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IN THE DISTRICT COURT OF TULSA COUNTY STATE OF OKLAHOMA J. MARK OGLE,and MARI-JEAN OGLE Plaintiff's Vs.

Ben Michael Mayberry,and Shelly Denise Mayberry Defendants, ) ) ) ) ) ) ) ) ) )

CJ-2012-05947 JUDGE SELLERS

___________________________________________________________________________ Ben Michael Mayberry,and Shelly Denise Mayberry Counter Plaintiffs vs. J. MARK OGLE, and MARI-JEAN OGLE Counter-Defendants ) ) ) ) ) ) ) ) )

MOTION TO RECONSIDER RULING MEMORANDUM IN SUPPORT COMES NOW by special restricted appearance, Ben Michael Mayberry and Shelly Denise Mayberry, respectfully moves this Court to Reconsider its Ruling, and in support states as follows: This Motion to Reconsider is based upon the uncontroverted facts of the record in this case that are fatal to alleged Plaintiffs unproven claim and will be explained in this Motion and the Memorandum In Support incorporated herein. SUMMARY OF THE CASE 1. On 11-14-2012, Defendants challenged said alleged debt by Respondents and submitted a QWR

Letter Notice: Verification of Proof of Claim Requested, Accordance with Title 28 U.S.C. 1746 and under the Real Estate Settlement Procedures Act, codified as Title 12 2605 (e)(1)(B) (e) and Reg. X 3500.21(f)2 of the United States Code as well as a request under Truth In Lending Act [TILA] 15

U.S.C. 1601, et seq, that Defendants sent earlier to Plaintiff's by notary Presentment which Plaintiff's refused to answer also as required under 12 U.S.C. 2605(e), and defaulted on see attachment A. RESPA provides substantial penalties and fines for non- compliance or failure to answer defendants questions provided in said letter within sixty [60] days of its receipt. 2. On January 7th, 2013 Defendants filed their Verified Averse Claim for Fraud and Abuse of Process,

Motion to Dismiss, Objection and Demand for Affirmative Relief in addition to Seven Affirmative Defenses which remain viable and still stand as alleged Plaintiff has failed to either factually refute the affirmative defenses or establish that they are legally insufficient. Defendants filed their compulsory counter claim as mandated persuant to O.S 12-2013 and FRCP Rule 13 and thier Claim in Recoupment under O.S Title 12(A) 3-305, 3-306 with clean hands and good faith, based on alleged Plaintiffs total failure to comply with the statutory and due process requirements mandated by law. The face of the record clearly shows these matters have not been adjudicated. 3. The face of the record clearly shows said judgment is not sustained nor founded on any evidence

whatsoever as the alleged plaintif has not provided this court with any attached documents or any proof or evidence backing the alleged claim on attorney smiths naked assertions devoid of further factual enhancement and is contrary to law. 4. The record also shows that the Alleged Plaintiff set out to distract the court of genuine Issues Of

Material fact stated in defendant's motions and affirmative defenses which the Alleged Plaintiff steadfastly avoid and never address or answer. 5. 6. There are material issues of fact concerning Plaintiffs unverified and un documented claim. Dendants filed a Motion To Dismiss Alleged Plaintiffs Un-Verified and Undocumented Petition

on the basis that among other things: Plaintiff has failed to demonstrate/show any damages supporting their complaint against Defendants for any alleged Default on a debt by failing to attach the mandatory necessary and essential facts as evidence substantiating their purported claim as the record clearly shows there was no attempt to state actual facts or damages through any evidence or testimony

whatsoever from alleged plaintiff and until the Plaintiff testifies, and/or attaches any verification or proof of claim as demanded by Defendants and mandated by law, the Court has no basis upon which to rule as it did. 7. The Face Of The Record clearly shows that all Dwight L. Smith has filed into this court was

unverified, undocumented naked legal conclusions containing confusing and foggy mixture of evidentiary statements, arguments and conclusory matter, and did not lend itself to meaningful answers, about this Instant case as no evidence or testimony was presented or received by or to this honorable court by attorney Smith, for there was no supporting evidence, not a single supporting document attached to the defectivly naked petition and claim attorney Smith filed into this court. 8. Although these issues were also raised by defendants Objection and affirmative defenses, the

