IN THE MAGISTRATE COURT OF COBB COUNTY
STATE OF GEORGIA
| XXXXX, Petitioner,
vs. YYYYY, Respondent |
civil action No.: 21-E-10178 |
MOTION TO SET ASIDE NO CONTACT ORDER
COMES NOW, Petitioner XXXXX and pursuant to OCGA 9-11-60(d) (2); and the standards of W. Gerry Howe v. William Douglas Roberts, et., al., Supreme Court of Georgia No. 46899, (385 S.E.2d276), (259 Ga. 617) (1989).; files this Motion to Set Aside the No-Contact Order on the grounds of fraud. The Petitioner shows with specificity the grounds for which the Court may Grant his Motion.
STATEMENT OF FACTS
On or about September 15, 2021, the Respondent obtained a Temporary Protective Order (hereinafter “the Order”) against Petitioner in the Cobb County Superior Court. She made the said filing on the false allegations that Petitioner had threatened physical harm against her as well as had the Respondent removed from the home.
Consequential to the filing of the said Order, Petitioner had the option of challenging the illegally acquired Order but instead negotiated a no-contact Order on or about October 12, 2021. It is instrumental to note that the Respondent’s attorney, was aware that the Order was frivolous, so he pushed for mediation between the Petitioner and the Respondent. Further, Respondent’s attorney Ms. Suzy Life, negotiated the no contact Order and appeared at the October 12, 2021 hearing. However she has yet to file an appearance as Respondents attorney on these matters.
Interestingly, later, when Petitioner wanted to rent an apartment in Fort Lauderdale, FL after the negotiated settlement where he resided before the actions of Respondent, he discovered that the Respondent’s attorney had filed a fraudulent Dispossessory case against Petitioner without Petitioner’s knowledge. It is worth noting that the said filing was done although Petitioner had never been to the house since September 15, 2021. Besides, Petitioner had never lived there, never claimed to have lived there, and only visited Respondent at her request when in town and as normal dating transpires with long-distance relationships. Furthermore, Respondent served the said Order at the house, knowing very well that Petitioner never lived there and had never visited the house since September 15, 2021. Petitioner avers that Respondent did this in a bid to obtain a default judgment against Petitioner knowing that the Petitioner could never be served at the address in the future in attempts to obtain a fraudulent default judgment including $3,000.00 in legal fees.
During the mediation procedure, Respondent never disclosed to Petitioner that she had filed an Dispossessory case against Petitioner. She induced Petitioner to sign the no-contact order under false pretenses as she had filed a fraudulent Dispossessory case against him the previous night in a lower court in this same county.
ARGUMENTS
- Standard of Review
The Civil Procedure Act does not preclude the Magistrate Courts from applying the Civil Procedure Act. This was affirmed by the Supreme Court of Georgia in W. Gerry Howe v. William Douglas Roberts, et., al., Supreme Court of Georgia No. 46899, (385 S.E.2d276), (259 Ga. 617) (1989), where the Court stated in pertinent part that:
[T]he language of OCGA § 15-10-42, that magistrate courts are not subject to the Civil Practice Act, must be read to permit, rather than require, magistrate courts to follow the provisions of the Civil Practice Act, or any other appropriate rules and regulations relating to pleading, practice, and procedure, where to do so would “administer justice” under OCGA § 15-10-44.[6] Certainly such language should not be construed to preclude the magistrate’s use of the Civil Practice Act where such use is consistent with OCGA § 15-10-44.
According to the Court, “other than those matters specifically addressed by OCGA § 15-10-40 et seq., the “general rights” in common law practice pre-existing the Civil Practice Act are to be applied in magistrate court.” (Emphasis added). See Howe at 144. The Court further stated thus: “the [magistrate] judge shall conduct the trial in such manner as to do substantial justice between the parties according to the rules of substantive law. All rules and regulations relating to pleading practice, and procedure shall be liberally construed so as to administer justice.”
- Grounds for Setting aside the No-Contact Order
- The No-Contact Order was fraudulently obtained
The Respondent’s attorney fraudulently negotiated for the No-Contact Order knowing that the Respondent had filed a fraudulent Dispossessory case against Petitioner in Cobb County Magistrate Court. The Respondent had filed an Dispossessory case against Petitioner the previous night before the parties negotiated for the No-Contact Order only to harm Petitioner with the fraudulent filing. The Respondent and/or Respondent’s attorney was obligated to inform Petitioner of the Dispossessory filing before negotiating the No-Contact Order, as well as following basic legal requirements per Georgia Rule 4.2 – Entry of appearance and pleadings.
