ORIGINAL FILED MAY IN THE SUPREME COURT OF MISSISSIPPI NO CP ANNIE Y. GRIFFIN and FREDERICK GRIFFIN. Plaintiffs-Appellants

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1 ORIGINAL ANNIE Y. GRIFFIN and FREDERICK GRIFFIN IN THE SUPREME COURT OF MISSISSIPPI Plaintiffs-Appellants NO CP FILED MAY OFFICE OF THE CLERK SUPREME COURT COURT OF APPEALS v. Desoto County Ms Chancery Court CIVIL ACTION NO. 14-CV ABN AMRO MORTGAGE GROUP, INC., IT'S AFFILIATES HEIRS AND ASSIGNS; MORRIS & ASSOCIATES, EMILY K. COURTEAU, individually And in her capacity as substituted trustee on the deed of Trust, and CITIMORTGAGE, INC., as Successor in interest To ABN, ABC COMPANIES and JOHN DOES 1-10 Defendants-Apellees ON APPEAL FROM THE CHANCERY COURT OF DESOTO COUNTY. MISSISSIPPI BRIEF OF APPELLANTS ANNIE Y. GRIFFIN FREDERICK GRIFFIN 8476 CEDAR LAKE DRIVE EAST WALLS, MS (662)

2 CERTIFICATE OF INTERESTED PERSONS Pursuant to Miss. R. App. P. 28(a) (1), the undersigned parties of record certify that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Annie Y. Griffin, Appellant, Pro Se 2. Frederick Griffin, Appellant, Pro Se 3. Bradley B. Vance, Burr-Forman, Jackson, Mississippi, Attorney for Appellees, Citimortgage, Inc., Successor in Interest to ABN Amro Mortgage Group, Inc., and ABN Amro Mortgage Group, Inc., Appellees 4. Richard C. Keller, Burr-Forman, Birmingham, Alabama, Attorney for Appellees, Citimortgage, Inc., Successor in Interest to ABN Amro Mortgage Group, Inc., and ABN Amro Mortgage Group, Inc.,Appellees 5. Michael A. Jedynak, Monroe, La, Attorney for Appellees Morris & Associates (John C. Morris, Principal) and Emily K. Courteau individually and in her capacity as the purported substitute trustee on the deed of trust 6. Emily K. Courteau, In her capacity as the purported substitute trustee on the deed of trusts 7. Chancellor, Mitchell M. Lundy, Jr., Desoto County, Mississippi Chancery Court Ann~~ STATEMENT ON ORAL ARGUMENTS Oral arguments are not requested by the appellants in this cause. 2

3 TABLE OF CONTENTS Certificate of Interested Persons... Statement on Oral Arguments... 2 Table of contents... (ARGUMENT)... 3 Table of Authorities... 4 Introduction... 5 Summary of the Argument & Statement of the Issues Presented Statement of the Case... 6 Course of the Proceedings Below... 7 Statement of Facts Relevant to the Issues Submitted for Review Argument... 3, 9-13 Conclusion Certificate of Service THE UNEXPLAINED REASSIGNMENT OF THIS CASE TO JUDGE LUNDY AFTER MORE THAN 7 MONTHS PRIOR TO BECOMING INVOLVED IN THE CASE RAISED SERIOUS CONCERNS FOR THE PROPRIETY OF THE PROCEEDINGS, SUGGESTED OVER INVOLVEMENT AND COLLUSION; WERE INCONSISTENT WITH DUE PROCESS AND WERE MANIFESTLY WRONG AND CONSTITUTED AN ABUSE OF THE COURTS DISCRETION. 2. THE CHANCELLOR COMMITTED MANIFEST ERROR IN FAILING TO HOLD HEARINGS ON THE ISSUE OF JURISDICTION RAISED BY THE APPELLEES PLEADINGS AFTER REMOVAL, REMAND AND MOTION TO TRANSFER TO THE CIRCUIT COURT OF DESOTO COUNTY MISSISSIPPI AFTER REMAND, CONSTITUTING ESSENTIALLY AN IMPERMISSIBLE "WAIVER" OF SUBJECT MATTER JURISDICTION BY IMPLIED AGREEMENT WITH COUNSEL, NOT ALLOWED UNDER THE RULES OF CIVIL PROCEDURE AND WAS ABUSE OF DISCRETION, PREJUDICIAL, AND CONSTITUTED MANIFEST ERROR. 3. THE CHANCELLOR COMMITTED MANIFEST ERROR IN FINDING THE DOCTRINE OF RES JUDICATA APPLICABLE TO THE PRESENT CASE, AS APPELLEES FAILED TO ESTABLISH EACH AND EVERY ONE OF THE REQUIREMENTS FOR THE APPLICABILITY OF THE DOCTRINE. 3