alleged Plaintiff adduced no evidence to disprove them. At the time of the ruling, the affirmative defenses were still viable. A summary judgment must not only establish that no genuine issues of material fact exist as to the parties' claims, but it also must either factually refute the affirmative defenses or establish that they are legally insufficient. See Moroni v. Household Fin. Corp. III, 903 So.2d 311, 312 (Fla. 2d DCA 2005). The alleged Plaintiff did not factually refute Defendants Affirmative defenses nor did it establish that they were legally insufficient, and while the evidence and inferences from the only evidence favored the Defendants (which should alone have precluded summary judgment), Defendants could have provided even more evidence had the court not, as result of its ruling, erroneously denied Defendants right to discovery of essential, highly-relevant documents that would have clearly demonstrated and proven Defendants Adverse Claim/ Claim in Recoupment and or Set Off. 9. And finally, Persuant to 12 O.S 2005.2 and the provisions thereof said statute in relevant parts,

provides as follows: Every party to any civil proceeding in the district courts shall file an entry of appearance by counsel or personally as un unrepresented party when no other pleading or other paper in the case by that counsel or party has been filed, but no later than the first filing of any pleading

or other paper in the case by that counsel or party. 10. Attorney Smith has never filed the mandatory Entry of Appearance as attorney for alleged

Plaintiff as required by 12 O.S 2005.2. This appears to be a matter that cannot be ignored by the court, which even further affects the issue of the legitimacy of the filings of Attorney Smith as it appears to be mandatory that the filing of an Entry of Appearance by an attorney be filed before filing any pleadings in a case. The face of the record in this instant matter shows attorney Dwight L. Smith has failed to follow this statutory requirement, rendering all filings by Dwight L. Smith as nullities and striken because of the Madatory Nature of this Statutory Requirement. 11. The court appears to have entered its order without taking evidence, without making any

specific findings of fact or Conclusions of Law or finding that Defendants acted in bad faith and additionally without detailing specific factual findings to support such a conclusion as there is no support anywhere in the record for the implication that defendants defaulted on any obligation to anyone or even owes any outstanding balance on any unpaid mortgage or obligation at the commencement of the foreclosure. MISAPPLICATION OF LAW AND FACT FINDINGS OF FACT AND CONCLUSIONS OF LAW 12. Defendants demand findings of fact and Conclusions of Law, The case law that were cited by

the Defendants in their Claims, Motions and Uncontested Affirmative defenses are directly on point to the facts of this case. Without a written opinion or a disclosed factual basis for this honorable courts ruling, or any case law cited by this Court for the Defendants to reference, it is impossible to determine the basis of this Court's ruling contrary to the controlling case law as due process requires discovery, admitted evidence, sworn witnesses and a hearing. No discovery has been conducted, no evidence has been admitted, no witnesses have testified. 13. As stated in the Defendants papers, Oklahoma has a long-standing policy of liberally

Reversing/Vacating Summary Judgment/defaults in favor of reaching the merits of a cause.

Westinghouse v. Steven Lake Masonry, Inc., 356 So. 2d 1329, 1330 (Fla. 4th DCA 1978), citing North Shore Hospital, Inc. v. Baker, 143 So. 2d 849 (Fla. 1962), Sterling Drug, Inc. v. Wright, 342 So. 2d 503 (Fla. 1977). "Thus, if there be any reasonable doubt in the matter [of vacating a default or Summary judgment], it should be resolved in favor of granting the application and allowing a trial upon the merits of the case." North Shore Hosp., Inc. v. Barber, 143 So. 2d 849, 852-53 (Fla. 1962). 14. In this case, the Defendants presented clear meritorious and un refuted affirmative defenses (at

least seven) and good faith. Halpern v. Houser, 949 So. 2D 1155, 1157 (Fla. 4th DCA 2007), citing Schwartz v. Business Cards Tomorrow, Inc., 644 So.2d 611, 611 (Fla. 4th DCA 1994). 15. The ruling by this honorable Court based on nothing more than unverified, undocumented,

unsupported, untested and opposed allegations and opinions of attorney Dwight L.Smith is in direct contradiction to case law of the Oklahoma Supreme Court and even prior case law of this Court. 16. The only document upon which attorney Smith relied was the unverified and unsupported bare