Petitioner also observes that during the hearing for the Temporary Protective Order on or about September 15, 2021, Respondent was represented by Suzy Life. It is worth noting that Suzy Life never filed appearance as attorney for the Respondent though she participated in negotiating the No-Contact Order, and appeared in Court on the record. It is also worth noting that Suzy Life is not the attorney that Respondent retained for her Custody and Alimony matters against her ex-husband, Zachary Cheroff. Interestingly, there is a similarity between Zachary Cheroff’s dismissed stalking complaint are that of the TPO. This is fraudulent because the Respondent intended to rely on content, which the Judge already dismissed.
- It is impossible to access the Respondent’s AT&T account
According to paragraph 28 of the No-Contact Order, the Respondent was obligated to reimburse Respondent by sending a check to Respondent’s attorney. The said paragraph further provided that Petitioner should make the said payment unless or until he can transfer the accounts out of Petitioner’s name. The deadline for Petitioner’s obligations therein was set at December 31, 2021.
Petitioner avers that first, he does not own the AT&T account, nor does he have any devices or active lines on Respondents account. And for that reason, AT&T would not communicate with him since he is not the account-holder nor authorized to access Respondents account. Petitioner has made several attempts to transfer, port, or terminate the lines with AT&T however Petitioner is not authorized to access any information on these accounts. Further, Respondent has terminated these lines after the initial hearing.
- It is impossible to access the Respondent’s Bank of America account
Paragraph 32 of the No-Contact Order obligates Petitioner to release Respondent and her parents from the credit balance for the Bank of America corporate account.
Petitioner avers that he lacks standing to access the account, or obtain information thereof. Notably, Petitioner is neither an officer nor an authorized representative of the company. Petitioner is only an investor and independent board advisor to the company. In that regard, Petitioner avers that the bank will only communicate with the Respondent as she is the only listed individual on this business account as an authorized signer. Further, the Petitioner and the Respondent already solved the issue with the bank when they visited the bank a few weeks before September 14, 2021. Petitioner and other members of the company have attempted to communicate with Bank of America regarding this matter and have exhausted all possible options. Bank of America will only communicate with Respondent.
Petitioner further avers that he cannot release Respondent from liability because Respondent’s ex-husband is currently under investigation for multiple crimes and that there is reasonable belief that Respondent played a role in the said crimes.
- Respondent has violated the No-Contact Order several times
Petitioner avers that Respondent has violated the said Order three times. First, when Petitioner’s friend, Tony, went to pick Petitioner’s items from the house per the terms of no contact Order, the Respondent attempted to pass messages to Petitioner through Tony. Besides, she engaged Tony and the hired mover into the parties’ affairs by giving them her side of the story and asking them to relay information about events that have transpired to Petitioner through Tony and the hired mover.
Second, Respondent has communicated with Tony about Petitioner’s financial matters, and has presented him with information to pass to Petitioner via text message. Third, Respondent contacts Petitioner’s friend, Mr. Mark Leamer, whom she met when Petitioner dropped off his dog for training. Respondent should not communicate with the said individuals because they are Petitioner’s friends and she only briefly met and knew them after knowing the Petitioner. Respondent continues to contact Petitioner’s friends to harass them as well as Petitioner in attempts to continue to harass Petitioner.
It is evident that by the said actions, Respondent violates paragraph 12 of the No-Contact Order that prohibited any contact, direct or indirect, between Petitioner and Respondent.
WHEREFORE, Petitioner moves the Court to set aside the no-contact Order entered on or about October 12, 2021, on the aforesaid grounds. Petitioner also prays this Court sanctions the Respondent for her frivolous and malicious acts as alleged herein. Further, Petitioner prays this Court grants Petitioner a Permanent Protection Order against Respondent, prohibiting her from contacting either the Petitioner or Petitioner’s friends. Thirdly, Petitioner prays this Court sanctions Respondent’s attorney for contempt of court because she failed to file an appearance on these matters, she misadvised Respondent to frivolously enter the no-contact Order, and to file a frivolous and malicious case against Petitioner. Petitioner also prays this Court award Petitioner $9,000.00 for legal fees. Lastly, Petitioner prays for any other Order this Court deems just.
Respectfully Submitted,
DATED:12/24/2021
CERTIFICATE OF SERVICE
This is to certify that I have served a true and correc t copy of the Motion by U. S. Mail with proper postage affixed thereto to insure delivery as follows:
Nicole Campbell Cheroff
DATED: 12/24/2021
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