown & Root, Inc., 200 F.3d 335,

339 (5th Cir. 2000). Samuel-Bassett v. KIA Motors

Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004).

Instead the District Court denied Timbes' motion to

remand, assumed jurisdiction, and dismissed the

complaint; and the Eleventh Circuit panel affirmed the

decision; thereby interfering with the important state

issue presented in Ames which needs to be resolved by

the state court:

Whether § 44-14-162 (b) could ever provide a

debtor with standing to challenge a foreclosure

based on a facially invalid assignment.

The Eleventh Circuit Court stated in Timbes v.

Deutcshe Bank National Trust Co. et al:

Turning to Timbes's challenge to the validity

of the assignment, we agree the district court

that she lacks standing to contest the

assignment. [Order at p. 71.

Timbes points out that Georgia courts have

not gone quite so far as Haynes. In Ames, the

Supreme Court of Georgia adopted the general

rule that a borrower lacks standing to challenge

an assignment of his or her security deed. 783

S.E.2d at 619-20. But the Court left open the

possibility that a debtor could have standing to

challenge the validity of an assignment

indirectly, if the invalid assignment violated a

statutory protection and thereby injured the

debtor. Id. At 621. One question left unresolved

by Ames is whether O.C.G.- A. § 44-14-162 (b)

"could ever provide a debtor with standing to

challenge a foreclosure based on an unrecorded

or facially invalid assignment." Id. At 622 n.7.

Section 44-14- 162 (b) "requir[es] foreclosures to

be conducted by the current owner of the

mortgage, as shown by public records." Duke

Galish LLC v. SouthCrest Bank, 726 S.E.2d

54,56 (Ga. Ct. App. 2012). Thus, Ames left open

a possibility—that a debtor could have standing

to challenge an unrecorded or facially invalid

assignment under § 44-14-162 (b)—that Haynes

appears to foreclose. Compare Ames, 783 S.E.2d

at 622 n.7 (noting Haynes), with Haynes, 793

F.3d at 1252-53. [Order at p. 91.

Furthermore, as acknowledged in Ames at n.8,

other Courts of Appeal have held that a debtor

has standing to challenge a void assignment.

A third party generally lacks standing to challenge

the validity of an assignment; however, a borrower may

raise a defense to an assignment, if that defense

renders the assignment void. See e.g., Bank of

American Nat'l Assoc. v. Bassman FBT, L.L.C., et al.,

981 N.E.2d 1, 7 7 (Ill. App. Ct. 2012); Cuihane v.

Aurora Loan Services of Nebraska, 708 F.3d 282, 291

(1st Cir. 2013); Livonia Properties Holdings, LLC v.

12840-12976 Farmington Rd. Holdings, LLC, 399 Fed.

Appx. 97, 102 (6th Cir. 2010); Vasquez v. Deutsche

Bank National Trust Company, N.A., 441 S.W.3d 783

(Tex. Aip.-Houston [1st Dist.] 2014, no pet.).

Under Georgia law, Brown v. Freedman, 474 S.E.2d

73, 75 (Ga. Ct. App 1996) ("A claim for wrongful

exercise of a power of sale under [O.C.G.A.] § 23-2-114

can arise when the creditor has no legal right to

foreclose [such as where they do not possess a valid

security deed]". In Egana v. HSBC Mortg. Corp., 669

S.E.2d 159, 161 (Ga. Ct. App. 2008) the case involved

an allegedly fraudulent security deed. Id. The Georgia

Court of Appeals distinguished between defendants

challenging plaintiffs ownership of the property and

defendants claiming defects in title. Id.

In You v. JP Morgan Chase Bank, N.A., 293 Ga. 67,

74 (2013) the Court held that the holder of a deed to

secure debt is authorized to exercise the power of sale.

However, the Assignment of the deed to secure debt

must be a facially valid one.

In Ames v. JP Morgan Chase Bank, N.A., 783 S.E.

2d 614 (Ga. 2016) the Court actually left open the

distinct possibility of a challenge to a facially invalid

Assignment under §44-14-162(b) as set forth above.

The panel relied on Haynes v. McCalla Raymer,

LLC, 793 F.3d 1246, 1252 (11th Cir. 2015): "Georgia

law is clear that borrowers do not have standing to

attack a forged assignment of their security deed."