Petition to foreclose and instead of attaching the mandatory evidence in support of the unverified claim, attorney Dwight L.Smith expected this court to just Take his word for it and apparently the court did. 17. The Defendants state that granting Defendants Motion to reconsider in favor of reaching the

merits of the cause would be in the interest of justice, in that this ruling is in direct contradiction to the Oklahoma Supreme Court recent holdings and consistent case law. CERTIFIED QUESTIONS OF FACT 18. The Defendants hereby request the following questions to be certified: a. Whether in a foreclosure action, meritorious Affirmative defenses have been sufficiently established to set aside a Summary judgment when the Defendants' affidavit in Support of their Motions to reconsider and proposed Answer and Affirmative Defenses, assert defenses including RESPA, TILA, and statutory violations, lack of standing, failure to demonstrate a cause, unclean hands and fraud.

b. Whether the trial court may refuse to reconsider its ruling when the Defendants have clearly established, meritorious Affirmative defenses and has acted with good faith? c. Whether the trial court may refuse to reconsider its ruling when Attorney Smith has never filed an Entry of Appearance as attorney for alleged Plaintiff as required by 12 O.S 2005.2.ey for alleged Plaintiff as required by 12 O.S 2005.2 rendering all of his filings, null and void, of no force and effect,. d. Whether the face of the record clearly shows that plaintiff failed to provide any Validation and Verification of the alleged default of any alleged debt purported by the alleged plaintiff, e. Whether this honorable court can obtain subject matter jurisdiction in the first instance and su sponte rule for the alleged plaintiff when the face of the record demonstrates that alleged plaintiffs unverified and undocumented claim failed to demonstrate standing as squarely challenged by defendants and plaintiff has not testified as to any of the unverified and undocumented opinions of attorney Dwight Smith and therefore has not pled facts sufficient for this court to hear attorney Dwight Smiths mere theories and conclusions about this Instant matter. f. Whether the trial court may refuse to reconsider its ruling even though not a single

supporting document proffered by the attorney Dwight Smith was attached to his naked petition, including the very documentation upon which the alleged plaintiffs case was grounded, rendering absolutly nothing on the record to qualify as summary judgment evidence as the only document addressing alleged plaintiffs claim or accusation of any default by defendants was a single un verified petition to foreclose signed by a third party, (attorney Dwight Smith) who had no personal knowledge of the matters to which he attested and whose authority to act on behalf of the alleged Plaintiff was at best unproven and unclear.

g. Whether the trial court may refuse to reconsider its ruling even though The petition itself was devoid of any sworn or certified copies of the default claim evidence referred to, and relied upon, by the third party (attorney Dwight Smith). h. Whether the trial court may refuse to reconsider its ruling in light that the record was also teeming with issues of fact on critical elements of the alleged plaintiffss case, such as: Whether plaintiff failed to demonstrate standing at inception in this matter, Wheather plaintiff has demonstrated at the commencment of this matter that they sufferd an injury attributable to the defendants which are actual, concrete and not conjectural in nature, Whether plaintiffs undisputed act of refusing to verify and validate any alleged default and proof of claim is an act of bad faith and or fraud, Whether plainiffs failure to demonstrate standing deprived the court jurisdiction in the first instance, Whether defendants have been damaged emotionally, financially, and or socially by this litigation coupled with continued refusal to validate any alleged default, proof of claim, Whether plaintiffs actions are abuse of process, Whether plaintiff failed to provide foundation, Whether plaintiffs failed to demonstrate a cause of claim for which relief can be granted, Whether plaintiff has unclean hands due to its actions described herein and therefore is prohibited from obtaining equitable relief, Whether plaintiff failed to provide foundation, admissible evidence or certified documentation (Evidence) backing its alleged claim and that supports its assertion of standing or authority to bring said claim on the face of the record, Whether this honorable court erred in not following Oklahoma Supreme courts

holdings in Deutsche Bank National Trust V. Brumbaugh, 2012 ok 3, J.p. Morgan Chase Bank N.a. V. Eldridge, 2012 ok 24, Cpt Asset Backed Certificates, series 2004-ec1 v. Kham, 2012 ok 22, Deutsche Bank National Trust Co. V. Richardson, 2012 ok 15, Deutsche Bank V. Matthews, 2012 ok 14, West V. Justice, 2008 ok civ app 49, 9, 185 p.3d. 412, 414 among a plethora of other Supreme Court Holdings. 19. Although all these issues were also raised by Defendants Verified Adverse Claim and

