# Appendix — Cramer v. Metropolitan Federal Savings & Loan Ass'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0271%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 449 U.S. 876 ## Text 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 » 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0271%3A3. Public record. Not legal advice.