Take a ride on a rocky tour of our experiences with the U.S. Eleventh Circuit, where justice often goes to die under a load of crap called "Do Not Publish" opinions

"Do Not Publish" appellate opinions
 often provide cover for corrupt
trial judges like William M. Acker Jr. 

"Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.”

-- Monroe Freedman, founder of legal ethics


Join me on a brief tour of our experience with "Do Not Publish" opinions in the Eleventh Circuit Court of Appeals. We've shown that the late law professor Monroe H. Freedman found such opinions often are a sham, designed to cover up findings that bear no resemblance to the facts and law governing the case.

My wife, Carol, and I know, from unpleasant, firsthand experience that Freedman was right. In fact, we have two pending matters before the Eleventh Circuit, related to our "Jail Case" and "House Case," and our No. 1 concern is that the ruling will come with "Do Not Publish" stamped in the upper right-hand corner. Without even reading the opinion, that will tell me we've been screwed.

We've had three similar experiences already, and it disgusts us to think taxpayer dollars are being wasted on opinions that "bear no relationship whatsoever to the cases that have been filed and argued before the judges." Those aren't my words. They come from Monroe H. Freedom, who is considered the father of modern legal ethics as a academic subject.

I won't address everything the court got wrong in our cases, focusing only on the primary unlawful findings that forced the court to put the "Do Not Publish" stamp on them. Given that 82 percent of the circuit's cases wind up with unpublished opinions, you are likely to have a similar experience if you live in Alabama, Georgia, or Florida and ever have a federal issue go to appeal:


(1) Shuler v. Board of Trustees of the University of Alabama, et al., 11th Cir., 2012 (Do Not Publish)

Issues at stake -- Allegations of discrimination, and First Amendment violations, related to my termination as an editor at the University of Alabama in Birmingham (UAB), where I had worked for almost 20 years.

Primary unlawful finding in trial court -- Rule 56 of the Federal Rules of Civil Procedure (FRCP) and binding Eleventh Circuit law (see Snook v. Trust Company of Georgia, 859 F.2d 865, 11th Cir., 1988) hold that a court cannot consider summary judgment until the parties have had an opportunity to conduct discovery. Federal rules require a court to order a discovery conference and set a schedule to govern the completion of interrogatories, depositions, requests for production of documents, and the like.

Trial judge William M. Acker Jr. did none of those things. He granted summary judgment to the university, without the first bit of discovery being conducted. He did it, even though I filed three documents informing the court that discovery not only was outstanding, it hadn't been conducted at all. That cannot happen under the law, as outlined in Snook: "This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. . . . Generally summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests."

I cited Snook over and over in trial-court documents. Did that have any impact on Acker, a Reagan appointee who now is 89 years old? Nope. After telling me in open court that he was going to cheat me, Acker did just that.

What the appellate court did about it -- A three-judge panel simply lied about its own holding in Snook--and it lied about my actions in the trial court. Snook holds that a party simply needs to notify the court that discovery has not been completed -- in this case, discovery had not even started -- and that invokes the protection of Rule 56(d). I filed proper notification in three separate documents, but Acker ignored each one. And the appellate panel covered for the trial court by writing the following: "Shuler never filed a motion under Rule 56(d) and did not identify any discovery relevant to the grounds for summary judgment."

How gross is this con job? You can read my Rule 56(d) motion here, and I filed two other documents alerting the court that discovery had not begun, had not even been scheduled. You can read my petition for an en banc hearing here, and it outlines everything the appellate panel got wrong. Naturally, my en banc petition was denied.

Why this opinion had to be stamped "Do Not Publish" -- Nothing is profound about Snook. I'm sure every federal circuit has similar case law because it's a matter of common sense: You can't determine that a case should be summarily dismissed, or allowed to go to trial, until both parties have been allowed to gather facts that support one outcome or another. In Bill Acker's world, at least in my case, court is a "fact-free zone." My case was decided without a single fact being entered into the record. And the 11th Circuit essentially said, "That's perfectly OK, even though we know it conflicts with Snook. Big deal. Due process and equal protection of the law mean nothing to us."

A quick check of Google Scholar shows that Snook has been cited as recently as Dec. 2, 2015. That means it still is binding precedent, and it probably will be binding precedent as long as federal courts exist in the Southeast. It's that fundamental, so essential to any notion of fair play and justice in our courts. The Eleventh Circuit's ruling in Shuler overturns Snook -- and if put into the official record, that would throw the circuit into chaos. That's why the opinion in my case had to be marked "Do Not Publish."


(2) Roger and Carol Shuler v. Swatek, et al., 11th Cir., 2012 (Do Not Publish)

Issues at stake -- Allegations that a sheriff's sale related to our house was unlawful, violating our rights to due process and equal protection.