Order at p.10. In the present case, not only is the

assignment facially invalid, it is void ab initio for fraud

under the Georgia RICO Act and void ab initio for

violation of the Trust's PSA8 as set forth in the

complaint9 and in Timbes' Appellant's Brief:

Fraud Was Used to Obtain the Judgment.

As set forth with specificity in the Amended

Complaint, Dkt. 1-3, Appellees committed

documented fraud upon the Court. The

Assignment of Deed to Secure Debt (Dkt 1-1.

p.16) was the fabrication of Lender Processing

Services (LPS). LPS is a known document

fabricator and the Assignment was signed by

known robo signers. See Footnote 1 above. See

also American Home Mortgage Servicing, Inc. v.

Lender Processing Services, Inc., 11-10440,

District Court of Dallas County, TX, 2011.

Petitioner's Complaint, August, 2011: American

Home Mortgage sued LPS for robo signing and

violation of the Trust's PSA. American Home

Mortgage admitted that assignments were done

illegally by unauthorized parties; that filings

were not done in compliance with the PSA; and

App. F (Dkt. 1-3, P. 24): Summary of Prospectus Supplement

showing Closing Date of the trust to have been on or about

September 20, 2005. The Assignment, App. E, was not filed until

12/2/2010 in contravention to the PSA which required filing and

recording by closing date.

Dkt.1-3, P. 8: "If the trust is expressed in the instrument

creating the estate of the trustee, every sale, conveyance or other

act of the trustee in contravention of the trust, except as

authorized by this article and by any other provision of law, is

void." N.Y. Est. Powers & Trusts Law §7-2.4... Wells Fargo Bank,

N.A. v. Erobobo, et al., 2013 WL 1831799 (N.Y. Sup. Ct. April 29,

2013)....Erobobo court held that under §7-2.4, any conveyance in

contravention of the PSA is void.

that LPS had caused American Home Mortgage

Servicing Inc. potential liability.

Claims cannot be barred where fraud was

involved; and new evidence should be allowed in

the advancement of truth. Brown v. Felsen, 442

U.S. 127, 132 (1979).

The Supreme Court has also held that if a

party has used fraud to obtain a judgment, the

party should be deprived of the benefit of the

judgment. See Marshall v. Holmes, 141 U.S. 589

at 599 (1891), quoting Johnson v. Waters, 111

U.S. 640, 667, 28 L. Ed. 547, 4 S. Ct. 619 (1884).

See also Chambers v. NASCO, Inc., 501 U.S. 32,

44.

Violations of the Georgia RICO Act are of

Important State Interest.

As set forth in the Complaint with specificity all

Defendants have violated one or more of the Georgia

RICO statutes listed below.

Georgia defines Mortgage Fraud as

when a person "[k]nowingly makes a deliberate

misstatement, misrepresentation, or omission

during the mortgage lending process with the

intention that [the false information] be relied

on by a mortgage lender, borrower, or any other

party to the mortgage lending process [including

negotiation and servicing] "

Further, a violation of the statute

occurs when a person uses or facilitates the use

of such false information with the intent that

O.C.G.A. § 16-8-102(1).

the false information be used by anyone during

the mortgage lending process."

137. Violation of the statute occurs when any

written instrument that contains a deliberate

misstatement, misrepresentation, or omission is

recorded in the real estate records of any

Georgia county.'2

Attorneys and others who take part in the mortgage

lending process are subject to separate prosecution for

conspiracy, 13 should the party conspire with others to

violate the statute. 14

Aldridge Pite LLP is a high-volume foreclosure mill

who has a history of fraudulent activity as set forth in

the Complaint.'5 I Fraud upon the Court as set forth

O.C.G.A. §16-8-102(2).

O.C.G.A. § 16-8-102(5).

O.C.G.A. § 16-4-8 (2003).

O.C.G.A. § 16-8-102(4).

Aldgridge Pite LLP utilized documents prepared by the nownotorious fraudulent, robo-signing affidavit mill Lender Processing

Services, "LPS" (ffk/a as Fidelity National Foreclosure Solutions

and several other names) out of Mendota Heights, MN and

Jacksonville, FL. The Assignment of Security Deed recorded.

December 2, 2010 (Dkt.1-1,p.16) was prepared and signed by

Lender Processing Services (LPS). LPS is a known document

fabricator for lenders and law firms. Michelle Halyard and

Elizabeth Boulton signed as assistant secretary; they were

employees of LPS with no authority. American Home Mortgage

filed a lawsuit against LPS for robo signing. The FDIC also filed

suit against LPS for other frauds.

with specificity in the Complaint is not subject to a

statute of limitation. FRCP 60.

