Appendix — Cramer v. Metropolitan Federal Savings & Loan Ass'n

Supreme Court, U.S.

FILED

"0.8 Ox AUG - 4 1980

PETITION FOR CERTIORAR? MICHAEL RODAK, JR., CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1980

VIRGINIA CRAMER, PETITIONER-DEFENDANT IN WRONGFUL

FORECLOSURE ACTION,

PETITIONER

vs

METROPOLITAN FEDERAL SAVINGS AND LOAN ASSOCIATION,

a/k/a METROPOLITAN SAVINGS ASSOCIATION, JAMES I.

McCLINTOCK, ROGER C. RICHARDS and JOHN C. DENYER,

JOINTLY , SEVERALLY AND INDIVIDUALLY, PLAINTIFFS IN

WRONGFUL FORECLOSURE ACTION,

McCLINTOCK DONOVAN CARSON & ROACH AND JAMES I.

McCLINTOCK, MICHAEL DOELLE AND WILLIAM P. THORPE,

ATTORNEYS AT LAW, JOINTLY, SEVERALLY AND

INDIVIDUALLY ,

ABEL SELBURN, ALLEN COUNARD AND WILLIAM R.

McFADDEN, ATTORNEYS AT LAW, JOINTLY, SEVERALLY,

AND INDIVIDUALLY,

FEDERAL HOME LOAN BANK BOARD, DIRECTOR AND/OR

OFFICIAL AND/OR OFFICER IN CHARGE,

MICHIGAN SUPREME COURT MEMBERS, JUSTICES MARY S.

COLEMAN, THOMAS GILES KAVANAGH, CHARLES L. LEVIN,

JOHN W. FITZGERALD, JAMES L. RYAN, BLAIR MOODY, JR.,

and G. MENNEN WILLIAMS, JOINTLY, SEVERALLY AND

INDIVIDUALLY ,

RESPONDENTS

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

Virginia Cramer, pro se Petitioner

27314 Clairview, Dearborn Heights, Mich. 48127

Telephone: (313) 278-7286

PETITIONER'S APPENDIX WoLumE L

317a

Filed November 16, 1979 No. 9-72789

U. S.District Court

EXHIBITS (attached hereto)

A - "Order Dissolving Temporary Restrain-

ing Order" dated September 27, 1968

B - Affidavit of John C. Denyer (for

Metropolitan rederal Savings and

Lozn Association

C - Notice of Adjournment and Notice of

Mortgace Sale

D - Mortcage (promissory) Note

E - Sheriff's Bidding Statement of

Sheriff's Sale on October 1, 1968

G - Mortge2ge Covenant and /greement

H - Letter dated May 6, 1968, re:

Mortgage payment credited on

April 30, 1968

J - Sheriff's Indenture on Mortgage

foreclosure

K - oe Memo as of September 6,

1

EXHIBIT A *

State of .iichigan, In the Circuit Court for

the County of Weyne - No. 115 792

Virginia Cramer, Plaintiff vs Metropolitan

Federal Savings and Loan Association, a

United States corporation, et al.

318a

ORDER DISSOLVING TEMPORARY RESTRAINING ORDER

At a session of said Court held

in the Court Room in the City-

County "uilding in the City of

Detroit, on the day of September 27,

1968,

PRESENT: The Honorable Thomas J,

Murphy, Circuit Judge

This matter heving come on to be heard on

Plaintiff's Motion for Crder to Show Cause

why a preliminary injunction should not

issue, the Court having previously entered

a Temporary Restraining Order in this

matter, and the Court having examined the

pleadings which have been filed, and the

Court having heard testimony and examined

the Exhibits which have been filed and ys

heard oral argument by the attorneys repre-

senting both parties, and the Court having

determined that Plaintiff is in default on

her Mortgage, and the Court being fuly (sic)

advised in the premises, now therefore,

IT IS HEREBY ORDERED AND ADJUDGED that

the Temporary Restraining Order previously

entered by the Court in this matter restrain-

ing the Def endants from proceeding with

foreclosure on the following described

property:

East 33 feet of Lot 5 and West 24

feet of Lot 6, of Gordon-Saperstein

Subdivision No. 1 of Part of the SW

1/4 of Sec. 6, T2SR10E, Dearborn

Township WCM as recorded in L80 P2

Wayne County Records

be and the same hereby is dissolved, set -

aside and held for naught, and the defend-

ants are hereby permitted to proceed with

their foreclosure action on the above

described property.

Thomas J, :Jurphy

Circuit Judge

319a

State of Michigan, In the Circuit Court

for the County of Wayne, No. 115 792

Virginia Cramer, Plaintiff vs, Metropolitan

Federal Savings and Loan Association, a

United States corporation, et al

ORDER TO SHOW CAUSE WHY A PRELIMINARY

INJUNCTION SHOULD NOT ISSUE, WITH TEMPORARY

RESTRAINING ORDER - August 12, 1968

The complaint of the plaintiff in the above

entitled action, praying a preliminary order

of injunction therein, together with a

temporary restraining order until such time

as it may be determined whether said pre-

liminary order of injunction should issue,

having been considered by the court, and -

the court being fully informed in the pre-

mises, |

IT IS ORDERED that the defendants show

cause before this court on Friday, August

16, 1968, at 11:00 A.M. O'clock why a pre-

liminary order of injunction should not be

issued as prayed in said complaint.

IT IS FURTHER ORDERED that a certified

copy of said complaint and of this order be

served on defendants at least four (4) days

before the time fixed for showing cause,

and that proof of such service be made,

IT IS FURTHER ORDFRED that IN THE MEAN-~

WHILE AND UNTIL THE FURTHER ORDER OF THIS

COURT, the said defendants, his agents,

employees and attorneys, be and they hereby

are restrained and enjoined from pursuing

a mortgage sale and/or foreclosure ection

on property described as:

East 33 feet of Lot 5 and West 24 feet of

Lot 6, of Gordon-Saperstein Subdivision

No. 1 of Part of the SW 1/4 of Sec, 6,

T2SR10E, Dearborn Township WCM as recorded

320a

in L80 P2 Wayne County Records,

and also known as 27314 Clairview Drive,

Dearborn Heights, Wayne County, Michigan,

Thomas J, Murphy

Circuit Court Judge

EXHIBIT B

State of Michigan, In the Circuit Court for

the County of Wayne - No. 115 792

Virginia Cramer, Plaintiff vs Metropolitan

Federal Savings and Loan Association, a

United States corporation, et al

AFFIDAVIT OF JOHN C, DENY=R

STATE OF MICHIGAN

ss.

COUNTY OF WAYNE

JOHN C, DENYER, being duly sworn, deposes

and says as follows:

1. That he is Assistant Vice-President

and Loan Servicing Manager of Metropolitan

Federal Savings and Loan Association,

Defendant in the above matter,

2. That in this connection he has been

personally and primarily responsible for

handling this Mortgage loan from and after

the time when the Mortgage was executed,

3. That in this connection he has exam-

ined all of the transaétions which have

taken place in this loan from the time when

it was made,

4, That the amounts which Metropolitan

Federal Savings and Loan Association is

requiring from the Plaintiff as payments

into her escrow fund have been correctly

321la

computed by means of a formula which is

accepted and used by all other lending

institutions in this country.

5. That every payment which has been

made out of the funds in Plaintiff's escrow

account has been proper and correct,

6, That no penalty has ever been assessed

against Plaintiff's escrow account for the —

late payment of any property tax on this pro-

perty, but rather any such penalties that

have been incurred have been paid by the

Defendant,

7. That the title to and the insurance

on this property have never been placed in

jeopardy by anything which this Defendant

has done or failed to do,

8, That the Defendant has requested of

the Plaintiff that she make certain increased

and additional payments into her escrow fund

in order to cover the cost of increased

property taxes on this property, and that

the Plaintiff has failed and refused to do

80.

9. That the-Defendant has at all times

attempted to co-operate with the Plaintiff

and to furnish the Plaintiff with all such

information and records as she required in.

order to enable her to understand the

necessity for the increased payments into

her escrow fund,

10, That attached hereto and made a part

hereof as an exhibit are the year end state-

ments for this mortgage loan showing all

receipts and disbursements from the escrow

account,

Further deponent saith not,

/s/ John C. Denyer

Subscribed and sworn to before me this 22nd

day of August a Ss 2toger Public, Wayne

County, Michié . Bell.

322a

EXHIBIT C

NOTICE OF ADJOURNMENT 1116503 PA 41

Notice of hereby given that the MORTGAGE

FORECLOSURE SALE of which notice hereby

attached, is hereby, for reasonable cause,

adjourned to Oct. lst, 1968 at 12 O'clock

noon at the same place as set forth in the

attached notice,

/s/ Roman S, Gribbs

Sheriff, Wayne County, Mich,

By: /s/ Casimir M, Senkowski, Deputy

I, Casimir. M, Senkowski, Deputy Sheriff,

do hereby certify that at 12 o'clock noon

on Sept. 24th, 1968, I adjourned the

Mortgage Foreclosure Sale of which notice

is ie | attached, to 12 noon, on October

lst, 1968, at the same place, by posting

the above notice of adjournment on the

Bulletin Board at the Jefferson Avenue

entrance to the City-County Building,

Detroit, Michigan.

/s/ Casimir M, Senkowski, Deputy Sheriff,

Wayne County, Michigan,

McCLINTOCK, FULTON, DONOVAN & WATERMAN,

Attys., 2150 Guardian Bldg., Detroit,

Michigan 48226 om

No, 01-04-6326

NOTICE OF MOR TGAGE SALE- Default having

been made in the conditions of a certain -

mortgage made by VIRGINIA CRAMER to METRO-

POLITAN FEDERAL SAVINGS AND LOAN ASSOCIATION,

a United States Corporation dated the 29th

day of July, 1963, and recorded in the office

of the Register of Deeds for the County of

Wayne and State of Michigan, on the 13th day

of August, 1963, in Liber 15124, of Wayne

3238

County Records, on page 270, on which mort-

gage there is claimed to be due at the date

of this notice, the sum of TWELVE THOUSAND

FIVE HUNDRED NINETEEN AND 37/100 ($12,519.37)

DOLLARS, and an attorney's fee as provided -

for in said mortgage, and no suit or proceed-

ings at law having been instituted to recover

the moneys secured by said mortgage, or any

part thereof,

NOTICE IS HEREBY GIVEN, that by virtue of

the power of sale contained in said mortgage,

and the statute in such case made and provided,

on TUESDAY, THE 20TH DAY OF AUGUST, 1968, at

twelve o'clock noon, Local Time, the under-

signed will, at the Southerty or Jefferson

Avenue entrance to the City-County Building,

in the City of Detroit, Michigan, that being

the place where the Circuit Court for the

County of Wayne is held, sell at public _

auction, the premises described in said mort-

gage, or so much thereof as may be necessary

to pay the amount then due on said mortgage,

including legal costs and attorney's fees,

and taxes or insurance that the undersigned

may pay on or prior to the date of said sale,

and interest at 7 per cent per annum thereon,

which said premises so to be sold are situated

in the City of Dearborn Heights, County of

Wayne, Michigan, and are described as:

East 33 feet of Lot-5 and West 24 feet—

of Lot 6, of Gordon-Saperstein Subdivi-

sion No, 1 Of Part Of The SW 1/4 of

Sec. 6, T2SR1OE, Dearborn Township WCM-

As Recorded in L80 P2 Wayne County Rec-

ords,

The redemption period as determined under

Stat. Ann. 27A.3240 is one year from the time

of such sale,

Dated May 23, 1968

METROPOLITAN FEDERAL SAVINGS AND LOAN

ASSOCIATION, a United States corporation,

Mortgagee

McCLINTOCK, FULTON, DONOVAN & WATERMAN,

Attorneys for Mort eages. 2150 Guardian Bldg.,

Detroit, Michigan 48226

32a

EXHIBIT D

MORTGAGE NOTE - Loan No. 6326-MG

METROPOLITAN FEDERAL SAVINGS AND LOAN

ASSOCIATION

$16,500.00 Detroit, Michigan, July 29,196:

FOR VALUE RECEIVED, the undersigned, joint

_ly and severally, promise{s) to pay Metropol-

itan Federal Savings & Loan Association,

or order, at its office in the City of

Detroit, Michigan, the principal sum of

Sixteen Thousand Pive Hundred and No/100

Dollars ($16,500.00) with interest from

date on any part thereof at any time unpaid

at the rate of 5 & 3/4 per centum (Five &

3/4%) per annum while there is no default

hereunder, or under the mortgage securing

this note, and at the rate of seven per

centum (7%) per annum during the period of

any such default, as follows:

One Hundred Three and 81/100 Dollars ($103.€

on the 15th day of September, 1963, and a 1i

sum on the 15th day of each calendar month

thereafter until the entire indebtedness

secured hereby has been paid in full.

In the event of default in any promise -

made in this note, or in the mortgage secur

ing it, the holder of this note and said

mortgage may, without notice, at its option

declare the entire indebtedness evidenced

and secured thereby due and payable, then

or thereafter, as said holder may elect,

regardless of the date of maturity.

Protest, presentment, demand and notice

of non-payment are hereby waived by every

signor or endorser hereof,

The monthly payments herein provided fo)

shall be applied first upon interest and

the remainder upon principal.

325

Privilege is reserved to prepay, with-

out premium or fee, the indebtedness in

whole, or in an amount equal to one or

more monthly payments on the principal

that are next due on this note, on the 15th

day of any month prior to maturity, provided

that the monthly payment due on the said 15th

day of the month shall have been paid.

At its option, in lieu of increasing the

rate of interest as above provided during

the period of any default, the Association

may collect a "late Charge" not to exceed

an amount equal to four per centum (44%) of

any installment which is not paid within

fifteen (15) days from the due date thereof;

to cover the extra expense involved in hand-

ling delinquent payments.

/s/ Virginia Cramer (L.S.)

This is to certify that this is the note

described in and secured by mortgage of even

date herewith and in the same principal

amount as herein stated, and secured by real

estate situated in Wayne County, State of

Michigan,

Dated July 29, 1963 /s/ Edward J. Gilroy

Notary Public

EXHIBIT E

MC CLINTOCK, FULTON, DONOVAN & WATERMAN

2150 Guardian Building healers

BIDDING STATEMENT FOR SHERIFF'S SALE

Loan No: 01-04-6326

Bidder: Metropolitan Federal Savings and Loan

{ Association

Mortgagors: Virginia Cramer

Type of Loan: V.A. F.H.A. Conventional XX

326a

Principal balance $12,041.91

Less (Plus) escrow balance “-

(overdraft ) -2,82

Net balance $12,039.09

Interest to date of notice of 57.70

sale,—exeluding escrow, at

Ts 5-15-68 2 5-23-68 ( synths

8 days; at $2 iat per day)

(sic, 5-3/4% - $2.34 per day) 19.73

Interest from date of notice of

sale to a. of sale, excluding

escrow, at 7% » 5-23-68 to 10-1-68

4 months 8 days, at $2. 419 per day) 299.64

Other charges:

Late Charges (if applicable):

Cost of Foreclosure:

Foreclosure report $

Posting fee 8.00

Recording fee 11.00

Attorney's fee 75.00

Sheriff's fee 16.00

Publication costs 72.00

Other

Revenue stamps 14,30

Total Costs staetto

wikia if any:

ax paid on

Plus interest at fe)

date of sale months,

days at

insurance premium

paid Plus interest

at % to date of sale

months, days at

Total advances and interest _none’

Total Due At Date of Sale $1 ‘

| UPSET PRICE ~

327ea

EXHIBI™ G

THIS MORTGAGE, made this 29th day of July,

1963. between Virginia Cramer of the City of

Detroit, County of Wayne, Michigan, mortgagor,

and METROPOLITAN FEDERAL SAVINGS AND LOAN

ASOCIATION, a corporation existing under the

Home Owner's Loan Act of 1933 of the United

States of America, Mortgagee:

WITNESSETH: That mortgagor, for and in

consideration of the sum of Sixteen Thousand

Five Hundred and No/100 dollars ($16,500.00),

the receipt whereof is hereby acknowledge d>

and for the purpose of securing the re-pay-

mant of said sum, with interest, as hereinafte1

provided, and any additional sums which mort-

gagor (jointly or severally, if more than one

joins herein) may now or hereafter owe mort-

gagee, for which this mortgage shall be a

continuing security, and of securing the

performance of the covenants and conditions

hereafter contained, hereby mortgages and

warrants unto mortgagee the premises situated

in the City of Dearborn Heights, County of

Wayne, Michigan, described as follows:

East 33 feet of Lot-5 and West 24 feet

of Lot 6, of Gordon-Saperstein Sub-

division No, 1 Of Part Of The SW 1/4

of Sec. 6, T2SR1OE, Dearborn Township

WCM As Recorded In L80 P2 Wayne County

Records, 3

Recorded: Aug 13, 1963 at

10:05 O'clock AM

BERNARD J, YOUNGBLOOD,

Register of Deeds

Wayne County 26, Michigan

together with all easements and rights of

way now or hereafter used in connection

therewith and all fixtures (which shall

include all articles that are ever furnished

by a landlord in letting or operating an

328a

unfurnished building which are now or shall

hereafter be attached to said premises in

any manner),

Mortgagor covenants and agrees:

1. To pay to mortgagee at its office in

the City of Detroit, Michigan, the principal

sum of Sixteen Thousand Five flundred and

No/100 dollars, ($16,500.00), with interest—

thereon, according to the terms of a promis-

sory note bearing even date herewith executed

by mortgagor to mortgagee, which matures on

the 15th day of August 1988, and to pay when

due any additional sums which mortgagor may

now or hereafter owe mortgagee, as aforesaid,

2. In order more fully to protect the

security of this mortgage, in addition to the

monthly installments of principal and inter-

est, to pay to mortgagee an installment of

the taxes and assessments levied or to be

levied against said premises, that will next

become due, an installment of the premium or

premiums that will next become due to renew

the insurance on said premises (as hereinafter

provided) and, if any life insurance is payable

or assigned to mortgagee as additional secur-

ity for said indebtedness, an installment of

the premium or premiums that will next become

due thereon. The said installments shall be-

equal, respectively, to the taxes and assess-

ments next due and the premium or premiums

for such insurance, as estimated by mortgagee,

less all sums already paid therefor, divided

by the number of months to elapse before one

month prior to the date when such taxes,

assessments and premiums will become due,

such sums to be held by mortgagee, without —

interest thereon, to pay said taxes, assess-

ments and premiums when due, All payments for

principal, interest, taxes, assessments and

premiums shall be added together and the

aggregate amount thereof shall be paid by

mortgagor to mortgagee each month in a single

329a

payment, If the sums so deposited shall not

be sufficient to pay the taxes, assessments—

and premiums when the same become due, mort-

gagor agrees to forthwith pay to mortgagee

the amount of the deficiency, and if said

deposits shall exceed the amount actually

paid by mortgagee therefor, the excess shall

be credited upon principal,

3, To keep all insurable property covered

hereby insured against loss by fire and such

other hazards as may be specified by mortgagee

from time to time, in such amounts and for

such periods as may be required by mortgagee,

and to pay when due all premiums on any such

insurance in the manner above provided, All

insurance shall be carried in companies

approved by mortgagee and the policies and

renewals thereof shall be held by mortgagee

and have attached thereto loss payable clauses —

in favor of and in form acceptable to mortgagee,

Each insurance company concerned is hereby

directed to make payment for such loss to

mortgagee only, and the insurance proceeds, or

any part thereof, may be applied by it upon

any indebtedness secured hereby or to the

restoration oF repair of the property damaged,

at its option, and any surplus shall be paid

to mortgagor.