Primary unlawful finding in trial court -- Judge Abdul Kallon, citing the Rooker-Feldman doctrine, found that he did not have subject-matter jurisdiction to decide the case. Rooker-Feldman holds that lower federal courts, other than the U.S. Supreme Court, generally should not sit in direct review of state-court decisions. The doctrine involves a number of exceptions, and several of them applied to our case. Perhaps most importantly, Rooker-Feldman applies only to "final state-court judgments." (See Nicholson v. Shafe, 558 F.3d 1266, 11th Cir., 2009.) We weren't seeking review of a final state-court judgment; we were seeking review of a sheriff's sale. In fact, the record showed there was no state-court judgment related to the sheriff's sale.

Federal courts have found that federal claims can be barred if they are "inextricably intertwined" with a state-court judgment. (See Casale v. Tillman, 558 F.3d 1258, 11th Cir., 2009.) Casale held that "A claim is inextricably intertwined if it would effectively nullify the state court judgment . . . or it succeeds only to the extent that the state court wrongly decided the issues." Our claim did not seek to nullify a state-court judgment, and it did not claim that a state court wrongly decided any issue. It claimed that the Shelby County Sheriff's Department unlawfully conducted a sale that caused us to lose full rights to our house.

(From paralegalstudies247.com)

The trial court ruled incorrectly on numerous issues, and I will mention briefly only two others: (1) Rooker-Feldman does not apply to anyone who was not a party to any underlying state-court action. (See Lance v. Dennis, 546 U.S. 459, 2006.) Mike McGarity, our troublesome and criminally inclined neighbor, sued only me in an underlying state matter; he did not sue my wife, Carol, who jointly owned the house subject to a sheriff's sale. That means Rooker-Feldman did not block her claim, but Kallon blocked it anyway; (2) Kallon dismissed our claims against McGarity and his attorney, William E. Swatek, on the grounds that they were not state actors for the purposes of a civil-rights claim. But the U.S. Supreme Court has held that private individuals who act jointly with state officials are deemed to be acting under color of state law. (See Lugar v. Edmondson Oil Co., 457 U.S. 922, 1982.) Our complaint alleged that Swatek and McGarity conspired with state officials to deprive us of our property rights, so that element of our claim could not lawfully be dismissed.

What the appellate court did about it -- The three-judge panel ignored the 11th Circuit's finding in Nicholson that Rooker-Feldman applies only to final state-court judgments. Made no mention of it.
The panel did admit that, under Lance, Rooker-Feldman did not block Carol's claims. Bit it dismissed her claims on other dubious grounds, mainly involving immunity. The panel ignored the U.S. Supreme Court finding in Lugar, which if applied properly based on allegations in our complaint, would have treated Swatek and McGarity as acting under color of state law. My appellate brief on the various issues can be read here.

Why this opinion had to be stamped "Do Not Publish" -- The panel's ruling in Shuler essentially overruled Nicholson, Lance, and Lugar -- and butchered the long-held findings related to Rooker-Feldman. In terms of Lugar, the Eleventh Circuit effectively overruled the U.S. Supreme Court. That's something circuit courts are not allowed to do -- the U.S. Supreme Court is called "the highest court in the land" for a reason; Lower courts have an obligation to uphold its findings. Again, had Shuler been published it would have thrown the Eleventh Circuit into chaos -- certifying findings that run contrary to precedents that have governed important legal questions for years.


(3) Roger and Carol Shuler v. Ingram and Associates, et al., 11th Cir., 2011 (Do Not Publish)

Issues at stake -- Allegations that certain entities violated the Fair Debt Collection Practices Act (FDCPA) in trying to collect a debt we allegedly owed to American Express.

Primary unlawful finding in trial court -- This case was a mess from the outset. Four different judges were assigned to it, with Kallon finally getting it. By the time it wound up in his lap, I don't think he had a clue what was going on. We had multiple attorneys representing us, included the deceptive duo of Darrell Cartwright and Allan Armstrong, who essentially cost us the case by admitting to "facts" that the record shows were not facts. Consider this from our appellate brief, which I wrote after we fired Cartwright and Armstrong:

Any admissions in the record were not made by the Shulers; they were made by Darrell Cartwright and Allan Armstrong, two attorneys who no longer represent the Shulers. It was Cartwright and Armstrong who, without consulting the Shulers, admitted to “undisputed facts” Nos. 9, 12, 13, and 18 in Ingram’s motion for summary judgment. The Shulers’ own attorneys repeatedly made blatant mistakes that undermined their clients’ case, admitting to “facts” that are not facts. Federal law makes it clear that a party is not to suffer because of the incompetence of counsel. Consider Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp.,843 F. 2d 808 (4th Circuit, 1988) : “When the party is blameless and the attorney is at fault, the former interests control . . .”