Regardless, the federal Court should have abstained

under the Younger doctrine to allow the state court to

resolve the important state issues.

B. THE FEDERAL COURT SHOULD HAVE

REMANDED UNDER THE ROOKER-FELDMAN

DOCTRINE.

A wrongful, foreclosure lawsuit filed in the state

court, and removed to federal court under 28 U.S.C.

Section 1441, which challenges a state-regulated, nonjudicial foreclosure as void for violation of Georgia law

requiring that a valid assignment be filed prior to

foreclosure, and/or for mortgage fraud under the

Georgia RICO Act, and/or for violation of the Trust's

PSA, cannot be considered exempt from the RookerFeldman doctrine when reversal of the state-regulated

foreclosure would be a necessary part of the , relief

requested.

The Rooker-Feldman doctrine has strictly limited

federal district, courts' authority to review state court

judgments and related claims. See generally Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280

(2005); Dist. of Columbia Court ofAppeals v. Feldman,

460 U.S. 462 (1983); Rooker v. Fid. Trust Co., 263 U.S.

413 (1923). Because the doctrine involves subject

matter jurisdiction, it predominates over other issues

because, where it applies, the court cannot consider the

merits of the case. See Powell v. Powell, 80 F.3d 464,

466-67 (11th Cir. 1996); Garry v. Geils, 82 F.3d 1362,

1365 (7th Cir. 1996). The Rooker-Feldman doctrine

generally recognizes that federal district courts do not

have jurisdiction to act as appellate courts and

precludes them from reviewing state court decisions.

Ware v. Polk Cnty. Bd. of Cnty. Comm'rs, 2010 WL

3329959, at *1 (11th Cir. Aug. 25, 2010) (citation

omitted). "The doctrine applies to both federal claims

raised in the state court and to those 'inextricably

intertwined' with the state court's judgment." Casale v.

Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009).

The Eleventh Circuit Court and many district

courts in the Eleventh Circuit have applied RookerFeldman where plaintiffs were, in reality, challenging

state-foreclosure judgments. See, e.g., Parker v. Potter,

368 F. App'x 945, 947-48 (11th Cir. 2010) (rejecting

under Rooker-Feldman a federal claim under the Truth

in Lending Act ("TILA") that sought rescission of a

state foreclosure judgment); Velardo v. Fremont Inv. &

Loan, 298 F. App'x 80, 892-93 (11th Cir. 2008)

(holding that Appellant's federal TILA claims were

inextricably intertwined with a state-court foreclosure

judgment and thus barred by Rooker-Feldman); Harper

v. Chase Manhattan Bank, 138 F. App'x 130, 132-33

(11th Cir. 2005) (dismissing federal TILA, Fair Debt

Collection Practices Act ("FDCPA"), and Equal Credit

Opportunity Act ("ECOA") claims under RookerFeldman because they were inextricably intertwined

with a state-court foreclosure proceeding); AboyadeCole Bey v. Bank Ati., No. 6:09-cv-1572-Orl-31GJK,

2010 WL3069102, at *2 (M.D. Fla. Aug. 2, 2010)

(finding the court had no jurisdiction to hear plaintiffs

case under Rooker-Feldman because the case was, "at

its core," an attempt to revisit a state-court foreclosure

judgment); Distant v. Bayview Loan Servicing, LLC,

No. 09-61460-CIV, 2010 WL 1249129, at * 3 (S.D. Fla.

Mar. 25, 2010) ("Although plead as conspiracy claims

• . ., Plaintiff is clearly asking this Court to invalidate

the state court action by ruling that the state court

foreclosure judgment is somehow void. Under the

Rooker-Feldman doctrine, [defendant] is correct that

this Court lacks subject matter jurisdiction, Plaintiff

seeks a de facto appeal of a previously litigated state

court matter.").