4, To pay when due all taxes, assessments—

and other charges which are now or shall here-

after be a lien against said premises, or

any part thereof, and for which provision has

not been made hereinbefore,

5. To keep all property covered hereby in

good repair and condition, to comply promptly

with all laws, ordinances, regulations or

requirements of any governmental authority

applicable thereto, and to abstain from the

commission of waste,

3308

6. Should any default be made in the

covenants or conditions hereof, mortgagee

may, without demand or notice, pay any taxes,

assessments, premiums or liens required to be

paid by mortgagor, make repairs, effect any

insurance provided for herein, cause the

abstract of title and tax histories of said

premises to be certified to date or procure

new abstracts of title and tax histories in

case none were furnished to it and procure

title reports covering said premises, and

the sums paid for any one or all of said

purposes shall from the time of the payment

thereof be due, with reeds thereon at Bs

rate of seven per centum /( per aren, ane

shall constitute a aa en upon sai

premises under this mortgage, In the Sint

of foreclosure the abstract or abstracts of —

title shall become the property of mortgagee,

7. The failure of mortgagor to pay any

taxes or assessments levied against said

premises, or any insurance premiums upon

policies of insurance cover said premises,

in accordance with the terms hereof, shall

constitute waste,

8, In the event of default in the payment

of said indebtedness, or any part thereof,

or in the performance of any of the covenants

or conditions hereof, mortgagee may, without

notice, at its option, declare the entire

indebtedness secured hereby due, then or

thereafter, as it may elect, regardless of

the date of maturity and is hereby authorized

and empowered to sell or cause to be sold said

premises, pursuant to the statute in such case

made and provided, and out of the proceeds of

the sale to retain the sums then due hereunder,

and all costs and charges of the sale (includ-

ing the attorneys' fee provided by statute),

rendering any surplus moneys to mortgagor, .

The commencement of proceedings to foreclose

this mortgage in any manner authorized by law

3318

shall be deemed an exercise of the above

option,

9. The covenants and conditions hereof

shall bind, and the benefits and advantages

thereof shall inure to, the respective heirs,

executors, administrators, successors and

assigns of the parties hereto. Whenever

used, the singular number shall include the

plural, the plural the singular, and the use

of any gender shall be applicable to all

genders,

IN WITNESS WHEREOF, this mortgage has been

signed and se@iled by mortgagor.

Signed, sealed and delivered

in the presence of:

/s/ Frank E, Fike /s/ Virginia Crever (L,S.)

/s/ Edward J, Gilroy

STATE OF MICHIGAN

COUNTY OF WAYNE

On this 29th day of July, 1963, before me

personally ge gener oe Cramer to me

known to be the persons described in and who-

executed the foregoing instrument and acknow-

ledged that she executed the same as her free

act and deed,

My commission -— /s/ Edward J. Gilroy

expires: 3-12-66 Notary Public, Wayne

County, Michigan

Ss.

STATE OF MICHIGAN

i ie SS

COUNTY OF On this day of

» 19 before me appeare

and to me perso

Known, who, being by me (severally and) duly

332a

sworn did say that he is (they are respective-

ly)

and or

and that the seal affixed to said instrument

s the corporate seal of said corporation) and

that the said instrument was signed and sealed

in behalf of said corporation by authority of

its Board of said Directors; and the said

officer(s) acknowledged the said instrument

to be the free act and deed of said corporation,

My Commission

expires a

Notary Public

County, Michigan

E IT H

METROPOLITAN FEDERAL SAVINGS on

19830 West Seven Mile at Evergreen - Detroit,

Michigan 48219 - Phone 537-3400

May 6, 1968

Virginia Cramer

27314 Clairview

Dearborn Heights, Michigan

Re: 01-03-6326 (sic)

Dear Miss Cramer:

We received a mortgage payment from you on

April 30, 1968, It was credited to your

account in the following matter: (sic)

Mortgage Payment: $186.00

Additional Principal Payment 10.17

Very truly yours,

/s/ John C, Denyer

Loan Servicing Manager

JOD: 1k

333a

EXHIBIT J

F324199 Li 16503 PA 36

THIS INDENTURE Made the lst day of October —

aD the year one thousand nine hundred sixty-

eight

BETWEEN Louis W, Anschultz Deputy Sheriff,

in and for the County of Wayne in the State —

of Michigan, Grantor, and Metropolitan Feder-

al Savings and Loan Association, a United

States corporation,

hereinafter referred to as the Grantee,

WITNESSETH, That Virginia Cramer

executed and delivered a certain MORTGAGE to—

Metropolitan Federal Savings and Loan Associ-

ation, a United States corporation, sg

which was recorded in the office of the Regis-

ter of Deeds for the County of Wayne in Liber

15124 of Wayne County Records on page 270

State of Real Estate

MICHIGAN Transfer Tax

Dept. of Oct, 2168

Taxation pp, 14,30

— 10543

which said mortgage contained a power of sale,

which has become operative by reason of a

default in the covenants of said mortgage,

and, by virtue of said power of sale, and in

pursuance of the statute in such case made

and provided, no proceedings at law having

been instituted to recover the debt secured

by said mortgage or any part thereof, a

notice was published, and a copy thereof

posted in a conspicuous Place upon the

mortgaged premises, that the premises described

in said notice would be sold on the 20th day

,@@ August in the year one thousand nine hundred

sixty-eight at the Southerly or Jefferson

Avenue entrance to the City-County Building in

the City of Detroit, Michigan, that being the

place of holding the Circuit Court in Wayne

3348

County, where the premises are situated

and which sale was adjourned from week to

week to October 1, 1968, all as appears

from the affidavits and certificates hereto

attached, and, in pursuance of said notice

I did on the ist day of October-in the year

one thousand nine Mundred sixty-eight at

12 O'clock noon of said day expose for sale,

at Public Vendue, the lands and tenements

described in said notice, and at such sale—

did strike off and sell the lands and tene-

ments to the Grantee for the sum of:

TWELVE THOUSAND SIX HUNDRED ELEVEN AND 46/100

($12,611.46) DOLLARS )

being the highest bid therefor and Grantee

being the highest bidder, which premises so

sold are situated in the City of Dearborn

Heights, County of Wayne, State of Michigan

and described as:

East 33 feet of Lot-5 and West 2!) feet

of Lot 6, of Gordon-Saperstein Sub-

division No, 1 of Part of The SW 1/4

of Sec, 6, T2SR1OE, Dearborn Townshi

WCM As Recorded In L80 P2 Wayne County

Records, . .

Recorded Oct 2, 1968 at 2:46

o'clock PM BERNARD J, YOUNG-

BLOOD, Register of Deeds

Wayne County, Michigan 48226

Now, this Indenture Witnesseth, That I, the

Deputy Sheriff aforesaid, by virtue of the

power of sale in said mortgage contained,

and in pursuance of the statute in such

case made and provided, and in consideratton

of the said sum of money so paid as afore-

said, have granted, conveyed, bargained and

sold, and by this deed to grant, convey,

bargain and sell unto Grantee and to the

heirs, successors and assigns of Grantee, —

forever, all said lands and tenements here-

inbefore described, with the appurtenances

and all the estate, right, title and interest

335a

which the said Mortgagors had in said lands

and tenements, and every part thereef, on—

the 29th day of July inthe year one thou-

sand nine hundred Sixty-three, that being

the date of said mortgage; and at any time

thereafter, to Have and to Hold said lands

and tenements and every part thereof to

Grantee and to the heirs, successors and

assigns of Grantee forever,

Signed, Sealed and Delivered, the day

and year first above written,

In Presence of

/s/ Louis W. Anschultz

/s/ Mary T. Topalov Deputy Sheriff in and

/s/ Geneva Sparks for the County of

Wayne

14,30

STATE OF MICHIGAN ) SS.

COUNTY OF WAYNE

On this lst day of October, 1968 before me,

the subscriber, a Notary Public in and for

said County, came Louis W. Anschultz, a

Deputy Sheriff of said County, known to be to

be the individual described in and who executed

the above conveyance, and acknowledged that he

executed the same as his free act and deed

as such Deputy Sheriff.

/8/ Elizabeth Sanzion

Notary Public, Wayne County, Mich,

My commisssion expires: Jun 19 1972

AFFIDAVIT OF POSTING)

TATE OF MICHIGAN :

COUNTY OF WAYNE ss.

Daniel M, King being duly sworn, deposes

and says that on the 31st day of May, 1968,

he posted a true copy of the Notice annexed

to the affidavit of publication hereto attached

in a conspicuous place upon the premises

336a

described in said Notice by attaching the

same in a secure manner to The fron (sic)

door frame of the dwelling house situated

on said premises, 3

/8/ Daniel N. King

Subscribed and sworn to before me this 5th

day of June, 1968.

/s8/ Rose Barkoff

Notary Public, Wayne County, Mich

My commission expires:

October 21, 1969

AFFIDAVIT OF AUCTIONEER)

TATE OF MICHIGAN

COUNTY OF WAYNE. SS.

Louis W. Anschultz being duly sworn

deposes and says that he is a Deputy Sheriff

of said County of Wayne; that he acted as

Auctioneer and made the sale as described

in the annexed Deed pursuant to the foregoing

printed notice and certificates; that the sale

was opened at 12 o'clock noon of the lst day—

of October, 1968, at the Southerly or Jeffer~

son Avenue entrance to the City-County Build-

ing in the City of Detroit, Michigan, that

being the place of holding the Circuit Court

in the said County of Wayne, and was kept

open for one hour; that the highest bid for

the premises described in the annexed deed

was the sum of TWELVE THOUSAND SIX HUNDRED

ELEVEN AND 46/100 ($12,611.46) DOLLARS .

made by METROPOLITAN FEDERAL SAVINGS AND LOAN

ASSOCIATION, a United States corporation,

the Grantee’ in the annexed Deed; that the

sale was in all respects open and fair; and

that he did strike off and sell the said

premises to the said Grantee, who purchased

the said premises faily, and in good faith,

as deponent varily believes.

/s/ Louis W. Anschultz

Subscribed.and sworn to before me this lst day

of October, 1968, /s/ Elizabeth Sanzion

Notary Public

337a

STATE OF MICHIGAN

COUNTY OF WAYNE SS,

I do hereby certify, that the within

Sheriff's Deed will become operative at the

expiration of one year from the lst day of

October, 1968, unless otherwise redeemed

according to law, in such case made and

provided,

/s/ Louis W, Anschultz

Deputy Sheriff

F 324199

SHERIFF'S DEED on MORTGAGE SALE

VIRGINIA CRAMER

By Louis W. Anschultz, Deputy Sheriff

TO

METROPOLITAN FEDERAL SAVINGS AND LOAN

ASSOCIATION, a United States corporation

ORIGINAL 234 236

EXHIBIT K

As of Sept 6th (1968) Metro needs:

10 months County Tax at 37.57 |. 375.70

3 months M.G.1I.C. at ae 3

3 months City Tax at 7. if 22.41

25 months Hazard Ins, at 4,00

Balance in Escrow - 2,82

As of 9-6-68 100,00

TIT. oe

338a

Filed November 16, 1979 - No. 9-72789

U. S. District Court

BRIEF IN SUPPORT OF MOTION TO VOID, NULLIFY

AND/OR. VACATE Wayne County Circuit Court

"Order Dissolving Temporary Restraining Order"

dated September 27, 1968, entered in prior

action (Wayne) No. 115-792, and reported in

DEFECTIVE DECISION 401 Mich 252,

FACTS it

On July 29, 1963, Petitioner-Cramer obtained

a mortgage loan from Metropolitan Federal Sav-

ings and Loan Association to purchase residence

property and signed a mortgage (promissory)

note and mortgage covenant and agreement. The

mortgage covenant required mortgagor to pay

"escrow" funds to teh mortgagee, as estimated

by mortgagee, in monthly installments for the

future liabilities of taxes and insurance

applicable to said real praqperty, as provided

in paragraph 2 of the said mortgage covenant

and agreement, as follows:

">, #* * * The said installments shall be

equal, respectively, to the taxes and

assessments next due and the premium or

premiums for such insurance, as estimated

by mortgagee, less all sums already paid

therefor, divided by the number of months

to elapse before one month prior to the

date when such taxes, assessments and

premiums will become due, such sums to be

held by mortgagee, without interest thereon,

to pay said taxes, assessments and premiums

when due, All payments for principal,

interest, taxes, assessments and premiums

shall be added together and the aggregate

amount thereof shall be paid by mortgagor

to mortgagee each month in a single payment,

If the sums so deposited shall not be

sufficient to pay the taxes, assessments

and premiums when the same become due,

mortgagor agrees to forthwith pay to mort-

3398

gagee the amount of the deficiency, and

if said deposits shall exceed the amount

actually paid by mortgagee therefor, the—

re shall be credited upon the princi-

pal.

Mortgagee-Metropolitan furnished monthly

installment-payment cards to the said mort-~

gagor whe: the estimated sums for ‘escrow"

were included in the total or gate

amount consisting of principal, interest

and "escrow", Mortgagee refused to furnish

receipts or copies of receipts for any or

all disbursements made from mortgagor's

"escrow" account with the explanation that

even if receipts were furnished to mortgagor

she would not understand them, Thus, mort-

gagor never saw any tax bills as assessed in

her name as title-holder of said property;

she never saw any insurance billings in her

name, Mortgagee-Metropolitan obtained said

tax bills and insurance billings directly

from the taxing authorities and insurance

companies all during the period of the

mortgage, and mortgagor was denied access

to said billings involving said mortgaged

property.

Further, on April 26, 1968, mortgagor

complained to the mortgagee (Metropolitan)

that:

(a) Mortgagee-Metropolitan failed and

neglected to pay the taxes or

insurance timely, in 1963, 1964,

1965 and 1967, jeopardizing the

security of mortgagor and her

property as title-holder,

(b) Mortgagee required, from time to

time, excessive "escrow" funds -

which mortgagor disputed and re-

computed using the same figures

which mortgagee used in said

340a

computations, and which said re-

quirements would have resulted in -

excessive "escrow" amounts if mort-

gagor had not disputed said compu-

tations as She did. The said

"excessive" requirements were in

addition to and separate and apart

from the mortgagee's estimated

amounts as shown in the aggregate

amounts not principal, interest and

“escrow” by the monthly-installment

payment. cards,

(c) Mortgagor paid the "escrow" amounts

each and every month without fail,

by the aggregate amount shown on

the payment cards, and she paid

additional amounts into the "escrow"

account after recompu’jing the

"excessive" amounts computed by the

mortgagee..

(d) Because of mortgagee's failures and

negligence in mishandling mortgagor's

"escrow" funds, mortgagor requested

that she be permitted to pay her own

liabilities of taxes and insurance,

directly, instead of-by ' ‘escrow" funds

for mortgzagee's seld-dealing purposes.

During the history of this mortgage loan, where

the mortgagee had sole control of the alloca-

tion of payments as to principal, interest and

Yescrow", payments by mortgagor were made as

follows:

341e

Aggregate Amts

Required by Mortgagor

Mortgagee Cramer

(Metro) Paid

7-29-63, at closing - $ 619.05 $ 619.05

First monthly install-

ment due Sept 15, 1963

1

months at {2133¢ 50 fhe op i° 00

Additional "escrow" 144,00 144,00

1364

months at $133.50 1,602.00 were

4 months at $147.00 °

6 months at $147.00 82.00 1, 28479)

Additional "escrow" paid 243.00

$208 ths at $1 3.50 267.00 267 500

; 85700 267 00

1966 |

{P-eonths at $147.00 1,764.00 2,771.41

1

> months at $147.00 294.00 yh , o4

10 months at $150.00 1,500,00 2,324.31

1968

months at $150, ape 300.00 478.28 22

1 month at 154.00

1

1 month at 1H 00 (April) 186,00 ‘

RELA ig

Mortgagor's payment for April 15, 1968, which

was the last current monthly installment

immediately prior to the published forecio- -

sure of May 23, 1968 was accepted and allocat-

ed by Metropolitan-mortgagee as follows:

April 26, 1968 Principal & interest $203; 81

Escrow 82.19

Additional principal 10,1

$1019

3428

The mortgage note provided for a 15-day for-

bearance or waiver period, for current pay-

ments made during and between the 15th and

the 30th of each month, as follows:

"#* * * At its option, in lieu of increas-

ing the rate of interest as above provided

during the period of any default, the

association may collect a "late charge"

not to exceed an amount equal to four per

centum (%#) of any installment which is

not paid within fifteen (15) days from

the due date thereof, to cover the extra

expense involved in handling delinquent

payments."

Therefore, "Late charges" were not applicable

until after the 30th of each month. The

monthly-installment payment cards also showed

"APTER THE 30TH ADD LATE CHARGE" which was an

election of the option by the mortgagee.

Mortgagee Neate ps penn | did not answer to

mortgagor's request of April 26, 1968, re- -

garding being permitted to pay her own liabil-

ities of taxes and insurance directly instead

of by "escrow" funds for mishandling by said—

mortgagee, and on/or about May 5, 1968, mort-

gagee (by John C. Denyer) telephoned Cramer

and orally required payment of over $400.00

by May 10> 1968, and also refusing to furnish

mortgagor-Cramer anything in writing to sup-

port said--"requirement" of over $400.00. —

Mortgagor-Cramer refused to pay said $400.00,

where mortgagee refused to furnish any

supporting written information or demand.

Subsequently, mortgagee furnished the

following inconclusive and insufficient memo,

without any supporting receipts or other

information:

3438

"As of May 10th Metro needs:

6 months County Tax at Br +57 $225.42

11 months City Tax at 7.47 82.17

24 months Hazard Ins, at 4,00 96.00

11 months M.G.I.C. Ins. at 2.76 0,36

Less Credit balance in "escrow" 32.92

Shortage of requirements e

With the recent increase in April 1968 for

"escrow" from $50.19 to $82.19 per month, the

additional $401.03 "required" by said mortgagee

would have resulted in an excessive amount in

the "escrow" account of $468.95 at the end of

the year 1968 and after disbursements.

