Commonwealth of Kentucky Court of Appeals

NO. 2009-CA-000058-MR GLENN D. AUGENSTEIN v. APPEAL FROM HENRY CIRCUIT COURT ACTION NO. 07-CI-00368 DEUTSCHE BANK NATIONAL TRUST COMPANY APPELLEE APPELLANT

AFFIDAVIT OF GLENN AUGENSTEIN 1. My name is Glenn Augenstein (the Appellant). I am over the age of twenty-one (21) and competent to make this affidavit. I am a resident of Henry County in the Commonwealth of Kentucky. 2. This affidavit is based upon the personal knowledge of the Appellant and the information set forth herein is true and correct. 3. This case involves a complaint alleging default of an alleged promissory note and alleged mortgage that names a party other than the Appellee as the payee and grantee. 4. This is an appeal of the summary judgment and order of sale granted by the Henry County Circuit Court on June 12, 2008. This is also an appeal of the Appellant's CR 59.05 motion denied by the Court's order of September 25, 2008. The Appellant filed his timely Notice of Appeal appealing these orders on October 24, 2008. 5. The Appellant is a pro se litigant and high school dropout without any training in the law. The Appellant is a self employed furniture and cabinet maker of modest means. 6. The property, which is the subject of the Circuit Court's order of sale, is the Appellant's primary residence and the location of his furniture and cabinet workshop.
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7. Appellant has been deemed indigent by the Circuit Court and has been unable to afford a supersedeas bond which would stay a judicial sale of the subject property. 8. The Appellant timely filed his brief on August 10, 2009.1 Appellee's Prior Enlargements 9. Upon Appellee's motion of October 8, 2009, the Court granted a sixty six (66) day enlargement for Appellee to file its brief, extending the period to December 14, 2009. 10. During the pendency of Appellant's CR 60.02 motion before the Circuit Court this appeal was held in abeyance, implicitly affording the Appellee an additional enlargement of five (5) months and three (3) days to prepare and file its brief. 11. On May 17, 2010, upon the Court's reinstatement of the case to the active docket, the Court granted the Appellee an additional sua sponte enlargement of thirty (30) days extending the deadline to file its brief until June 16, 2010. The Appellee's Failure To Timely File Its Brief 12. The Appellee did not timely file its brief on or before June 16, 2010. 13. The Appellee did not request an additional enlargement of time to file the brief before the deadline of June 16, 2010. The Appellee's Motion For Leave To File Out Of Time 14. Within the Appellee's undated motion, the Appellee implicitly admits that it failed to timely file its brief ([Appellee] ... respectfully asks this Court for leave to file its Brief out of time.). 15. Although the Appellee seeks to confuse and deceive the Court by filing an undated
1 Although the Appellant filed his brief in person on August 10, 2010, and obtained the Clerks file stamp showing that date on a copy, and also served the brief on the Appellee that day, the docket erroneously shows the filing date as August 14, 2009.
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motion and undated Memorandum, the date of the Appellee's Certificate of Service shows that this motion and memorandum was served after the deadline to file its brief had passed. 16. The Appellee's one paragraph motion contains no factual explanation whatsoever of the reasons for the Appellee's failure to file its brief. Appellee's Memorandum 17. The Appellee attached an undated six (6) page Memorandum (of law) to its one (1) page (one paragraph) motion. 18. The Appellee falsely asserts within its Memorandum that Appellant did not appeal the Court's summary judgment dated June 12, 2008. The Appellant's Notice of Appeal, timely filed within thirty (30) days after the conclusion of the court's order disposing of Appellant's CR 59.05 motion, expressly identified the June 12, 2008, orders as subjects of the appeal. 19. The Appellee falsely asserts in its Memorandum that its brief is only one (1) day late. 20. The Appellee filed its Motion For Leave To File Brief Out Of Time NINE (9) days past the brief filing deadline, on June 25, 2010. 21. The overdue brief which the Appellee seeks to have the Court accept out of time was not even attached to the Appellee's motion. 22. The only excuse for the Appellee's tardiness, offered by Appellee's co-counsel Valerie VAN VALKENBURG, appears within one sentence of the Appellee's unverified Memorandum: The undersigned counsel, forgetting and misstating the old rhyme,30 days hath September...2
2 This statement by Appellee's counsel, Valerie VAN VALKENBURG, appears on the second unnumbered page of
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23. There is no excuse offered by Appellee's other co-counsel Lori LEACH explaining why she did not timely file the brief or why she did not timely seek an enlargement of time to file Appellee's Brief. Appellee's Failure to Verify or Provide Admissible Proof 24. The Appellees motion is unverified. 25. The Appellee's Memorandum (of law) is unverified. 26. No affidavits or other admissible proof was attached to the Appellee's motion. 27. Appellee, as Plaintiff in the underlying suit in Circuit Court, also failed to attach an admissible Affidavit to its motion for summary judgment and later presented inadmissible evidence by untimely, unauthenticated exhibits attached out of time to its summary judgment reply. 28. The Appellee's evidentiary deficiency in failing to attach evidence to this motion continues a pattern that began in the trial Court (and has continued throughout), which evidentiary defect is an issue within this Appeal. The Length of the Delay and its Potential Impact on Judicial Proceedings 29. The Appelle's motion was filed NINE (days) after the due date. 30. The Appellant is entitled to ten (10) days to respond to Appellee's motion. CR 76.34(2). The Appellant is entitled to an additional three (3) days due to the service of this motion by mail.3 CR 6.05. Fox v. House, 912 S.W.2d 450, 450-1; 1995 Ky. App. LEXIS 109 (Ky. App. 1995). 31. As an untrained pro se litigant, Appellant needed his allotted time to research,
Appellee's Memorandum within the paragraph beginning On May 17, 2010, this court issued an order ...

