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Case 3:14-cv-03322-M-BN Document 21 Filed 10/14/14

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IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SAMUEL G. BREITLING AND
JO ANN BREITLING,

Plaintiffs,

vs.

CIVIL ACTION NO. 3:14-cv-3322-M

LNV CORPORATION, ET AL.,

Defendants.

______________________________________________________________________________
PLAINTIFFS OBJECTION TO DEFENDANT TILLERYS MOTION TO REMAND
______________________________________________________________________________
Now come Plaintiffs, pro-se, with their objection to Defendant Dale Tillerys Motion to Remand.

We filed a petition as Plaintiffs in the Texas State Court Dallas County District. Defendants LNV
Corporation (LNV) and MGC Mortgage Inc. (MGC) with consent of Defendants Dovenmuehle
Mortgage Inc. (DMI) and Codilis & Stawiarski P.C. (C&S) filed a motion to remove to Federal
Court.

We believe venue in the State Court was proper. Ultimately jurisdiction over this matter specific
to the other defendants (LNV, MGC, DMI and C&S) which arises from a foreclosure action we
disputed as a fraudulent action without merit should be remanded to State court. However this
Federal Court needs to determine Federal Questions raised by our complaint before this can
happen. Specific federal questions raised by our complaint are:

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1. Did Defendant Dale B. Tillery (Tillery) violate our rights to due process and equal
protection of the law under the Fifth and Fourteenth Amendments to the United States
Constitution and thereby unconstitutionally deprive us of our property?
2. Did Defendant Tillery violate his judicial oath of office mandated by Article VI of the
United States Constitution?
3. Does Defendant Tillery enjoy the immunity of a State office when he violates the
Constitution of the United States and the Oath of office he took to support the
Constitution of the United States of America?
4. Is a judgment or order issued by a judge acting in violation of the Constitution of the
United States and the Oath of office he took to support the Constitution void?

The Constitution and 28 U.S.C. 1332 vest federal courts with jurisdiction to hear cases that
arise under federal law.

Article VI of the United States Constitution states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;
and all Treaties made, or which shall be made, under the Authority of the United States, shall be
the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing
in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State
Legislatures, and all executive and judicial Officers, both of the United States and of the
several States, shall be bound by Oath or Affirmation, to support this Constitution; .

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The Fifth Amendment to the Constitution states: No person shall be deprived of life, liberty,
or property, without due process of law; ...

The 14th Amendment to the Constitution states: All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United States and of the state
wherein they reside. No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any state deprive any person of life, liberty,
or property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.

On August 4, 2014 Defendant Tillery deprived us of our rights to due process and equal
protection of law; which ultimately deprived us of our property. On that date was scheduled three
hearings:

1. A hearing on our motion for a 30 day continuance filed by our previous attorney;
2. A hearing on our motion to transfer back the 116th Dallas County District Court;
3. A hearing on LNVs motion for a summary judgment on their fraudulent petition for In
Rem foreclosure.

Defendant Tillery first denied our motion for a 30 day continuance to allow us time to find a new
attorney. Tillery also denied our motion to transfer back to the 116th court where judicial finding
of fact and conclusion of law specific to material disputes ripe for an evidentiary hearing had
already been adjudicated specific to the same parties LNV and MGC and us the Breitlings as
Plaintiffs. (We were Plaintiffs in this earlier case too (Case#: DC-11-07087 Dallas District
Court)).

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As a result of these two decisions by Tillery, I, JoAnn Breitling a 65 year senior with no
education in law was forced to defend my familys significant interest (we have financially
invested more than $350,000) in our property against a seasoned attorney Jeff Hardaway
employed by Defendant C&S. Pro-se litigants have a significant disadvantage over litigants
represented by attorneys, and it was never our intent to proceed pro-se; however now, because of
Tillerys denial of our continuance so we could find another attorney, this case has become a
complicated nightmare and a much greater challenge for an attorney to take over then it would
have been had Tillery not denied our motion for continuance and allowed us time to find new
counsel. As a result we are having a much more difficult time finding an attorney than we would
have before Tillerys decisions.

The challenges and disadvantages of pro-se litigants are well known and well documented. As
such any reasonable and unbiased judge would have granted our motion for continuance rather
than subject us to such a handicapped legal position. Any reasonable person might conclude
Tillery intended to deprive us of counsel so that we would have no ability to defend ourselves
against LVNs motion for summary judgment to be heard immediately thereafter.