Mortgagee exercised the power of sale on/or

about May 16, 1968, where the first insertion

of foreclosure publication occurred on May 23,

mec the published foreclosure amount

of

3519.37 included $4 of mortgagor's

own moneys, which was not an ebtedness

secured The publis orec Losure

° 3919.37 was in excess of the entire

indebtedness of $12,008.99, as follows:

Principal balance $12,041.91

Less "escrow" credit 2.92

Indebtedness . secured 9 °

Excessive interest 109.35

Mortgagor's own moneys— 401,03

Published foreclo-

sure amount $12,519.37

The said foreclosure by advertisement was a

premature exercise of the power of sale,

precipitously and maliciously, in perversion

of said power of sale where mortgagee fore-

closed on mortgagor's own moneys for "escrow"-—

for future taxes and insurance not yet assess-

ed, not yet billed, where nothing was due and

nothing was unpaid, and no "deficiency"

existed. : .

Z4he

The power of sale in paragraph 8 reads

as follows:

"8, In the event of default in the pay-

ment of said indebtedness, or any part

thereof, or in the performance of any of—

the covenants or conditions hereof, mort-

gagee may, without notice, at its option,

declare the entire Indebtedness secured

hereby due, then or thereafter, as it may

elect, regardless of the date of maturity

and is hereby authorized and empowered to

sell or cause to be sold said premises,

pursuant to the statute in such case made

and provided, and out of the proceeds of —

the sale to retain the sums then due here-

under, and all costs and charges of the

sale (including the attorneys' fee provided

by statute), rendering any surplus moneys —

to mortgagor. The commencement of proceed-

ings to foreclose this mortgage in any

manner authorized by law shall be deemed

an exercise of the above option,"

(Contrary to the defective and dishonest

decision of the Michigan Supreme Court,

reported at 401 Mich 252, mortgagor-Cramer

never failed to pay "escrow" each and every

month; Cramer never defaulted "in the per-

formance of any of the covenants or conditions"

for the reason that she paid "escrow" amounts .

to said mortgagee each and every month without

fail prior to the foreclosure publication. )

Mort or-Cramer disputed the excessive -—

sum cf 1.03 for the reason that the excess~-

iveness was obvious to anyone with the ability

to add, substract and divide in two-digit sets

of figures, Unfortunately, the members of

the Michigan Supreme Court lack such minimal

talent in simple arithmetic, being mentally

disabled by pathetic delusions of what con-

stitutes justice under the law, and where

the Michigan Supreme Court-has said "For

345

period of time, plaintiff made timely =~

ments, including escrow, and in fact,

well ahead not her repayment schedule Png

principal." No right of foreclosure exists

where mortgagor was well ahead of her

repayment schedule" and even including the

payments immediately preceding the fore-

closure date of May 23, 1968, where in the

January, February, March and April payments

the mortgagee credited said mortgagor with

additional principal where the mortgagee had

sole control of the allocation of the ,oeere-

gate sums of principal, interest and "escrow,"

Further, the Michigan Supreme Court has

corruptly changed the "Order Dissolving

Temporary Restraining Order" dated September

27, 1968, which was not an appealabie judge

ment, as follows: ' ayne Circ ourt,

Thomas J. Murphy, J., granted judgment for

the defendants on & finding that the plaintiff

was in default.”

Following the entry of the "Order Dissolv-

ne Temporary Restrai Order" of September

the mortgagee (Metropolitan) sub-

nitted the Sheriff's Bidding Statement where

there was no "deficiency" in escrow shown and

instead showed an "escrow" credit balance

which the said mortgagee applied in reduction

of the principal balance and where the said

mortgagee "7968 the Property , bi themselves on

October 1, penree (3), 4 after said

Order dated go 1968. Therefore,

no alleged deficiency existed,

In the prior "proceedings" the attorneys

hired by mortgagor (sho are also named

parties in this action) by acts of negligence,

misconduct, legal malpractice, fraud, deceit

and concealment, failed to take issue with

said "Order Dissolving cig ag Restraining

Order" entered September 27, 1968, Further,

attorney-Allen Counard misrepresented to

3460

client-Cramer that ih August 1971 by his

"Motion to Strike" pertaining to affirmative

defenses of mortgagee-Metropolitan as to

"adjudged in default" and that the Wayne

Circuit Court in granting said motion to

strike that the adjudication of default had

been removed, Further, an Order granting

of denying motion to strike is not appealable,.

' The entire foreclosure matter is and was a

perpetration of fraud, and whereby it involves

fraud, concealment and deceit of the attorneys

(on both sides) and constituting legal mal-

practice (on both sides), defendant-mortgagor

did not have a full and fair opportunity to

litigate the issue in the prior "proceedings"

and where the Michigan Supreme Court has 3

condoned fraud, by the decision rendered

October 6, 1977, reported at 401 Mich 252,

said mortgagor-defendant-Cramer is not -

collaterally estopped in this action presént-

ing a federal question in a federal court,

ARGUMENT AND LAW

The "Order Dissolving Temporary Restraining

Order" entered in the prior "proceedings" in

the Wayne Circuit Court ">. 115-792, dated

September 27, 1968, was not an adjudication of

"Default" in mortgagor-Cramer's mortgage,

where said mortgagor was not permitted to be

heard, In 59 CJS, Mortgages, at 601 (page

1051) it is stated:

"* * * The mere fact that a mortgagor

takes not legal steps to st a fore-

closure which is wholly unauthorized and

void because no default in the conditions

of the mortgage has occurred does not

necessarily bar him on the ground of

ratification or estoppel from questioning

it afterward * * * ,

3478

Further, in 59 CJS Mortgages at 559(page

924) "Notice of default,” ;

"There must be a compliance with statutory

provisions requiring the filing of a notice

of default, * * * A notice filed before

actual default-is premature, and a sale

thereunder has been held to be void,”

peward Lumber & Investment Co, v Corbett,

> a pp *

Thus, where there was no default in the condi-

tions of the mortgage and where mortgagor-

Cramer had never failed to perform her coven-

ant the performance of which was to pay "escrow"

funds to the mortgagee, the mortgagee failed

to comply with statutory provisions and in

fact, violated statutory provisions by commenc-

ing said foreclosure by advertisement where

mortgagor was not in default in the performance

of a condition where mortgagor-Cramer paid

"escrow" each and every month without fail.

MCLA 600, 3204; MSA 2IA. 32043 "To entitle

any party to give a notice as hereinafter

prescribed, and to make such foreclosure,

it shall be requisite: (2) That some

default in a condition of such mortgage

shall have occurred, by which the power to

sell became operative; * * * ,'

Where there was no default by said mortgagor-

Cramer and where said mortgagor paid "escrow"

moneys to mortgagee each and every month

without fail, the power of sale was not oper-

ative. "Powers of sale should be strictly

construed and fairly exercised, ‘ee

59 CJS 557, Mortgages; and "Where statutes

regulate the exercise of powers of sale in

mortgages and trust deeds, full compliance

with such provisions is essential to the

validity of the sale. The statute in such

cases supersedes the grant o pores n

mortgage s rea ° ugh set out

therein," Thus, where itauaae had never

failed to pay "escrow" moneys in performance

348a

of the conditions of said mortgage, there

was no default by the mortgagor and the said

mortgagee was not authorized to exercise the

power of sale. :

Furthermore, where there was no deficiency

in the "escrow" account and instead there was

an "escrow" credit balance which the mortgagee

applied in.reduction of the principal balance

on the Sheriff's Bidding Statement of October

i. 1968, therefore, there was no "indebtedness"

in the "escrow" account. The sum.of $401.03

which the mortgagee included in the amount

Claimed to be due, by publication of the

"Notice of Mortgage Sale" dated May 23, 1968,

was not an "indebtedness" and where mortgagor

had not "defaulted" in payment of escrow, and

in fact, mortgagor had paid “escrow” each ant

every month without fai , the entire foreclo~

sure occurrance and the "proceedings" follow-

ing were the perpetration of a fraud by the

mortgagee-Metropolitan and their attorneys.

The mortgagee foreclosed the mortgage loan

in acceleration of mortgagor's own moneys,

which was not an indebtedness and where said

mortgagee had not advanced any of its moneys

and where there was no "deficiency" in the

"escrow" account. There mortgagee exercised

the power of sale to foreclose on mortgagor's

own moneys, in perversion of said power of

sale, mortgagee had declared "the entire -

indebtedness secured hereby due" which wrong-

fully included mortgagor's own moneys for

for payment of Future taxes and insurance

and where nothing was due and nothing was

unpaid, The =-id "indebtedness" was only the

principal balance owing of $12,041.91 less —

escrow" credit balance of $32.92, or "indebt-

edness" .of $12,008.99, as of May 23, 1968

the date of publication, and which mortgagee

published a figure of $12,519.37, contrary to

the provisions of paragraph 5 of the mortgage

covenant and agreement, and in violation of

the mortgage (promissory) note, during the

350a

period of any default, the association

may collect a "late charge" not to exceed

an amount equal to four per centum (4%)

of any installment which is not pai

within fifteen (15) days from the due

date thereof, to cover the extra expense

involved in handling delinquent payments."

(Signed) Virginia Cramer (L.S.)"

Thus, where no "late charges" were applicable

and where the mortgagee (Metropolitan) had

lete and sole control of the allocation —

of aggregate amount consisting of princi-

pal, interest and "escrow" and where ,beaid

mortgagee credited. mortagor's ' ‘escrow" account

each and every month without fail, there was

no default in the conditions of the mortgage

where mortgagor never failed to perform her

covenant, the performance of which was the

payment of "escrow" moneys as a condition,

The foreclosure ‘by advertisement action

was a misuse of process for the reason that

mortgagor was not in default of any conditions

of the mortgage covenant and agreement, and

where the mortgagee retracted the "waiver"

period of 15 371968 and published the forecie-

sure on May 23, 1 prior to the 30th of

the month, speciceeaets and maliciously for

the reason that mortgagor complained about

the mishandling of said "escrow" funds and

where mortgagee failed and neglected to pay

taxes and urance timely or when due with

said mortgagor's "escrow" funds, In 11 M.L.P.,

Estoppel, at 7, Waiver, it states:

a ;

"Waiver is the intentional relinquishment

of a known right by acts which indicate

an intention to relinquish it or by so

neglecting and failing to act as to induce

a belief that it was the intention and

purpose to waive, * * * An executory

waiver, being in the nature of a promise

349a

forebearance or waiver period of 15 days, -

where no late charges and no penalty would

be applicable,

In Black's L, D. 4th edition, "Forbearance"

is defined as: |

"Act by which creditor waits for payment

of debt due him by debtor after it becomes

due." Upton v Gould, 64 Cal App 2a 814

lig" Pod VSL, 733 ‘

"A delay in enforcing rights." Shaw v

Sag Teck, 129 ME 259, 151 A 423, 71 ALR

"Indulgence granted to debtor," Dry Dock

Bank v American Life Ins, etc co. SHY 354

"Refraiing from action. The term is used

in this sense in general jurisprudence,

in contradistinction to "act." Hafer v

Spaeth, 22 Wash 2d 378, 156 P2d 408,411

Where the mortgage (promissory) note allowed

mortgagor to pay within 15 days after the due

date, without penalty or late charge, this

constitutes a@ waiver which cannot be retracted,

The mortgage (promissory) note, and as

incorporated in the mortgage covenant and

agreement by reference, provides as follows:

" * * * The monthly payments herein

provided for shall be applied first a

interest and the remainder upon principal,

"Privilege is reserved to prepay, without

premium or fee, the indebtedness in whole,

or in an amount equal to one or more

monthly payments on the girth fF: that are

next due on this note, on the 15th day of

any month prior to maturity, provided that

the monthly payment due on the said 15th

day of the month shall have been paid, At

its option, in lieu of increasing the rate

of interest as above provided during the

35le

or &@ contract, must be supported by

consideration to be enforceable, but a

waiver, partaking of the )

an election, needs no cong

cannot be retracted, "

rinciple of

ideration and

rican Locomotive

Co. v Chemical Research OITp.,

ie! us 909,°93 LE qe a poo

3 U d and American

Loc t "0 « Vv Gyron Process Co. {

85 St ae Bie 336 US OOO OF Ts i074,

Thus, where mortgagor could n

"late charges" to be applicable, until after—

the 30th of the month, the mortgagee acceler-——

ated the indebtedness of principat, premature-

ly and maliciously, during the 15-day "waiver"

mortgagor was disputing the e

computed by the mortgagee and

Shortage of requirements" an

was no deficiency in mortgago

account, The Notice of Mortg

ed on May 23, 1968, before ac

premature (mortgagor's paymen

was the first and Only paymen

include any "escrow") and a g

ot even expect

instant case,

xcessive amounts

labeled ag

d where there

r's "escrow"

age Sale publish-

tual default, was

t of May 29, 1968

t which did not

ale thereunder

has been held to be.void by the court,

Ha rd Lumber & Investment Co, v Corbett,

> a Pp «

"To enforce a mortgage,

must prove his debt, and

to the extent of what he

Wood v Weimar, 104 us 7

The foreclosure was illegal f

that "escrow" money is not a

the mortgagee

can recover only

roves,"

» 26 L Ea 779

or the reason

in 17A CJS, Contracts, at 397, it states:

* * * and where a contract

performed by one "Barty it cannot

by the other." Union Pacific

v Kansas City Trans

P 3 88 Men's Ass

has been fully

Railroad C

NCo,

ur. Co, of

America v Eades, 16) sw oa 920, 290 Ky 553.

be terminated

“e

352a

Taxes are not valid debts unless lawfully

a. G v First Ret ional Bank, 1936,

US log any the escrow’ monies are not

an indebtedness (or not a debt) where no

taxes and no insurance were due, none were

assessed; none were billed, and none were

unpaid. Nothing was due and nothing was

unpaid, However, mortgagee blatantly refused

to provide anything to substantiate the

requirements’ for the "escrow" account, and

further, mortgagee blatantly refused to

provide receipts or copies of receipts to

substantiate any disbursements from the

"escrow" moneys belonging to the mortgagor.

The United States Supreme Court in ar

V Zohan, 209 US 414, 28 S Ct 506

he it was unquestioned that he owner

of real property is entitled to claim the

protection of the Due Process Clause in

— to the assessment and collection of

axes,

The mortgage contract in the instant case

does not provide for a foreclosure on "moneys"

and the debt or indebtedness had not matured, .

Black's LD Rev 4th ed., defines "indebtedness"

as not a.contingent liability...

"A contingent liability * * * does not

constitute indebtedness." -St, Louis

eae Ins, Co. Vv Goodfellow,

further, Black's LD 4th ed, defines "debt" as

A sum of money due by certain and express

agreement; as by * * * a bill or note * * #

whvre the amount is-fixed and specific, and

does not depend upon any subsequent valuation

to settle it," aeeerY Reclamation Dist,,

111 US 701, 4.58 9 e sum

payable upon a contingency, however, is

a debt, or does not become a debt until )

con ency has happened." People v A °

37 Cal 524, Thus where the amoun Le aa

or not specific, and the contingency had not

353a

occurred such as a billing or assessment

of a sum of "moneys" certain or fixed, there

were no such."moneys" due or payable, in the

amount of $401.03 and where the mortgagee

foreclosed upon "moneys" for future taxes _

and insurance, not yet assessed, not yet bill~

ed, and not due, the said foreclosure was &

perversion of the exercise of the power of

sale, (See, Burger, A Sick Profession:

5 Tulsa L.J. 1 (January 1968)) Where the

Michigan Supreme Court, as reported in 401 —

Mich 252, condones the fraud and the perver-

sion of the exercise of the power of sale,—

and which brings the case into a worse con-

dition, there is no question that the members

of the Michigan Supreme Court are mentally

disabled, No right of foreclosure exists

where mortgagor was no efault of any

conditions of the mortgage and where said

mortgagor had paid "escrow" moneys each and

every month without fail, and together with

other "escrow" amounts separate and apart

from the monthly-installment payments, prior

to the foreclosure publication date of

May 23, 1968, which was premature. In ©

Salinger et al, v Lincoln Nat. Life Ins. Co

oF or 1080 Tony the court elie ee

"A foreclosure must comply with terms of

contract. * * * Mortgagee could not -

properly apply moneys involved in reduc~

tion of principal amount of loan, which

had not matured, and then invoke accel-

eration clause of mortgage by asserting—

that interest due was unpaid, and there=

fore that entire loan was due, and fore-

Closure of mortgage timely. * * * No

right of foreclosure exists, in. absence

efau er e Yr mor @ or some

separate agreement.

In the instant case, mortgagor had considerably

prepaid, more than she was required to pay,

35ha

where mortgagee had sole control of the

allocation of principal, interest and "escrow",

Mortgagee credited mortgagor's account with

the amounts of "escrow" as estimated by said

mortgagee and shown-in.the eggregate total

on each installment -payment-card as furnished

by mortgagee to the mortgagar-Cramer. Anala-

gous to the reasoning in Salinger et al v

Lincoln Nat, Life Ins, Co., supra, mortgagee

could not properly apply moneys involved in

reduction of principal, over and above the

regular principal, and then invoke the -

acceleration clause of the mortgage by assert-

that "escrow" allegedly due was unpaid and .

therefore entire loan was due on May 23, 1968,-—

the published foreclosure date, and where mort-

gagor, in fact, had made payments including

escrow, and in fact, "was well ahead of her

repayment schedule" (401 Mich 252), In the

instant case, m ortgagor had time and

conscientiously made her payments on the

mortgage loan and into the "escrow" account, -

and in accordance with the monthly-installment-

aymert cards furnished by said mortgagee

Metropolitan), and which said payment cards

specified the total aggregate amount which

included principal, interest and "escrow", as

shown below herein, There was no. default in

the payment of the debt secured and no default

or no other breach of condition on the part

of the mortgagor. Where the mortgagee failed

to comply with the provisions of the power of

sale and where such provisions do not include

acceleration of payment of mortgagor's own

moneys for "escrow" and where nothing was due,

and that said "escrow" moneys, in no way was

part of the "entire indebtedness", the fore-

Closure was illegal and was in perversion of

the exercise of power of sale prescribing the

conditions precedent to the exercise of the

power of sale, where, first, a default in the

secured would have had to occur, Thus, where

there was no default by the mortgagor, there

was no basis or no conditions precedent to

the exercise of the provisions of the power

of sale to permit said foreclosure. 59 CJS,

Mortgages, at 559.

355a

Mortgagor-Cramer began to pay ahead of

her payment schedule in June of 1965 and

continued paying more than she was required

to pay each and every month therefrom and up

to the time of the foreclosure dated May 23,

1968. The payments made by mortgagor for

Jamary, February, March and April 1968,

immediate ly prior to said foreclosure date,

and as allocated by mortgagee who had sole

control of said allocation, were as follows:

1968 Zanuaey Rebruaty March April

Principal

& feieeset $103. 81 $103. -81 $103.81 $103.81

Escrow 219 19 50.19 82.19

Additional

principal 88.47 89.75 91,04 10,17

Total payment$238.47 $239.75 $245.04 $196.17

Aggregate amount

as shown on monthly

payment card$150.00 $150.00 $154.00 $186.00

Mortgagor-Cramer refused to pay "escrow",

and especially in excessive amounts, after.

the foreclosure was published and not before

said foreclosure-publication, for the reason

that she was disputing the excessive amounts

"required" by mortgagee-Metropolitan, and -

also for the reason that mortgagee's bookkeep-—

ing was disgraceful and said mortgagee mish*nd-

led the "escrow" by failing to pay mortagor's

taxes and insurance when due and allowed said

liabilities to become seriously delinquent

jeopardizing the mortgagor's security and

property as title-holder of said property.

