IN THE COURT OF FORREST COUNTY, MISSISSIPPI

WELS FARGO BANK

               Plaintiff

v.                                                                                                                   CASE # W18-0064

Inland Family Practice Center LLC.,

Royal Oaks RENTAL Properties LLC,

Ikechukwu H. Okorie, Vivian Okorie, and

SLOCUM-Radson MEDICAL LABORATORIES, Inc.

               Defendants

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO SET ASIDE JUDGMENT AND INTERROGATORIES

Ikechukwu Okorie (PRO SE) 107 Ralph Rawls RdHattiesburg, MS 39402 Defendant, pro se 

    Baker, Donelson, Bearman, Caldwell &   

    Berkowitz, PC

1900 Republic Centre                                        

633 Chestnut Street  

Chattanooga, Tennessee 37450

Phone  423.209.4206

    Fax     423.752.9633

    elindner@bakerdonelson.com

    www.bakerdonelson.com       

    Attorney for Plaintiff

TABLE OF CONTENTS

TABLE OF CONTENTS. 2

TABLE OF AUTHORITIES. 3

EVIDENCE SUBMITTED. 4

STATEMENT OF FACTS. 5

ARGUMENTS. 6

A.    THE DEFENDANT’S DUE PROCESSS RIGHTS WERE VIOLATED. 6

B.    IMPROPER SERVICE VOIDS A COURT’S JUDGMENT. 8

C.    FRAUD UPON THE COURT IS SUFFICIENT GROUND TO VACATE A JUDGMENT. 9

CONCLUSION.. 11

TABLE OF AUTHORITIES

Cases

Bluitt v. Houston Indep. Sch. Dist., 236 F.Supp.2d 703, 733 (S.D.Tex.2002)…………………………………… 7

Brown ex rel. Webb v. Blackwood, 697 So.2d 763, 769 (Miss. 1997)…………………………………………….. 7

Brown v. Wesson, 114 Miss. 216, 74 So. 831, 834 (1917)………………………………………………………….. 10

Chasez v. Chasez, 935 So. 2d 1058, 1062 (¶ 12) (Miss.Ct.App. 2005)……………………………………………. 7

Childers v. Childers, 717 So.2d 1279, 1281 (¶ 8) (Miss. 1998))……………………………………………………. 7

Decker v. Kaplus, 763 So.2d 1229, 1230 (Fla. 5th DCA 2000………………………………………………………. 9

Harris v. Miss. Valley State Univ., 873 So.2d 970, 985 (¶ 40) (Miss.2004)……………………………………… 7

Kerwit Med. Prods., Inc. v. N H Instruments, Inc., 616 F.2d 833, 836 n. 8 (5th Cir. 1980)………………… 10

M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079, 1082 (Fla. 4th DCA 2000)……………… 9

Mathews v. Eldridge, 424 U.S. 319, 332 (1976)………………………………………………………………………… 7

Ramagli Realty Co. v. Craver, 121 So.2d 648, 654 (Fla. 1960)…………………………………………………….. 9

Reina v. Barnett Bank, N.A., 766 So.2d 290, 291 (Fla. 4th DCA 2000)…………………………………………… 9

Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978))…………………………………………………. 10

S & M Trucking LLC v. Rogers Oil Co. of Columbia Inc., 195 So. 3d 217, 221 (¶17) (Miss. Ct. App. 2016).             10

Stuart v. Stuart, 956 So.2d 295, 300 (¶ 23) (Miss.Ct.App. 2006)…………………………………………………… 7

Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989)……………………………………… 10

Rules

M.R.C.P. 60(b)………………………………………………………………………………………………………………….. 9

Miss. R. Civ. P. 4………………………………………………………………………………………………………………. 8

 

IN THE COURT OF FORREST COUNTY, MISSISSIPPI

WELS FARGO BANK

               Plaintiff

v.                                                                                                                   CASE # W18-0064

Inland Family Practice Center LLC.,

Royal Oaks RENTAL Properties LLC,

Ikechukwu H. Okorie, Vivian Okorie, and

SLOCUM-Radson MEDICAL LABORATORIES, Inc.