So many errors of fact and law were made in this case, it's hard to know where to begin. Cartwright and Armstrong wrote our response to Ingram's Motion for Summary Judgment, and they did a fairly good job on the argument -- despite wrongfully admitting near the beginning to at least four non-facts that helped cost us the case. Perhaps the most important error by the court is this: 15 U.S.C 1692e holds that "a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt."

Representatives of Ingram and Associates lied to us over and over -- and we captured it all on tape. Perhaps the most important lie, in our view, was their claim that American Express hired them, even though their own sworn testimony showed that the debt-collection firm NCO hired them. Obviously, American Express is a powerful, well-known consumer brand, and claiming they hired you, makes it more likely you will collect a debt (whether you can prove it is owed or not) with relatively little effort.

What the appellate court did about it -- A three-judge panel did nothing to correct Kallon's numerous mistakes. Contrary to clear law, the panel found that we were to suffer for our attorney's mistakes, upholding as "facts" information that the record showed clearly was not factual. The panel also misapplied the standard for summary judgment review, which holds that all matters must be viewed in a light most favorable to the non-moving party (us). Instead, the panel upheld Kallon's rulings that gave Ingram the benefit of the doubt at every turn.

Why this opinion had to be stamped "Do Not Publish" -- We probably could point to more than a dozen reasons that this case could not be recorded in the actual law. But here's the No. 1 reason: The appellate court, more or less, overturned key provisions of the FDCPA, holding that it's OK for debt collectors to resort to deceptive statements, misrepresentations, threats, and out-and-out lies in efforts to collect a debt. Of course, that's not what the law says, so the ruling had to be kicked into the nether world of unpublished opinions.

That's the place where, all too often, truth, facts, law, and justice go to die.

Obama nominates Merrick Garland to replace Scalia, but president has history of backing a judge in the South who helped trample the rights of blacks, women

Abdul Kallon
(From al.com)

President Barack Obama this morning nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. circuit, to replace the late Antonin Scalia on the U.S. Supreme Court.

We strongly support Obama's right to make the nomination, and the Republican notion that the next president should replace Scalia is not supported by law, history, or common sense. We also believe Garland is a reasonable choice--although probably not as liberal as we would prefer--and he should receive a full and fair hearing in the Senate. He also should receive a full vote, and if he is as solid and moderate as news reports suggest, he should be approved and seated on the SCOTUS bench sometime this summer.

Having said that, we are deeply concerned about some of Obama's judicial nominees in, or near, our home base of Alabama. Most troubling is his announcement on February 11 that he was nominating Birmingham-based U.S. District Judge Abdul Kallon to the Eleventh Circuit Court of Appeals in Atlanta.

We made our feelings about that nomination clear in a post titled "Obama nominates Alabama federal judge Abdul Kallon to open seat on U.S. Eleventh Circuit Court of Appeals, proving incompetence still has its rewards."

Since the nomination Obama and U.S. Rep. Terri Sewell (D-AL) have misused high-minded rhetoric in an effort to convince the public that nominating Kallon is a wise decision. The public should not fall for it.

Obama said "Judge Kallon has a long and impressive record of service and a history of handing down fair and judicious decisions.” With all due respect to the president, for whom I have voted twice, that is bulls--t.

Rep. Sewell could hardly contain her glee and reacted with this: "What an awesome nomination! So excited [that] President Obama nominated Judge Kallon for the US Court Of Appeals. Judge Kallon has the integrity, keen legal acumen, and judicial temperament to make him a highly qualified appellate jurist!” That just shows that Sewell is a political hack who knows nothing about Kallon's actions as a judge or a lawyer.

Sewell also said, "This historic nomination could appoint the first African American from Alabama to this appellate bench." That suggests this is all about the color of Kallon's skin and not his abilities as a judge. And that's because his abilities as a judge are slim, at best. Even worse, Kallon has a demonstrated record of working against minorities--especially people of color and women. But Terri Sewll thinks he's an "awesome nomination." Is this woman drunk or clueless--or both?

We've shown that Kallon butchered two cases where my wife, Carol, and I were parties. And by "butchered," I mean he repeatedly failed to follow black-letter law. On at least one issue, his ruling was so off-the-charts wrong that it suggests he not only is incompetent, he's also corrupt. (More on that issue in an upcoming post.) In both cases, Kallon made sure to protect corporate or institutional interests over those of regular folks who had been wronged.

Specifically, Kallon protected the Ingram and Associates debt-collection law firm of Birmingham and corporate interests for which it works--including American Express and NCO, which is widely known as one of the most corrupt debt-collection outfits in the country. (See "The Debt Collector's Creed: Lie early and lie often.")

