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Tuesday, July 11, 2017

Records indicate our eviction, throwing us on the street and leading to Carol's shattered arm, was conducted without a valid court order from a judge


(From shreveportla.gov)
A Missouri deputy states in her written report about our September 2015 eviction that she and her colleagues were acting on a court order. That seems like a simple enough statement, but our research raises this question: Is it true?

We've seen significant evidence that the statement, made by Officer Debi Wade, isn't true. What does it mean if the officers who threw us out of an apartment that we lawfully occupied, causing us to lose most of our worldly possessions and breaking my wife, Carol's, arm . . . did all of that without a valid court order? That is a profound question, which we will examine at the end of this post, but first let's look at the evidence.

The Missouri Attorney General's Office has issued a pamphlet on landlord/tenant law that plainly states: A landlord may not evict a tenant without a court order. (See page 16 of 20-page pamphlet.) Here are Debi Wade's words from a written report, dated 9/10/15, the day after our eviction. (The report and related documents are embedded at the end of this post.)

On September 9, 2015, we responded to 4070 S. Fort to execute a Writ of Execution and Court Order (1531-ACO4535) to remove lessee Roger Shuler from the rental. Mr. Shuler had made previous statements advising that he would not vacate the home as ordered by the judge to do so, and would have to be physically removed. After the posted deadline date of 09-09-15 @ 9:00 a.m., we received a call from the landlord advising that the Shulers were still there, and it was believed that they had made no effort to vacate the residence at all.

As an initial matter, let's note Wade's claim that I had made statements "advising" that I would not vacate the home "as ordered by the judge to do so." Does Wade provide any clue as to how she came up with that information, perhaps identifying the person I supposedly "advised" and pointing to any signs that might indicate said individual was credible? Nope, not a word.

Let's now focus on the back end of Wade's statement -- that I had been "ordered by a judge" to vacate. Wade references the case number (1531-AC04535) for Trent Cowherd v. Roger Shuler, the eviction lawsuit in question, so we can look that up at case.net. If you click on "docket entries" for the case, what do you learn? An entry on 8/27/15 states that Judge Kelly Halford Rose had found for Cowherd on possession only and issued an interlocutory order to that effect -- with other issues, including our counterclaim, set for hearing on 10/1/15. An entry on 8/31/15 shows the judge had formally filed an interlocutory judgment on the possession issue.

What does "interlocutory" mean? It means the judgment or order is not final and generally cannot be appealed. The docket indicates no final judgments would come until all issues had been heard, which would be some time after 10/1/15. Why would judge Rose sign an eviction order when she had not issued a final judgment on that, or any other issue, related to Cowherd v. Shuler? The answer: she wouldn't, and she didn't. That means Officer Wade likely is lying about having a court order.

Here is where this whole charade almost gets amusing. Officer Wade almost seems aghast -- verklempt, even -- that Carol and I had made no effort to vacate the property. Maybe that's because there had been no valid court order that we do so. But the silliness doesn't end there.

Our next step is to look at RSMo 535.350, which holds:

534.350. The judge rendering judgment in any such cause may issue execution at any time after judgment, but such execution shall not be levied until after the expiration of the time allowed for the taking of an appeal, except execution for the purpose of restoring possession shall be issued no sooner than ten days after the judgment. However, the execution for purposes of restoring possession shall be stayed pending an appeal if the losing party posts an appeal bond.

What does this tell us? (1) An eviction must be authorized by a judge; it's not something a landlord, his lawyer, and a sheriff can effectuate on their own; (2) An eviction cannot be executed until after the time allowed for taking an appeal has expired; (3) Execution for restoring possession shall be stayed if the losing party files a Notice of Appeal, with an appeal bond.

The docket shows that we timely filed a notice of appeal, with appropriate fees, and the Missouri Court of Appeals filed correspondence noticing receipt of our appeal on 9/9/15 -- the date our eviction had unlawfully been scheduled, inside the 10-day window. There was no appeal bond because there was no final judgment in our case, and no judgment amount (upon which an appeal bond is based) was entered.

The law is clear that our notice of appeal put a stay on execution, and we have addressed that already in multiple posts. But what about the notice we received regarding the eviction, via several documents that were attached to our door. They all were versions, filled out in a varying ways, of Greene County's form for "Execution in Landlord's Action for Possession of Premises for Non-Payment of Rent." (Several versions of the form are embedded at the end of this post.)

Craig Lowther
All of the forms are signed by Craig Lowther, attorney for landlord Trent Cowherd. Most are signed by Deputy Scott Harrison, of the Greene County Sheriff's Office. None is signed by a judge. On the form where someone (apparently Lowther) informs us of the eviction's time and date, the information was handwritten on an attached yellow sticky note. "This is a court order," the sticky note says. Is a judge's signature anywhere to be found? Nope. Who made the determination that this was a court order? The answer seems to be Craig Lowther.

Underneath the sticky note is the following information, in red type: "Note: The seal of the Greene County Circuit Court must be affixed for this Execution to be valid." Is the seal affixed anywhere on the document? If it is, it's sure well hidden from my eyes.