4 TABLE OF AUTHORITIES 1. American Cable Corp. v. Triology Commun., Inc.,754 So. 2d 545, 549 Miss. App Beene v. Ferguson Auto., Inc., 37 So 3d 695, 698 (,7) (Miss. Ct.App 2010). 3. Derr Plantation, Inc. v. Swarek, 14 So. 3d 711, (Miss. 2009). 4. Edwards v. Booker, 796 So. 2d 991 (Miss. 2001). 5. Galey v. World Marketing Alliance, 206 WL NO (2006). 6. Griffin, Et AL., Petitioners v. ABN AMRO Mortgage Group, Inc., ET AL., Respondents Fifth Circuit Court of Appeals, New Orleans, No , Decided May 17,2010. Reversed & Remanded. 7. Griffin v. ABN AMRO Mortgage Group, Inc., 134 S. Ct. 789; No , Cert. Denied. 8. Griffin v. Abn Amro, Civil Action No.3: 14-cv GHO-JMV; N. Dist. Miss. (2014). 9. Harrison v. Chandler-Sampson Insurance, Inc. 891 So.2d at 232 (,24) (Miss. 2005). 10. Harrison, 891 So.2d at 232,! 11. Hill v. Carroll Cnty. 17 So.3d 1081, 1085 (, 10) Miss. 2009). 12. Issaquena Warren Counties Land Co. v. Blakeney, 996 So. 2d 747, 749 (Miss. 2008). 13. Mullins v. Merchandise Sales Company, 192 So. 2d 700 (1966). 14. Memphis Hardwood Flooring Co., v. Daniel, 771 So. 2d 924 Miss; Sup. Court (2000). 15. Ras Family Partners v. Onnam Biloxi, LLC, 968 So. 2d 926, 928 (Miss. 2007)). 16. Russell v. Performance Toyota, Inc., 826 So. 2d Sanderson v.sanderson, 824 So. 2d 623 Miss. Supreme Court (2002). 18. Sunbridge Retirement Care Assoc., v. Smith,757 SE 2d 157, Ga: Court of Appeals Trustmark Nat 'I Bank v. Johnson, 865 So. 2d 1148, 1150 (Miss. 2004)). 20. Section 160. Miss. Constitution. 4

5 INTRODUCTION The Chancery Court dismissed appellants action against the appellees filed on January 2,2014 pursuant to the doctrine of res judicata. Appeallants filed their appeal from that ruling entered on August 21 st, and filed on August 24th, Doc # 47. Appellants filed this appeal from that order which constituted (1) manifest error (2) an abuse of discretion and (3) erroneously concluded that the doctrine of res judicata under Mississippi law was applicable to the case. SUMMARY OF THE ARGUMENT Jurisdiction is a question of law, which this court reviews de novo. Issaquena Warren Counties Land Co. v. Blakeney, 996 So. 2d 747, 749 (Miss. 2008) (citing Trustmark Nat 'I Bank v. Johnson, 865 So. 2d 1148, 1150 (Miss. 2004))., Russell v. Performance Toyota, Inc., 826 So. 2d 719. This Court reviews jurisdictional issues de novo by examining the facts set out in the pleadings and exhibits to determine the propriety of the proceedings. American Cable Corp. v. Triology Commun., Inc., 754 So. 2d 545, 549 Miss. App Whether the trial court has jurisdiction to hear a particular matter is a question of law, to which this court must apply a de novo standard of review. Edwards v. Booker, 796 So. 2d 991 (Miss. 2001). The standard for reversal of finding by chancellor appropriate when supported by substantial evidence, abuse of discretion, manifestly wrong, clearly erroneous or an erroneous legal standard is applied. Sanderson v.sanderson, 824 So. 2d 623 Miss. Supreme Court (2002). The doctrine of res judicata requires the presence of four identities before it is applicable, and the absence of any of the identities is "fatal to the defense of res judicata." Hill v. Carroll Cntv. 17 So.3d 1081, 1085 (,-r 10) Miss. 2009) (citations omitted). Additionally, contrary to 5