Merrick Garland
(From nytimes.com)

Kallon also protected the Shelby County Sheriff's Department and sleazy right-wing lawyer William E. Swatek. Keep in mind that Shelby County, Alabama, was the entity behind a lawsuit that wound up more or less gutting key provisions of the Voting Rights Act.

But Kallon's dubious actions go way beyond any rulings related to Carol and me. As a lawyer at the Birmingham firm Bradley Arant Boult Cummings (BABC), Kallon's main duty was to defend employers who faced allegations of discrimination. That's right . . . if you were a woman, a homosexual, a person of color, a person with a disability, or a person over the age of 40, and you faced discrimination in the workplace, Abdul Kallon was going to do his best to make sure you got shut out in federal court. To Kallon, civil rights are something to be trampled, not to be championed.

How do we know? Consider a case styled McCormack, et al v. Campus Crest Group, et al. (WD of NC, 2011). The case involved allegations that Charlotte-based Campus Crest Communities, headed then by CEO Ted Rollins, engaged in grotesque discrimination and harassment against female and black employees. Rollins, of course, has appeared regularly here at Legal Schnauzer because of his central role in a divorce case that caused his ex wife, Sherry Carroll Rollins, and two children to wind up on food stamps in Birmingham.

The McCormack lawsuit suggests Ted Rollins is no better as a manager than he is as a husband or father.

How bad was the racial environment at Campus Crest? This is from an earlier post, titled "How far will one company go to avoid hiring blacks":

Charlotte-based Campus Crest Communities, which develops student housing near college campuses, recently issued a $380-million IPO. But according to the lawsuit, the company takes specific steps to avoid hiring blacks for certain positions and fosters a racially hostile environment for the blacks who do work there.

Plaintiff Nicole McAuliffe says in the complaint that Campus Crest McAuliffe practiced blatant discrimination against people of color. She and other staff members were directed to hire predominantly young, white women to available positions at the company's various residential rental properties. She was directed to provide her superiors with photographs taken from the FaceBook or MySpace pages of all applicants she recommended to ensure they were not African American.

One supervisor told McAuliffe, “We have Southern investors; they do not like for us to hire blacks.” Another supervisor stated, "Once you hire an African American, you never can get rid of them because they think they are so entitled.” Several black administrative staff worked in a certain section of the corporate office, and that became known among higher-ups as the "hood."

So the area where blacks worked at Campus Crest was known as "the hood." But that is the least of the indignities black employees were made to suffer:

Qualified blacks--as well as qualified applicants over the age of 40--routinely were excluded from employment opportunities at Campus Crest's residential properties around the country, McAuliffe says.

Plaintiff Heather McCormack states in the complaint that one investor referred to blacks as "Indians." This investor said in a board of directors' meeting that occupancy levels had been reduced because too many "Indians" had been hired.

CEO Ted Rollins joined in the fun at Campus Crest, according to the McCormack/McAuliffe complaint:

Ted Rollins, CEO of Campus Crest, helped create the racially hostile environment, McCormack says. Rollins said one black property manager had caused a section of his apartment complex to fall into disrepair because he had been "throwing out his chicken grease at night."

McCormack faced questions when she hired a black female as one of her direct reports at the Charlotte office. "Who hired the black girl with the red hair?" said one of McCormack's superiors. McCormack says she was under constant pressure to terminate the new employee for false reasons.

Plaintiff Tammy Hughes-Brown says in the complaint that Rollins made it a practice to mimic the voice of a black male in her presence, insisting that he sounded just like Bernie Mac, the late African-American comedian.

For the company's 2009 annual meeting, Rollins and Chief Investment Officer Mike Hartnett presented a DVD that featured the two of them wearing large, 1960s-style "Afros." During a portion of the DVD, Hartnett mimics the voice of a black male, and both executives engage in sexually and racially charged remarks.

We've shown that Bradley Arant was the chief corporate law firm for Ted Rollins and Campus Crest Communities. Who helped defend the company against charges that it practiced nauseating racism against black employees? That was none other than Abdul Kallon. In fact, he only left the case when President Obama nominated him to a judgeship in the Northern District of Alabama. Records show that several lawyers from Charlotte helped represent defendants later, but Bradley Arant was front and center at the start.

Ted Rollins

That's the real Abdul Kallon, the guy who tries to make sure people with dark skin will not receive justice for being treated like dirt in America's corporate environment. That's the Abdul Kallon that Barack Obama and Terri Sewell don't want you to see, because it conflicts with their political agenda.

I agree that lack of diversity on the federal bench is a concern, and qualified black candidates should be given strong consideration. But they should be persons of integrity and intellect and fairness, who hold the law in utmost respect.

