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Friday, April 24, 2015

Legal Schnauzer initiates the battle to vacate $3.5-million default judgment in Jessica Garrison lawsuit


Legal Schnauzer blogger Roger Shuler
A motion to vacate a $3.5-million default judgment was filed on my behalf yesterday in the defamation lawsuit of Alabama GOP operative Jessica Medeiros Garrison, former campaign manager for Attorney General Luther Strange.

Prattville attorney Davy Hay filed the motion in Jefferson County Circuit Court yesterday afternoon, and al.com's Kent Faulk reported on it this morning in an article titled "Blogger Roger Shuler fighting $3.5-million judgment."

The motion outlines the extraordinary circumstances that prevented my continued appearance in the Garrison case, leading to the default judgment. As has been widely reported in the national and international press, law-enforcement officers beat me up inside my own home because of alleged contempt of court in another defamation case brought by two other GOP operatives, attorney Rob Riley and lobbyist Liberty Duke.

Deputies showed no warrant, never said they had a warrant, and entered my property without stating their purpose for being there, meaning the "arrest" was unlawful and essentially amounted to a kidnapping. On top of that, the preliminary injunction I supposedly violated was unconstitutional under more than 200 years of First Amendment law, as outlined in briefs from the ACLU and The Reporters Committee for Freedom of the Press.

I wound up spending five months in the Shelby County Jail, becoming the only journalist in the western hemisphere to be incarcerated in 2013. I also am the only U.S. journalist since 1900 to be jailed because of an unlawful preliminary injunction in a purely civil matter.

The motion states that after my release from jail on March 26, 2014, my wife Carol and I immediately faced foreclosure on the home we had lived in for 25 years. The psychological trauma of dealing with jail and possible homelessness caused me to spend six days for evaluation in a hospital psychiatric unit, where I was diagnosed with post-traumatic stress disorder (PTSD).

Carol and I continue to live under circumstances where we fear for our lives and safety, given that both of us were subjected in Alabama to what amounts to court-sanctioned kidnappings. (Officers also tried to arrest Carol, in large part because Riley and Duke unlawfully named her as a defendant in a case over issues that did not involve her.)

Because of Carol's ability to avoid capture, she got out word about what had happened to me--and that led to widespread coverage of my arrest, including an article in The New York Times. Riley and Duke had asked for the case file to be sealed, so if deputies had kidnapped Carol too, we both probably would have just disappeared--with the public having no way of knowing what happened to us.

Would we have been killed or permanently detained? Would our cats have been murdered or forced to starve, with no one to care for them? We ask ourselves those and many other questions.

Attorney Hay outlines the circumstances we faced in the Motion to Vacate Default Judgment. The full motion can be read at the end of this post:

* "Mr. Shuler and his wife lost their home and were facing the very real possibility of being homeless. This being such a pressing and immediate issue, all other concerns had to be given lower priority.

* "Mr. Shuler had just spent five (5) months in jail, which began with being beaten by law enforcement officials in his own home and wrongfully detained, in violation of his constitutional rights".

* "Mr. Shuler and his wife experienced excessive psychological trauma, resulting in the defendant spending six (6) days in a psychiatric unit, in direct relation to these events, and was diagnosed with Post Traumatic Stress Disorder."

* "Mr. Shuler has a good-faith belief that his very life has been in actual peril as a result of his reporting. Accordingly, he has been and continues to be highly reluctant to submit to the authority of the state after what he perceives to be illegal attacks against his person, his family, and his rights as a citizen of the United States."

For the record, I feel the taking of our home amounts to a wrongful foreclosure under Alabama law. The elements of the tort are spelled out in a 2010 article from the Burr Forman law firm, titled "The Rising Tide of Wrongful Foreclosure Lawsuits." From the article:

Additionally, where a mortgage provides for a power of sale, under Alabama law, a wrongful foreclosure action lies whenever the power of sale is exercised "for a purpose other than to secure the debt owed by the mortgagor.."Reeves Cedarhurst Dev. Corp. v. First Am. Fed. Sav. and Loan Ass'n, 607 So. 2d 180, 182 (Ala. 1992). Such an improper purpose includes the mortgagee's goal of oppressing the mortgagor or furthering some interest of another. Johnson v. Shirley, 539 So. 2d 165, 168 (Ala. 1988).