6 federal law, under Mississippi law there is a fifth requirement, which is that there must be a final judgment adjudicated on the merits. See Harrison, 891 So.2d at 232 (~22); Beene v. Ferguson Auto.. Inc., 37 So 3d 695, 698 (~ 7) (Miss. CLApp 2010). STATEMENT OF THE ISSUES PRESENTED (i) (ii) Whether appellants were prejudiced by reassignment after removal and remand. Whether the lower courts failure to conduct a hearing on the jurisdictional question raised by the appellees Motion to Transfer the Case to the Circuit Court of Desoto County unfairly prejudiced the parties, resulted in an impermissible waiver of subject matter jurisdiction, tainted the propriety of the proceedings, constituted manifest error and was clearly erroneous. (iii) Whether the lower court correctly applied the doctrine of res judicata in the present case. STATEMENT OF THE CASE The underlying lawsuit giving rise to this appeal was commenced in Desoto County, Mississippi on January 2, 2014, seeking primarily injunctive relief from the continued threat of foreclosure activity by the appellees based on an underlying deed of trust which appellants contend is void under Mississippi law. Appellants allege that appellees fraudulently altered and thereafter filed a mortgage modification or deed of trust executed by them in an upward amount not agreed upon. Mullins v. Merchandise Sales Company, 192 So. 2d 700 (1966)., Memphis Hardwood Flooring Co., v. Daniel, 771 So. 2d 924 Miss; Supreme Court (2000). After initially removing 6

7 the more recent case to the U.S. District Court for the Northern District of Mississippi and seeking a transfer of the case to Judge Michael P. Mills, the Motion for Reassignment of Case, filed by appellees was denied and the case was remanded to the Chancery Court of Desoto County, Mississippi from the U.S. District Court for the Northern District of Mississippi. Griffin v. Abn Amro, Civil Action No.3: 14-cv GHD-JMV; Northern Dist. Miss. (2014). COURSE OF PROCEEDINGS BELOW Pursuant to the District Courts Order, Doc # 13 of the record issued by the U.S. District Court for the Northern District of Mississippi, this cause was REMANDED on August 22, 2014 to the Chancery Court of Desoto County, Mississippi. Griffin v. Abn Amro, Civil Action No. 3:14-cv GHD-JMV. The lower court, Judge Percy L. Lynchard, Jr., granted Plaintiffs Motion reinstating the above entitled cause against the Defendants on September, 25, 2014, Doc # 16 "Order Reinstating Case." For more than 7 months after remand of this case Judge Mitchell Lundy failed to assert jurisdiction over or enter a single order on any motions filed prior to the unexplained reassignment of the case and his entry of an order of dismissal on August 21, 2015 filed on August 24, 2015, despite appellant's objection thereto and Motion for Stay pending ruling on the appellees Motion to Transfer this case to the Circuit Court of Desoto County. STATEMENT OF THE FACTS RELEVANT TO THE ISSUES PRESENTED Upon the removal of this case to federal court appellees initially sought (1) a reassignment and (2) a dispositive ruling on the issue of res judicata. Once remanded to the chancery court of Desoto County, Ms., however, appellees abandoned these objectives in favor of a Motion to Transfer the case to yet another court of their choosing,--- the Circuit Court of 7