Abdul Kallon is none of those things. He should not be on the federal bench, and he certainly should not be promoted.

As for Merrick Garland, we hope Obama actually has nominated a qualified individual. And we hope he receives a fair hearing in the U.S. Senate.

If Garland is as honorable as he appears to be (at the moment), we are all for him. If he is cut from the same cloth as Abdul Kallon, he should be summarily rejected.

Transcripts Reveal That Rogue Debt Collectors Have Disregard For Consumer Rights Under Federal Law

In a recent five-part series, we used audiotapes to reveal debt collectors repeatedly violating federal law in an effort to collect a debt I allegedly owed to American Express. These collectors were not from a back-alley operation; they were from a law firm that represented Pennsylvania-based NCO, which is owned by JPMorgan Chase. And Chase is the largest bank in the United States and one of the largest private corporations in the world.

Our series showed that representatives of perhaps banking's most powerful entity had no regard for the Fair Debt Collection Practices Act (FDCPA), the law that is supposed to govern their actions and protect consumers.

Now we have those audiotaped conversations turned into transcripts, which show perhaps with even more clarity the disdain that collectors have for the law. These transcripts were part of the evidence in a federal lawsuit that my wife and I filed against NCO and Birmingham-based law firm Ingram and Associates. (We didn't know at the time that JPMorgan Chase owned NCO, so the company was not named as a defendant.)

Our audiotaped evidence of unlawful acts, of course, could not be disputed. But as Dana Siegelman stated recently in regards to the case of her father, former Alabama governor Don Siegelman, your options are limited when you go before a corrupt federal judge. We had a corrupt federal judge--Abdul Kallon, of the Northern District of Alabama--and our own crooked lawyers, Darrell Cartwright and Allan Armstrong, intentionally undermined our case. That makes it hard to prevail in a court of law.

But in the court of public opinion, we will show you--in collectors' own words--how they lie, cheat, and essentially try to steal from unsuspecting consumers. I use the term "steal" because discovery in our lawsuit showed that Ingram and Associates had no information that I owed a debt to American Express--or that I even had an AMEX card.

The bottom line? Collectors tried to get me to pay them money, even though they had no evidence that I owed it; that comes close to the definition of attempted theft.

We will focus on three provisions of the FDCPA that collectors repeatedly violated in our case. If you ever hear from a debt collector, the chances are high they will violated these areas of the law with you, too. What are these provisions? We will put them in layman's terms:

(1) It is unlawful for debt collectors to speak with someone other than you about an alleged debt, except to seek information about your location (15 U.S.C. 1692b and 15 U.S.C. 1692c).

(2) It is unlawful for a debt collector to lie to you in an effort to collect a debt (15 U.S.C. 1692e).

(3) It is unlawful for a debt collector to insult you, or use abusive language toward you, in an effort to collect a debt (15 U.S.C. 1692d).


(To be continued)

Tape Recordings Nail Debt Collectors in Flagrant Violations of Federal Law (Part 2)

Debt collectors cannot lie to you during the course of their communications about money you allegedly owe. That's one of the basics of the Fair Debt Collections Practices Act (FDCPA).

In fact, a collector does not have to tell a flat-out falsehood to violate the FDCPA; any statement that is "deceptive" or "misleading" is a violation and should lead to damages if you bring a lawsuit in federal court.

The operative word in the previous sentence is "should." That's because the federal bench is littered with judges who are corrupt, incompetent, senile--or a combination of all three. Many of them were appointed to the bench from large, corporate law firms--and these jurists often are more loyal to business interests than they are to the law.

A perfect example is U.S. District Judge Abdul Kallon, the Obama appointee who heard the FDCPA lawsuit Mrs. Schnauzer and I filed in the Northern District of Alabama. Kallon came from the "pro business" firm of Bradley Arant and was recommended by former U.S. Rep. Artur Davis (D-AL), who has since switched to the Republican Party.

Kallon is a Democratic appointee, so quite a few Alabama consumers probably go before him thinking they will get a fair shake. They almost certainly will be disappointed, and that's because Abdul Kallon is a corporate whore. I have absolute proof of that; after all, Kallon granted summary judgment to collectors in the face of irrefutable evidence that they violated the law. (See video at the end of this post.)

Speaking of evidence, tape recordings are wonderful things. They reveal the truth about people and entities in a way that cannot be denied. In the second part of our series about collectors "caught in the act" of violating the FDCPA, we are dealing with a common character on the American frontier--a debt collector who tells a bald-faced lie. And this one did it while representing some of the biggest names in the corporate constellation.

The collector is Tracy Mize, who worked for the Birmingham law firm of Ingram and Associates. She was trying to collect a debt I allegedly owed to American Express, which had placed the account with a Pennsylvania-based collection company called NCO, which placed it with Ingram.