               Defendants

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO SET ASIDE JUDGMENT AND INTERROGATORIES

COMES NOW the Defendant, IKECHUKWU OKORIE, pro se, and for his Memorandum of law in support of its Motion to Set Aside Judgment and Interrogatories Pursuant to Miss. R. Civ. P. 60, and states as follows:

EVIDENCE SUBMITTED

 

In support of this motion, Plaintiff submits the following evidence as exhibits:

  1. Exhibit 1 (Evidence of Plaintiff’s erroneous Service of Process).
  2. Exhibit 2 (Hearing Transcript).
  3. Exhibit 3 (Evidence that the debt has been discharged in bankruptcy).
  4. Exhibit 4 (Evidence that Wells Fargo has gotten $360,000 from the trustee).
  5. Exhibit 5 (Evidence of the exchange between Defendant and Mr. Hearn).

STATEMENT OF FACTS

 

Wells Fargo filled this lawsuit in 2018. This lawsuit stems from a line of credit issued to Inland Family Practice and non-purchase real estate loan. When Defendant’s business fell on hard times it was difficult to keep making payments.

Defendant continued negotiations with Wells Fargo and the negotiations fell apart because of Wells Fargo’s unwillingness to work with Defendant.

Wells Fargo moved to file this lawsuit. The lawsuit was served to Defendant on April 27th , 2018 at Inland Family Practice Center at 908 W. Pine Street in Hattiesburg, MS 39401.

Immediately, Defendant reached out to Mr. Hearn to represent Defendant in the lawsuit. No one told Defendant that his wife Mrs. Vivian Okorie was served in the lawsuit. Defendant is not an agent for Mrs. Vivian Okorie to receive service for her at Inland Family Practice.

During the lawsuit, Defendant was preparing his defenses and was hoping for a court date to show up at the hearing only to find out that there was a Judgment entered against him and Inland through lien filing. This led to Inland and Defendant filing for bankruptcy. Defendant reached out to the court to ascertain what has transpired and was shocked to see the transcript. When Defendant reached out to Mr. Hearn, he told Defendant that Defendant doesn’t have any appeals right. Defendant made efforts to appeal the decision but did not get any notifications from the court but later found out that the appeals court waited for Defendant’s motions and later dismissed the case.

During Bankruptcy, Wells Fargo filed a secured lien of which they were paid $360,000 based on this Fraudulent judgment secured in this court.

Wells Fargo was also on Inland Chapter 11 plan where they agreed on monthly payments which have been current.

Defendant’s debt has been discharged in the Bankruptcy court.

On around middle of October, Defendant’s wife Mrs. Vivian Okorie received a signed order of interrogatories from this court giving her 30 days to respond. Mrs. Vivian did never get any summons on this lawsuit or any motions for any hearing throughout this lawsuit.

Defendant reached out to Mr. Hearn to find out what has transpired. Mr. Hearn instructed him that he does not represent Defendant anymore and he never represented Mrs. Vivian Okorie in this lawsuit. He also stated that Defendant should never contact him again.  Defendant went to the courts to see what had transpired only to find out that Wells Fargo served Defendant’s wife Mrs. Vivian and mailed the motion to 39 Pleasant Pond Loop, Hattiesburg MS 39402. An old home address Defendant and his Wife  left 13 years ago.

ARGUMENTS

A.    THE DEFENDANT’S DUE PROCESSS RIGHTS WERE VIOLATED

“Complete absence of service of process offends due process and cannot be waived.” Isom v. Jernigan, 840 So.2d 107 (2003) at (¶ 10); see also Chasez v. Chasez, 935 So. 2d 1058, 1062 (¶ 12) (Miss.Ct.App. 2005).  

The Fifth Amendment’s Due Process Clause provides that no person shall “be deprived of life, liberty, or property, without due process of law.” The Due Process Clause requires that the Government follow adequate procedures before it can deprive a person of certain liberty or property interests—a protection referred to as “procedural due process.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976).

“Procedural[-]due[-]process claims require a two-step analysis: (1) does the plaintiff have a property interest entitled to procedural[-]due[-]process protection; and (2) if yes, what process is due.” Harris v. Miss. Valley State Univ., 873 So.2d 970, 985 (¶ 40) (Miss.2004) (citing Bluitt v. Houston Indep. Sch. Dist., 236 F.Supp.2d 703, 733 (S.D.Tex.2002)).