This hearing turned out to be nothing more than a mockery of justice. No reasonable person
would construe what happened at that hearing as due process or equal protection of law. I had
filed a supplement to the earlier and inadequate response my attorneys filed to LNVs motion for
summary judgment. I also filed a letter to the court; my first pro-se pleading in response to my
attorneys motion to withdraw as a way to explain why we had come to a mutual agreement that
the Lane Law Firm were not the right law firm to represent us. Tillery had read neither of these
pleadings. At the August 4th hearing I was not permitted to present an argument in our behalf. I

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was not permitted to show evidence in my possession that would show a material dispute existed
as to LNVs standing to foreclose. (Evidence was attached as Exhibits to our pleadings that
Tillery never read.) Tillery and attorney Jeff Hardaway spoke to me in the courtroom in a way
that was demeaning to me as a woman and as a senior citizen. Tillery granted LNVs motion for
summary judgment without giving us any opportunity to be heard. He issued his written order
the same day. His order contained no judicially determined facts or conclusions of law to support
his decision.

Any reasonable person would conclude that Tillery made up his mind to grant LNVs motion
before he entered the court room that day and that his decision was arbitrary and not based on
fact or law. He never read our arguments or reviewed our evidence. This gives credibility to the
inference that Tillery entered the courtroom that day with intent to rule against us.

As a result of Tillerys unconstitutional decision LNV sold our property to itself on September 2,
2014. LNV did so in violation of Texas rules of civil procedure, 735 & 736.11 which state:
"Automatic stay and dismissal if independent suit is filed. A proceeding or order under this rule
is automatically stayed if a respondent files a separate, original proceeding in a court of
competent jurisdiction that puts in issue any matter related to the origination, servicing or
enforcement of the loan agreement, contract, or lien sought to be foreclosed on prior to 5:00
p.m. on the MONDAY before the scheduled foreclosure sale.

Our original petition was filed on August 29, 2014. We filed a lis pendens with our county
recorder on August 29, 2014. All Defendants who were parties of the sale (LNV, MGC, DMI
and C&S) were notified that we had done filed an original petition and a lis pendens and that the

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automatic stay was in effect; yet they intentionally violated the law and sold our home of 32
years anyway.

The Constitution states only one command twice. The Fifth Amendment says to the federal
government that no one shall be "deprived of life, liberty or property without due process of
law." The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due
Process Clause, to describe a legal obligation of all states. These words have as their central
promise an assurance that all levels of American government must operate within the law
("legality") and provide fair procedures.

We were deprived of any sense of fairness in the procedures that LNV ultimately used to deprive
us of our property.

The Supreme Court has interpreted the statutory arising under language in 28 U.S.C. 1331
more narrowly than the constitutional arising under language.

Article III Section 1 of the United States Constitution states: The judicial power of the United
States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may
from time to time ordain and establish. The judges, both of the supreme and inferior courts,
shall hold their offices during good behavior

This implies that when judges have not acted with good behavior they are not acting under the
auspices of their official position and can no longer be said to hold their office or enjoy the
immunity provided by that office.

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The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974) stated
that "when a state officer acts under a state law in a manner violative of the Federal Constitution,
he comes into conflict with the superior authority of that Constitution, and he is in that case
stripped of his official or representative character and is subjected in his person to the
consequences of his individual conduct. The State has no power to impart to him any immunity
from responsibility to the supreme authority of the United States.

Tillery in his motion to remand states: Defendant Judge would ask this Court to remand
Plaintiffs case against him back to the state court where all of his immunities will remain in
effect and he will be able to obtain a quicker resolution of the claims being made against him.

This is exactly why the Constitutional questions must be determined by this Federal court (or the
Supreme Court of the United States); because the constitutional questions in this case center
completely on Tillerys behavior and whether he acted of his own volition and self-interests in a
manner that shows bias towards the Plaintiffs and in opposition to his duties as a State court
judge who has taken an oath to honor and support the United States Constitution.

It is impossible to separate the Plaintiffs claims against Tillery from their claims against the
other Defendants (LNV, MGC, DMI and C&S) because the result of Tillerys unconstitutional
behavior that violated our constitutionally guaranteed rights to due process resulted in the
unlawful, unjust and unconstitutional deprivation of our property. Tillerys order issued in
violation of our constitutional rights to due process and equal protection of law is void. By nature
of it being void, then the foreclosure and sale of our property that resulted from it are also void.

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Article III Section 2 of the United States Constitution states: The judicial power shall extend to
all cases, in law and equity, arising under this Constitution In all cases affecting ambassadors,
other public ministers and consuls, and those in which a state shall be party, the Supreme Court
shall have original jurisdiction.

The definition of minister is: An officer who is placed near the sovereign, and is invested
with the administration of some one of the principal branches of the government. A State Judge
would certainly qualify as a public minister. Although the State of Texas is not a party to this
action, a State Judge is and a federal question is asked as to whether the State has power to
impart to him any immunity from a violation of his responsibility to the supreme authority of the
United States.

Another Constitutional question is raised as to whether this is a matter where the Supreme Court
has original jurisdiction.

We respectfully beseech this Honorable Court to deny Tillerys motion to remand our claims
against him back to the State court; and to set this matter before the Supreme Court in our behalf
if original jurisdiction rests there.