NCO, by the way, is owed by JPMorgan Chase, the largest private corporation in the world. You see what I mean about the big hitters involved here.

Let's set the stage for Tracy Mize's big lie: I told her about the misconduct we had witnessed from multiple lawyers and judges in Shelby County, Alabama--and noted that expenses associated with a protracted (and bogus) legal battle had put a crimp in our finances. She responded with her own story, about a complaint she filed that led to the disbarment of a senior partner at Sirote and Permutt, one of the major firms in Jefferson County. I noted that bar rules require an attorney who has "unprivileged knowledge" of misconduct within the legal community to report it to the "proper tribunal." Mize acknowledged the rule, but seemed to be convinced that it did not apply to her boss, Angie Ingram. That led to this comment from Mize:

But see, Angie has to stay out of this. She is hired by American Express to pursue this. She can't get involved in wrongdoing alleged against other attorneys. That's a conflict of interest for her. That's why I think you need to speak to a third party because Angie is the attorney for American Express, hired specifically to pursue these cases legally.

Mize states that Angie Ingram was "hired by American Express" and adds that Ingram is "the attorney for American Express." That probably is an effective statement in a collection case because it makes an alleged debtor think he is facing the resources of a corporate powerhouse. But there is a slight problem with the statement: It isn't true.

How do I know that? Gregory R. Stevens, vice president for customer contact management at NCO, filed an affidavit in my lawsuit that states the following:

10. On July 5, 2007, NCO referred the account to Ingram and Associates (Ingram) to file suit.

In her own affidavit, Angie Ingram admits she was hired by NCO, not American Express. So Tracy Mize lied to me, and that is a violation of 15 U.S.C. 1692e, which states in pertinent part:

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.

I suspect the con game that Ingram and Associates tried on me is pulled on thousands of consumers every day across America. A collection attorney obviously wants you to believe she represents the biggest and baddest kid on the block--or at least the corporate entity that you most likely have heard of. That way, she increases the chances that you will soil yourself and agree to a settlement--probably in that order.

Chances are that you've never heard of most debt-collection outfits, so dropping those names is not likely to have the desired effect. What's the solution for the collector, who really, really wants you to soil yourself? In my case, it was to tell me that the attorney had been hired by American Express--even though it wasn't true.

Just think about it: The representative for a collection attorney tells you she was hired by NCO. You're likely to say, "Never heard of 'em, so bite me." But let her say she was hired by American Express, and you immediately start to sense a loosening in your bowels.

The collector hopes that disturbing sensation is followed by a loosening in your wallet.

How does this scam play out in real life? You can catch it "live and in color" at the video below.


Previously in our series:

Tape Recordings Nail Debt Collectors in Flagrant Violations of Federal Law 

Tape Recordings Nail Debt Collectors In Flagrant Violations of Federal Law

The post you are about to read might be a first in the history of the Internet. It presents tape-recorded proof of mainstream debt collectors violating federal law in an effort to collect a "debt" they could not even prove was owed.

In fact, these collectors could not even prove the alleged debtor held the card in question. How do I know that? I was the alleged debtor--and discovery in a federal lawsuit showed that the collectors could not prove I ever had the American Express card in question, much less that I owed a debt on it.

A corrupt U.S. District Judge named Abdul Kallon repeatedly made unlawful rulings in my lawsuit, allowing collectors to wriggle off the hook. President Barack Obama appointed Kallon to the federal bench from the corporate Birmingham law firm Bradley Arant, at the suggestion of former U.S. Rep. Artur Davis--and that probably explains why Kallon is a toady for debt collectors and the financial sector.

We, however, are prepared to hold collectors accountable in the court of public opinion, with the first in a series of videos that show how bad actors in the debt-collection industry try to pull scams on consumers. (See video at the end of this post.) We don't have to worry about Abdul Kallon's bogus rulings in the wide-open space of the blogosphere.

Is this post really a first for the Web? Well, I'm not certain about that. I am familiar with several online reports that present direct evidence of debt collectors treating consumers in abusive fashion. One example that immediately comes to mind involved a Texas man named Allen Jones, who was barraged with collection calls that were mind-blowingly vile and racist. Jones wound up winning a $1.5 million judgment against Advanced Call Center Technologies (ACT) in federal court.

I suspect ACT comes under the heading of a rogue debt-collector--and there are quite a few of those out there. It should be noted, however, that the company has a fairly classy looking Web site, so maybe it rises a little above the level of "rogue" in the collection world.

Without question, the violations I am about to reveal are more subtle than the ones Allen Jones experienced. And they clearly come from a mainstream collector. The calls are from the Birmingham law firm of Ingram and Associates, which was hired by NCO, which is owned by JPMorgan Chase. And JPMorgan Chase is the largest private corporation in the world.