Carol and I are convinced the foreclosure on our home was conducted for the improper purpose of turning our lives upside down and forcing us to move, with the goal of causing the demise of my reporting on this blog. We hope to show that in court.

Because of the forced moved, I stopped receiving notice of hearings in the Garrison lawsuit, and that led to the default judgment. As we already have shown, default judgments long have been disfavored in Alabama as a matter of law and public policy. That is clearly stated in a case styled Abernathy v. Green Tree Servicing, (Ala. Civ. App., 2010):

We begin our analysis by pointing out what we have affirmatively acknowledged in many cases: default judgments are disfavored because "'such judgments preclude a trial on the merits.'" Stanfield v. Stanfield, 2 So. 3d 873, 876 (Ala. 2090488 Civ. App. 2008) (quoting Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So. 2d 600, 604 (Ala. 1988)).

In the motion to vacate, attorney Hay seeks leave to file a counterclaim on my behalf, states that I have a meritorious defense, and claims the $3.5-million figure was reached in part because of an improper analysis that Garrison is a "private person." In fact, Hay argues, Garrison is a "public figure" under the law, by virtue of her significant role in Strange's statewide campaign, plus her leadership role in the national Republican Attorneys General Association (RAGA). In essence, Hay writes, Garrison's lawsuit was designed to "bully the defendant (Shuler) into silence." From Kent Faulk's article at al.com:

Hay states in the motion that Shuler has a meritorious defense in the case, "and by virtue of evidence currently in his possession and that which can be obtained through exhaustive discovery, shall show that the case against him is frivolous and nothing more than an attempt by the plaintiff to unconstitutionally bully the defendant (Shuler) into silence."

Hay argues in the motion that Garrison is a public figure, based on her work on Strange's campaigns, her appointment as Chief Counsel and Deputy Attorney General of the state of Alabama in 2011, and her position as director of the Republican Attorneys General Association. If Garrison was to be considered a public figure, rather than a private citizen, it would raise the burden to that of proving actual malice, the motion states.


29 comments:

Anonymous said...

Wow, LS, your experience has been even worse than I thought it was. My best wishes to you and the missus. May justice come your way.

legalschnauzer said...

Thank you, @11:57. To walk out of a bogus incarceration into a foreclosure (which I think also was bogus) . . . well, that's a pretty tough combination, especially on top of 15 years' worth of court-related abuse.

It's a miracle we're still alive, and we're still facing huge threats to our well being.

Steve said...

I hope this is the beginning of your successful restitution of your rights and properties Roger. Both you and Carol have been through dreadful traumas simply for reporting on the facts of Don Siegelman's trial and the public figures involved. I wish you every success. You deserve it. On a lighter note. I doubt all this would have happened had your pet been a Poodle. ☺

Anonymous said...

LS,

I am a big fan but I am concerned you will get nowhere because of the Kangaroo court system in Alabama. I am sure the powers are working behind the scenes now to line up judges in their favor who will ignore continue to ignore precedent and rule in favor of the tribe. I wish you could get a change of venue out of state to get an impartial judge. Good Luck!

legalschnauzer said...

Thanks, Steve. And I love your line about the poodle. I'm guessing "Legal Poodle" wouldn't strike much fear into anybody.

legalschnauzer said...

I share your concerns, @12:37. One possible hope is that, by throwing me in jail etc., they have made this a national story, and the press has started to pay attention in a way that hadn't happened before. Perhaps that will make it a little more difficult for judges to get away with crooked rulings.

Jen said...

Most Americans have no idea how traumatic it is to go through a foreclosure. I've been through it and still have nightmares about it.

legalschnauzer said...