The foregoing is herein set forth to show

the court that mortgagor was not in default of

any conditions of sors mortgage, and that there

was no basis for said foreclosure, and empec-

ially where mortgagor had paid "escrow" each

and every month without fail prior to the

gaid foreclosure date of May 23, 1968, The

356a

entire foreclosure matter is a fraud perpet-

rated by the mortgagee and their attorneys,.

and where the court has condoned said fraud,

"Where material matters have arisen since

a@ prior order to restrain the sale, the plea

of res judicata may not be sustained,"

or ortgages, at 552 (6) Hearing and

8.

59 Ce

Findj

"Generally, the court may not try common-—

law issues and settle a disputed indebted-

ness between the “gba Grege v Hight

6 Mo App 579, "but issues. torte to

equitable relief sought (by plaintiff) —

should be decided," Smith v Bank of -

hurst, 25 SE 2a 859, 223 nc 209, SS

* * * "In granting a temporary injunction

the court has discretion to proceed ex

parte." Douglas v Nagle, Civ App, 14 sw

2d 303.

In August of 1968, where the Wayne Circutt

Court would not allow this mortgagor to pro-

ceed without hiring a lawyer, and where this

mortgagor hired attorney-Abei Selburn who

mis-managed the case, initially, and then-

abandoned the case in fraud of his client-

Cramer, on September 27, 1968, the said Wayne

Circuit Court entered an "Order Dissolving

Temporary Restraining Order" which alleges that

"the Court having determined that Plaintiff is

in default on her Mortgage", and where no —

default was shown, said "Order" dated Septem-

ber 27, 1968, should be voided, nullified or

vacated. Further, due to the negligence, -

failures, misrepresentations, legal malprac-

tice, fraud, concealment and deceit of

attorneys Abel Selburn and Allen Counard

whom the court forced your defendant-mortgagor

to hire, and together with teh fraud perpetra-

ted by the attorneys for the mortgagee-Metro-

politan, and in fraudulently obtaining-said

Order" where client-Cramer's attorney-Abel

Selburn did not oppose the entry of said Order

357a

and did not attend the hearing, if any, on

september 27, 1968, and where client-Cramer's

second attorney, Allen Counard, failed and

neglected to take issue with said "Order

Dissolving Temporary Restraining Order" on

appeal or otherwise, in legal malpractice,

the said "Order" should be voided, nullified

and/or vacated,.on the following grounds:

(a) Cramer, in pro per, prepared and

filed her own plea s in the Wayne

County Circuit Court, on August 12,

1968, and obtained an "Order to Show

Cause" with temporary restraining

order enjoining the mortgage sale

and foreclosure action,

(bv) Where the said Wayne Circuit Court

forced Cramer to hire-a lawyer, and

Cramer hired attorney-Abel Selburn —

who failed and neglected to investi-

gate the facts and the law and

further, made no effort or attempts

to amend Cramer's pro se pleadings;

said pro se pleadings were insuffi-

cient to give jurisdiction,

In 59 CJS, Mortgages, at 552, Restraining

Exercise or Power, (4) Pleadings (page 899),

states:

"A petition for an injunction to restrain

the sale of land under a power in the

mortgage or deed of trust must state

fully and distinctly facts sufficient to

justify the relief asked * * *, Facts and

not merely conclusions of-the-pleader must

be stated." ster v Baxter, 191 SE 429

184 GA 368, AIR sl 5

"* * * if it is made to appear by the

affidavit of the mortgagor, his agent, or

attorney, that the mortgagor has a legal

counterclaim, or any other valid defense

against the collection of the whole or any

358a

part of the amount claimed to be due,

the judge may enjoin foreclosure and

direct that further proceedings be had

in court, the affidavit must be sufficient

to support an order enjoining the sale,"

Green v Bartine, 209 NW 650, 50 SD 281,

Wand it should set forth the facts for

the satisfaction of the judge, but the

facts need not be stated with the same

particularity required of pleadings."

State v Buttz, 131 NW 241, 21 ND 540,

"An affidavit which does not allege that

affiant is the mortgagor, his agent, or-

attorney, is Aneutticsent to give juris-

diction," (emphasis Ow. v

Hedin, 195 NW 641, 46 sD 39.

application is designed to be so

far ex parte as not to allow counter-

affida 8 as a matter ri °

emphasis added)

McCann v Mortgage, etc., Co., 54 NW 1026,

3 ND L172

ommercial Nat, Bank v Smith, 4h NW 1024,

oe oe

In the instant matter, the pro se pleadings

were insufficient to give jurisdiction,

Attorney-Abel Selburn made no effort or _

attempt to amend ctient-Cramer's pro se plead-—

s. The counter-affidavits of the mortgagee-~-

ing

Metropolitan "did not mean wher.

(See Transcript of September 6, 1965)

"Mr, Selburn: I object to this on the

basis he was not present at the seg

"Mr, Doelle: It is in an affidavit. ot

"Mr, Selburn: He is testifying to some-

; thing he was not present at,

"Te Court: An affidavit does not mean

anything,"

Further, in 59 CJS, Mortgages, at 552, it

359a

states: "The court may examine the mortgage

as it appears of record whe the rec

ridentified.,” releekar Vv pron Shacabed aard,

ts WW is, 20 ND 366, In the instant matter,

there were absolutely no. exhibite soma ty

into the court record at said hearing o

September 6, 1968, and pothing was ident tied

at said hearing, The ‘Or er Dissolv

Temporary or ieee Order" entered on

pins deere fy as @ result of the Sept-

ember 6 » 1968 pe Al and which was the one

and only neering in ease ghee gs ofl 9 axe

ou ) ‘ t tha

"An order made ot = roceedings is an

order of the j 3 erroneously

made as a "court eit -v-val,

Bowing v v Modine 495 NW GML” fe 20 39,

Furthermore, State statutes authorize appeals

from Judgments or orders of the court on

and the "Order Dissolving Temporary Restrain.

ing Order" entered on September 27, 1

was not a. judgment and was not a Bolten * order

and was not appealable, and was enterea in the

absence of jurisdietion, 4yrne ro ge applica-

tion of "Plaintiff-Cramer" in the "proceedings"

in the prior action (Wayne) No. 115-792, 3

before Judge Thomas Murphy, was e

so as not to allow resisting affide’

the mortgagee to be heard or considered by

oon ay upon the hearing of such lica-

tee. coamare ta Net. Bank v Smith et al,

et al, the Supreme Court of South Dakota (1003)

acated an order enjoining the foreclosure of

a mortgage by advertisement, as not properly

a "court order," but an order of the judge,

on a. grounds of his lack of jurisdiction to

make it.

3608

As to the "Order Dissolving Temporary

Restraining Order" entered on September 27,

1968, and which is misrepresented by the

members of the Michigan Supreme Court, in

401 Mich 252, as, to wit: "The Wayne Circuit

Court, Thomas J. Murphy, J., granted judgment

for the defendants on a findtng that the

plaintiff was in default." --- and which is:

not a judgment and there were no findings of

fact by the court, the Wayne Circuit Court was

without jurisdiction to entertain the defend-

ants' resisting affidavits and thus, the Wayne

Circuit Court was without jurisdiction to

make any finding of "default," where the

mortgagee had initiated the foreclosure by

advertisement and said foreclosure matter is

strictly a Legislative matter, under the

provisions of the Michigan State Statute of

-foreclosure by advertisement, (See mortgagor-

Cramer's "Motion for Reformation of Michigan

Supreme Court Defective Decision reported at

401 Mich 252" following hereto, where federal

questions are presented as to legislative

state action and judicial state action involv-

ed in the application of MCLA 600.3201 et seq.,

MSA 27A.3201 et seq.; "Foreclosure by Adver-

tisement” add constitutional questions in-

volved under federal law.)

"Although the requirements of mutuality

need not be met for collateral estoppel

to be applied in an action presenting a

federal question in a federal court, even

if the party asserting the estoppel was a

stranger to the prior action, the doctrine

of collateral est was inapplica

where the bye agains om es 7;

was asserte d not have a full and fair

opportunity to litigate the issue in the

at was

court sitting without a jury in an injunce-

tiom proceeding and the defendant (defend-

ant-mortgagor herein) was entitled to trial

by jury as a matter of right under the

361la

United States Constitution and the

Federal Rules of Civil Procedure, in

the subsequent civil action. Rachal v

Hill (cA 5) 435 Fed 59, cert den 403 us

904, 29 L Ed 2a 680, 91 S Ct 2203.

Thus, the "Order Dissolving Temporary

Restraining Order" dated September 27, 1968,

should be voided, nullified and/or vacated,

coram non judice, for the reasons above-shown

and as dependent upon lack of jurisdiction

and/or absent of jurisdiction, and summarized

as follows:

1. The Wayne Circuit Court (prior action

No. 115-792) was without jurisdiction to

entertain mortgagee's resisting affidavits

in an ex parte application and proceeding to

enjoin the foreclosure by advertisement,

2. No exhibits and no identifications were

entered into the record at the hearing result-——

ing in an "Order Dissolving Temporary Restrain-

ing Order" dated September 27, 1968, and no

default in the mortgage was shown.

3. The saie "Order Dissolving Temporary

Restraining Order" was not a judgment (as

‘ misrepresented in.401 Mich 252); it was not

an order of the "court"; it did not direct

that further foreclosure proceedings be had

under the supervision of the court; there

were no findings of fact relative to "default

in the mortgage" or anything else; juris-

diction of the court may not be invoked to

enforce provisions of an illegal contract;

that an Order made by the Court without juris-

diction is void; that a court order obtained

upon a false and fraudulent suggestion or

allegation is a nullity.

4, Mortgagor-Cramer's evidence was not

heard-and the judge would not permit mort-

gagor-Cramer to be heard,

362a

5. That by the misconduct, negligence,

failures, fraud, deceit, concealment, and

legal malpractice of the attorneys whom .

mortgagor-Cramer hired, and where said attor

neys neglected and failed to investigate fact

and law and failed to take issue with said

"Order Dissolving Temporary Restraining Order"

entered on September 27, 1968, fraudulently

as a finding of "default in Plaintiff's

mortgage"—in the absence of due process,

defendant-mortgagor-Cramer's affidavit did

not show facts sufficient to invoke the

judicial power to enjoin the foreclosure by

advertisement, and the said attorneys whom

defendant-mortgagor-Cramer hired for their

so-called "expertise" in the law, failed and

neglected to seek the proper remedy as to the

fraudulent "finding of default" where said —

"order" dated September 27, 1968, was fraud-

ulently obtained, and where the attorneys of

record (om both sides) perpetrated fraud upon

‘defendant-mortgagor-Cramer and upon the court,

in Jegal malpractice.

For the reasons herein-shown, the "Order

Dissolving Temporary Restraining Order" dated

September 27, 1968, in prior action (Wayne

No. 115-792, entered in the absence of juris-

diction, and misrepresented as reported in

hol Mich 252, should be voided, nullified

and/or vacated, coram non judice.

Respectfully submitted,

/s/ Virginia Cramer

Dated: Petitioner In Pro Fer

Nov 12, 1979 Defendant-mortgagor

(Affidavit attached)

363a

Filed November 23, 1979 - No. 9-72789

U. S. District Court

RESPONSE TO PLAINTIFF'S MOTION TO VOID

Sane ch OR VACATE WAYNE COUNTY CIRCUIT

COURT DATED SEPTEMBER 27, 1968

The Defendants and Co-Defendants McCltn-

tock Donovan Carson & Roach, James I, Mc-~-

Clintock, Miehael Doelle and William P,

Thorpe, by their attorneys McClintock

Donovan Carson & Roach responds to Plaint-

iff's Motion to Void, Nullify, or Vacate

Wayne County Circuit *Coirt Order dated

September 27, 1968 and states that said

Motion contins the same matters alleged in-

Plaintiff's Complaint for Declaratory Judg-

ment and Petition for Removal and Defendants

and Co-Defendants hereby adopt by hg ge

their Motion to Dismiss dated August 8 wll

and heretofore filed in this Court on Augus

9, 1979 and state that the Court should

dismiss the instant Motion and grant the

other relief requested in Defendant's Motion

to Dismiss.

Respectfully submitted

MCCLINTOCK DONOVAN CARSON &

ROACH

unsigned

By William P, Thorpe (P21436)

Dated: Attorneys for Defendants and

Nov 20, 1979 Co-Defendants

Filed December 3, 1979 No 9-72789

U. S. District Court

OPPOSITION TO DEFENDANTS AND CO-DEFENDANTS

RESPONSE TO MOTION TO VOID, NULLIFY, OR

VACATE WAYNE COUNTY CIRCUIT COURT ORDER

DATED SEPTEMBER 27, 1968

Petitioner-mortgagor-Cramer, in pro per, in

364a

opposition to Defendants and Co-Defendants

McClintock Donovan Carson & Roach, et al,

response to her Motion to Void, Nullify,

or Vacate Wayne County Circuit Court Order

Dated September 27, 1968, says as follows:

1. That Co-Defendant William P, Thorpe,

on his own behalf and on behalf of Defendant-

Metropolttan Federal Savings and Loan and

‘ other Co-Defendants James I, McClintock

Michael Doelle, et al, continues to misiead

and misrepresent matters to the court 5 and

that contrary to said "response" and their

Motion to Dismiss filed August 9, 1979,

Co-Defendant William P, Thorpe evades the

issues and the underlying facts of fraud

concealment and deceit of the attorneys ton

both sides) and constituting conspiracy and

legal malpractice, and where your Petitioner

was subjected to:

a. conspiracy and collusion, and legal

malpractice

b. denial of due process; and corrupt

practices in courts

c. deprivation of civil rights

dad. denial of redress of grievances

e. state court opinions and decisions

based on false facts

f. state action (exertion of power)

involved, without jurisdiction

@. wrongful foreclosure; illegal fore-

Closure on illegal contract

h, deprivation of right and/or opportun-

ity to be heard

i. fraud condoned by the state court, in

absence of jurisdiction

365a

Je unscrupulous and perverted mentality

of the sick members of the legal

profession; negligence and deceptions

K,. perversion of camaraderie and cover-up

between unprincipled members of the

legal system

1. Illegal ex parte communications between

lawyers and judges and exploitation

for unjust purposes

m, oppression, humiliation and damages

n. among other injustices; anti-trust

violations,

2. That Co-Defendant-attorney William P

Tho is the on arty, and on behalr of

unscrupulous clients, who has fited any

pleading in "response" to Petitioner-mort-

gagor-Cramer's "Motion to Void, Nullify

and/or Vacate Order dated September 27, 1968";

that none of the other multiple-parties in.

this suit have taken any exception to said

Petitioner's motion,

3. That all during the state court "pro-

ceedings" said members of the "legal" pro-

fession sought and successfully invoked and

obtained, by fraud, concealment and deception,

the aid of the court to enforce an illegal

contract. 3

4, That Co-Defendant-attorney William P,

Th now asserts as his affirmative defense:

"lack of jurisdiction over the subject matter

on the grounds that the matters stated therein

are res judiciata and/or collaterally estopp=

ed’.

5. BS, (pro se pleadings of layperson-

litigant should be liberally construed by

the federal courts)

366a

6. That the federal courts have jurisdic.

tion over the subject matter; res judicata —

may not be sustained; and that your Petition-

er is not collaterally estopped where the

subject matter was not previ mushy litigated

in the Wayne County Circu ourt prior action

No, 115-792 and reported in 401 Mich 252,

as more particularly shown in Petitioner's

Motion to Void, Nullify and/or Vacate Order —

dated September 27, 1968 and her brief there-

inj and as more porary tegen shown, by omis-

sions and deceptions in the Exhibits attached

to attorney-William P, Thorpe's motion to -

dismiss filed on August 9, 1979; and Petition-

er's brief herein,

WHEREFORE Petitioner-mortgagor-Cramer prays

that this HONORABLE Court grant Petitioner's

motion to void, ge and/or vacate Order

dated September 27, 1968, and deny Defendants

and Co-Defendants motion to dismiss Petition-

er's Complaint for Declaratory Judgment and

deny such other relief requested by said

Defendants and Co-Defendants,

Respectfully submitted,

/s/ Virginia Cramer, —

Dated: Petitioner, Defendant-

Nov 30, 1979 Mortgagor in pro per

Filed December 3, 1979 No. 9-72789

U. S. District Court

BRIEF =N SUPPORT OF OPPOSITION TO DEFENDANTS

AND CO-DEFENDANTS RESPONSE TO MOTION TO VOID,

NULLIFY, AND#OR VACATE WAYNE COUNTY CIRCUIT

COURT ORDER DATED SE 1968

(AND SUPPLEMENT TO MORTGAGOR-CRAMER'S MOTION )

————~ eres e=EEOOOr

367a

FACTS:

The instant matter involves a mass mortgage-

loan contract which requires the "borrower

to pay "escrow" moneys or funds, in advance,

to the mortgagee-lending institution, for

future liabilities of taxes and insurance-

which may become due on the mortgaged pro-

perty. When the said contract is read in its

entirety, the mortgagor is restricted, pro-

hibited, precluded and prevented from paying

said liabilities of taxes and insurance.

The mortgage loan is not available unless the

mortgagor agrees toc pay said "escrow" funds,

It is not a mutual covenant and where the

mortgagee, in the instant case, failed and

neglected to pay the taxes and insurance when

due, and in fact, allowed said mortgagor's

liabilities to become seriously delinguent and

otherwise mishandled the said "escrow" fund

account, mortgagor-Cramer requested that she—

be perm itted to pay her own taxes and insur-

ance directly, instead of paying "escrow" to

said mortgagee. ,

In malicious retaliation to mortgagor's

complaints regarding the mortgagee's failures

and negligence, and where mortgagee "required"

excessive "escrow" funds (called "cushioning" |

in the industry) said mortgagee foreclosed by—

advertisement, utilizing the Michigan Foreclo-

sure by Advertisement statute, MCLA 600.3801,

et seq., MSA ele 04a et seq. gagee- —

ropoii an Federal Savings and Loan Associa-

tion and their attorneys fraudulently alleged

to wit: "Mrs. Cramer * * * continually failed

and refused to make escrow.payments as required

by paragraphe of the Mortgage. * * * When the

foreclosure was commenced, Mrs, Cramer's escrow

account was deficient in the sum of $401.16

(57a-64a)" and where attorney William P. Thorpe

cited the -popiures woe non of John C, Denyer

of Metropolitan Federal Savings and Loan, as—.

of September 6; 1968, in his Brief and Appen-

dix on Appeal--Appellees, to the Michigan

Supreme Court, No. 57215.