You can't get much more mainstream in the financial sector than that.

Does that make our tape recordings unique on the Web? Maybe not, but I'm pretty sure our evidence is at least unusual. It shows irrefutable proof of a high-end collector--if there is such a thing--stooping to unethical and unlawful tactics in an effort to con me out of money they could not prove I owed. And again, this was on a card they could not prove I had ever possessed.

What's the issue in this first video? Here is the key one: The Fair Debt Collection Practices Act (FDCPA) states that it is unlawful for a collector to communicate with a third party about a debt, other than to get information about a consumer's location (15 U.S.C. 1692b and 15 U.S.C. 1692c). But Ingram and Associates collector Tracy Mize--working on behalf of NCO and JPMorgan Chase--says right off the bat that she had been talking with my wife about various payment options on the debt.

That presents a slight problem. Even by the collector's own admissions, the alleged card was in my name only. Mrs. Schnauzer was not involved in any way, so she was a third party and they could lawfully only ask her how to locate me. (Her answer on that evening would have been: "He's out in the front yard, mowing the grass.")

Instead, they pried all sorts of personal legal and financial information from a non-party to the alleged debt. At about the 5:20 mark in the video below, Mize talks about all the details from my wife that were now in an account, which had nothing to do with her. You can read the pertinent sections of the FDCPA at the links above and see that Mize's actions were blatantly illegal. And she was working for Ingram and Associates, which was working for NCO, which is owned by JPMorgan Chase. This scam goes right to the top of big finance in the United States.

Welcome to the unseemly real world of debt collectors. The following video shows in stark details just one way they will try to scam consumers. There are many more, and we have more videos on the way.

Judge Abdul Kallon: Obama Nominee Is a Monumental Embarrassment on the Federal Bench

Abdul Kallon

Alabamians of all political stripes should be thankful that former U.S. Rep. Artur Davis has left our state for greener pastures in Virginia. Davis was one of the most disgraceful politicians in Alabama history--and that is saying something. He was a lousy Democrat, getting waxed in the 2010 gubernatorial primary; he probably will be an equally bad Republican now that he has switched parties.

Davis, unfortunately, left behind one nasty "gift" that is likely to keep giving for many years. And that does not bode well for the future of justice in Alabama.

According to published reports, Davis pushed for the appointment of Abdul Kallon as a U.S. judge in the Northern District of Alabama. Why did Davis support Kallon, who had extraordinarily thin credentials? Well, Davis was eyeing a run at the governor's mansion and apparently wanted to gain favor with our state's business elites, the folks who belong to the hideously corrupt Business Council of Alabama. What better way to do it than by anointing a lawyer from the state's premier pro-corporate law firm, Birmingham-based Bradley Arant?

President Barack Obama went along with Davis' wishes and nominated Kallon on July 31, 2009. The U.S. Senate confirmed the appointment about four months later, meaning the 43-year-old Kallon now has a lifetime appointment for which he is not remotely qualified.

All of this is particularly timely now. As former Alabama Governor Don Siegelman is set to be resentenced tomorrow--for convictions on "crimes" that do not exist under the law--the nation should be reminded that this is happening on Obama's watch. The unwillingness to hold Bush-era thugs accountable for clearly political prosecutions, such as the Siegelman case and the Paul Minor case in Mississippi, stands as Obama's No. 1 failure as president.

But his appointment of Abdul Kallon to the federal bench stands as another major failure. If anything good can be said about Kallon's performance so far, it is this: He is consistent--consistently bad.

That assessment is not just a guess on my part. I've had two cases before Kallon, and he royally botched both of them, making several dozen rulings that were not supported by fact or law. My impression is that Kallon is not stupid or incompetent; he simply is a toady for corporate and institutional interests. Any consumer or regular citizen who has been wronged is not likely to find relief by going before Kallon.

I already have written extensively about my experiences with the corrupt machinations of U.S. District Judge William M. Acker Jr., an 84-year-old Republican appointee from the Reagan era. As a black Democratic appointee who is roughly half Acker's age, Kallon would seem to be cut from a different sort of cloth. But when it comes to administering "justice," the two men are ideological twins, cutting favors for business elites while treating the rule of law like a plaything.

In the interest of time and space, I can't possibly go into all the ways Kallon ruled unlawfully in my cases--and they both also involved Mrs. Schnauzer, by the way. But I will hit a few "highlights," starting with our lawsuit against various outfits that were trying to collect a debt I allegedly owed to American Express.

We had four different judges over the course of that case, and by the time it landed with Kallon, I don't think he had a clue what was going on. Even if he did, his actions made it clear he had a predetermined outcome in mind--and nothing was going to change that.