3 The Certificate of Service of Appellee's motion states that Appellee served Appellant by regular mail June 24, 2010.
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prepare, author and file a suitable, intelligible opposition. 32. No doubt the Court will require several days to assess and weigh the arguments and evidence and to reach a determination as to the Appellee's motion. 33. The Appellee's failure to attach its brief to its motion precludes the Court from ordering the brief filed as of the date of its order. The Court would necessarily have to grant the Appellee additional days beyond its order to file the already overdue brief, further delaying the filing. 34. While the Appellee seeks to falsely characterize its brief as only one (1) day late, the NINE (9) day tardiness in filing its motion, coupled with the time afforded Appellant in opposition, time for the Court's determination and additional time to actually present the overdue brief omitted from the motion, the delay will exceed one month. 35. Any Court allowed post deadline enlargement will now inevitably delay the ultimate resolution of this Appeal and vacation of the Circuit Court's order of sale. Prejudice to Appellant 36. Appellee has repeatedly represented to both Appellant and the Court's its intention to enforce its Circuit Court judgment and sell Appellant's home and workplace before a determination of this appeal. 37. The existence of the order of sale looms not only over Appellant's personal life, threatening to render Appellant homeless, but also precludes the Appellant from accepting contracts of a duration of more than a few days due to the possibility of the judicial sale of the subject property, including Appellant's workplace, disrupting completion of contracted work.

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38. The Court's grant of a further enlargement to Appellee and the concomitant delay in adjudication and vacation of the order of sale may result in the sale of the Appellant's home and workplace before the determination of this appeal. If the Appellant is rendered homeless and deprived of the means of conducting his furniture and cabinet making livelihood prior to the conclusion of this Appeal, this would significantly impair the Appellant's ability to research, prepare and write his Reply Brief and/or other motions or responses in this matter, which would be extremely prejudicial. 39. Even when the Court of Appeals rules in the Appellant's favor, if the Court were to remand this matter rather than to dismiss the suit with prejudice, the inherent disruption to the Appellant's life and business associated with a sale of the subject property prior to the Court's decision would be extremely prejudicial to the Appellant in defending the suit upon such remand. 40. Throughout the pendency of this case, beginning with the Circuit Court's summary judgment on June 12, 2008, Appellant has been unable to secure larger and more valuable furniture and/or cabinet making contracts. Entering into a contract with a customer while the sale of his home and workplace looms, without certainty of being able to complete such contract and without disclosing the circumstances, would be an extreme breech of ethics, abusive to the client, and likely unlawful. Appellant's honest disclosure of this disability uniformly results in loss of business. The improperly obtained judgment and the pendency of the order of sale has been an extreme financial hardship, and has also been extremely prejudicial to Appellant. A further enlargement of time further compounds this prejudice. 41. The Appellant has now expended over eighty (80) hours researching the law relating
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to the Appellee's untimely brief and excusable neglect motion and preparing his opposition. The voluminous time required to respond in opposition is time the Appellant would ordinarily devote to his chosen profession of building custom furniture and cabinet making. Appellee's Bad Faith 42. There is no factual allegation or evidentiary showing of good faith within the motion. 43. The Appellee's failure to seek an enlargement by motion in advance of the deadline reflects the Appellee's bad faith. 44. The Appellee's failure to attach the brief it seeks to untimely admit as an exhibit to the motion is evidence of the Appellee's bad faith. 45. The Appellee previously missed a filing deadline within this appeal as shown by Docket Item No. 17, and exemplified by the Late Letter sent by the Clerk on June 8, 2009, a copy of which is attached to this Affidavit as Exhibit B. 46. The Appellee has to date filed two (2) motions, one (1) opposition and one (1) brief in this Appeal. Of these four (4) filings, two the opposition (Docket Item No. 17) and the brief (Docket Item No. 50) were late and returned by the Clerk. The other two (2) items filed were the Appellee's motion for enlargement (Docket Item No. 32), which was a CR 6.02(a) motion, and the instant CR 6.02(b) motion (Docket Item No. 51), which was filed after the deadline. As shown, three (3) of the four (4) items were filed out of time and two (2) involved requests for enlargement. All of these filings reflect the Appellee's lack of diligence, carelessness and unprofessionalism. 47. Appellee's co-counsel Lori LEACH appears to have been involved in five (5) appeals