Federal courts in other circuits have also

consistently rejected cases seeking to attack state-court

foreclosure judgments. See, e.g., Tropf v. Fidelity Nat'l

Title Ins. Co., 289 F.3d 929, 937-38 (6th Cir. 2002)

(affirming dismissal of a RICO action under RookerFeldman where plaintiffs were alleging various frauds

in connection with a state-court foreclosure judgment

that allegedly allowed banks to "wrongfully" take their

home); Rene v. Citibank NA, 32 F. Supp. 2d 539, 543

(E.D.N.Y. 1999) (finding that subject-matter

jurisdiction did not exist under Rooker-Feldman to

adjudicate Plaintiffs RICO and § 1983 claims because

plaintiffs asked the court "to review the state court's

judgment of foreclosure and eviction, by seeking

damages for the loss of their property. . . ."); Simpson

v. Putnam Cnty Nat'l Bank of Carmel, 20 F. Supp.2d

630, 633 (S.D.N.Y. 1998) ("[Pllaintiff claims that

defendants' actions caused him injury through the

(1) loss of his real property; (2) loss of his residence;

(3) loss of business relationships, esteem, and respect

of some who dealt with him; and (4) damage to his

[Plaintiff] seeks to require this

creditworthiness

Court to revisit the State Court's foreclosure judgment

that resulted in the loss of his property, and to declare

that judgment invalid on account of the defendants'

allegedly fraudulent actions. Under Rooker-Feldman,

however, this Court has no authority to review the...

•

judgment. Nor does the fact that plaintiff alleges that

the

foreclosure judgment was procured by fraud

and conspiracy change that result."); Smith v. Wayne

Weinberger, P.c., 994 F. Supp. 418,-424 (E.D.N.Y.

1998) (rejecting a federal claim that, in reality,

attacked a state-court foreclosure judgment: "The fact

that the plaintiff alleges that the State Court judgment

was procured by fraud does not remove his claims from

the ambit of Rooker-Feldman.

Smith's claims for

conversion are merely a thinly-veiled effort to

invalidate the State Court's foreclosure judgment, in

contravention of Rooker-Feldman."); Zipper v. Todd,

No. 96 Civ. 5198 (WK), 1997 WL 181044, at *3

(S.D.N.Y. Apr. 14, 1997) ("While it is true that

plaintiffs never actually raised the federal claims of

Section 1983, RICO and SLAPP violations before the

state court, Rooker-Feldman precludes district court

review of claims 'inextricably intertwined' with state

court determinations. The fact that plaintiffs raise new

claims under federal statutes does not preclude a

finding that they are barred by the Booker-Feldman

doctrine.") (internal citation omitted); In re Rusch,

No. 09-44799, 2010 WL 5394789, at *3 (Bankr. D.N.J.

Dec. 28, 2010) ("[T]he Courts in this Circuit have

consistently found Rooker-Feldman to be applicable

and a bar to plaintiffs relief in a federal district court

in the context of state foreclosure actions.").

Although fraud is an exception in certain cases to

the Booker-Feldman doctrine, the Eleventh Circuit

and other circuits have held that attempts to

challenge state-court foreclosure judgments in

federal court by alleging lenders' fraud in

pursuing the foreclosure judgment is not an

exception to Rooker-Feldman. Quoting from The

Federal Courts Law Review:

The Fraud Exception to the Rooker-Feldman

Doctrine:

Second, a fraud exception often removes a

case that was, at its inception, a matter of state

law and makes it one of federal law. This

consequence is especially significant in cases of

quintessential state interest; a timely example is

the recent trend of challenging state-court

foreclosure judgments in federal court. 16 There

can be little doubt that a federal district court

should not be the primary place to sort out the

thorny issues arising under the fifty states'

foreclosure laws or lenders' alleged fraud in

pursuing foreclosure judgments. Taking these

issues from state to federal court deprives the

states of the opportunity to apply and further

refine their common law in these areas of

quintessential state interest.

16 Most courts have consistently applied

Rooker-Feldman to these cases, rejecting

Plaintiffs attempts to challenge state-court

foreclosure judgments in federal court. While

this is true across several jurisdictions, the

following cases from the Eleventh and Seventh

Circuits provide adequate illustration. See, e.g.,

Parker v. Potter, 368 F. App'x 945, 948 (11th

Cir. 2010); Stanley v. Hollingsworth, 307 Fed.

App'x 6, 8 (7th Cir. 2009); Velardo v. Fremont

Inv. & Loan, 298 F. App'x 890, 892-93 (11th Cir.

2008); Harper v. Chase Manhattan Bank, 138 F.

App'x 130, 133 (11th Cir. 2005); Taylor v. Fannie

Mae, 374 F.3d 529, 534 (7th Cir. 2004); GASH

Assocs. v. Rosemont, 995 F.2d 726, 727 (7th Cir.