“The guarantee of procedural due process includes the right to a fair and impartial trial.” Stuart v. Stuart, 956 So.2d 295, 300 (¶ 23) (Miss.Ct.App. 2006) (citing Brown ex rel. Webb v. Blackwood, 697 So.2d 763, 769 (Miss. 1997)). “A due process violation occurs where a party is not allowed a full and complete hearing before being deprived of life, liberty or property.” Id. (citing Childers v. Childers, 717 So.2d 1279, 1281 (¶ 8) (Miss. 1998)).

Defendant contends that the tenet of the judiciary process in the United States and Mississippi is due process rights. And that no one should be tried in their absence without proper notice.

It is clear what constitutes legitimate process serving pursuant to Miss. R. Civ. P. 4. Miss. R. Civ. P. 4(d) states in pertinent part that

“… Upon an individual other than an unmarried infant or a mentally incompetent person, by delivering a copy of the summons and of the complaint to him personally or to an agent authorized by appointment or by law to receive service of process; or (B) if service under subparagraph (1)(A) of this subdivision cannot be made with reasonable diligence, by leaving a copy of the summons and complaint at the defendant’s usual place of abode with the defendant’s spouse or some other person of the defendant’s family above the age of sixteen years who is willing to receive service, and by thereafter mailing a copy of the summons and complaint (by first class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after such mailing.” (Emphasis added).

Throughout this lawsuit Mrs. Vivian Okorie was never served and was never notified.  Plaintiff served the Defendant Mrs. Vivian on 39 Pleasant Pond Lane, Hattiesburg MS 39402, which address the Defendants left 13 years ago.

In that regard, Defendant contends that failure of the Plaintiff to conduct proper service on Defendant and Mrs. Vivian Okorie, amounted to a violation of the said Defendants’ due process rights.

B.     IMPROPER SERVICE VOIDS A COURT’S JUDGMENT

“A motion to set aside a default judgment as void due to improper service of process is governed by .” S & M Trucking LLC v. Rogers Oil Co. of Columbia Inc., 195 So. 3d 217, 221 (¶17) (Miss. Ct. App. 2016). Also, Rule 60(b) allows a party to seek relief from a judgment or order in instances of “mistake, inadvertence, newly discovered evidence, fraud, etc.” M.R.C.P. 60(b). 

The Courts in other jurisdictions also recognize the voidability of Judgments if there was improper service. For example, in Florida, it has been held that improper service renders the judgment either void or voidable.” Decker v. Kaplus, 763 So.2d 1229, 1230 (Fla. 5th DCA 2000); Reina v. Barnett Bank, N.A., 766 So.2d 290, 291 (Fla. 4th DCA 2000). If the service is irregular or defective but the defendant actually receives notice of the proceedings, the judgment is voidable. Decker, 763 So.2d at 1230. However, where the service of process is so defective that it amounts to no notice of the proceedings, it is void. Reina, 766 So.2d at 292. A void judgment is a nullity. M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079, 1082 (Fla. 4th DCA 2000) (citing Ramagli Realty Co. v. Craver, 121 So.2d 648, 654 (Fla. 1960)).

In the instant action, the Plaintiff failed to conduct proper service of summons on the Defendants. As alleged hereinabove, for instance, Plaintiff served the Defendant Mrs. Vivian on 39 Pleasant Pond Lane, Hattiesburg MS 39402, which address the Defendants left 13 years ago. Besides, Plaintiff served documents to a lawyer that never represented Mrs. Vivian. The lawyer also never told Defendants about the motion.

C.    FRAUD UPON THE COURT IS SUFFICIENT GROUND TO VACATE A JUDGMENT

“Rule 60(b) provides that the rule does not limit the court’s power to set aside a judgment for fraud upon the court.” Miss. R. Civ. P. 60(b). “Relief based on `fraud upon the court’ is reserved for … the most egregious misconduct, and requires a showing of `an unconscionable plan or scheme which is designed to improperly influence the court in its decision.`” Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989) (quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978)).

“Fraud on the court ‘should `embrace … the 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 cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.`” Kerwit Med. Prods., Inc. v. N H Instruments, Inc., 616 F.2d 833, 836 n. 8 (5th Cir. 1980)). “Fraud vitiates a judgment caused by the active agency of some party to the proceeding, as the court is misled and deceived as to the facts upon which it attempts to administer the law, and mistake is equally efficacious in procuring a wrong.” Brown v. Wesson, 114 Miss. 216, 74 So. 831, 834 (1917) (Emphasis added).