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before the Kentucky Court of Appeals.4 Two (2) of these, both styled Thomas Landscaping and Construction v Leach (2010-CA-000075, 2010-CA-000103), seem to involve appeals in which Ms. LEACH was a party and each was quickly disposed by joint motion to dismiss. The Appellant has this day voluntarily dismissed his recently filed appeal (2010-CA-001088) of the Court's denial of his CR 60.02 motion, before any response by Appellee was due. This leaves two (2) other cases, including the instant appeal. 48. In the case Moore v Countrywide Home Loans (2006-CA-001901), attorney Lori LEACH served as co-counsel for appellee Countrywide. In that case she was responsible for filing only a single document (opposition) prior to the appellant Moore's dismissal of the Appeal. This document was untimely filed and returned by the Clerk with Late Letter on September 12, 2007 (Docket Item No. 14). 49. As is shown, the two remaining cases heard by the Court of Appeals in which cocounsel Lori LEACH was the attorney of record (2006-CA-001901 and 2009CA-000058) included a total of three (3) items returned with Late Letter by the Clerk when filed after the deadline. 50. Appellee's co-counsel Valerie VAN VALKENBURG seems to have been involved in six (6) cases before the Court of Appeals since 2002.5 51. In the case Drees Co. v Osberg (2002-CA-001051), Ms. VAN VALKENBURG was co-counsel for appellant Drees. In that case she appears to have sought and obtained an order accepting her late filed appellant's brief (Docket Items No. 15 18). The
4 Attorney Lori LEACHs KY appellate cases are: 2006-CA-001901, 2009-CA-000058 (this appeal), 2010CA-000075, 2010-CA-000103, 2010-CA-001088 (Appellant's related appeal). 5 Attorney Valerie VAN VALKENBURGs KY appellate cases are: 2002-CA-001051, 2006-CA-002311, 2007CA-000062, 2008-CA-000155, 2009-CA-000058 (this appeal), 2010-CA-001088 (Appellant's related appeal).
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Clerk also returned an unauthorized pleading on April 9, 2003 (Docket Item No. 39). 52. In the case Saylor v Deutsche Bank (2006-CA-002311), Ms. VAN VALKENBURG served as co-counsel to appellee Deutsche Bank. When the appellee Deutsche failed to timely object to appellant's motion to amend its prehearing statement, counsel for Deutsche Bank (as in the instant case) sought by motion leave to file a late response on April 17, 2007 (Docket Item No. 20). 53. In the case Drees Co. v. Hayes (2007-CA-000062), Ms. VAN VALKENBURG served as co-counsel for appellant Drees. In that case she requested by motion the substitution of a corrected brief for an earlier brief previously filed and accepted (Docket Items No.10-12), showing the uneven quality of her work 54. In the case Citizens National Bank of Jassmine v. Reynolds (Washington Mutual Bank) [2008-CA-000155], Ms. VAN VALKENBURG represented the appellee Washington Mutual Bank. The appellee filed two motions for enlargement (Docket Items No. 19 & 22). Of the three (3) items filed by the appellee in Citizens two were motions for enlargement of time. 55. Appellee's attorneys have repeatedly requested enlargements and missed deadlines in prior cases before the Kentucky Court of Appeals, showing an absence of diligence, carelessness, inattention, inadvertence, unprofessionalism and bad faith. 56. Further, Affiant sayeth naught.

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July 6, 2010 __________________________ Glenn Augenstein

State of Kentucky County of Henry , On July 6, 2010, before me Notary Public, State of Kentucky, personally appeared Glenn D. AUGENSTEIN, personally known to be the person whose name is subscribed to the affidavit, being first duly sworn, acknowledged to me that by his signature on this affidavit, he intended to swear to the facts set forth therein. WITNESS MY HAND AND OFFICIAL SEAL:

NOTARY PUBLIC My commission expires:

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