Defendants Un Contested Affirmative Defenses, alleged plaintiff adduced no evidence to disprove them. Alleged plaintiff and attorney Dwight Smith as a result of Actual and Constructive Fraud and Fraud on the court, have Unclean Hands and as a Restrictive Maxim of Equity are Collaterally Estopped from invoking Equity Jurisdiction and Jurisprudence. PLAINTIFS MOTION FOR SUMMARY JUDGMENT WAS IN WANT OF ACCORDANCE WITH RULE 13 OF THE OF DISTRICT COURTS RULES 20. The Supreme Court of the State of Oklahoma has held: All inferences and conclusions are to be drawn from the underlying facts contained in the record and are to be considered in the light most favorable to the party opposing the summary judgment. Rose v. Sapulpa Rural Water Co., 1981 OK 85, 631 P.2d 752. Summary judgment is improper if, under the evidentiary materials, reasonable individuals could reach different factual conclusions. Gaines v. Comanche County Medical Hospital, 2006 OK 39, 4, 143 P.3d 203, 205 [emphasis added] Summary judgment is improper if, under the evidentiary materials, reasonable individuals could reach different factual conclusions. Gaines v. Comanche County Medical Hospital, 2006 OK 39, 4, 143 P.3d 203, 205.Because litigants are entitled to a fair day in court, the policy in this State favors resolution of actions on their merits. Nelson v. Nelson, 1998 OK 10, 23, 954 P.2d 1219, 1228. [emphasis added] The burden of proving the absence of a genuine issue of material fact is upon the moving party. Palm Beach Pain Management, Inc. v. Carroll, 7 So. 3d 1144, 1145 (Fla. 4th DCA 2009) (citing Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966). [emphasis added] Unsupported contentions of material fact are not sufficient on motion for summary judgment, but rather, material facts must be supported by affidavits and other testimony and documents that would be admissible in evidence at trial, Cinco Enterprises, Inc. V. Benso, Okla., 890 P.2d 866 (1994).

Where there are no depositions, admissions, answers to interrogatories, or affidavits in support of motion for summary conclusion, the motion can not be considered.See O.S. title 12, Chapter 12, Rule 13.

APPLICATION OF RULE 13 21. In Pearce v Bank One, 2001 Ok CIV APP 62, 24 P.3d, 2, the appellate court addressed the

proper application of Rule 13 and held: "Summary judgment is improper where reasonable minds could draw differences or conclusions from the undisputed facts. Further, we must review the evidence in the light most favorable to the party opposing summary judjment." Copeland v Lodge Enterprises, Inc.,2000 OK 36, 4 P.3d 695, 8, held: "All facts and inferences must be viewed in the light most favorable to the nonmovant. ..................... Only if the court should conclude that there is no material facts in dispute and the law favors movants claims or liability defeating defense is the moving party entitled to summary judjment." 22. Further in Copeland the court held that the court has "........an affirmative duty to test..... "the

motion and supporting documents to make sure they are legally sufficient to support a summary judjment. According to these consistent holdings attorney Smiths Motion for Summary Judjment must be denied as matter of law. 23. Further persuant to Rule 13e, if it appears that one of the parties is entitled to judjment as a

matter of law, then in that event, the court shall render judjment for that party". Based upon this Rule, when applied to the Facts and evidence before the court as in this matter, the court "shall" enter judjment in the defendants favor as to all the issues. 24. The Oklahoma Supreme Court generally treats a district court's application of local rules to

grant a summary judgment motion as a sanction, requiring application of the sanction analysis specified in Meade v. Grubbs, 841 F.2d 1512 (10th Cir.1988). See, e.g., Murray v. Archambo, 132 F.3d 609, 610

(10th Cir.1998). In this case, the district court did not perform the sanction analysis, granting attorney Smiths summary judgment motions based solely on un documented and un supported assertions. 25. This honorable court must construe and apply local rules in a manner consistent with