In the instant action, Defendant contends that in the transcript of the hearing where Plaintiff got the judgment on Defendant and Mrs. Vivian Okorie, it appears Plaintiff used fraud to acquire the judgment in their favor. Plaintiff will try to have the court believe that Mr. Hearn was representing all the defendant “s” because he made appearance and filed answers on the lawsuits but that fails on its face because throughout the transcript of the judgment hearing, Mr. Hearn made it clear that he was representing Dr. Okorie. Infarct he also made it clear to the courts during the Interrogatories that Plaintiff served to him on behalf of Mrs. Vivian Okorie that he was not representing Mrs. Vivian Okorie.  Defendant is still waiting for the transcript of that 09/29/2021 zoom hearing. This zoom hearing also depicted Plaintiff using the mechanics of the court to commit fraud on the courts by having a hearing without proper notice to defendants.  

Mr. Hearn who represented Defendant was clearly asked by the courts who he was representing.  On page 3 line 10 of the transcript he said “I’m Philip Hearn for the defendant.” He made it clear to the court that he was there for Dr.  Ikechukwu Okorie not Mrs. Vivian Okorie. Mr. Hearn again referenced this in his opening statement on page 5 line 7 when he said again “Yes, sir, your Honor. Representing Dr. Okorie, and I would just bring you up to date.” 

Again on page 6 of transcript when the court asked Mr. Hearn if he needed time to look over the proposed final judgment Mr. Hearn again stated clearly:  “I do, your Honor. I do —-I would like to run it by my client to make sure he has—-“. This again is clear fraud on the courts for Defendant was never aware of this fraudulent proposed judgment neither was Defendant’s wife aware of it.

Again, on page 7 of transcript line The Court clearly recognized that Mr. Hearn was representing Dr. Okorie with this exchange. THE COURT: All right. Good. And I’m not going to ask him to do that since he hasn’t talked to his client, so what I’ll—in case we need to change the form or something like that. But at any rate, what I’ll do is —-since we’ve got it on the record—”

Mr. Hearn did not talk to Defendant about this as instructed by the judge and went ahead and signed it as to form only. This is also is a fraud on the court.

Mr. Hearn has never met or spoken to Mrs. Vivian Okorie ever but Plaintiff was able to use the mechanics of the court to get a fraudulent judgment on her of which they have rolled in Forrest and Lamar County.  This fraudulent judgment was also filed in the bankruptcy court and Wells Fargo paid on it by the Trustee.

That said, since Mrs. Vivian Okorie has not been served on this lawsuit and does not have representation, the movement by Plaintiff on this lawsuit to collect debt owed is a movement on Defendant for a discharged debt in bankruptcy. Defendant reserves the right to bring an action on Plaintiff for this intentional infliction of emotional distress post-bankruptcy discharge.  

CONCLUSION

In conclusion, the due process rights of both Mississippi and United States of America guarantees that no one should be tried in their absence without proper notice of complaint against them. What Wells Fargo has done to this court is nothing short of fraud on the courts. The Judgement on Mrs. Vivian Okorie and Defendant should be set aside immediately by the courts and sanctions levied on these perpetrators. The interrogatories entered against Mrs. Vivian Okorie should also be set aside immediately because it also stems from a fraudulent judgment obtained by Wells Fargo and fraudulent zoom hearing held without notice. This debt collection tactics on this case is harassment on Defendant for he is the only party to this lawsuit till date since Mrs. Vivian Okorie has not had any representation or service on this lawsuit. Defendant pleads with the courts to rectify this miscarriage of justice and violation due process right as matter of law.  

Dated: _________________

Respectfully submitted,

 ______________________Ikechukwu Okorie (PRO SE) 107 Ralph Rawls RdHattiesburg, MS 39402 

CERTFICIATE OF SERVICE

I Ikechukwu Okorie certify that on this date 11/01/2021, I mailed, via United States Mail, postage prepaid, email This document to the following counsel on record:

Erno Lindner

Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

1900 Republic Centre                                        

633 Chestnut Street  

Chattanooga, Tennessee 37450

Phone  423.209.4206

Fax     423.752.9633

elindner@bakerdonelson.com

www.bakerdonelson.com                  

Respectfully submitted,

 ______________________Ikechukwu Okorie (PRO SE) 107 Ralph Rawls RdHattiesburg, MS 39402 

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