368a

The Sheriff's Bidding Statement dated

October 1, 1968, as prepared by Metropolitan

and/or their attorneys McClintock Donovan

Carson & Roach, showed no deficiency in the -

"escrow" account of Mrs. Cr ramer, | ana instead,

showed a credit balance in said "escrow"

account which the mortgagee applied in reduc-

tion of the PELACABAL balance, us, there

was no deficiency 8. ramer's "escrow"

account, and Mrs. Cramer had paid "escrow"

moneys to the said mortgagee each ani every

month without fail, together with other -

separate amounts for the "escrow" account,

and where she had paid considerably ahead in

her payment schedule while the mortgagee had

comet and sole control of the alleeation

o

he aggregate sums ,consisting of principal,

interest and “escrow."

Thus, this ‘is a new case arising upon new

facts, and where in the prior action Mrs,

Cramer's evidence was not heard and not

permitted to be heard,

The entire context of the mortgage covenant

and. agreement is as follows:

"THIS MORTGAGE, made this 29th day of July,

1963,. between Virginia Cramer of the City of

Detroit, County of Wayne, Michigan, mortgagor,

and METROPOLITAN FEDERAL SAVINGS AND LOAN

ASSOCIATION, a corporation existing under

the Home Owner's Loan Act of 1933 of the

United States of American, mortgagee:

"WITNESSETH: That mortgagor, for and in

consideration of the sum of Sixteen Thousand

Five Hundred and No/100 dollars ($16,500.00)

the receipt whereof is hereby acknowledged, .

and for the purpose of securing the re-pay-

ment of said sum, with interest, as herein-

after provided, and any additional sums

269a

which mortgagor bag: soba or severally if

- more than one joins herein) may now or

hereafter owe mortgagee, for which this

mortgage shall be a continuing security,

and of securing the performance of the

covenants and conditions hereinafter con-

tained, hereby mortgages and warrants unto

mortgagee the premises situated in the City

of Dearborn Heights, County of Wayne,

Michigan, described as follows:

East 33 feet of Lot-5 and West 24 feet -

of Lot 6, of Gordon-Saperstein Subdivi-

sion No. 1 Of Part Of The SW 1/4 Of Sec. 6,

T2SR1OE, Dearborn Township WCM as recorded

in L80 P2 Wayne County Records.

together with all easements and rights of

way now or hereafter used in connection

therewith and all fixtures (which shall

include all articles that are ever furnish-

ed by a landlord in letting or operating an

unfurnished building which are now or shall

hereafter be attached to said premises in

any manner).

Mortgagor covenants and agrees:

1. To pay to mortgagee at its office in

the City of Detroit, Michigan, the principal

sum of Sixteen Thousand Five Hundred and

No/100 dollars, ($16,500.00) with interest -

thereon, according to the terms of a promis-

sory note bearing even date herew executed

by mortgagor to mortgagee, which matures on

the 15th day of August, 1988, and to pay

when due any additional sums which mortgagor—-

may now or hereafter owe mortgagee, as afore-

said. (emphasis added)

2. In order more fully to protect the

security of this mortgage, in addition to

the monthly installments of principal and

interest, to pay mortgagee an installment

370a

of the taxes and assessments levied or to

be levied against said premises that will

next become due, an installment of the

premium or premiums that will next become

due to renew the insurance on said premises

(as hereinafter provided) and, if any life

insurance is payable or assigned to mortgagee

as additional security for said indebtedness,

an installment of the premium or premiums :

that will next become due thereon, The said

installments shall be equal, respectively,

to the taxes and assessments next due and

the premium or premiums for such insurance,

as estimated by mortgagee, less all sums

already paid therefor, divided by the number

of months to elapse before one month prior

to the date when such taxes, assessments and

premiums will become due, such sums to be

held by mortgagee, without interest thereon,

to pay said taxes, assessments and premiums

when due, All payments for principal

interest, taxes, assessments and premiums

shall be added together and the aggregate

amount thereof shall be paid by mortgagor

to mortgagee each month in a single payment,

If the sums so deposited shall not be suf-

ficient to pay the taxes, assessments and

-premiums when the same become due, mortgagor

agrees to forthwith pay to mortgagee the “

amount of the deficiency, and if said depos-

its shall exceed the amount actually paid

by mortgagee therefor, the excess shall be

_ credited upon principal.

3. To keep all insurable property covered

hereby insured against loss by fire and such

other hazards as may be specified by mortga-

gee from time to time, in such amounts and

for such periods as may be required by the

mortgagee, and to pay when due all premiums

on any such insurance in the manner above

provided. (emphasis added) AIT Insurance

sha carried in companies approved by

mortgagee and the policies and renewals

(emphasis added)

371la

thereof shall be held by mortgagee and have

attached thereto loss payable clauses in —

favor of and in form acceptable to mortga-

gee. Each insurance company concerned is

hereby directed to make payment for such

loss to mortgagee only, and the insurance

proceeds, or any part thereof, may be

applied by it upon any indebtedness secured

hereby or to the restoration or repair of

the property damaged, at its option, and

any surplus shall be paid to mortgagor.

4, To pay when due all taxes, assess~

ments and other charges which are now or

shall hereafter be a lien against said

premises, or any part thereof, and for

which provision has not been made herein-

before, (emphasis added)

5. To keep all property covered hereby

in good repair and condition, to comply

bromp "1 with all laws, ordinances,

re ons or requirements of a overn-

ental authority applicable thereto and to

abstain from the commission of waste

(emphasis added)

6. Should any default be made in the

covenants or conditions hereof, mortgagee

may, without demand or notice, pay any taxes,

assessments, premiums or liens required to

be paid by mortgagor, make repairs, effect

any insurance provided for herein, cause

the abstract of title and tax histories of

said premises to be certified to date or

procure new abstracts of title and tax

histories in case none were furnished to it

and procure title reports covering said

premises to be certified to date or procure

new abstracts of title and tax histories

in case none were furnished to.it and

procure title reports covering said premises,

and the sums paid for any one or all of said

purposes shall from the time of the payment

thereof be due, with interest thereon at the

372a

rate of seven per centum (7%) per annum,

and shall constitute a further lien upon

said premises under this mortgage. In

the event of foreclosure the abstract or

abstracts of title shall become the pro-

perty of mortgagee.

7. The failure of mortgagor to pay any

taxes or assessments levied against said

premises, or any insurance premiums upon-

policies of insurance covering said prem-

ises, in accordance with the terms hereof

shali constitute waste, (emphasis added)

8, In the event of default in the pay-

ment of said indebtedness, or any part

thereof, or in the performance of any of—

the covenants or conditions hereof, mort-

gagee may, without notice, at its option,

declare the entire indebtedness secured

hereby due, then or thereafter, as it may

elect, regardless of the date of maturity

and is hereby authorized and empowered to

sell or cause to be sold said premises,

pursuant to the statute in such case made

and provided, and out of the proceeds of

the sale to retain the sums then due

hereunder, and all costs and charges of

the sale (ine luding the attorneys! fee —

provided by statute), rendering any sur~

plus moneys to mortgagor. The commence-

ment of proceedings to foreclose this

mortgage in any manner authorized by law

shall be deemed an exercise of the above

option,

9. The covenants and conditions hereof

shall bind, and the benefits and advantages

thereof shall inure to, the respective heirs,

executors, administrators, successors and

assigns of the parties hereto, Whenever

used, the singular number shall include the

plural, the plural the singular, and the use

of any gender shall be applicable to all

«mc cma aaa anti eaa MaOT

373a

genders, In Witness Whereof, this mortgage

has been signed and sealed by mortgagor.

Signed and delivered in the presence of:

Frank E, Fike

Edward J. Gilroy Virginia Cramer (L.S.)"

The Mortgage Note (promissory note) in

the amount of $16,500.00 dated July 29, 1963,

provides as follows:

"For value received the undersigned, jotnt-

ly and severally, promises to pay to Metro-

politan Federal Savings and Loan Association,

or order, at its office in the City of Detroit,

Michigan, the principal sum of Sixteen Thousand

Five Hundred and no/100 Dollars ($165,00.00)

with interest from date on any part thereof

at any time unpaid at the rate of 5 & 3/4 per

centum (Five & 3/4%) per annum while there is

no default hereunder, or under the mortgage

securing this note, and at the rate of seven

per centum (7%) per annum during the period

of any such default, as follows: One Hundred

Three and 81/100 Dollars $103.81) on the

15th day of September, 1963, and a like sum

on the 15th day of each calendar month there-

after until the entire indebtedness secured

hereby has been paid in full.

"In the event of default in any promise

made in this note, or in the mortgage secur-

ing it, the holder of this note and said

mortgage may, without notice, at its option,

declare the entire indebtedness evidenced

and secured thereby due and payable, then or-

thereafter, as said holder may elect, regard-

less of the date of maturity. Protest,

presentment, demand and notice of non-payment

are hereby waived by every signer or endorser

hereof, (emphasis added)

374a

"The monthly payments herein provided for

shall be applied first upon interest and

the remainder upon principal.

"Privilege is reserved to prepay, without

premium or fee, the indebtedness in whole,

or in an amount equal to one or more monthly

payments on the principal that are next due

on this note, on the 15th day of any month

prior to maturity, provided that the monthly

payment due on the said 15th day of the

month shall have been paid. At its option,

in lieu of increasing the rate of interest

as above provided during the period of any

default, the Association may collect a "late

charge" not to exceed an amount equal to

four per centum (4) of any installment which

is not paid within fifteen (15) days from

the due date thereof, to cover the extra

a involved in handling delinquent pay-

ments.

(Signed) Virginia Cramer (L.S.) "

Metropolitan Federal Savings and Loan Assoc-

iation, as mortgagee, refused to furnish any-

thing to substantiate their "requirements"

for estimated amounts as to "escrow", and.

they refused to furnish receipts or copies

of receipts as to any disbursements from the

"escrow" account. Mortgagor-Cramer disputed

the excessive amounts "required" by mortgagee

to be paid into said "escrow" account, but

mortgagor-Cramer never failed to pay "escrow"

and mortgagee (Metropolitan) credited. mort-

gagor-Cramer's "escrow" account each and every

month without fail. In 1963, 1964, 1965 and

1967, mortgagee failed and neglected to pay

the taxes or insurance when due, allowing —

said liabilities to become seriously delin-

quent, even though funds were available for

the payment of said mortgagor's liabilities,

Mortgagee-Metropolitan refused to permit

375a

mortgagor-Cramer to pay her own bills

directly, and foreclosed on the mortgage-

loan, with malicious tntent to cause damage

and harm to mortgagor-Cramer,

It is the “policy” of the vartous and many

lending institutions not to pick-up on

another's foreclosure, and therefore, Cramer

faced great difficulty in obtaining another

mortgage-loan, and at a higher interest rate,

to redeem on said foreclosure, in June of

1969, and at a time when the mortgage market—

tight" and funds were not readily avail-

able for even new mortgages.

The Michigan Supreme Court decision report-

ed at 401 Mich 252 is based on false, distorted

and twisted facts, in this case, Instead of

"Here plaintiff refused to make the (escrow)

payments", in actuality and the true fact is

that the.mo ee refuses to accept the

rinci 0 nore raee ner without the "escrow,"

Farther, the mortgagee refuses to accept the

principal and interest unless "excessive

escrow is paid, to fatten their coffers for

self-dealing purposes.

ARGUMENT AND LAW;

In the prior action (reported at 401 Mich

252) defendant-mortgagor-Cramer was not per-

mitted to be heard-on the foreclosure action

taken by mortgagee-Metropolitan Federal

Savings and Loan, The three (3) different

lawyers whom Cramer hired, together with

Metropolitan's lawyers, made the case with

certainty so that Cramer would not be heard,

in deprivation of her civil rights, among

other deprivations and denial of due process,

Therefor, the said foreclosure matter has

never been litigated, Contrary to Mr.

William P, Thorpe's assertion of “lack of

jurisdiction over subject matter", the federal

court properly assumes jurisdiction to deter-

mine issues of fact arising in a controversy.

376a

"District court properly assumed juris-

diction of action to redress alleged

deprivation of civil rights, wherein

court's jurisdiction over subject matter

was challenged, since court must assume

eneernteia to decide whether allega-~

ons state a cause of action on whic

court can grant relief as well as to

determine issues of fact arising in the

controversy." (emphasis added)

- Westminster School Dist. of Orange Count

v Mendez, C.C.A, Cal. 1507, Ter 2d 774.

"The pleadings of a pro se complaint should

be held to less stringent standards than -

Te ae drafted by lawyers." Dup

oA. La. 1976, sh F 2d 1148;

a Vv Brisc C.A. ex 1976, S41 F 24 489

cer W brseces, 0: 1556, 430 US 933, 51 L Ed 24

778; McKinney v De Bord, C.A, Cal 1974,

507 Guilday v Department of Justice

DC Del. 1978- 45T ¥ Supp ev ee Pyles v Keane,

D.C, N.Y. 1976, 418 F Supp 269.

The affirmative defense of res ~udicata is

not available to Defendants and Co-Defendants;

and Mr, William P, Thorpe, attorney and Co-

Defendant herein, offers no proof that the

"foreclosure" matter was ever heard by a

court of campetent jurisdiction, Defendant-

mortgagor has never been permitted to testify,

in any kind of court as to the "foreclosure,"

"Res judicata is an affirmative defense

and burden of proof is on the party asserting

it." Howard v Green, C.A. Ark. 1977,

555 F Bd 178. The Michigan State courts had

no authority to hear or determine as to “a

matter of foreclosure, Stewart v Eaton, (1939

287 Mich Rep 466,

"The fundamental requisite of due process

of law is the opportunity to be heard,”

ae v Ordean, 234 hy, 3 394, 34 S Ct 779

L Ed 1363 (1914) Ring hearing must

377a

tat a meaningful time and in a Bo va fae,

manner, Armstrong v Manzo, 360 U 2 |

552, 8.s cE TIG7- 191, 15 Ed 2d 62 (1965);

Set HB. MP Dla cor (horol: °°

1011, 1020,. Ed 24 287 (1970).

The lawers whom mortgagor-Cramer hired

made it impossible for Cramer to be heard,

and particularly because of the "Order

Dissolving Temporary Restraining Order

dated September 27, 1968" which the Michigan

Supreme Court decision, 401 Mich 252, fraud-

ulently shows as: "The Wayne Circuit Court,

Thomas J. Murphy, J., granted judgment for

the defendants on a finding that the plaintiff

was in default." There is only one document

entered by tO 7 Thomas J, Murphy (deceased

in December 1 °9) s and said document is not

a "judgment", ed September 27, 1968,

See Petitioner-Cramer's Motion to Void,

ullify and/or Vacate Order dated September

27, 1968, filed herein on November 16, 1979.)

This constitutes an original and independent

proceedings, in the instant matter, to void,

nullify and/or vacate an Order for fraud in

the obtaining thereof, and where the State

court acted without authority, and removable

to the Federal district court according to

the doctrine laid down in Gaines v Fuentes

(La. 1876) 92 US 10, 23 L Ed 5am,

"The character of the cases themselves is

always open to examination for the purpose

of determining whether, ratione materiae, -

the courts of the United States are incompet~

ent to take jurisdiction thereof, State

oe a tg ge 18Te, 80 ag eg

t. row v Hunton, La, > US

25°1, Ea HOF, ne war aageee -

378a

"Proceeding, which is equivalent of

common law suit or equitable action to

secure relief from an existing judgment,

is independent action and removable,

regardless of whether or not proceeding

sought to be removed is independent in

form," Id, Federal Sav, & Loan Ins

Corp. .v Quinn, C.A, ° : 2d

The Michigan Supreme Court opinion of

October 6, 1977, as reported at 401 Mich 252

is based on false facts, and where said court

had not authority to hear the matter or make

any determination, Stewart v pee supra

Further, the Michigan Court o f Kppeals s (1971)

3h Mich’ App 638; 192 NW2d 50, said "Mrs,

Cramer's evidence was not heard." The Feder-

al Court of Appeals affirmed the federal

district court, holding, "Principle of res

judicata may not be invoked to sustain fraud:

and judgment obtained by fraud, or collusion,

may not be used as basis for application of

doctrine Grummons v Zollin D.C. Ind,

(1964) Sho Supp 3, effirmet 341 F 2a 46h,

"Defense of res judicata would not be

available in subsequent action as result

of prior action between same parties

where plaintiff's right had not been

determined in prior action due to lack

of opportunity to be heard and present

evidence," ES v Murdoch, C.A, Pa,

1964, 330.F Bd 705. (Id)

Where mortgagor-Cramer's evidence as to the

matter of “foreclosure, and finding of def+

ault" in her mortgage tog never been heard,

the doctrine of estoppel is not available

where the matter was not properly litigated,

and because of lack of opportunity to be |

heard’and present evidence, Stewart v Eaton,

supra.

3798

"Defense of estoppel is affirmative

defense the efficiency of which cannot be

determined until all facts are developed by

an evidentiary hearing." (emphasis added

Colling y FEW Stock ache e. Inc., D.C. Pa.

» 408 F Supp °

"Party seeking to take advantage of

doctrine of estoppel must have relied

to his detriment on some action or

inaction by other party." Insurance Co

of North America v McCleave, C.A. NJ.

>

Defendant-mortgagor-Cramer asserts that the

document entered by yuage Thomas J. Murphy,

dated September 27, 1968, was fraudulently

obtained; and that the Michigan Supreme Court

rendered its opinion dated October 6, 1977,

based on false and fraudulent facts. "Order

made by court without jurisdiction is void,"

Jedele v Washtenaw Circuit Judge, 212 NW 89

O37 ich 520. Where the A EGERTS of "default

in her mortgage" and Mrs, Cramer's evidence

was not—heard (34 Mich App 638; 192 NW 2d 50)

(1971) -- "In contemplation of law, e court

order obtained upon a false suggestion is a

nullity." In re Rothrock, 92 P2d 634, 14 Cal

2a 34, "An order by court without jurisdic-

tion is void and remains without effect as

completely as if never entered," Svistunoff

v Svistunoff, 239 P2d 650. |

Moreover, as the court can readily see upon

reading the mass mortgage contract involved

herein, and where the federal court has

exclusive jurisdiction over the subject matter

and involving suits between members of a

combination, 15 U.S.C.A. 1, et seq. (Sections

1-7 and 12-27, Sherman and Clayton acts) the

court is required to go to the common-law,

See, 58 CJS, Monopolies, at 87, "One may not

invoke the aid of the courts to enforce pro-

visions of a contract which is invalid as in

restraint of trade (or commerce) or tending

to create a monopoly.”

380a

In the instant matter, when the mortgage |

contract is read in its entirety the restric-

tive covenant as to "escrow" funds inhibits,

prohibits, precludes and prevents a mortgagor

from complying with governmental laws, such

as paying taxes and insurance on the mortgaged

property, where the mortgagee fails and

neglects to pay taxes and insurance with the

"escrow" funds so collected. The Michigan

Supreme Court opinion of October 6, 1977,

reported at 401 Mich 252, considered only

two (2) paragraphs of the said mortgage

contract, There are nine {9) a in

the mortgage contract involved, together with

a separate instrument called a Mortgage Note,

and which said matters were not priorly

litigated. In Janich Bros,, Inc, v American

Distill Co., C.A. Cal. 877, 570 F od Sas,

e federal court of appeals said,

"To establish a prima facie case of

attem pted monopolization,a plaintiff

must prove three elements:

(1) specific intent to control * * * or

destroy competition with respect to

a part of commerce, (money)

(2) predatory conduct directed to accomp-

lishing the unlawful purpose, and

(3) a dangerous probability of success."