Fed.R.Civ.P. 56. See Fed.R.Civ.P. 83. Under Rule 56(c), the moving party: always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P.56(c)) 26. Before the burden shifts to the nonmoving party to demonstrate a genuine issue, the moving

party must meet its "initial responsibility" of demonstrating that no genuine issue of material fact exists and that it is entitled to summary judgment as a matter of law. Id. 27. When a motion for summary judgment is made and supported as provided in this rule, an

adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided by this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. 28. As explained by the Supreme Court in Adickes v. S.H. Kress & Co., 398 U.S. 144, 160-61, 90

S.Ct. 1598, 26 L.Ed.2d 142 (1970), the burden on the nonmovant to respond arises only if the summary judgment motion is properly "supported" as required by Rule 56(c). Accordingly, summary judgment is "appropriate" under Rule 56(e) only when the moving party has met its initial burden of production under Rule 56(c). If the evidence produced in support of the summary judgment motion does not meet this burden, "summary judgment must be denied even if no opposing evidentiary matter is presented." Id. at 160, 90 S.Ct. 1598 (quoting Fed.R.Civ.P. 56 advisory committee notes to the 1963 amendments) (emphasis added).

29.

The Court must consider the evidence contained in the record, including any supporting

affidavits, in the light most favorable to the non-moving party, the Defendants, and if the slightest doubt or conflict in the evidence, then summary judgment must be reversed. See id. 30. There is no support anywhere in the record as no evidence or testimony was presented or

received by or to this honorable court, by attorney Smith as there was no supporting evidence, and or affidavit/verification, not a single supporting document attached to the defective petition and claim of default rendering absolutly nothing on the record to qualify as summary judgment evidence. 31. According to the Rule 13 Standards Summary Judgment was improper based upon the face of

the record showing no support anywhere in the record and no evidence or testimony on the record to qualify as summary judgment evidence.The alleged Plaintiffs s summary judgment motion does not mention an Proof of default or claim Nor does it specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other evidentiary materials in accordance with Rule 13 Standards for its assertion in the motion that they sufferd an injury attributable to the defendants which are actual, concrete and not conjectural in nature, Because its a statutory definition, its black and white. This honorable court cannot alter or weave or color it with shades of gray. 32. Accordingly, the one document essential to the alleged Plaintiffs claim of defendants alleged

default of a debt was never presented or received by or to this honorable court, and therefore, not a part of any required summary judgment evidence upon which the court could base its judgment. Moreover, attorney Dwight Smith had no personal knowledge of the alleged claim in the unverified and un supported defective petition which was filed into this court by attorney Dwight Smith, however, it appears that the court here has now ruled that proof of plaintiffs claim, any affidavits, testimony, answers to interrogatories, admissions, depositions, discovery or any mandatory evidentiary materials at all, are totally unnecessary for the alleged plaintiff to take the defendants home. FRAUD ON THE COURT BY AN OFFICER OF THE COURT AND DISQUALIFICATION OF JUDGES STATE AND FEDERAL

33.

Who is an "officer of the court"? a. A judge is an officer of the court, as well as are all attorneys. A state judge is a state judicial

officer, paid by the State to act impartially and lawfully. A federal judge is a federal judicial officer, paid by the federal government to act impartially and lawfully. State and federal attorneys fall into the same general category and must meet the same requirements. A judge is not the court. People v. Zajic, 88 Ill.App.3d 477, 410 N.E.2d 626 (1980). 34. What is "fraud on the court"? a. Whenever any officer of the court commits fraud during a proceeding in the court, he/she is engaged in "fraud upon the court". In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated "Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. ... It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function --- thus where the impartial functions of the court have been directly corrupted." "Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to

"embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the required manner its impartial task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, 60.23. The 7th Circuit further stated "a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final." [ emphasis added ] 35. What effect does an act of "fraud upon the court" have upon the court proceeding?

a. Fraud upon the court" makes void the orders and judgments of that court. It is also clear and well-settled law that any attempt to commit "fraud upon the court" vitiates the entire proceeding. The

People of the State of Illinois v. Fred E. Sterling, 357 Ill. 354; 192 N.E. 229 (1934) ("The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions."); Allen F. Moore v. Stanley F. Sievers, 336 Ill. 316; 168 N.E. 259 (1929) ("The maxim that fraud vitiates every transaction into which it enters ..."); In re Village of Willowbrook, 37 Ill.App.2d 393 (1962) ("It is axiomatic that fraud vitiates everything."); Dunham v. Dunham, 57 Ill.App. 475 (1894), affirmed 162 Ill. 589 (1896); Skelly Oil Co. v. Universal Oil Products Co., 338 Ill.App. 79, 86 N.E.2d 875, 883-4 (1949); Thomas Stasel v. The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935).

b. Under Oklahoma and Federal law, when any officer of the court has committed "fraud upon the court", the orders and judgment of that court are void, of no legal force or effect.

