We've shown you the video of my house being unlawfully "auctioned" on the courthouse steps Monday in Columbiana, Alabama. We also have explained that Bill Swatek, the attorney behind this little charade has direct ties to the Bush White House.
Now let's bring the law into a little clearer focus, to illustrate just how corrupt this piece of "GOP Masterpiece Theater" truly is.
Have Republicans, or Democrats for that matter, ever been caught on camera in a more blatantly unlawful act than this one? I can't think of another similar example.
For those of us who care about the actual law, what does it say about the process that leads up to a sheriff's sale? Let's take a look:
Judges Ain't Invited
First of all, what you saw in the video was supposed to be a sheriff's sale. And it is called that for a reason. It involves the sheriff, not a judge. In the video, you hear Deputy Bubba Caudill saying that he has been ordered by Circuit Judge Hub Harrington to proceed with the "sale." I spoke with Bubba that morning via phone, and he said that Harrington had told him that I had indeed filed a valid, notarized claim of exemption--but Bubba could go on with his sale anyway.
A couple of points about that. First, Alabama appellate courts have specifically said that a sheriff's sale does not involve a judge. A case called Ex Parte Arthur Lynn (Ala. Civ. App., 1999) states that a sheriff's sale is recognized by statute and does not require any action by a judge. In fact, that court found that a sheriff's sale is not a judicial sale.
A judge has no business taking part in a sheriff's sale. Both statutory and procedural law in Alabama are clear: If the judgment debtor files a notarized claim of exemption, as Judge Harrington admitted I did, the sheriff's sale is stayed. The sheriff has three days to notify the judgment creditor that a claim of exemption has been filed, and the judgment creditor has 10 days to file a contest. This is all in Rule 69 of the Alabama Rules of Civil Procedure.
If no contest is filed, the claim of exemption is considered accurate and uncontested, and the property no longer is subject to a sheriff's sale. The matter is finito.
If a contest is filed, a hearing must be scheduled, and a judge determines if the sale can go forward. But then, and only then, does a judge become a player.
As you can see in the video, I asked Bubba if a contest had been filed, and he admitted he didn't know. Of course, I knew one hadn't been filed because I hadn't received a copy of it. Certainly no hearing was held because I never was notified of one, and I'm a fairly important player in all of this--it's my house.
If Judge Harrington actually did what Bubba said he did--if the judge ordered Bubba to unlawfully proceed with a sheriff's sale--that has major implications, both civilly and criminally.
On the civil side, it's almost impossible to sue a judge when he acts within his judicial capacity--no matter how unlawful or corrupt his ruling might be. But when a judge acts outside his judicial capacity, as Harrington evidently did here, he is fair game.
This process probably doesn't make the kind of reading you will want to take to the beach this summer. But it's actually quite simple, very much like the process for a motion for summary judgment. One party takes a legal action, and if it is properly supported, it must be upheld unless it is lawfully countered by the other party.
In this instance, Bill Swatek made the sheriff's decision for him. By failing to file a contest, Swatek himself determined there could be no sheriff's sale. But as all the world can see in the video, GOPers in Shelby County aren't remotely interested in following the law.
Here's a little more law to chew on:
"The effect of a claim of exemption, if it is not successfully controverted, is that it must be taken as prima facie correct . . . " Robinson v. Ferdon, 76 So. 907 (Ala., 1917).
"Because the claim of exemption was not properly contested, it was considered to be correct and was due to be upheld . . . " Young v. Strong, 694 So. 2d 27 (Ala. Civ. App., 1997).
This is real simple, folks. No contest, no hearing, no sale.
A Paperwork Problem
As I wrote on this blog shortly after I received the writ of execution in this matter last September, I never received a Notice of Right to Claim Exemption, as required by law.
My guy Bubba admitted he had read this on my blog, and he has no proof that it ever was delivered. He has no proof because it wasn't delivered. I took the writ of execution from a deputy that morning, and it included only the writ of execution.
Bubba told me on the phone that my wife must have misplaced it. (Way to go, Bubba, blame your screwup on my wife! Hey, I'm the only guy who gets to blame his screwups on my wife!) This matter didn't involve my wife, and she didn't misplace anything because the document was given to me. And it never included the exemption-claim notice that is required by law.
I told Bubba multiple times that I had not received this document, and he still never made sure one was delivered.