8 Desoto County, asserting among other things the right of appellants to trial by jury. Appellants argued however that a transfer to circuit court could not be secured by the appellees by simply requesting a jury trial. Derr Plantation, Inc. v. Swarek, 14 So. 3d 711, (Miss. 2009). After a lengthy period of inactivity by the court and the appellees, appellees position suddenly changed however in what can only be described from the record itself as a collusive effort between Judge Mitchell Lundy, Jr, and counsel for the appellees to have the matter transferred to Judge Mitchell Lundy, Jr., which took place on March 19,2015. Doc # 28. Despite appellants having made objections regarding the reassignment of this case, more than 13 months after the case was initially filed, and 7 months after its remand, appellees were allowed by Judge Lundy to set for hearing on August 18 th, 2015, it's renewed Motion to Dismiss, subsuming all motions filed by appellants up to that point, including appellees previous Motion to Transfer to the Circuit Court of Desoto County-----(without even first withdrawing their Motion to Transfer, a fact that had to be brought to the court and the parties attention by the appellants in its responsive pleadings) and without any consideration of the responses or notices by appellants that subsequently followed or the previously filed Motion to Transfer. Doc's # 2, 3,[1-3],12, (Notice of Removal), 13, 15, 16, 17, 18, 19 [1 ][2], 20, 21, 22, 23, 25, 26, 27, 28, 32, 33, 34, 40, 42, 43, 44,45,47. Appellants were likewise never given the opportunity to withdraw any of their motions as were conveniently the appellees, before hastily being allowed to set for hearing their Motion to Dismiss and the courts' ruling in favor of despite appellants notification of their inability to attend said hearing on August 18 th. Doc # 40. Appellants, finding an apparent collusion between the lower court and the appellees, evidenced by (1) the lower court's decision to forgo the more immediate question concerning its general jurisdiction over the case raised by the appellees Motion to Transfer and (2) the questions raised by the appellants regarding the 8

9 irregularities in the assignment related to the case and (3) the decision to set for and thereafter hold a hearing on appellee's Motion to Dismiss, without even an order on the withdrawal motion became concerned about the propriety of the proceedings. The conduct by the court in its delay thereafter of the issuance of its order until August 21, 2015, gave the impression that appellants Motion for Interlocutory review was premature despite the fact that the court had already held hearings on the motion to dismiss on August 18 th in the appellants absence. Because of appellants concerns for the propriety of the proceedings they did what any litigants in their position would have done in such a case, which was to seek interlocutory relief from this court from what it viewed as an impending certainty that any decision by the lower court would be in opposition to them and appellants now seek review of the Chancery Court ruling regarding the jurisdictional issues relevant to this matter and its ultimate finding of the applicability of res judicata to the underlying action which is the subject of this appeal. It is from this judgment the appellants seek review by this Court and argue that the proceedings giving rise to the judgment suggests serious due process concerns; are incorrect in law and fact; and that the actions of the lower court were an abuse of discretion and constituted manifest error requiring reversal. ARGUMENT First Assignment of Error- Appellants were prejudiced by reassignment on remand of case. There can be little doubt after a reading of the record and the arguments advanced by the appellants that there are serious deficiencies regarding the procedures for dealing with the assignment of cases, after, whereas here, a case is removed to federal court and subsequently remanded and the resolution of such an issue is for this court at this time. 9