36.

What causes the "Disqualification of Judges? a. Federal and State law requires the automatic disqualification of a Federal judge under certain

circumstances. In 1994, the U.S. Supreme Court held that "Disqualification is required if an objective observer would entertain reasonable questions about the judge's impartiality. If a judge's attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified." [Emphasis added]. Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994). Courts have repeatedly held that positive proof of the partiality of a judge is not a requirement, only the appearance of partiality. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988) (what matters is not the reality of bias or prejudice but its appearance); United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985) (Section 455(a) "is directed against the appearance of partiality, whether or not the judge is actually biased.") ("Section 455(a) of the Judicial Code, 28 U.S.C. 455(a), is not intended to protect litigants from actual bias in their judge but rather to promote public confidence in the impartiality of the judicial process."). 37. That Court also stated that Section 455(a) "requires a judge to recuse himself in any

proceeding in which her impartiality might reasonably be questioned." Taylor v. O'Grady, 888 F.2d

1189 (7th Cir. 1989). In Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972), the Court stated that "It is important that the litigant not only actually receive justice, but that he believes that he has received justice." [Emphasis added] 38. The Supreme Court has ruled and has reaffirmed the principle that "justice must satisfy the

appearance of justice", Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (1954). A judge receiving a bribe from an interested party over which he is presiding, does not give the appearance of justice. 39. "Recusal under Section 455 is self-executing; a party need not file affidavits in support of

recusal and the judge is obligated to recuse herself sua sponte under the stated circumstances." Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989). 40. Further, the judge has a legal duty to disqualify himself even if there is no motion asking

for his disqualification. The Seventh Circuit Court of Appeals further stated that "We think that this language [455(a)] imposes a duty on the judge to act sua sponte, even if no motion or affidavit is filed." Balistrieri, at 1202. 41. Judges do not have discretion not to disqualify themselves. By law, they are bound to follow

the law. Should a judge not disqualify himself as required by law, then the judge has given another example of his "appearance of partiality" which, possibly, further disqualifies the judge. Should another judge not accept the disqualification of the judge, then the second judge has evidenced an "appearance of partiality" and has possibly disqualified himself/herself. None of the orders issued by any judge who has been disqualified by law would appear to be valid. It would appear that they are void as a matter of law, and are of no legal force or effect. 42. Should a judge not disqualify himself, then the judge is violation of the Due Process Clause

of the U.S. Constitution. United States v. Sciuto, 521 F.2d 842, 845 (7th Cir. 1996) ("The right to a tribunal free from bias or prejudice is based, not on section 144, but on the Due Process Clause."). 43. Should a judge issue any order after he has been disqualified by law, and if the party has been

denied of any of his / her property, then the judge may have been engaged in the Federal Crime of "interference with interstate commerce". The judge has acted in the judge's personal capacity and not in the judge's judicial capacity. It has been said that this judge, acting in this manner, has no more lawful authority than someone's next-door neighbor (provided that he is not a judge). However some judges may not follow the law. If you were a non-represented litigant, and should the court not follow the law as to non-represented litigants, then the judge has expressed an "appearance of partiality" and, under the law, it would seem that he/she has disqualified him/herself. 44. However, since not all judges keep up to date in the law, and since not all judges follow the

law, it is possible that a judge may not know the ruling of the U.S. Supreme Court and the other courts on this subject. Notice that it states "disqualification is required" and that a judge "must be disqualified" under certain circumstances. 45. If a judge acts after he has been automatically disqualified by law, then he is acting without

jurisdiction, and that suggest that he is then engaging in criminal acts of treason, and may be engaged in extortion and the interference with interstate commerce. 46. Courts have repeatedly ruled that judges have no immunity for their criminal acts. Since both