"The phrase ‘attempt to monopolize' means the

employment of methods, means, and prectices

which would, if successful, accom plish

monopolization and which, though falling

short, nevertheless approach so close as to

creat a dangerous probability of it.

Knutson v Daily Review, Inc,, C.A. Cal. 1976,

| 20 Bi > ce enie S Ct 2977, —

33 US 910, 53 L Ed 2d 1094, ‘In devermin-

whether there was an attempt to monopoliz

alt of the acts of the defendants should be

381a

viewed together," (Id) Knutson v Daily Re-

view, Inc., C. A. Cal, supra,

In the instant-case, some of the multiple

defendants and co-defendants are members of

~~ Supreme Court (see, 401 Mich

Egads !!!

For the reasons herein shown, the court

should—deny all of the relief the Defendants

and Co-Defendmts have requested, and deny

their motions to dismiss,

Respectfully submitted,

/s/ Virginia Cramer, —

Dated: Petitioner, Defendant-

Nov 30, 1979 mortgagor in pro per

(Petitioner herein is still preparing other

motions for filing in the federal court, in

this matter, and it will be a few more days

yet for said pleadings to be campleted.

Petitioner is troubled with failing eyesight

and research is difficult because of the

small print in said material. )

(Affidavit attached)

Filed December 21, 1979 - No. 9-72789

U. S. District Court

MOTION AND NOTICE OF MOTION FOR THREE-JUDGE

COURT ,

TO: ALL PARTIES, DEFENDANTS AND CO-DEFENDANTS

PLEASE TAKE NOTICE that upon the comp-

laint herein the undersigned will suggest

to tnis court, the HONORABLE ANNA DIGGS- —

TAYLOR, at Room ; United States Dis-

trict Court, Federal Building, 231 W.

Lafayette, Detroit, Michigan, on January 17,

382a

1980, at 9:30 A.M. in the forenoon, the

necessity for the convening of a three-

judge court in gerig: | with 28 USCA 1337,

28 USCA 2201, 28 USCA 2281, 28 USCA 2282, ©

28 USCA 2284, 28 USCA 2401 and 2403, et seq.,

and 28 USCA 1341, for the reason that Peti-

tioner seeks to restrain and enjoin the

Federal Home Loan Bank Board (Washington,

D.C.) from refusing to issue cease-and-

desist orders pursuant to 12 USCA 1461, 1464,

against-the—approximately 5,000 (or more)—

banking-and-lending-mortgage-loan associa- —

tions who are currently viotating, encourag-

ing and coercing, by "brain-wash” tactics,

the said violations, have violated, and are

about to violate commerce and antitrust laws

and Acts of Congress under 15 USCA 1 and

15 USCA 2, et seq., (Sherman and Clayton

Acts 1-7 and 12-27) and that Petitioner has

reasonable cause to believe that the-many ~~

and various such banking-and-lending-mortgage-

loan associations, or any of them, are about

to engage in an unsafe or unsound practice

involving the collection of "escrow" funds

from mortgagors and/or the non-payment of

taxes and/or the delinquent payment of taxes

on real property mortgaged, for a potential

period of time of two to three years running.

concurrently and successively, causing

irreparable injury, and-involving illegal

mortgage contracts tied-in with Foreclosure

by Advertisement Statutes, MCLA 600.3201,

et seq.; MSA 27A.3201 et seq., (and other

foreclosure statutes among the several States)—

and which said illegal contracts are unenforce-

able against the mortgagee who collects said

"escrow" moneys or funds; and that the Federal

Home Loan Bank Board, its directors, officers,—

employees, and agents be restrained and enjoin-

ed from refusing to take affirmative action

to correct the illegal conditions resulting

from violations of 15 USCA l, et seq., and

illegal conditions of regulations promulgated

by the members of the Federal Home Loan Bank

Board under Title 12, Real Estate Loans,

3830

Sections 545,6-1 et seq. and related sections,

as to prepayment or advance payments of funds

by mortgagors on individual mortgage contracts,

and to restrain the enforcement and execution

of said illegal contracts on mortgage loans,

for repugnance to the Constitution of the

United States,

Further, that Petitioner seeks to restrain

and enjoin the members of the Michigan Supreme

Court from refusing to take affirmative action

to correct their decision and as reported at

401 Mich 252, copy o. which has been filed in

this federal district court, which violates

the provisions of 1£ USCA 1 and 2, et—seq.

(Sherman and Clayton Acts, sections 1-7 and

12-27), and for repugnance to the Constitution

of the United States, among other things.

Further, Petitioner moves this court for

an interlocutory injunction and/or temporary

restraining order to gebgp oo irreparable

injuries, such order to remain in force

until the hearing and determination by the

full court,

Accordingly, Petitioner wtll move for an

order convening such a three-judge court for

consideration of this action,

/s/ Virginie Cramer, Petitioner

Dated: Defendant-mortgagor,

Dec 17, 1979 n Pro Per

Filed December 21, 1979 - No. 972789

U. S. District Court

APPLICATION FOR THREE-JUDGE COURT

APPLICATION FOR INTERLOCUTORY PRELIMINARY

INJUNCTION AND TEMPORARY RESTRAINING ORDER

BY SINGLE JUDGE PENDING HEARING BY A

THREE-JUDGE COURT |

Petitioner (Defendant-mortgagor in wrongful

38a

foreclosure) in pro per, upon her complaint

heretofore filed herein and by allegations

therein contained, and more specifically

as set forth, but not limited to, in Count és

ACTUAL CONTROVERSY - FEDERAL ACTION I 9

and by the Michigan Supreme Court decision

dated October 6, 1977, reported at 401 Mich

252, together with allegations contained, —

but not limited to, Count 4, ACTUAL CONTRO-

VERSY - STATE ACTION INVOLVED and COunt 10,

(requesting) INJUNCTIVE RELIEF AGAINST

MICHIGAN SUPREME COURT JUSTICES, and in

combination with Michigan Foreclosure by

Advertisement Statutes, MCLA 600.3201 et seq.,

MSA 27A,3201 et seq., and other matters which

more broadly and affirmatively allege acts

in an unconstitutional manner and prohibitive

by Acts of Congress under the provisions of

15 USCA 1,-et seq. {Sherman and Clayton Acts

sections 1-7 and 12-27) but not limited to,

--- and acts prohibitive by the Fifth and

Fourteenth Amendments to the United States

Constitution ---Petitioner (defendant-

mortgagor in wrongful foreclosure) hereby

makes application for-hearing of this cause

and of the Petitioner-plaintiff's motion for

an injunction,—both preliminary and permanent,

before a three-judge district court as 2 agal

by 28 USCA 1337, 28 USCA 2201, 28 USCA 22

2B USCA 2401 and 2403, et seq., 28 USCA 2281,

28 USCA 2283 and 28 USCA 1341, but not limited

to, and Petitioner-plaintiff requests that

the Chief Judge of the United State Court of

Appeals for the Sixth Circuit be notified

pursuant to Section 2284, Title 28 of the

United States Code, of the presentation of

petitioner-plaintiff's application for an -

injunction in order that the necessary design-

ation of judges for said court may be made,

That the Federal Home Loan Bank Board and

its Director and/or Official and/or Officer

in Charge is a necessary and indispensable

385a

party as Co-Defendants in this cause of

action, and whereby said Federal Agency, by

their counsel the United States Attorney,

have filed a motion to dismiss, Further, on

December 13, 1979, Petitioner-plaintiff

sought concurrance from Mr, Samuel Behringer,

Assistant United States Attorney, as to an

injunctive order, and which said concurrance

was refused,

That Petitioner-plaintiff herein (actually

Defendant-mortgagor in wrongful foreclosure)

filed her Motion for Preliminary, Permanent

and Eternal Injunctive Relief and Brief

together with the-Complaint in this cause,

and Co-Defendants-members of the Michigan

Supreme Court have filed a motion to dismiss,

The members of the Michigan Supreme Court are

individual persons even though they are

Michigan State officials, Petitioner's

allegations against the Michigan Supreme Court

members are contained in Count 10, (requeating)

INJUNCTIVE RELIEF AGAINST MICHIGAN SUPREME

COURT JUSTICES, and which more broadly and —

affirmatively alleges acts in an unconstitu-

tional manner, absent of their official -

Cloaks, in violation of the Fifth and Four~

teenth Amendments to the United States Con-

stitution and in violation of 15 USCA 1 and 2,

et seq. (Sherman and Clayton Acts sections

1-7 and 12-27). i

WHEREFORE Petitioner-plaintiff (defendant-

mortgagor in wrongful foreclosure) prays

that:

1. That the said ae ee Federal

Home Loan Bank Board be required to answer

to plaintiff's complaint, and that their

motion to dismiss be denied.

2. That the said Co-Defendants members

386a

of the Michigan Supreme Court be required

to answer to plaintiff's complaint and

their motion to dismiss be denied,

3.—- That jurisdiction be taken by a

three-judge court pursuant to 28 USCA 1337

and 28 USCA 2201, 28 USCA 2284, 28 USCA -—

2281 (unconstitutional state statute involv-

ed), 28 USCA 2282 (federal statutes and

regulations Seg. 4 under the provisions

of 12 USCA 1461, 1464, et seq., repugnant

to the United States Constitution), and

28 USCA 1341 (collection of state taxes in

repugnance to the United States Constitution)

and that a three-judge constitutional court ~

be empanelled and convened to hear and deter-

mine this case,

4, That in the meanwhile a temporary and/or

interlocutory preliminary injunction be issued

by a single judge as authorized by-28 USCA

2284, restraining and enjoining Co-Defendant

Federal Home Loan Bank Board, its directors,

officials, attorneys, employees, servants

and agents, restraining and enjotning them

from refusing to issue cease-and-desist

ame pursuant to 12 USCA ary 1) tos

tS} te , {3 (a) (B) (C), (4) (A) (B)

et seq., and as required

consonant with the Constitution of the United

States, involving 5,000 or more associations,

nationally, who hold million of mortgages

where "escrow" moneys or funds are illegally

required by said associations, and tending

to be violative of 15 USCA 2, et seq., and

further, in repugnance to the Fifth and

Fourteenth Amendments to the Constitution of

the United States,

5. That the court may deem that this case

meets the jurisdictional amount of somewhere

well over $10,000.00 in value and otherwise,

as required in the federal jurisdiction.

3878

6. That in the meanwhile a temporary

and/or interlocutory preliminary injunction

be issued by a single judge as authorized

by-28 USCA 2284, restraining and enjoining

Co-Defendant-members of the Michigan Supreme

Court, as individual persons, from perform-

ing acts in an unconstitutional manner,

7. That if any conditional bond be

required and filed by the plaintiff herein

that the sum be nominal,

8, That this court grant such other and

further relief to the plaintiff consistent

with good conscience and in the interests

of justice,

/s/ Virginte Cramer,

Petitioner-plaintiff,

Dated: Defendant-mortgagor in pro

Dec 17, 1979 per

Filed December 21, 1979 - No 972789

U. S, District Court

PLEASE TAKE NOTICE that Petitioner-Cramer

(Defendant in wrongful foreclosure) will

make application to this court, the HONORABLE

ANNA DIGGS-TAYLOR, UNITED STATES DISTRICT

JUDGE presiding, on January 17, 1980, at —-

9:30 A. - in the forenoon, or ss soon there-

after as Petitioner in per can be heard,

for the convening of a three-Judge court,

(See Motion and Notice of Motion attached

hereto) and that the opposing parties Motion

to Dismiss, or Motion to Remand, and Motion

for Judgment on the Pleadings be denied:

1, Because of the necessity to restrain

and enjoin the Federal Home Loan Bank Board

(Washtngton, D.C.) from refusing to issue

cease~and-desist orders pursuant to 12 USCA

1461, 1464, et seq., whereby this court has

original and exclusive jurisdiction under

388a

28 USCA 1337 and 15 USCA 1 and 2, et seq.,

to prevent irreparable injury by unsafe

and unsound practices of mortgagee-lending—

associations; and for encouraging the wide-

spread use of illegal contracts and the

requirement of "escrow" funds in repugnance

to the United States Constitution Amendments

Fifth and Fourteenth, (Concurrence from the

United States Attorney was sought by Peti-

tioner, and which was denied, )

2. Because of the need to prevent irrep-

arable injury and for repugnance to the

Constitution of the United States, among

other things, to restrain and enjoin the

members of the Michigan Supreme Court, as

individual persons, from refusing to take

affirmative action to correct their decision

reported at 401 Mich 252, which violates the

rovisions of 15 USCA 1 and 2, et seq-

rir and Clayton Acts, sections 1-7 and

12-27 e

3. Because in the prior action and as

reported at 401 Mich 252, the Michigan Supreme

Court members, as individual persons, acted-

in the absence of jurisdiction and are with-

out judicial immunity.

4, Because this court has exclusive

jurisdiction under 15 USCA 1 and 2 et seq,

and original jurisdiction under 28 USCA 1337,

28 USCA 2201, 28 USCA 2281, 28 USCA 2282

28 USCA 2284, 28 USCA 2401 and 2403, 28 Usca

1341; 42 USCA 1983, 1985, 1986, 19868,;. and

further where federal and state action are —

involved in violation of the Fifth and Four-

Teenth Amendments to the United States

Constitution,

5. Because, in any event, this federal

district court has threshold jurisdiction,

at least if not more; and that Petitioner

is not collaterally estopped by the denial

of certiorari by the United States Supreme

389a

Court in the prior action (reported at 401

Mich 252) where the members of the Michigan

Supreme Court were not parties and questions

of jurisdiction were not raised; that the

denial of certiorari makes no precendent

and imports no expression of opinion on the

merits of the case in the prior action,

6, Because the federal district court has

original and/or exclusive jurisdiction of

the subject matter,

7. Because the decision rendered in 401

Mich 252 (prior action) enforces the precise

conduct made unlawful by the Antitrust Act

enacted by Congress,

8, Because even though your Petitioner

was designated as "Plaintiff" in the prior

action, and, in part, in this new action,

and where she was denied a choice of forum

because of the foreclosure by advertisement—

action initiated by the mortgagee-Metropoli-

tan Federal Savings and Loan, in reality

Petitioner is the Defendant-mortgagor and

removal of the state case is appropriate,

9. Because in reality the mortgagee-

lending institution (Metropolitan) is the—-

"Plaintiff" where they initiated the fore-

Closure action and there are grave doubts

and controversies as to the "facts" (as -

reported in 401 Mich 252) and your Defendeant-

mortgagor has defensive merits of counter-

Claims against the "Plaintiff-mortgagee-

lending-institution,"

10, Because Defendant-mortgagor's consti-

tutional rights and guarantees were denied

and ruthlessly violated, in said prior action

reported at 401 Mich 252,

3908

11, Because "Plaintiff-mortgagee's"

foreclosure action and claims are founded on

the laws of the United States, enacted by

Congress and promulgated by the Federal Home

Loan Bank Board under 12 USCA 1464 et—seq

and regulations under Title 12, 545 6-1 et

seq. specifically pertaining to "escrow"

moneys or funds involved in a mass mortgage

contract,

12, Because "removal" should be granted

where federal claim or right is asserted by

the "Plaintif#-mortgagee" as essential to

the mortgagee-lending institution's cause

of action, to wit: foreclosure on mortgagor’:

property based upon "escrow" funds only.

13. Because “removal” should be granted

where "Plaintiff-mortgagee's' claims are —

founded on being "bound by (federal) regula-

tions to require said "escrow" funds, but —

that the many thousands of lending institu-

tions, as mortgagees, are bound to do nothing

with said "escrow" funds belonging to the

rite «yet pursuant to Title 12, sections

545, 1 et seq.

14, Because where Defendant-mortgagor

(Cramer) was and still is the Defendant-

mortgagor, both in the prior action and in

this new action, where she was and is being

denied due process of law, Defendant-mort-

gagor-Cramer may remove the suit (ex parte)

to the federal court whenever the federal

court could sustain original jurisdiction

because of "Plaintiff-mortgagee's" action

of foreclosure having been founded on the -

laws of the United States,—and as an essen-

tial element of "Plaintiff-mortgagee's"

federal issue as evidence by their claim

that "Cramer refused to pay escrow," and

removal jurisdiction is founded on "Plain-

ais worvanaee e foreclosure as cause of

action,

3918

15. Because the federal district court

has exclusive jurisdiction over the subject

matter, to wit: the ps, gga reported at

401 Mich 252 enforces the contract and

allows the foreclosure, enforcing the =

precise conduct made unlawful by the Anti-

trust Act, 15 USCA 1 and 2, et seq., in

derogation of the law,

16. Because "removal" of the state case

is appropriate where resolution of federal.

issue is necessary.

17. Res judtcata may not be sustained

where defendant-mortgagor's evidence was

not heard and was never permitted to be

heard, and therefore Petitioner-Cramer

(mortgagor) was denied an opportunity to

be heard and present evidence,

18, The document entered by the Wayne

Circuit Court Sg action, on September

27, 1968, is void for lack of jurisdictton,

and therefore no jurisdiction was estab-

lished throughout the said prior action,

including the Michigan Supreme Court

decision reported at 401 Mich 252, due to —

the malpractice, negligence, fraud, conceal-

ment and deceit of the attorneys (on both

sides).

19. Because judgment on the pleadings

(or summary judgment) is never proper where

there are issues of fact, and as pertain-

ing to issues of conspiracy and obstructing

justice,

20, Because the Michigan Foreclosure by

Advertisement Statute, MCLA 600,3201 et seq.,

MSA 27A,3201 et seq. pertaining to "any —

condition of the mortgage" allowing fore- -

closure on "escrow" funds for future liabil-

ities of taxes, not yet assessed, not billed,

and not due, is state action involved and

violative of the Fourteenth Amendment to the

392a

United States Constitution, in repugnance

of the Fifth Amendment to the U+S. Consti-—

tution, and/or an illegal tying-in arrange-

ment, est

21. Because the Michigan Supreme Court

decision reported at 401 Mich 252 is state

action involved and violative of the Fifth

and Fourteenth Amendment to the United

States Constitution.

22, Because the Federal Code of Regula-

tions, under Title 12, Real Estate Loans,

sections 545.1 et seq. is federal action

involved and violative of the Fifth and

Fourteenth Amendments, as pertaining to

"escrow" funds.