1993); Bryant v. Citimortgage, No. 6: 10-cv-1206Orl-28KRS, 2010 U.S. Dist. LEXIS 92384, at *2

(M.D. Fla. Aug. 13, 2010); J.P. Morgan Chase

Bank v. Schneider, No. 10 C 4856, 2010 U.S.

Dist. LEXIS 79728, at *3 (N.D. Ill. Aug. 4, 2010);

Aboyade-Cole Bey v. BankAtlantic, No. 6:09-cv1572-Orl-31GJK, 2010 U.S. Dist. LEXIS 90188,

at *5..6 (M.D. Fla. Aug. 2, 2010); Moore v. Chase

Home Fin., LLC, No. 06 C 3202, 2007 U.S. Dist.

LEXIS 27555, at *2 (N.D. Ill. Apr. 11, 2007);

Spencer v. Mortg. Acceptance Corp., No. 05 C

356, 2006 U.S. Dist. LEXIS 31668, at *13 (N.D.

Ill. May 4, 2006); Thompson v; Ameriquest

Mortg. Co., No. 03 C 3256, 2003 U.S. Dist.

LEXIS 14700, at *7 (N.D. Ill. Aug. 19, 2003);

Bounds v. Wells Fargo Bank Minn., No. 02 C

9010, 2003 U.S. Dist. LEXIS 10741, at *7 (N.D.

Ill. June 24, 2003); Smith v. Bank One, No. 02

C8204, 2002 U.S. Dist. LEXIS 22423, at *5 (N.D.

Ill. Nov. 18, 2002); Elysee v. Chi. Trust Co., No.

01 C 8839, 2001 U.S. Dist. LEXIS 20313, at *4

(N.D. III. Dec. 5, 2001).

THE FEDERAL COURTS LAW REVIEW, Volume 5,

Issue 2, 2011.

The Eleventh Circuit has held that the

Rooker-Feldman doctrine bars federal court

review of state-court orders authorizing a writ of

execution:

Further, [plaintiff] sought a declaration from the

district court, and now this Court, that the state

court orders authorizing the execution sale of his

properties were void

In other words,

[plaintiffs] request for declaratory judgment

'complains of injuries caused by state-court

judgments' and 'invites district court review and

rejection of those judgments.' The RookerFeldman doctrine precluded the district court

from engaging in such a review.

Paletti v. Yellow Jacket Marina, Inc., 2010 WL

3402271, at *4 (11th Cir. Aug. 31, 2010).

See also: Cavero v. One West Bank FSB, 14-14369,

2015 WL 3540388 (11th Cir. 2015) (Because the claims

in the plaintiffs complaint attacked the validity of the

debt and propriety of foreclosure, the Eleventh Circuit

found that such claims were "inextricably intertwined"

with the foreclosure judgment. Accordingly, the claims

could not be heard by a federal district court under

the Rooker-Feldman doctrine.); Magor v. GMAC

Mortg., L.L.C., 456 F. App'x 334, 336 (5th Cir. 2011)

(Rooker—Feldman bars a claim that a state foreclosure

judgment was procured through fraud because

"reversal of the state court's foreclosure judgment

would be a necessary part of the relief requested").

Other circuits have held that a sheriffs sale is

final and, therefore, not reviewable in federal

district court nor subject to a constitutional attack

based on procedures that the state court either ordered

or found satisfactory. See Ash v. Redevelopment Auth.

of Philadelphia, 143 F. App'x 439, 442 (3rd Cir. 2005)

("To the extent [plaintiffs] complaint seeks to challenge

on equal protection grounds the Court of Common

Pleas order allowing the property

to be sold at

sheriffs sale, he is barred by the Rooker-Feldman

doctrine."); In re Knapper, 407 F.3d 573, 579-580 (3rd

Cir. 2005) (holding that Rooker-Feldman prevented the

bankruptcy court from exercising jurisdiction over

plaintiffs due process claims alleging that the sheriffs

sale in question was based on invalid service); Saker v.

Nat'l City Corp., 90 F. App'x 81, 818-19 (6th Cir. 2004)

(remanding a case to district court with instructions to

dismiss plaintiffs claim under Rooker-Feldman where

plaintiffs federal claim could only be predicated on a

finding that the state court's order to proceed with the

sale of property constituted an improper interpretation

of state law).