treason and the interference with interstate commerce are criminal acts, no judge has immunity to engage in such acts. Prima facie tort. The infliction of intentional harm, resulting in damage, without excuse or justification, by an act or series of acts which would otherwise be lawful. Cartwright v. Golub Corp., 51 A.D.2d 407, 381 N.Y.S.2d 901, 902. See also Strict liability. Fraud on court. A scheme to interfere with judicial machinery performing task of impartial adjudication, as by preventing opposing party from fairly presenting his case or defense. Finding of fraud on the court is justified only by most egregious misconduct directed to the court itself such as bribery of a judge or jury to fabrication of evidence by counsel and must be supported by clear, unequivocal and convincing evidence. In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, C.A.Minn., 538 F.2d 180, 195. It consists of conduct so egregious that it undermines the integrity of the judicial process. Stone v. Stone, Alaska, 647 P.2d 582, 586.

MEMORANDUM OF POINTS AN AUTHORITIES OF LAW 47. The Supreme Court of the State of Oklahoma has previously held: Standing, as a jurisdictional question, may be correctly raised at any level of the judicial process or by the Court on its own motion. This Court has consistently held that standing to raise issues in a proceeding must be predicated on interest that is "direct, immediate and substantial." Standing determines whether the person is the proper party to request adjudication of a certain issue and does not decide the issue itself. The key element is whether the party whose standing is challenged has sufficient interest or stake in the outcome. In Matter of the Estate of Doan, 1986 OK 15, 7, 727 P.2d 574, 576. In Hendrick v. Walters, 1993 OK 162, 4, 865 P.2d 1232, 1234, this Court also held: Respondent challenges Petitioner's standing to bring the tendered issue. Standing refers to a person's legal right to seek relief in a judicial forum. It may be raised as an issue at any stage of the judicial process by any party or by the court sua sponte. (emphasis original) Furthermore, in Fent v. Contingency Review Board, 2007 OK 27, footnote 19, 163 P.3d 512, 519, this Court stated "[s]tanding 48. The Supreme Court of the State of Oklahoma has held: All inferences and conclusions are to be drawn from the underlying facts contained in the record and are to be considered in the light most favorable to the party opposing the summary judgment. Rose v. Sapulpa Rural Water Co., 1981 OK 85, 631 P.2d 752. Summary judgment is improper if, under the evidentiary materials, reasonable individuals could reach different factual conclusions. Gaines v. Comanche County Medical Hospital, 2006 OK 39, 4, 143 P.3d 203, 205 49. The Supreme Court of the State of Oklahoma has held: Summary judgment is improper if, under the evidentiary materials, reasonable individuals could reach different factual conclusions. Gaines v. Comanche County Medical Hospital, 2006 OK 39, 4, 143 P.3d 203, 205.Because litigants are entitled to a fair day in court, the policy in this State favors resolution of actions on their merits. Nelson v. Nelson, 1998 OK 10, 23, 954 P.2d 1219, 1228. 50. The Court must consider the evidence contained in the record, including any supporting

affidavits, in the light most favorable to the non-moving party, the Defendants, and if the slightest doubt or conflict in the evidence, then summary judgment must be reversed. See id. 51. The Supreme Court appears always has emphasized the discretion vested in the trial judge to

vacate certain judgments where justice would better be served by permitting a litigant to have his or her day in court.

52. The Supreme Court of the State of Oklahoma has also held: In Ferguson Enterprise., Inc. v. H. Webb Enterprise., Inc., 2000 OK 78, 14, 13 P.3d at 483-84. The fact that we deal here with the disposition of a motion filed pursuant to 12 O.S.2001 2006(B), before default judgment was entered, does not require that we abandon the principles on which the vacation of default judgment cases were decided. [emphasis added] 53. The Supreme Court of the State of Oklahoma has also held: The standard of review for a trial court's ruling either vacating or refusing to vacate a judgment is abuse of discretion. Ferguson Enterprises, Inc. v. Webb Enterprises, Inc., 2000 OK 78, 5, 13 P.3d 480, 482; Hassell v. Texaco, Inc., 1962 OK 136, 372 P.2d 233. A clear abuse-of -discretion standard includes appellate review of both fact and law issues. Christian v. Gray, 2003 OK 10, 43, 65 P.3d 591, 608. An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law, or where there is no rational basis in evidence for the ruling. Fent v. Oklahoma Natural Gas Co., 2001 OK 35, 12; 27 P.3d 477, 481....CPT Asset Backed Certificates, Series 2004-EC1 v. Kham, 54. Defendant's demand this court provide its finding of facts and conclusions of law its order is