23. Because Petitioner-Cramer's claim

for relief and cause of action as to the -

Federal Home Loan Bank Board, an indispens~

able party, is injunctive relief for refus-

ing to issue cease-and-desist orders to

prevent irreparable injury by the unsafe -

and unsound practices of numerous mortgagee-

lending-institutions involving mortgage

contracts and "escrow" funds, and for -

repugnance to the U, S, Constitution, Amend-

ments Fifth ané Fourteenth, while encour-

aging the wi-yue fb, Sage use of illegal con-

tracts in violation of antitrust laws; and

where the federal court has exclusive and

original jurisdiction, \

v <_

24, Because the mass mortgage-contract

involved and its effect of illegality and

being in violation of federal antitrust

laws should be decided in the federal court,

393a

FEDERAL ACTION INVOLVED- FEDERAL HOME LOAN

BANK BOARD ENCOURAGES THE WIDE-SPREAD USE

OF ILLEGAL CONTRACTS

"The cardinal rule in the interpretation

of contracts is to ascertain the intention

of the parties, To this rule all others

are subordinate, To arrive at a proper

interpretation of particular language, the

entire contract must be considered, .

McIntosh v Groomes, 227 Mich 215,

The mass mortgage contract involved, as

to "escrow" funds, inhibits, prevents,

precludes, and prohibits a mortgagor from

complying with governmental laws, such as

paying taxes and insurance to protect the

security of the property and from commission

of waste where the mortgagee fails to adhere

to the implied provisions of paying taxes |

and insurance, and is in derogation of the

law, and where the implied provisions are

unenforceable, and in conflict with statutory

provisions.

Act 206 P.A. 1893, as amended CL 48 211,44;

MSA_7,.87 Sec 44, Each property owner =

assumes the responsibility of administer-

ing his property. This includes payment

of any taxes assessed as they become due,

See, Contracts, CJS 2025 "A contract made

In violation of & statute is illegal and

unenforceable, and it is usually immaterial

whether the thing forbidden by statute is

malum in se or merely malum prohibitum,"

See, Contracts, CJS 191. "An agreement

which violates a provision of a statute or

which cannot be performed without a viola-

tion of such provision ordinarily is illegal

and void, It is immaterial whether the

contract is directly prohibited or arises

collaterally out of transactions prohibited

by statute,

394a

In Michigan, real property taxes are

assessed, billed and payable in advance;

Michigan statutes providing for the sub-

jection of sale and redemption for the en-

forcement and collection of tax liens for

taxes delinquent and unpaid for more than

one year after such assessments of taxes are

returned to the State treasurer as delinquent,

are set forth in MSA 7,104 and MSA 7,105,-et

seq. A Quick clarification of said provi-

sions of said statutes with the County tax

collector's office, reveals that property

taxes may remain . for a period of

somewhere between and 33 months before a-

tax sale of land would occur for the collec-

tion of such tax liens of the State, and

such assessed taxes remain the liability of

the title-holder of real property. Thus,-

the "security of the mortgage" is not jeo-

pardized until taxes are unpaid for 26 to

33 months, Thus, accordingly, by the -

mortgagee 's intent and purpose of collect-

ing "escrow" funds from the mortgagor in

advance before taxes are assessed and not

billed, and the mortgagee invests said

escrow funds for profit and gain, and for

self-dealing, the mortgagor gets nothing

for the moneys which belong to the mort-

gagor (the "borrower"),

Under Title 12, Real Estate Loans, 545,6-1,

et seq., promulgated under the authority of-

Federal Home Loan Bank Board, Code of Feder-

al Regulations, provisions are as follows:

"6545.6 Real Estate loans,

"6545,.6-1 Lending powers, Any Federal

association may make the following types

of loans on the security of first liens

on improved real estate: :

395a

(a) Homes or combination-of homes and

business property --

(1) Monthly installment loans;

flexible payment loans,

* * * up to 75 percent of the value

thereof, repayable monthly within 30

years or, if an insured or guaranteed

loan, within the period acceptable to

the insuring or guaranteeing agency,

Provided, That when so authorized by

the members of such an association,

such loans may be made up to:

(1) 80 percent of the value, if the loan is

not an insured or guaranteed Toan;

(11) The maximum percentage of the value

acceptable to the insuring agency,

if an insured loan;

(111) 80 percent of the value, plus the

amount guaranteed if a guaranteed loan,

* *

(4) Loans in excess of 80 percent of

value, The limitation of 80

percent set forth in (a) na (1)

of this section sha

percent in the case of any loan

meeti the followi require-

ts:

i «eo

(111) The loan contract requires that in

addition to interest and principal

payments on the loan, the equivalent

of one-twelfth of the estimated annual

taxes and assessments on the real

estate security be paid monthly in

advance to the association; * * *

(emphasis added) Therefore, no "escrow" is

required on any insured or guaranteed loan.

"Escrow" is required on a loan 90 percent of

396a

precy esa is not an insured-or

guaranteed loan, However, mortgagee-lendi

institutions mandate "escrow" payments on es

all home mortgages granted, and currently,

even where the downpayment is 50 percent,

(where the loan +s 50 percent of the value)

and the mortgage-loan is aimost always %

insured or guaranteed, and which is contrary

to the above regulations, in violation of

15.USCA 1 and 2, et seq. and 15 USCA 2,-et

seq (Sherman and Clayton Acts section 1-7

and -27) .

"Even if * * * contract was bargained

for agreement, parties could not contract

in derogation of the law, and illegal

provisions of such ig if any, were

unenforceable." Skoda v A & W Dist. Co

D.C, Tex 1976, 410 ¥ Supp 1205.

"A violation of sections 1-7 of this

title which is per se illegal cannot be

justified." Carlson Companies, Inc. v

Sperry & Hutc on Co., D.C, 1974,

WI-F Supp ——S

15 USCA 2 (Monopolizing)

"Every person who shall monopolize, or attempt

to monopolize, or combine or conspire with

any other person or persons, to monopolize

any part of the’trade or commerce among the

several states, or with foreign nations, shall

be deemed guilty of a felony, * * * 4

As amended Dec. 21, 1974, Pub. L. 93-528,

Sec. 3, 88 Stat. 1708

"Generally speaking, section 1 of this

title (15 USCA), which forbids all means

of monopolizing trade (or commerce) by

unduly restraining it by means of contracts

and combinations, deals with means while

this section (15 USCA 2) which condemns

the result to be achieved rather than the

form of the combination or the particular

3978

means employed, deals with ends,"

Forrest v Capital Bld and Loan Ass'n

D.C. Le 1075, 305 FF ar O31, ArTirmed

504 F 2d 891, oer ierens denied 20 S Ct

1980, 421 US 978, 4 tT Ed 2d 470,

Where the Code of Federal Regulations

promulgated by the Federal Home Loan Bank-

Board, may largely be permissive as to so-

called ' ‘escrow funds, the necessity to

restrain and enjoin the Federal Home Loan -

Bank Board from refusing to issue cease~-and-

desist orders to prevent irreparable injury

by unsafe and unsound practices (of mandatory

"escrow funds) and the authority for such

cease-and-desist orders is provided, as

follows:

12 USCA /1464 (2) (A) "If, in the opinion

of the Board, an association is violating or

has violated, or the Board has reasonable

cause to believe that the association is

about to violate, a law, rule, regulation,

or charter or other condition imposed * * *

or is engaging or has engaged, or the Board

has reasonable cause to believe that the

association is about to engage, in an unsafe

or unsound practice, the Board may issue and

serve upon the association a notice of

charges in respect thereof, * * * In the

event * * * the Board shall find that any

violation or unsafe or unsound practice

* * * has been established, the Board may

issue and serve upon the association an

order to cease and desist from any such

violation or practice * * * ,'

The dire need for a cease-and-desist

order is great, immediate and desperately

urgent,

398a

THE FEDERAL COURTS HAVE JURISDICTION AS TO

SUBJECT MATTER INVOLVING MEMBERS OF THE

MICHIGAN SUPREME COURT, AS INDIVIDUALS AND

PERSONS, (State officers) WHO ACT: WITHOUT

JURISDICTION, AS PUBLIC OFFICIALS,

42 USCA 1983 "When a public official acts

an unconstituional manner, his actions

are stripped of their official cloak and he

may be ordered to perform his official duties

in a manner consonant with the constitution;

under this legal fiction, the state is pre-

sumed not to accede to unlawful actions taken

by one of its officials so that an order

directed to the official to affirmatively

correct his action is not being directed

against the State, for purpose of determin-

ing whether suit is against a "person"

within meaning of this section, O'Brien v

Galloway, D.C. Del. 1973, 362 F Supp O01.

Petitioner-Cramer asserts that the members

of the Michigan Supreme Court acted in the

clear absence of all jurisdiction in render-

ing their deciston reported at 401 Mich 252,

See Petitioner-Cramer's Motion to Void,

ullify or Vacate Wayne Circuit Court Order

dated September 27, 1968) Where the Wayne

Circuit Court acted in lack of jurisdiction,

coram non judice, then the entire "proceed-

ings" following which included 401 Mich 252

lost judicial function, coram non judice,

Moreover, and on the other hand, as stated

in 58 CJS, Monopolies, at 87, "One may not

invoke the aid of the courts to enforce

provisions of a contract which is invalid as

in restraint of trade (or commerce}—-or tend-

ing to create a monopoly." and --- "Only

where judgment of court would itself be

enforcing the precise conduct made unlawful

by Antitrust Act is antitrust defense allowed,"

See, Gutor International, AG v Reymond Packer,

Co,, inc, ° erefore,

3998

the plea of illegality, as a cefense to the-

instant mass mortgage contract where mortga-:: .

gee (Metropolitan) initiated foreclosure by

advertisement (which was not a foreclosure

by suit) "the effect of said contract's

illegality by virtue of contract being in

violation of federal antitrust laws is a-

matter of federal law which should be re~-

solved in the federal court," Appalachian

r Co v Region Properties, Inc., D.C, Va,

upp 1275.

REMOVAL OF STATE CASE IS APPROPRIATE AND PROPER

Removal under 28 USCA 1441 (a) (b) and 28 USCA

1443 (1) et seq.

The Supreme Court have amplified the tradi-

tional views, and decided that removal can be

had under 28 USCA 1443 (1) if it is asserted

and "can be predicted by reference to a law

of general-application that the defendant

(defendant-mortgagor-Cramer) will be denied

or cannot enforce the specified federal rights

in the state courts, * * * Thus, when a

denial is manifest in a formal expression of-

state law, there is a clear ground for remov-

al, as under prior cases; but in addition,

there is ground for removal when acts of

etitioners are clearly a matter of right."

»E R GA 1966, 86 S Ct 178

sore a YE AGRE a aon. 793,

The foreclosure by advertisement, as

published, is dated May 23, 1968, Cramer

attempted to enjoin the foreclosure in the

Wayne Circuit Court on August 12, 1968,

where on September 27, 1968, the "Order

Dissolving Temporary Restraining Order" was

entered, but which is not a "judgment", and

it did not direct that further foreclosure

proceédings be under the supervision of the

court, Therefore, it was not-a judicial

foreclosure, (See Petitioner-Cramer's

400a

Motion to Void, Nullify and/or Vacate Wayne

Circuit Court Order dated September 27, 1968)

Cramer's evidence was not heard and the court

would not permit Cramer to be heard, in ruth-

less violation of the due process clause,

Fourteenth Amendment to the United States

Constitution, and in denial of civil rights.

The Michigan Supreme Court decision 401

Mich 252 is dated October 6, 1977, Certiorari

in the United States Supreme Court was denied

June 12, 1978, Cramer commenced this new

action in the State Circuit Court on July 14,

1978, where the Michigan Supreme Court denied

leave to appeal; Cramer filed the removal

of state case on July 17, 1979.

Rem oval should be granted if federal claim —

or right asserted is essential element of

"Plaintiff-mortgagee's" federal cause of -

action and federal issue is evident by "Plain-

tiff-mortgagee's" pleadings, to wit:

"* * * her subsequent failure to comply—

with paragraph 2 of the mortgage concern-

ing payment of escrow and the foreclosure

action taken by Metropolitan,"

Thus, removal jurisdiction is founded on

"plaintiff-mortgagee's" cause of action, and

federal court could have sustained original

jurisdiction, See, Appalac;ian Power Co

v Region Properties, Inc, et al, 30% F Supp

1275 (1973).

Further, "Defendant-mortgagor-Cramer" is

not estopped from asserting illegality as

defense to the contract because of the

Michigan Supreme Court decision reported at

401 Mich 252, which allows antitrust defense,

Gutor International, AG v “pimond Packer Co.,

Tnc. Ot a Mass 1974, TS F .

4Ola

The federal question has been resolved

by the a Supreme Court decision

reported at 401 Mich 252, to wit: "She

refused to pay "escrow’, and therefore,

breached a covenant in a mortgage by failure

to perform her covenant the performance of

which was a condition to pay "escrow,"

However, the Michigan Supreme Court, by con-

sidering only partial of two (2) paragraphs

in the mortgage contract, where there are

nine (9) paragraphs, failed to note that —

the os intent of the m ortgage con-

tract, when read in its entirety, inhibits,

prevents, precludes and prohibits a mortgagor

from complying with governmental laws such

as paying taxes and insurance on the real

property mortgaged, in derogation of the

law, and especially so when the mortgagee

(lending institution) fails to pay the taxes

and insurance when due with the "escrow"

funds deposited by the mortgagor. Moreover,

where the mortgagee refuses to accept

ayment of principal and interest without

he "escrow’, the tying-in arrangement

becomes an unlawful combination, In Janich

Bros., Inc, v American eee re

Cele Cal, 197 >» cthe federal

court of appeals said,

"To establish a prima facie case of

attempted monopolization, a plaintiff

must prove three elements:

(1) specific intent to control * * * or

destroy competition with respect to

a part of commerce, (money)

(2) Predatory conduct direcied to accomp-

lishing the unlawful purpose, and

(3) @ dangerous probability of success,"

"The phrase ‘attempt to monopolize' means -

the employment of methods, means, and pract-

tices which would, if successful, accomplish

4O2a

monopolization and which, though falling

short, nevertheless approach so close as

to create a dangerous probability of it,

* * * In determining whether there was

an attempt to monopolize, all of the acts

of the defendants should be viewed together,"

Knutson v Daily Review, Inc., C.A. Cal.

9 » cert denied 97 S Ct

2977, 433 US 910, 53 L Ed 2d 1094,

In the instant case, the mortgagee-lend-

ing institution refuses to accept the

principal and interest without the "escrow"

funds, by monthly-installment payments;

and moreover, the mortgagee (Metropolitan)

refused to accept payment of principal and

interest unless "excessive escrow" was paid,

to fatten their coffers for self-dealing

purposes; not to pay taxes or insurance

inasmuch as no taxes or insurances were

due, none were assessed, none were billed,

none were unpaid, Nothing was due and

nothing was unpaid,

"District court properly assumed

jurisdiction of action to redress

alleged deprivation of civil rights,

herein court's jurisdiction over

subject matter was c enge since

court must assume jurisdiction to

ecide whether allegations state a

cause of action on Which court can

grant relier as well as to determine -

issues of fact arising in the contro-

versy." (emphasis added)

Westminister School Dist, of Orenge

County v Mendez, C.C. A Cal 1947,

TOL F 2a 770,

Here, defendant-mortgagor-Cramer claimed

that she had the right to refuse to pay

"escrow" where the "plaintiff-mortgagee"

Metropolitan failed and neglected to

adhere to the implied provisions of the

4O3a

mortgage contract where they failed to pay

the taxes and insurance and allowed said

liabilities to become seriously delinquent,

repeatedly.

The affirmative defense of res judicata

is not available to "Plaintiff-mortgagee-

Metropolitan" and Co-Defendant-attorney-

William P, Thorpe offers no proof that the

"foreclosure" matter was ever heard by a

court of competent jurisdiction,

"Res judicata is an affirmative defense -

and burden of proof is on the party assert-

1 it." Howard v Green; C.A. Arks 1977

555 F 2d 178, Defendant-mortgagor-Cramer's

evidence has never been heard and was never

permitted | to be heard as to the foreclosure

matter, "The fundamental requisite of due

process of law is the opportunity pe be

beard, . Oe ais v Ordean o34 US 3 394,

34S Ct 779, 783 , 58 L Ed 1363 1910

The hearing must be ‘at a meaningful time

and in a meaningful manner.'" Armstrong v

Tt tta 2a 62 (1985)3 "coh abers Relay,”

Oo rg v Ke

97 US 254, 26 cE TTT “102 , o> OL

2a 2a 287 119708.

THE "ORDER DISSOLVING TEMPORARY RESTRAINING

ORDER" Dated September 27, 1968, SHOULD BE

VOIDED BY THE COURT, on the grounds that

the court lacked jurisdiction to enter such

order, fraudulently obtained; Cramer's

evidence was not heard and was not permitted

to be heard; the false allegation of

"default in her mortgage" nullifies said

order, (See Petitioner-Cramer's Motion to

Void, Nullify and/or Vacate Order dated

September 27, 1968).

Lola

"Proceedings, which is equivalent

of common law suit or equitable action-

to secure relief from an existing judg-

ment, is independent action and removable

regardless of whether or not proceeding

sought to be removed is independent in

form," Id, Federal Sav & Loan Ins

Tee v Quinn oAe ‘ 9 2d

In Grummons v Zollinger, D.C. Ind. (1964) 2ho0

F Supp 63. affirmed art F 2d 464, the federal

court of appeals held,

"Principle of res judicata may not be

invoked to sustain fraud and judgment

obtained by fraud, or collusion, may

not be used as basis for application

of doctrine,"

Further,

"Defense of res judicata would not be

available in subsequent action as result

of prior action between same parties

where plaintiff's right had not been

determined in prior action due to lack

of opportunity to be heard and present

evidence." Williams v Murdoch, C.A,

Pa, 1964, 330 F Od 745, (Td)

The Michigan State courts had no authority

to hear or determine as to the matter of

foreclosure, unless the foreclosure sale

had been set aside, Stewart v Eaton, (1939

287 Mich Rep 466, a Ree Ay (

Defendant-mortgagor-Cramer is not colla-

terally estopped, Defense of estoppel is

affirmative defense the efficiency of which

cannot be determined until all facts are

developed by an evidentiary hearing."

fongieres added) Collins v Paw Stack

xchange, Inc,, D.C. Pa, 1976, 408 F Supp

Lo5a

DECLARATORY JUDGMENTS 28 USCA 2208, et seq.

apter reation of remedy,

not involving Federal taxes; not involving

. S, Treasury funds, )

"Tn a case of actual controversy

within its jurisdiction, except with

respect to Federal taxes, any court of

the United States, upon the filing of

an appropriate pleading, may declare

the rights and other legal relations of

any interested party seeking such declar-

ation, whether or not further relief is

or could be sought. Any such declaration

shall have the force and effect of a

final judgment or decree and shall be

reviewable as such,

STATE ACTION INVOLVED

In Michigan, our own Federal District

Court Judge John Feikens, in Gibson et at

v First Federal Savings and Loan Associa-

tion, 347 F Supp 560, 562, D.C. Mich 1975,

or ¥ Supp 614, affirmed Bou F 2a 826,

in speaking of redress to any deprivation

of civil rights under color of state law,

where state process is used to foreclose

mortgages where state action is involved,

that court said:

"Judicial or executive action, combined

with private action, has been held

sufficient to find action under Peat

of state law, Shelley v Kraemer, 3

US 1, 68 S Ct BI, OF L Fa-TTeT’ (1988),

But not so here (no foreclosure was in---

volved}-for the nexus between the state-

action--possible foreclosure and execution

of sale by the sheriff and the alleged

taking by the defendant--is too remote,

To hold that the taking is under color of

law would subject every contract or mort-

gage to constitutional scrutiny, Although

ho6a

the mortgage in question may present legal

questions under federal law, enforcement

of that contract by the sheri oes no

transtorm an illegal contract into an

unconstitutional one,” | hasis add

emphasis added)

That is the bottom line in the instant case,

specifically, that the contract is illegal.