In the present case, on January 5, 2016 Defendant,

Deutsche Bank National Trust Company, as Indenture

Trustee for American Home Mortgage Investment

Trust 2005-3, foreclosed on the subject property. The

present Amended Complaint requests that the nonjudicial foreclosure be set aside for violation of Georgia

state law. Jurisdiction over any action to set aside the

foreclosure sale and those claims inextricably

intertwined lies with the Superior Court, Glynn

County, GA. See, e.g., In re Porovne, 436 B.R. 791, 799

(Bankr.14W.D. Pa. 2010) ("Debtor attempted to

distinguish [binding case law] on the basis that she was

only attacking the sheriffs sale itself rather than the

judgment originally giving rise to the sheriffs sale.

This is a distinction without a difference."); see also

Robinson v. Forges, 382 F. App'x 133, 135 (3rd Cir.

2010) (affirming district court's dismissal of plaintiffs

claim where plaintiff asserted equal protection

violations based on the procedures of the sheriffs sale

but demanded "the return of his home as his own

property with free and clear deed and title," which

could only be accomplished by rejecting the sheriffs

sale).

Other Circuits Have Held Rooker-Feldman

Doctrine Applies to All judgments by a State

Court, Including Default Judgments and

Judgments by Confession.

See Perkins v. Beltway Capital, LLC, 773 F. Supp.

2d 553, 559 (E.D. Pa. 2011) (holding that RookerFeldman bars lower federal courts from exercising

jurisdiction over a plaintiffs claim for rescission under

TILA when such claim is asserted after the entry of a

default judgment in mortgage foreclosure; and

granting plaintiffs motion to remand after removal

from state court by defendant).

The doctrine's application to default judgments

derives from the more general precept that state court

default judgments and confessed judgments are treated

by federal courts as judgments on the merits. See, e.g.,

In re James, 940 F.2d 46,52-53 (3d Cir. 1991); Conte v.

Mortg. Elec. Registration Sys., Civ. A. No. 14-6788,

2015 WL1400997 (E.D. Pa. Mar. 27, 2015) (barring

claims arising out of state court default judgment

based on Rooker-Feldman). As to the argument that

non-judicial foreclosures should be treated differently

with regard to Rooker-Feldman, as Appellees contend

in the present case, a District Court in Pennsylvania

replied:

This Court is unpersuaded. First, Plaintiffs do

not define the term non-judicial judgment. To

the extent Plaintiffs seek to create a class of

judgments entitled to less weight than judicial

judgments, the Court rejects that argument.

Schraven v. Phelan, Hallinan Diamond & Jones,

LLP, No. 15-3397, E.D. Pa. Feb. 1, 2016.

II.

THE COURT SHOULD REVERSE THE DECISION

BELOW BECAUSE IT SQUARELY CONFLICTS WITH

CONTROLLING PRECEDENT.

As established above, the Eleventh Circuit Order,

App. A, squarely conflicts with the precedents of this

Court. This Court's resolution of the circuit split is of

national importance. That the Eleventh Circuit Court

of Appeals has applied vastly different legal standards

with regard to application of the Rooker-Feldman and

Younger doctrines when removal to federal court of

state-court wrongful foreclosure and fraud cases is

initiated by the bank, as opposed to removal by the

party alleging the wrongful foreclosure and fraud,

demonstrates the inconsistency within the Eleventh

Circuit, as well as inconsistency with the standards

applied by other. circuits. Furthermore, other circuits

have held that a borrower may raise a defense to an

assignment, if that defense renders the assignment

void. Applying different standards can result in a

different outcome. This is made clear in the instant

case. It would be a great waste ofjudicial resources to

allow courts to continue applying vastly different, and

perhaps erroneous legal standards. 16 Furthermore,

See Smith v. HSBC Bank USA, N.A. et al., No. 16-11045 (11th

Cir. Feb. 13, 2017) where the Eleventh Circuit affirmed another

ruling of Judge Lisa G. Wood, U.S. District Court for the Southern

District of Georgia, that Rooker-Feldman did not apply with regard

to the removal of a wrongful foreclosure case pursuant to O.C.G.A.

§ 44-14-162 (b). Rulings such as these by the Eleventh Circuit

Court of Appeals have emboldened the banks to continue their

removal tactics to federal court to evade rulings on the merits with

regard to wrongful foreclosure and fraud upon the state court,

important state issues; thereby, depriving the state courts of the

opportunity to resolve these important state issues.

SI.]

this Court has also made it clear that fraud upon the

court cannot be condoned. As this Court stated:

"tampering with the administration of justice in [this]

manner. involves far more than an injury to a single

litigant. It is a wrong against the institutions set up to

protect and safeguard the public." Chambers v.