10 Second Assignment of Error--- The question of jurisdiction cannot be ignored by the lower court Next, appellants assert that the jurisdictional question raised initially by the appellees' filing of Notice of Removal (Doc #12) and thereafter by their Motion to Transfer (Doc #17, 18, 27) could not be ignored by the lower court, nor can subject matter jurisdiction be waived by a party, particularly whereas here the question of jurisdiction was raised by the pleadings filed by appellees. Edwards. Id. Appellants vehemently defended the jurisdictional question presented by appellees Notice of Removal and their Motion to Transfer and the court's decision to proceed to set a hearing on appellees subsequently re-newed Motion to Dismiss without even addressing the pending Motion to Transfer which had been pending since January 30, 2015, constituted reversible error and unfairly prejudiced appellees, so it would seem, unless they had something to gain by way of an advantage, which would of course, result in prejudice to the appellants. Jurisdiction is a question of law, which this court reviews de novo. Issaquena Warren Counties Land Co. v. Blakeney, 996 So. 2d 747, 749 (Miss. 2008) (citing Trustmark Nat 'I Bank v. Johnson, 865 So. 2d 1148, 1150 (Miss. 2004)). The grant of a motion to transfer from chancery court to circuit court, or vice-versa, is a jurisdictional question that is subject to de novo review. Id. (citing Ras Family Partners v. Onnam Biloxi, LLC, 968 So. 2d 926, 928 (Miss. 2007)). Respectfully the resolution of this issue cannot be undermined by the lower court ruling which conveniently failed to even consider the Motion to Transfer in which appellants spent a considerable amount of time and resources defending and the appellees filing in the first instance, before hastily deciding to abandon that effort after a reassignment of judges in this case took place and the decision to do so constituted an abuse of discretion, was manifestly wrong, and clearly erroneous. Sanderson v. Sanderson, 824 So. 2d 623, (Miss. 2002). 10

11 Third Assignment of Error- Res Judicata is inapplicable to the present case. Finally, the appellants assert that the lower court erred in its finding of the applicability of the doctrine of Res Judicata to the present action for the following reasons: All of the elements necessary to establish the applicability of the doctrine of res judicata to the appellants underlying complaint under Mississippi law, which differ from those under federal law, have not been sufficiently established by the appellees. Res Judicata The doctrine of res judicata requires the presence of four identities before it is applicable, and the absence of any of the identities is "fatal to the defense of res judicata." Hill v. Carroll Cnty. 17 So.3d 1081, 1085 (~10) Miss. 2009) (citations omitted). The four identities are as follows:" (1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made." Id. (citing Harrison v. Chandler-Sampson Insurance, Inc. 891 So.2d at 232 (~24) (Miss. 2005) Additionally, contrary to federal law, under Mississippi law there is a fifth requirement, which is that there must be a final judgment adjudicated on the merits. See Harrison, 891 So.2d at 232 (~22); Beene v. Ferguson Auto.! Inc., 37 So 3d 695, 698 (~7) (Miss. Ct.App 2010). If these five things are established, then res judicata bars any claims that were brought in the prior action or could have been brought in the prior action. Hill, 17 So.3d at (~~ 9-10). Appellees submit that the (5) identities required under Mississippi law are present. They also assert that the order of the district court for the Northern District, Mississippi referred to in 11

12 their Motion to Dismiss and Memorandum Supporting their Motion to Dismiss, Doc's # 32 and 33 bars appellants from instituting the present action. Appellants disagree and assert that the identity of the prior case was dominated by the issue of the validity of an arbitration agreement resulting in appellate review and the subsequent action filed against the appellees sounded in equity and sought primarily injunctive relief against the appellees renewed threat of foreclosure activity based on an alleged defective deed of trust and did not involve the issue of a failed arbitration agreement, nor any federal claims for relief. Because appellants claims for relief primarily seek injunctive relief from foreclosure activity based on an alleged defective underlying deed of trust, the second element required to be proven under the doctrine of res judicata fails as to the identity of the cause of action; As to the 3,d and Ih elements: the "identity of and the quality or character of a person against whom the claims are made" is uncertain and inconclusive because there exists the unknown identity of, and the quality or character of a person or person(s), corporation or trust, against who title to the property in question must be defended evidenced by association of out of state counsel from Alabama in anticipation of yet another removal of this case because the origins of the underlying loan transaction involve unidentified Alabama lenders, servicers, corporations, investors and/or persons who have a potential stake in the outcome of this litigation post securitization of the instrument in question. The fifth requirement is that there has been a final adjudication on the merits. The prior dismissal referred to by appellees, assuming relevant to this case, in any event would not change the character of the defective deed of trust filed in the land records in Desoto County and upon which they rely as the basis for any future foreclosure of appellants property. On appeal of that case, Griffin v. ABN AMRO Mortgage Group, Inc., 134 S. Ct. 789; No , the respondents acknowledged that the district court case was dismissed "without ruling on any of the issues 12