Moreover, the assetion of the contract being

illegal would never have arisen as a-federal—

question if the "Plaintiff-mortgagee-lending~

institution", in the instant case, had volun-

tarily adhered to the implied provisions of

the contract, to wit: to utilize the "escrow"

funds for payment of taxes and insurance when

due,

In Charles MCAllister et al,, Respts., Vv |

Louls oF Drapes, capieaded, etc, Kppt. (1939)

> 9 » on the question

of relief from an illegal contract, the

California Supreme Court, In Banc, held:

"Assuming that a contract is fraudulent,

or against public policy, or illegal,

still, where the parties to it are not

in pari delicto, and where public policy

is considered as advanced by allowing

either, or at least the most’ excusable

of the two, to sue for relief, relief

may be given to him either against the

transaction by setting it aside and

restoring him to his original position

or even, in some cases, by enforcing the

contract, if executory."

Citing, Smith v Bach, 183 Cal 259, 191 P 14

Woodham v ATTen Cal » 62 P 398;

Daniels v Tearney, 102 US 415, 26 L ed 187

In the instant case, the "Plaintiff-mortgagee-

lending institution’ asserted "We did not

sign the contract, We are bound to do nothing

with the "escrow" funds,"

hO7a

In Shelley v Kraemer, 334 US 1, the

Supreme Court said, "That the action of

state courts and judicial officers in their

official capacities is to be regarded as

action of the State within the meaning of

the Fourteenth Amendment, is a proposition

which has long been established by decisions

of this Court, That principle was given

expression in the earliest cased involving

the construction of the terms of the Four-

teenth Amendment, Thus, in Virginia v Rives

100 US 313, 318 (1880) this Court stated.

"It is doubtless true that a State-may

act through different agencies, ---either

by its legislative, its executive, or its

judicial authorities; and the prohibitions

of the amendment extend to all action of

the State denying equal protection or the

laws, whether it be action by one of these

agencies or by another,"

"Tn Ex parte Virginia, 100 US 339, 347 es

the Court observed; "A State acts by its

legislative, its executive, or its judicial

authorities, It can act in no other way,"

"Tn the Civil Rights Cases, 109 US 3, 11, 17

1883), this Coaet pointed out that the

mendment makes void "State action of every—

kind" which is inconsistent with the guaran=

ties therein contained, and extends to mani-

festations of "State authority in the shape

of laws, customs, or judicial or executive

proceedings." Language to like effect is

employed no less than eighteen times during

the course of that opinion,"

"Similar expressions, giving specific recogni-

tion, to the fact that judicial action is to

be regarded as action of the State for the

purposes of the Fourteenth Amendment, are to

be found in numerous cases which have been

more recently decided; In Twin v New

Jersey, 211 US 78, 90-91 (1908), Fhe Court

408a

said: The judicial act of the highest court

of the State, in authoritatively construing

and enforcing its laws, is the act of the

State,"

"Tn Brinkerhoff-Faris Trust & Savings Co

5 ’ >

through Mr, Justice Brandeis, stated: The

federal guaranty to due process extends to

state action through its judicial as well

as through its legislative, executive or

administrative branch of government,"

"Purther examples of such declarations in

the opinions of this Court are not lacking;"

* * * "The action of state courts in impos-

ing penalties or depriving parties of other

substantive rights without providing adequate

notice and opportunity to defend, has, of

course, long been regarded as a denial of-

due process of law guaranteed the Four-

teenth Amendment,

Brinkerhoff-Faris Trust & Sav s Co, v Hill,

eyBr8} Cr. Fennoyer v NefT, ~ US 714

(1

"Tt has been recognize2 that the action of

the state courts in enforcing a substantive

common-law fule formulated by those courts,

may result in the denial of rights guaranteed

by the Fourteen ndment, even though the

judicial proceedings in such cases may have—

been in complete accord with the most rigor-

ous hasie added a. due process,"

emphas i adde rie R, Co. v Tompkins,

o4 us 64 (1938) *

"The enforcement of the restrictive agree-

ments by the state courts in these cases was

directed pursuant to the common-law policy

of the States as formulated by those courts

in earlier decisions, Parmalee v Morris,

9 Mich 625, 188 NW 33

532 TIOesy. v Barrett, 233 Mich 373

e judicial action . boy

at bears the clear and unmistakable

409a

imprimature of the State. We have noted

that previous decisions of this Court have

established the proposition that judicial

action is not immunized from the operation

of the Fourteenth Amendment simply because—

it is taken pursuant to the state's common-

law policy. (emphasis added) nor is the

Amendment ineffective simply because the

particular pattern * * *, which the State

has enforced, was defined initially by the

terms of a private agreement, State action

as that phrase is understood for the purposes

of the Fourteenth Amendment, refers to exer-

tions of state power in all forms. (emphasis

added) And when the efrrect or that action

is to deny rights subject to the protection

of the Fourteenth Amendment, it is the

obligation of this Court to enforce the

constitutional commands,

"We hold that in granting judicial

enforcement of the restrictive agreements

In these cases, the states have AanTed

etitioners the equal protection of the

<r and that. therefore. the action of the

state courts cannot stand, ¥ ee

JUDGMENT ON THE PLEADINGS (summary judgment)

should be denied where there are obvious

issues of fact, involving conspiracy,

obstruction of justice, legal malpractice,

among many other things.

WHEREFORE Petitioner (Defendant-mortgagor)

in wrongful foreclosure) prays that this

Honorable Court will:

1. Deny the motions to dismiss,

2. Deny the motions to remand,

3. Deny judgment on the pleadings (or deny

summary judgment).

4, That jurisdiction be taken by a three-

judge court for all or part of the

proceedings.

410a

5. That a temporary and/or interlocutory

preliminary injunction be issued by a

single judge as authorized against the

Federal Home Loan Bank Board and the

members of the Michigan Supreme Court,

and as set forth in Petitioner's

application herein,

6, That this court grant such other and

further relief to the Petitioner

consistent with good conscience and

in the interests of justice.

Respectfully,

| /s/ Virginia Cramer, —

Dated: Petitioner, (Defendant-

Dec 19, 1979 mortgagor in pro per)

(Affidavit attached)

Filed January 11, 1980 No 9-72789

U., S,. District Court

FEDERAL DEFENDANT'S COMBINED RESPONSE TO

PLAINTIFF'S MOTIONS

The Federal Home Loan Bank Board, by and

through its undersigned attorneys, submits

this combined response to the several

motions filed by plaintiff, Virginia Cramer,

after August 31, 1979. The August 31, 1979

motion to dismiss filed on behalf of the-~-

Federal Home Loan Bank Board is incorpor-

ated herein as if more fully set forth.

THERE IS NO JURESDICTIONAL BASIS TO

CONVENE A THREE-JUDGE DISTRICT COURT

Title 28, Sec. 2284 sets forth whena -

three-judge court is required, the composi-

tion of the court, and the procedure to be

followed by it. In general, a three-Judge

court is to be convened when required by—

federal statute or when the constitution-

Hilla

ality of the apportionment of congres-

Sional districts or statewide legislative

bodies is an issue. 28 USC 2284(a)

A three-judge district court is present-

ly required only in the following types of

cases:

(a) When the constitutionality of the

apportionment of congressional district

or statewide legislative bodies is in

issue.

(b) Under the Civil so Act of 1964,

Pub L 88-352, 78 Stat 241;

(c) Under the Voting Rights Act of 1965,

b L 89-110, 42 USC 1973(b)(a), 1973c3

and the Voting Rights Act Amendments of

1970, Pub L 91-285, sections 203, 303(a),

Stat 317, 138;

(d) In an action by the Federal Elections

Commission for declaratory or injunctive

relief concerning civil matters covered

by the Presidential Election Campaign Fund

Act or by 26 USC 6096 relating to the

designation of income tax payments to the

Presidential Election Campaign Fund, 26

USC 9010. An action by the Federal Elec-~

tion Commission, a political party nation-

al committee or a voter to implement or-

construe the provisions of the Presiden- —

tial Electton Campaign Fund Act also requir-

es a three-judge court, 26 USC 9011;

(e) Judicial proceedings with respect to

the final system plan under the Regional

Rail Reorganization Act, 45 USC 719(b).

Plaintiff Cramer's cause does not fall

within any of these types of cases, In

this regard, the three-judge district

court apparatus was designed to provide

such an extraordinary procedure only for

hi2e

a limited class of cases and therefore

convened only when the type of case is

presented which merits such treatment,

The instance at bar is not such a case,

More importantly, in any case in whieh

an application is made to a federal dis-

trict court judge to convene a three-

judge court, it is settled in the law

that the judge presented with such an

application must initially determine the

threshold question of whether jurisdic-

tion even exists in the federal sg

Pine Citizen's Ass'n v, Arnol

upp Ue . wi? the general

requisites of federal jurisdiction are not

present, it is inappropriate to even con-

sider whether or not to convene a three-

judge court. Pine Citizen's Ass'n v.

Arnold, supra. if raeret jurisdiction

s lacking, a single judge to whom a --

request for a three-judge court is ad-

dressed can dismiss the-complaint without

requesting that a three-judge court be

convened, Walker v Gilligan, 487 Fda 508,

6th Cir 1973. See also Gonzalez v Auto-

matic Employees Credit Union, 419 US 96,

The points of law expressed in Pine and

Walker are applicable to the case at Dar,

The Federal Home Loan Bank Board believes

that the jurisdictional defects cited in

its August 31, 1979 Motion to Dismiss and

remand are correct, This Court should

dismiss the Cramer complaint and remand

the entire proceeding to the particular

State Court from which it was improperly

removed,

CONSOLIDATION IS INAPPROPRIATE

On September 20, 1979, Cramer moved to

consolidate the removed action 62249 and

the prior action 57215 with the "action"

designated as 9-72789, This motion is

opposed because it is procedurally incorrect

41 3a

and substantively prejudicial to the

Federal Home Loan Bank Board,

Procedurally, Civil Action 9-72789 is

the federal district court docket number

for the action removed from the Michigan

Supreme Court (62249), The exception

taken by the Federal Home Loan Board is

that upon removal to this Court, Cramer

could not unileterally join new parties

such as the Board and the Michigan

Supreme Court and could not unilaterally

file new complaints without first having

obtained prior court approval, Cramer

is incorrectly characterizing her improper

new complaints as a civil action when the

case at the docket as 9-72789 is in fact

the removal action,

Substantially, the Board's August 31,

1979 motion to dismiss demonstrates that

Cramer has no standing to sue y petit

Chase Savings and Loan Ass'n v F,H,L.B.B.,

209 F, Supp 905 (ED Pa 1907). See page 12).

Even if this Court treats Cramer's motion

to consolidate as a motion for leave to -—

join new parties and to file the previous-

ly improperly filed complaints, it will

have to resolve these substantive issues,

It is respectfully urged that this Court

will find that there is not jurisdiction

as to the Federal Home Loan Bank Board and

a resultant lack of jurisdiction, diversity

of otherwise, over the remaining aspects

of the case so that remand is appropriate.

Respectfully submitted,

JAMES K, ROBINSON

United States Attorney

BY /s/ SAMUEL J, BEHRINGER, JR,

Dated: (P23751) Assistant United

Jan 11, 1980 States Attorney

Kika

Filed January 17, 1980 No. 9-72789

U. S. District Court

OPPOSITION TO FEDERAL DEFENDANT'S COMBINED

RESPONSE TO PLAINTIFF'S MOTIONS

Defendant-mortgagor-Cramer in removal of

state case, in propria persona, submits

this opposition to combined response of

Federal Home Loan Bank Board, filed on

January 11, 1980, and recieved in the late

afternoon mail on Tuesday, January 15, 1980,

and incorporating herein pleadings priorly

filed, "Cramer" says as follows:

ASK NOT WHAT THE GOVERNMENT CAN DO FOR ¥0U

BUT WHAT YOU CAN DO FOR THE GOVERNMENT -

JURISDICTIONAL BASIS

Three-Judge Court - Title 28 USCA 2284

specifies {es ananded) that Congress has

repealed 2281 and 2282 (28 USCA); the two

remaining general statutes that authorize

three-judge courts being 2283 and 2284,

As amended, 28 USCA 2284 reads as follows:

(a) A District court of three judges

shall be convened when otherwise

required by Act of Congress, or

* * * " (emphasis added)

Note: language following "or" is not

: applicable herein (relative to

apportionment of congressional

districts or legislative body)

and therefore, we are concerned

herein with:

(2) If the action is against a ptete, or

officer or agen y or,

ys’ notice of hearing of the action shall

be given * * * to the Governor and attorney

general of the State, * * * (emphasis added)

Therefore, it is clear that a three-judge

court may be required by an Act of Congress

415a

where the action is against State officers,

even though not involving "apportionment",

"Determination of issue whether case

should be heard by a three-judge

district court or a single district

judge controls whether appeal from

final ruling goes direct to Supreme

Court or to court of appeals for the

circuit." Willis v Walker, D.C. Ky.

1955, 136 F Supp 181.

"Where three-judge district court issued

temporary injunction restraining state

officials from enforcing state law but

dissolved injunction on final hearing, -

* * * " Public Service Commission of Miss-

ouri v Brashear Fre nes, Mo, 9

C ° L Ed 1063,

ad >

(rehearing denied)

"Where complaint formally alleges basis

for equitable relief and ease is other-

wise proper one for three-judge district

court, applicability of ¥ounger v Harris

- —

als of

Superior Court of Puerto nico, D.C.

175, T25 F Supp 555 ( h

. (emphasis added)

Also, see Bjarsch v Di Falco, D.C.N.Y. 1969,

30 F Supp 960

Retroactive effect,

ou ormer section 2281 of this

title requiring a three-judge court to

enjoin operation of a state statute on

constitutional ground has been repealed,

it remains effective as to pending suits,"

BT Inv, Managers, Inc. v Lewis, C.A, Fla,

1977, 559 F 2d 950

Elements that necessitate convening of three-

judge district court are (1) a claim for

injunctive relief (2) against a state

416a

officer (3) to prevent enforcement of a

statewide statute (4) that is challenged

as being unconstitutional in substantial

ways, Young v Walker, D.C. Fla 1977, 435

F Supp [O89

"Although section 2281 of this title is in

effect due to nonretroactivity of recent

amendment of this chapter, three-judge court

is only required when state statute is

attacked on grounds that it violates Federal

Constitution and when constitutional issue

raised is substantial one." Mobil Oil Corp.

v Lefkowitz, D.C.N.Y, 1977, 454 F Supp 59.

"District court must take allegations in

complaint as true for purposes of determin-

ing whether to convena three-judge court;

single judge can neither evaluate merits of

Claim, nor extend its inquiry beyond face

of pleadings, but mere formalities of prayer

for relief or conslusory allegations to the

effect that action satisfies the prerequis-

ites for convening 5 ype court do not

oO

oblige single judge certify the action

for consideration by three-judge court,"

Pine Re Citizens! Assn v Arnold, DC Pa,

3 upp °

And, on the other hand, --- "Regardless

of nature of relief sought, single judge

has authority to review complaint seeking

convening of three-judge court in order to

determine whether it states substantial

claim and one over which the court would

have jurisdiction and that review by single

judge includes determination of whether

complaint presents justiciable controversy

and whether plaintiff has standing,"

Sharrow v Peyser, D.C.N.Y. 1977, 3 F Supp

» affirme 2F 2d 1271.

The points of law expressed in Pine and

Walker, cited by the attorneys for the

Federal Home Loan Bank Board, are contro-

verted in Sharrow and Mobil O11 Corp and

17a

counhs above cited, Since there is a very

substantial constitutional issue presented

in the instant case, the court should not

consider Federal Defendant's combined

response, as filed January 11, 1980,

"Cramer", defendant-mortgagor has standing

to sue the individual member of the Federal

Home Loan Bank Boards; to wit: Director

and/or Official and/or Officer in Charge,

hase Savings v F,H.L.B.B., 269 F Supp 965,

a Ss applicable only to state

regulated associations, and inapposite in

the instant case, However, even a state

regulated association may sue an individual

member of the Federal Home Loan Bank Board,

FEDERAL JURISDICTION NOT LACKING

Section 1337 of Title 28 providing that —

district courts shall have original juris-

diction of any civil action or proceeding

arising under any act of Congress regulating

commerce gave federal district court juris-

diction of suit for declaratory judgment and

appropriate further relief * * * " Murphy v

Chionial Federal Sav & Loan Ass'n, C.A.N.Y,

> e

In three appeals consolidated for disposition

to declare invalid the formula set forth in

merger agreement governing distribution of

stock, and to substitute another basis upon

which distribution would be made, the parties

were Federal Home Loan Bank Board, a sue and

be sued agency of the United States, Federal

Savings & Loan Insurance Corporation, a sue

and be sued Federal Corporation and agency

of the United States, appellants, versus

Sidney Elliott, Winnie Buckling, Mabel Fergus

& John (Beans) Reardon, individually as

shareholders Protective Committee, and John

Does 1 through 70,000, In previous litiga-

tions for declaratory relief, see Elliott v

Federal Home Loan Bank Board, D.C, Ca

233 F Supp 578, and where the jurisdiction

3

418a

was not challenged under Administrative —

Procedure Act, Sec. 10, 5 USCA 1009 (sub-

sequently amended) where the court held

that the Federal Home Loan Bank Board did

not have uncontrolled discretion and that

Federal Home Loan Bank Board actions are

judicially reviewable, (12 USCA 1462 (4),

1464 (d). Those cases involved a merger

agreement and dissolution of federal associ-

ations and/or conversion to State savings —-

and loan (12 C.F.R. 564.4), the court hold-

ing that the parties were not estopped from

challenging validity of reements.

(reversed and remanded, 386 F 2d 42, cert

den 88 S Ct 1260, 1261, 300 US 1011, 20 L

Ed 2d 161.)

In Milberg v Lawrence Cederhurst Feder-

al Sav oan Assn.,

n rcu ourt of Appeals, reversed

judgment dism issing action for lack of

subject matter jurisdiction and remanded,

holding that a violation of regulation

12 USCA 1461, et seq., was sufficient to

invoke jurisdiction of the federal court

under act giving jurisdiction to district

court of any action arising under any

This text is long and has been trimmed here. Open the source document for the complete record.