NASCO, Inc., 501 U.S. 32,44 (1991).

III.

TIMBES' FIFTH AMENDMENT RIGHT TO DUE

PROCESS WAS VIOLATED.

The Fifth Amendment of the Constitution requires

"due process of law" before any person can be "deprived

of life, liberty, or property" and the concept of property

includes statutory entitlements. Johnson v. U.S. Dept

of Agric.,734 F.2d 774 (11th Cir. 1984). Timbes has a

statutory entitlement to challenge the Assignment of

security deed under O.C.G.A. § 44-14-162 (b), which

requires that a valid Assignment be filed prior to the

foreclosure sale. Furthermore, proof from the record of

Constitutional standing under Article III and the

court's subj ect-matter jurisdiction was incumbent upon

Respondents upon removal from the state court.

Because federal courts are courts of limited

jurisdiction, 28 U.S.C. Section 1441 is to be strictly

construed against removal. Triggs v. John Crump

Toyota, Inc., 154 F.3d 1284, 1287 n.4 (11th Cir. 1998);

Russell Corp. v. Am. Home Assur. Co., 264 F.3d 1040,

1050 (11th Cir. 2001); Burns v. Windsor Ins. Co., 31

F.3d 1092, 1095 (11th Cir. 1994); Acuna v. Brown &

Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000); SamuelBassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d

Cir. 2004).

By the federal court's failure to remand to the state

court the wrongful-foreclosure lawsuit, by taking

jurisdiction over the case and dismissing the lawsuit on

the basis that Timbes, the borrower, had no standing

to challenge the Assignment of security deed, the

federal court has not only deprived the state of Georgia

of the opportunity to resolve important state issues, it

has deprived Timbes of her due process right under the

Fifth Amendment. Respondent has foreclosed on the

subject property utilizing a fabricated, fraudulent

Assignment of Deed by known robo signers, App. E,

filed several years after the closing of the subject trust

in contravention to the trust's PSA, all of which

constitutes "injury in fact" to Timbes. However,

Respondents have not established any Article III

"injury in fact" to have invoked federal jurisdiction

upon removal from the state court.

The Eleventh Circuit Order is void for want of

jurisdiction. Allowing the Eleventh Circuit Order to

stand deprives Pamela Timbes of her due process right

to challenge the wrongful foreclosure of her home by

Respondent, Deutsche Bank National Trust Company,

as Indenture Trustee for American Home Mortgage

Investment Trust 2005-3, who has provided absolutely

no proof of ownership of the Deed to Secure Debt or

ownership of the subject property at 304 Carnoustie,

St. Simons Island, Ga. 31522; proof which is incumbent

upon Respondent. Article III of the United States

Constitution limits the jurisdiction of all federal courts

to "cases and controversies". A person with no

ownership interest has no constitutional standing

because a non-owner cannot establish "injury in fact"

traceable to the acts of the opposing party. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992). When

standing is absent, a district court lacks subject-matter

jurisdiction. See D'Lil v. Best Western Encina Lodge &

Suites, 538 F.3d 1031, 1036 (9t Cir. 2008) (a party

invoking federal jurisdiction has the burden of

establishing that it has satisfied the 'case-orcontroversy' requirement of Article III of the

Constitution; standing is a 'core component' of that

requirement.") (internal citations omitted); Medina v.

Clinton, 86 F.3d 155, 157 (9th Cir. 1996) (linking Article

III standing with subject-matter jurisdiction of federal

courts). And a federal court cannot hypothesize

subject- matter jurisdiction for the purpose of deciding

the merits. RuhrgasA.G. v. Marathon Oil, 526 U.S. 574

(1999).

Loss of one's home without due process would

clearly cause irreparable harm; and under these

circumstances is clearly an injustice which only this

Court can set right.

CONCLUSION

For the foregoing reasons, Petitioner, Pamela

Timbes, requests this Honorable Court to grant

certiorari to the Order of the United States Court of

Appeals for the Eleventh Circuit, No. 17-10556-CC,

filed September 6, 2017, App. A; or in the alternative,

summarily reverse the decisions below for lack of

jurisdiction and remand to the Glynn Country Superior

Court of Georgia, Case CE16-00001-063, from which

the wrongful-foreclosure Complaint was removed.

Respectfully submitted this 25th day of April, 2018.