based upon and defendabts demand leave of court to amend its claim based of whatever if any to address those defections if any. O.S Title 12 2012 G. FINAL DISMISSAL ON FAILURE TO AMEND. On granting a motion to dismiss a claim for relief, the court shall grant leave to amend if the defect can be remedied and shall specify the time within which an amended pleading shall be filed. If the amended pleading is not filed within the time allowed, final judgment of dismissal with prejudice shall be entered on motion except in cases of excusable neglect. In such cases amendment shall be made by the party in default within a time specified by the court for filing an amended pleading. Within the time allowed by the court for filing an amended pleading, a plaintiff may voluntarily dismiss the action without prejudice. CONCLUSION 55. There are an increasing number of "scavengers" that buy alleged bad debts, including alleged

mortgages, for a fraction of face value and attempt to enforce them. Such entities profit by foreclosure. Alleged Plaintiff has Wholly failed to not only establish by proper evidence that it has standing to bring this action, but has failed to establish any evidence at all to bring this action and also succeeded in avoiding scrutiny of the Court in a last minute attempt to manipulate the court and deny Defendants thier due process rights by law, hence, have actually gotten away with not having to prove any alleged claim as demanded by defendants and mandated by law. As a result Defendants were deprived access

to court on their compulsory counter claim in which plaintiff failed to factually refute any part of defendants compulsory counter claim. It is also well established doctrine that it is the policy of the courts to give litigants their day in court, and particularly is this true where the defendant presents valid and unrefuted affirmative defenses. The policy favoring trial on the merits articulated in these cited cases remains the policy of this state. This Court has knowledge that Ben Michael Mayberry and Shelly Denise Mayberry's procedural due process rights require opportunity to present evidence on their claims. Ben Michael Mayberry and Shelly Denise Mayberry's verified adverse Claim for Fraud and Abuse of Process, Motion to Dismiss, Objection and Demand for Affirmative Relief in addition to Seven Affirmative Defenses is procedurally proper, placing substantive fact issues before this Court via unrebutted affidavits. See attachments "B" and "C." WHEREFORE, Defendants, Ben Michael Mayberry and Shelly Denise Mayberry request that in the interest of justice, this honorable Court grant their Motion to Reconsider in favor of reaching the merits of this cause and disclosing this honorable courts findings of fact and conclusions of law that this court is basing its decision on. Thus, if there be any reasonable doubt in the controversy/matter it can be resolved in allowing a trial upon the merits of the case. Respectfully Submitted, By: ______________________ Ben Michael Mayberry 9210 s Lakewood Ave Tulsa, Oklahoma 918-734-3422

VERIFICATION I, Ben Michael Mayberry am a party in the above-entitled action. i have read the

foregoing Complaint/Claim and know the contents thereof. The same is true of my own knowledge, and as to those matters, We believe it to be true, declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed at Tulsa County, Oklahoma. DATED: February ___, 2013 BY:___________________________________ Ben Michael Mayberry 9210 s Lakewood Ave Tulsa, Oklahoma 918-734-3422

CERTIFICATE OF MAILING I, Ben Michael Mayberry, do hereby solemnly declare that on February 20th, 2013, I did cause to be delivered by first class Mail, a true and correct copy of the foregoing instruments, Affidavit of Ben Michael Mayberry Supporting Motion to reconsider ruling to the parties and locations listed below:

TO: DWIGHT L. SMITH. 1636 SOUTH CINCINNATI AVE. Tulsa, Oklahoma 74119 By:______________________________________ Ben Michael Mayberry, All Rights Reserved

Jurat Before me______________________________a Notary Public in and for Tulsa County, State of Oklahoma; appeared Ben Michael Mayberry, who making himself known to me did affirm and subscribe hereto verifying the facts herein and the exhibits attachment hereto on this the 20th day of February 2013. ____________________________ Notary Seal My commission expires _______________________