Now, is this just a procedural hiccup--a minor detail that has no impact on the sheriff's sale. Not hardly.
Here's the law: "Judgment must be set aside where sheriff failed to give written notice of claim of homestead exemption as required by this section." McLaren v. Anderson, 81 Ala. 106 (Ala., 1886).
The failure to provide the exemption notice, I feel certain, was intentional. The notice, three times, tells the recipient to contact an attorney if he has questions. And the corrupt GOPers in Shelby County did not want me to contact an attorney. Heck, a student with three days in law school could have told me this was bogus and not to worry about it. And that's the last thing the crooks wanted.
You might ask: Well, how did you file your claim of exemption if you never received a notice? Well, way back in 2003, when it was becoming abundantly clear that I was being screwed, I purchased a copy of the Alabama Rules of Court, the green book I was waving around in the video like Jimmy Swaggart on crack. The form I was supposed to see is in that book, and that's how I knew about my exemption rights. But Bubba & Co. have an obligation under the law to make sure that judgment debtors know of their rights. And they intentionally failed to live up to this obligation.
Slapstick Law in Shelby County
Is it OK, under the law, to screw up a sheriff's sale this badly? Does the law say, "Oh heck, just get it sorta right and everything will be OK--you know what they say about horseshoes, hand grenades, and sheriff's sale?"
Well, here's what the law says: Messing around with someone's property is important business, and you had better get it right:
"The judgment lien statute is in derogation of the common law and is to be strictly construed." AmSouth Bank v. Bischoff, 678 So. 2d 1102 (Ala. Civ. App., 1995). In other words, get it right or it ain't going to hold up. Well, nothing was done right in this fiasco.
Live and in Color! A Federal Crime
As Bubba is walking away at the end of the video, I say that he is knowingly violating the law. This was not idle chat.
What you see on that video is a federal crime. It is the culmination of a several-month conspiracy to threaten me with loss of my property in order to deprive me of my First Amendment rights to free expression on this blog. How many people were involved in this conspiracy? Clearly, Bubba and Bill Swatek were front and center. But it involves a host of other folks--Sheriff Chris Curry, County Clerk Mary Harris, Circuit Judges Mike Joiner and Dan Reeves.
Will any of these folks ever pay for their crimes? Certainly not as long as loyal Bushies are running the Justice Department. If a Democrat wins the presidency in November and appoints an attorney general who is determined to clean up the sewer he or she will inherit, some folks in Shelby County might wind up in orange jump suits.
What makes this a federal crime? For months, Bubba and his cohort Eddie Moore have been calling my wife and me to claim they are "getting ready to sell that property." This was blatant fraud, and because they used the federal wires, it is a federal crime. And the people who put them up to it are accountable under the law.
For weeks and even months, this gambit almost worked. My wife and I are not lawyers, and we were concerned for a very long time that we might wind up homeless if I did not quit blogging. As you might imagine, this caused more than a few sleepless nights.
It wasn't until we found an article by an attorney named Tony Mankus that we began to sense we were being played for fools. You can read the entire Mankus article here.
But the key point is this: Our home is jointly owned by my wife and me. And despite Bubba's repeated claims that he was going to "sell that property," my wife's half of our property was never on the table. Ironically, we had tried to get my wife included as a party to the underlying lawsuit, and by law, she should have been added. But corrupt Judge Dan Reeves kept her out, which wound up being a huge break for us. If Reeves had ever dreamed I would blog about the case, I'm sure he would have handled it differently. But neither Reeves, nor any of the other judges in Shelby County that I've encountered, are known for being terribly sharp.
The Mankus article makes the law clear. He's writing from the standpoint of a federal tax lien, but the same principle applies on state judgment liens:
"In the case of property held in joint tenancy, the federal tax lien attaches to the taxpayer's proportionate interest. As long as neither the owners, nor security holders (including the IRS) take any action to dispose of the property, the lien will remain a dormant right against the property and will not impede its use by the owners."
So that's the law--and thank you Tony Mankus, wherever you are!
If we had not found that article, and gradually figured out how Bubba & Co. were trying to screw us, I'm not sure what would have happened.
As I've asserted repeatedly on Legal Schnauzer, this whole criminal enterprise by Alabama Republicans was designed not to take our house or satisfy a "judgment" but to put a halt to this blog.
I have come to understand the law enough to prove that I was correct about that. And we will discuss that subject next.