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Wednesday, April 2, 2008

The Law Vs. Jack Booted Thugs

I filed a document at the Shelby County Courthouse yesterday that should put a screeching halt to efforts by Alabama Republicans to unlawfully seize and auction my house.

The operative word in that sentence is "should."

After all, the whole reason this blog started is that the actual law--state law, constitutional law, you name it--means nothing to the Republican judges who control my home county. If cases were decided by the law in Shelby County, the bogus lawsuit against me would have been booted about six years ago and Legal Schnauzer never would have seen the light of day.

But here we are, and my latest effort to interject real law into the Shelby County cesspool is called a Claim of Exemption Form.

There's nothing fancy about this little number. You can put the form together yourself. All you have to do is follow Form 92 of the Alabama Rules of Civil Procedure, which is the document that Shelby County authorities conveniently failed to send me.

It would be an understatement to say that Form 92 is an important document when it comes to executions, levies, sheriff sales, and such. It informs the recipient of his right to claim certain property as exempt, and it three times advises the recipient to seek counsel if he is unclear about how to proceed.

That's why the form is REQUIRED by law when authorities serve a writ of execution or notice of levy. Most people have no idea what to do when they receive one of these documents. That's why the government is obligated to present this form. It's part of this concept we call "due process."

(By the way, I've received a few interesting comments--which I haven't published--from someone claiming to be a lawyer. Based on how the person writes, I would say they probably are a lawyer. His motives in writing to me are less clear. My correspondent calls the failure to serve me with a Form 92 a "procedural hiccup." That's like saying practicing medicine without passing the board exams is a "slight problem." And my correspondent either doesn't know the law as well as he thinks or he hasn't read this blog very closely because he informs me that my house will be sold on April 7 in a "substantively legal manner." That's like saying O.J. Simpson killed two people in a "substantively legal manner" because, well, he was upset. Just so we're clear: Not one element of this little escapade--the judgment itself, the writ of execution, the notice of levy--has been done in a remotely legal manner. My correspondent seems to buy into the fallacy that because a judge does something, or a sheriff does something, that it has a touch of legal merit. The whole point of this blog--and it comes straight from my personal experience--is that officials in law enforcement are every bit as likely to be corrupt as any other kind of official. And that definitely includes judges.)

Anyway, the threats against me are so over the top, so blatantly bonkers, that I didn't need to consult a lawyer on what to do. And it helps that I've got about eight years of experience in fighting the GOP nutjobs who run Shelby County.

All I needed to know about was Alabama's homestead exemption. It comes under Code of Alabama 6-10-2, which you can read here. For good measure, here's the whole thing:

Section 6-10-2
Homestead exemption - Amount; area.
The homestead of every resident of this state, with the improvements and appurtenances, not exceeding in value $5,000 and in area 160 acres, shall be, to the extent of any interest he or she may have therein, whether a fee or less estate or whether held in common or in severalty, exempt from levy and sale under execution or other process for the collection of debts during his or her life and occupancy and, if he or she leaves surviving him or her a spouse and a minor child, or children, or either, during the life of the surviving spouse and minority of the child, or children, but the area of the homestead shall not be enlarged by reason of any encumbrance thereon or of the character of the estate or interest owned therein by him or her. When a husband and wife jointly own a homestead each is entitled to claim separately the exemption provided herein, to the same extent and value as an unmarried individual. For purposes of this section and Sections 6-10-38 and 6-10-40, a mobile home or similar dwelling if the principal place of residence of the individual claiming the exemption shall be deemed to be a homestead.
(Code 1876, §2820; Code 1886, §2507; Code 1896, §2033; Code 1907, §4160; Code 1923, §7882; Code 1940, T. 7, §625; Acts 1980, No. 80-569, p. 879, §2.)


There's some head-scratching language in that. But the bottom line is this: My portion of our homestead is exempt from levy up to $5,000. A judgment of $1,525 cannot possibly be the basis for the seizure and auction of my house. (My wife is not a part of this lawsuit, but she also has a $5,000 homestead exemption for a total of $10,000. Not surprisingly, Alabama has a pathetic homestead exemption, although some states have no homestead exemption at all. Still, ours is bad and is about 80 years out of date, based on the cost of houses today. That's a subject for another post, another day.)

I will go into more details on this tomorrow and will even post the entire motion that I filed. (Don't worry, it's not long; just thought it might be fun to give you a "virtual tour" of what it's like to be a real-life Unfrozen Cave Man Lawyer.)

Here's all we really need to know: This is not complicated law. As bad a lawyer as Bill Swatek is, as horrible a judge as Mike Joiner is (and his compadre in crime Dan Reeves), as incompetent a clerk as Mary Harris might be, and as big a boob as Sheriff Chris Curry apparently is, they all know the law on Alabama's homestead exemption.

They knew the moment this "writ of execution" scheme was concocted, that they were committing fraud. They knew you can't seize a house to satisfy a "judgment" of $1,525--even if the judgment were valid, which this one isn't.

And let's be blunt: These people are frauds. Actually, Mary Harris and Chris Curry might be fairly good public servants--some of the time. But as I've suspected for a long time, it's virtually impossible to serve in a sewer such as Shelby County and not have the stench rub off on you at times.

So what happens now? Well, my criminally inclined neighbor (if he even knows about all of this; I'm not at all sure that he does) has 10 days after receiving notice of my exemption claim to challenge it. If he challenges it, the court will hold a hearing, at which point I'm sure I will be cheated again--as I have been for about eight years now.

But there is one difference now, opposed to all of the other times I've been cheated. I have a reading audience, and you know up front what the law really is. Corrupt Shelby County judges are no longer operating in the dark. The light has found them.

2 comments:

Bay said...

Why not just sit back and let them hang themselves. I assume Scott Horton, Dan Abrams and I know for a fact even John Grisham are regular readers of Legal Schnauzer. Now that you've tipped the thugs off we may never know just how far they will go with this. What does your research tell you? Are they just trying to scare you into shutting down this blog? Even after they took the election away from Siegelman he still ended up in jail. Yeah.. maybe this is the best way to go.

Anonymous said...

Are you going to pay the money the you "owe" so that they don't take your house?