You are so right, Jen. Must admit I was clueless until it happened to us. The company that supposedly bought our home, Spartan Value Investors, shut off the water and threatened to shut off the electricity. Not long after we were out of the house, Spartan Value Investors sold it to another outfit, called JAG Investment Strategies. Not sure what was up with that. And it all happens so fast. We had 30 days to try to figure out a way not to be homeless--and we really didn't have a full 30 days because I was in jail for part of that time.

Based on my experience, I would say foreclosure is worse than jail. The two together . . . well, it's pretty overwhelming--especially when one (jail) clearly was unlawful, and I think the foreclosure was, too.

Anonymous said...

Were you up to date on your mortgage payments?

Anonymous said...

Your foreclosure was most likely a windfall or unjust enrichment to a party that never loaned you a dime in the first place. The true party who funded the loan may in fact still be receiving a return on their investment if not already paid in full from ins bets, cdo's credit default swaps. Wall street has made big while the rest of us lost it all. Read the mortgage settlement agreements or the consent orders to see that fraud upon the courts/consumers is just another day at the office.

legalschnauzer said...

No, @2:32, we were not up to date on our mortgage payments, and I did not say we were. If you read the post and the cited law regarding the tort of wrongful foreclosure, it is not about whether one is up to date on payments. It is about the foreclosure being pursued for an ulterior motive, some purpose other than to collect the debt.

legalschnauzer said...

Interesting thoughts, @3:25. I do know this for sure: We paid for our home on time for 22 years, so there was a lot of equity on the plate. Next thing you know, I get abducted, thrown in jail for five months, and we get hit with foreclosure at pretty much the same time. Curious timing, in my mind. Of course, foreclosure never would have been an issue if political forces had not cheated us out of our jobs. And by political forces, I mean people connected to the Riley Machine, who did not like my accurate reporting on wife-beating judge Mark Fuller and his unlawful actions in the Siegelman case.

Anonymous said...

So you ran across Spartan Value Investors in Shelby County? I know someone who's had a similar experience, and my friend hated the Spartan people, said they lied to her repeatedly. Do you mind saying what part of Shelby County you lived in? I'm curious if you were close to where my friend lived.

Anonymous said...

Apparently you missed my point. If you couldn't pay for your house, you should have sold your house. The reason you couldn't pay doesn't really weigh into that equation. I hate that you lost your home, but it was predictable.

legalschnauzer said...

We lived at 5204 Logan Drive, in the Broken Bow South neighborhood off Hwy. 119, near Briarwood High School. Spartan lied early and often to us, too.

* Said they would pay $2,000 of our moving expenses if we got out by a certain date. We got out before that date and never got paid.

* Said they would not file an eviction lawsuit, but they did. (We weren't evicted, but Spartan filed the suit anyway, after saying they wouldn't.)

* They shut off our water and threatened to shut off our power. Shutting off any utilities in such a situation is illegal under Alabama law.

After all that, Spartan turned around and quickly sold the property to something called JAG Investment Strategies.

Did that happen with your friend? I have no idea why Spartan sold it to JAG, whoever that is. Spartan does have a Web site, but I know nothing about JAG.

I've seen documents that show JAG getting a mortgage through Nowlin & Associates, which is a financial advising firm in Birmingham. Maybe Nowlin & Associates writes mortgages all the time, but I wasn't aware of it.

Ironically, I've known two of the company's principals--Charlie Nowlin and Justin Craft--for many years. I wonder if they know that they played a role in helping my wife and me get screwed out of our house. I wonder if they know they played a role in a possible wrongful foreclosure. Maybe they know and don't care.

Just seems odd to me that one company (Spartan) would go through the bidding and such, then turn around and sell it to another company (JAG) so quickly, with the help of a third company (Nowlin & Associates). What's the purpose of all that? Why such a winding road?

Anonymous said...

If I'm correct, you would technically have a year after a foreclosure to reclaim the property if you could pay for it. By selling the property immediately for a profit, you would have to make the current owner whole and therefore would be out more money. I'm sure it's a tactic to make sure you can't reclaim the property at a later date. And even if you won the lottery, you would still have to pay more than you originally would have. According to Zillow, it sold for $198,100, but the estimate is almost $12,000. Foreclosures usually sell for less than the estimate.