Let's review what all of this tells us:

(1) None of the documents "ordering" our eviction was signed by a judge;

(2) None of the documents "ordering" our eviction was affixed with the Greene County Circuit Court seal, as required by law. That means they were invalid;

(3) Attorney Craig Lowther, in an apparent act of fraud, essentially ordered our eviction, via a bogus sticky note that falsely claimed to be a court order. Trent Cowherd, Lowther's client, might have been involved in the fraud, too;

(4) Perhaps most importantly, the case docket clearly shows that Judge Kelly Halford Rose had issued an interlocutory order and judgment -- meaning there was no final judgment from which an appeal could be taken, no such final judgment was forthcoming until after all issues had been heard on 10/1/15, and our notice of appeal should not have been on file until a final judgment was entered.

What's the take-home point? Rose almost certainly did not sign any of the "court orders" because she knew no final judgment had been entered. That suggests Craig Lowther, perhaps under instructions from Trent Cowherd, fraudulently "ordered" us out of our home -- using authority he does not have. In other words, Lowther and perhaps Cowherd conned us into a bogus eviction, causing most of our worldly possessions to be stolen or lost -- and they broke Carol's arm, in the process.

So much for law and order, here in the Ozarks.

Speaking of "law and order," Sheriff Jim Arnott doesn't look so good in all of this either. This is from a December 2015 post about our eviction:

Greene County Sheriff Jim Arnott was on hand for our eviction -- Why? I have no idea -- and as I tried to explain to him that we had filed a Notice of Appeal that put an automatic stay on execution of the eviction, he shrugged his shoulders and uttered the sheriff's usual phrase, "Well, I've got a court order."

"Is it signed by a judge?" I asked. "The notice that was attached to our door did not appear to be signed by a judge." (Our copy of the notice, like much of our important paperwork, was lost in the chaos of the eviction process. It should be in the official court file.)

"Well, it's in my car," Arnott said.

"Can I see it?"

"I'll show it to you before I leave."

Did I ever get to see it? Nope -- Arnott's deputies were too busy brutalizing my wife.

Did Arnott actually have a valid court order in his car? The answer almost certainly is no, seeing as how one apparently did not exist. Does that mean Arnott was acting in extrajudicial cahoots with Lowther and Cowherd? That's how it looks from here.

Was Debi Wade being truthful when when she claimed to have a court order, and that I had been "ordered by a judge" to vacate? The evidence suggests she was not.

What does all of this mean? Well, the circumstances are so bizarre that it's hard to find statutory or case law that is on point. This much is certain: Causing someone to be kicked out of their home based on fraudulent documents, unlawfully assuming the authority of a judge . . . well, that is ugly stuff. I'm guessing it is criminal, almost certainly violating 18 U.S. Code 242 -- "Deprivation of rights under color of law" -- and possibly other state or federal statutes.

Bringing a criminal case against a landlord, lawyer, or sheriff isn't easy. Our system is set up to protect such folks, and I'm guessing it is the rare prosecutor who is willing to hold them accountable. But we are going to look into the criminal implications of our eviction, and if I have my way, I few prominent folks in Springfield, Missouri, might discover down the line that "orange is the new black."









14 comments:

Anonymous said...

This sounds serious to me.

Anonymous said...

Most third graders probably know you don't circumvent the court system to throw someone out of their home. What a bunch of amateurs.

Steve said...

It kind of looks like Craig Lowther and Sherrif Arnott May soon find an eviction notice nailed on their own front doors as all their properties are sold to pay you restitution. Not that they will have need of their homes once they become guests of the county gaol😡

Anonymous said...

Is this history repeating itself? You were arrested without a warrant in Alabama and evicted in Missouri without a court order? Bad guys operating from the same script?

legalschnauzer said...

@1:28 --

That's how it looks from here. You summed it up well.

legalschnauzer said...

Steve --

I hope you are right. That's what should happen, if the law still means anything in the USA. Our eviction story is like the Trump presidency. The more you learn about it, the worse it smells.

Anonymous said...

Lawyers in Missouri don't know the meaning of the word "interlocutory"?

Anonymous said...

One of the notices has the initials "BH" where it says associate clerk of circuit court. Any idea what that means?

legalschnauzer said...

@3:05 --

I don't know. Below is URL to the Circuit Clerk's staff Web page, and there is nobody listed with the initials "BH." It's possible there was a BH on the staff in 9/15, but that person since has left the office.

Still, that doesn't explain the lack of a judge's signature, the lack of a county seal, and the fact the judge had issued only an interlocutory order.

The chief deputy clerk now is Sue Carter.


http://www.greenecountycourts.org/staff/

Anonymous said...

I wonder how many times Lowther and Cowherd have pulled this stunt on other tenants.

Anonymous said...

I'm betting that Debi Wade never saw a court order, and the same probably is true for the other deputies. Sheriff Arnott probably told them he had a court order, so the deputies took that as gospel truth.

In fact, I would say that explains Arnott's presence on the scene. He likely knew there was no valid court order, but he provided a "show of authority" that made the eviction look legitimate -- both to you and the officers.

legalschnauzer said...

@9:13 --

Thanks for an insightful comment, raising a number of issues that had not occurred to me. I bet you nailed a few things here.

Anonymous said...

@9:13 . . .

Your comment is consistent with what I know about cop behavior. If the head guy says something, it's true, no questions asked. It's a military mindset. You don't move up the ranks by questioning the commander.

Anonymous said...

A cop who questions the commander winds up working at Burger King. Not a good career move.

It's why these cops are lying their asses off in written statements. They must protect the commander. For them, that is the required career move.