13 brought by either party." Appellants assert that after months of inactivity, and the inability to persuade appellants to choose another arbitrator, that the true motivation of appellees in that case in seeking a dismissal under Rule 41 was a desire by the appellees and the court in that case to undermine appellants rights to avoid being the subject of a failed arbitration agreement, which under Mississippi law pursuant to this courts' ruling in Galey v. World Marketing Alliance, 206 WL NO (2006) resulted in the remand of that case back to the district court from an appeal to the Fifth Circuit Court of Appeals, New Orleans, Griffin v. Ahn Amro, No , U.S. Court of Appeals, Fifth Cir.,Decided May 17, 2010., Though not controlling, similarly, the same issue was however resolved by the Georgia Court of Appeals in Sunhridge Retirement Care Association v. Smith, 757 SE 2d Ga: Court of Appeals CONCLUSION Appellants filed the action which is the subject of this appeal pursuant to Section 160. Miss. Constitution in the court in which it argues has jurisdiction in suits to try title and to cancel deeds and other clouds upon title to real estate, citing as the basis therefore a void or voidable deed of trust. The case was set to be heard before a Special Master in the Chancery Court of Desoto County, Melinda Meacham, but was removed to federal court by the appellees. Despite the appellees failed efforts at convincing Judge Glen H. Davidson to reassign the case once removed to Judge Michael P. Mills, whom they argued had continuing jurisdiction of the matter and the authority to dismiss pursuant to their argument of res judicata and Rule 41, Dismissal of Actions, once the case was remanded to the Chancery Court of Desoto County, appellees continued in their efforts to (1) Transfer and or re-assign the matter to either another court or judge of their choosing, and at some point for inexplicable reasons abandoned their efforts at even establishing 13

14 the general jurisdiction of the court itself. While appellants have their own theories regarding the actions of both the appellees and the court, it is for this court to determine whether the reassignment of case and the manner in which the order filed in this case was ultimately arrived at by the lower court, comports with fundamental fairness and due process; was manifestly in error and whether correct in law and in fact. Appellants assert that there is considerable basis on review of the record for reversal of the order of the lower court and pray that this honorable court will do so upon review. ANNIE Y. GRIFFIN AND FREDERICK GRIFFIN By: ~~<:;;9~ ANNIE Y. G F AND FREDERICK GRIFFIN ANNIE Y. GRIFFIN AND FREDERICK GRIFFIN 8476 CEDAR LAKE DR. E. WALLS, MS (662)

15 CERTIFICATE OF SERVICE Appellants certify that the forgoing Brief of Appellants has been served in accordance with the Mississippi Rules of Appellate Procedure by first filing a copy with the Clerk of the Mississippi Supreme Court along with separately filed copies of the Record Excerpts of the Appellants and thereafter serving a copy of the brief itself upon counsel for the appellees at their usual addresses listed below as follows: This the ~ day of May Michael A. ledynak, Esq. Morris & Associates - Monroe 2309 Oliver Road Monroe, LA Attorney for Defendants Morris & Associates Emily K. Courteau, individually and in her capacity As substituted trustee on the deed of trust Emily K. Courteau, Esq. Morris & Associates 2309 Oliver Road Monroe, LA Bradley B. Vance Richard Keller Burr & Forman LLP Heritage Building 401 East Capitol St., Suite 100 lackson,ms Chancellor Mitchell M. Lundy, lr. P.O. Drawer 471 Grenada,MS ~~~ia?4c%1"~ Annie Y. Gri fin and Fredenck Gnffin 15