On a side note, how did you obtain the envelopes that are attached as exhibits in your attorney's response?

legalschnauzer said...

Being kidnapped and thrown in jail for five months makes it pretty difficult to sell your house, @5:58. Maybe you could figure out a way to do it under those circumstances, but I couldn't.

legalschnauzer said...

I didn't obtain the envelopes, @6:23. I'm not certain, but I believe they came from the court file.

Anonymous said...

My friend lived in Alabaster, I think it was Navajo Hills. That's a good ways from where you lived. I don't know if JAG was involved in her situation or not. I know she despised the Spartan people.

Anonymous said...

In my opinion -- I'm not a lawyer and this is not legal advice -- let us suppose the sale may have occurred to hold the third party innocent because those who foreclosed allegedly could not enter a court with dirty hands or receive aid from a court when-- hypothetically-- they stole or engaged in fraud.

I suggest researching lis pendent. I see it on a lot of foreclosure listings in my state.

I cannot see the motion document. I'm very afraid of electronic filing, voting, and so forth. I have had courts in three states allegedly alter and or omit filings.


I'm very concerned with electronic documents, period. I saw where con artists had photoshopped a title to an expensive home they did not own and sold it! I have also heard that some electronic documents will not be notarized and or have other procedural errors, omissions, and defects.

I wish you all the best. I think the courts induce PTSD. I was told by 3 people that I have it but I know that it is moreso stress related to the court and other issues beyond my control.

Stay strong and God bless.

Anonymous said...

It would take ONE thing to settle this whole issue.. DNA TEST. if I had nothing to hide I would willingly submit DNA of myself, my child and Luther. This all could be avoided and settled.. I doubt that will ever happen but that would be an end to this. I wonder why some one has not requested that a DNA test be ran. That is the only way to prove the allegations. Best of luck to you and your wife. I think you both have been through more than most of us in a life time and maybe things will get better for you. Sure hope so.

Anonymous said...

http://www.alabamacorporates.com/corp/33648.html jag is just right down the street from your home on Logan

legalschnauzer said...

I should point out, @10:53, that I never reported that Luther Strange was the father of Ms. Garrison's child. It apparently was claimed in court that I reported that, but I didn't. Makes me wonder how much of the $3.5m default judgment was based on false information.

legalschnauzer said...

Yes, I was aware of that, @11:01, and I find it a little strange. Someone apparently runs the business from their home, and I know exactly which house it is.

I also find it strange that our house went into foreclosure just as I was getting out of jail, as if the two were orchestrated together.

legalschnauzer said...

What do you make of the fact JAG is right down the street from our house, @11:01? What do you make of the fact Spartan Value Investors, the original buyer, sold it to JAG roughly 2-3 weeks after we moved? Does that seem odd to you?

We've never figured out why Spartan would buy it and then turn around and sell it to another house-flipping outfit, especially so quickly. Maybe that's common in the industry, but seems odd to me.

Anonymous said...

What did Garrison sue you for ?? Surely this all will work out. It is sad that you spent time in jail for blogging. I truly mean that.

legalschnauzer said...

Garrison's complaint alleged defamation.

Anonymous said...

11:01 here.. I do not have a clue.. I never heard of the place I just googled it when you mentioned it.. I think I saw someone John William as a name.. Have you checked in to who the owner is? I never had foreclosure but I do know when a friend of ours first home was bought it was bought and sold 4 times in less than a year. I am not sure of the procedures maybe someone with more sense than I have can investigate and find out more about the jag company and the person that owns it.. has anyone started one of those go fund me campaigns for you. Maybe then enough money could be raised to buy you and better and bigger house debt free . Has anyone started a fund and I just missed it. I am not on the computer as much as I used to be.

legalschnauzer said...

Yes, the name I've seen associated with JAG is "John William" in some places and 'John Williams" in others. Yes, I know the name of the people who own it now. I'm not aware of anyone starting a crowd-funding source. I believe this post is the first time I've written about the foreclosure, so I'm not sure people know that much about it.