I've written at length about our interactions with Birmingham law firm Ingram & Associates, which is headed by attorney Angie Ingram, and Pennsylvania-based debt-collection firm NCO, which was purchased by JPMorgan Chase not long before we started receiving calls from collectors. I tape recorded several conversations with Ingram representatives, and that yielded indisputable evidence that they had repeatedly violated the Fair Debt Collections Practices Act (FDCPA).

We also had clear evidence that NCO had placed the alleged debt with Ingram, meaning the two had an agency relationship, and NCO was vicariously liable for Ingram's misconduct; even Kallon admitted to that. But did our evidence get anywhere with a judge who apparently wants to make sure the world is safe for debt collectors to behave as they please? No, it did not.

How exactly did Kallon screw us? Let's focus on a handful of central issues:

* Discovery Denied--A favorite tactic for corrupt judges is to deny discovery for plaintiffs, either totally or in part, and grant summary judgment prematurely for corporate defendants. That's exactly what happened in our debt-collection case, and Kallon did not pull it off by himself. He had help from our own lawyers, Darrell Cartwright and Allan Armstrong, who stabbed us right between the shoulder blades repeatedly. (More on the shysters Cartwright and Armstrong in upcoming posts.)

As bad as our lawyers were, they did make it clear to the court in our response to summary judgment that the parties had ongoing discovery disputes. And that's all they had to do under Eleventh Circuit precedent to ensure that Kallon did not dispose of the case based on an incomplete record. But Kallon moved forward anyway.

Cartwright and Armstrong should have filed a motion under Rule 56(d) of the Federal Rules of Civil Procedure (FRCP), asking for a continuance because the opposing parties were stonewalling on discovery. They did not do that, but they did include the following footnote in our summary judgment response:

Counsel for the parties have ongoing discovery disputes which are, through this date, still attempting to resolve without assistance of the Court. Although counsel for the Shulers does not believe it is necessary to demonstrate the existence of material fact questions in this matter should the Court deem it necessary, the Shulers would request an opportunity to supplement this Opposition with additional material being sought through the discovery process. The extent of acting together, direction, and control is yet to be completely uncovered. Both co-Defendants admit the relationship, and acknowledge that the relationship is documented in written agreements; however, both have refused to provide said agreements to the Shulers, despite formal and informal requests to so provide within and without the discovery process.

That was much weaker than what our "dynamic duo" should have filed, but it was sufficient under the law to halt the summary-judgment process and force the defendants to reply to our discovery requests. Controlling law in the Eleventh Circuit is found in a case styled Snook v. Trust Co. of Georgia Bank of Savannah, N.A., 859 F. 2d 865 (11th Circuit, 1988). It states in part:

“This court has often held that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. . . . Generally, summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests.”

When the federal rules were revised in 2010, the old Rule 56(f) became Rule 56(d). The rule had required that a party seeking protection from premature summary judgment file an affidavit stating that discovery was outstanding. But under Snook, that has not been required in the Eleventh Circuit:

In this Circuit, a party opposing a motion for summary judgment need not file an affidavit pursuant to Rule 56(f) of the Federal Rules of Civil Procedure in order to invoke the protection of that Rule. In Littlejohn, the court "[o]ut of an abundance of caution and to prevent a possible injustice," held that an affidavit was not required to invoke the protection of Rule 56(f). 483 F.2d at 1146. The court concluded that "the written representation by [plaintiff's] lawyer, an officer of the court, is in the spirit of Rule 56(f) under the circumstances. Form is not to be exalted over fair procedures.

As bad as our lawyers were, they did the bare minimum to invoke the rule's protection and ensure that we did not get railroaded into premature summary judgment. But Kallon railroaded us anyway. He clearly did not want to see the debt collectors forced to turn over documents that would have proved how they routinely violate the law--not only in our case, but against thousands of other consumers.

* Abuse Allowed--Section 1692d(2) of the FDCPA states that "a debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse" the hearer.

Tape-recorded evidence showed that Ingram representative Jann Blalock referred to me "playing any schemes." When I stated that a lawyer, including Angie Ingram, has a duty to report misconduct involving a member of the bar, Blalock said, "Have you pulled this with every lawyer that represented someone that you owed a debt to?"

Angie Ingram

When I told Blalock not to call me again at work, she said, "You need to find a different horse to ride, sir. This one isn't going to work with us, okay?"

Another Ingram rep, Tracy Mize, referred to me conducting "a witch hunt."

But that only touches on the abuse and harassment we experienced from Ingram. Under Section 1692(d), a debt collector may not communicate with any third party about an alleged debt other than to seek location information. It's undisputed that Mrs. Schnauzer was not a party to the alleged debt, and yet Tracy Mize spent roughly an hour talking to my wife, asking numerous questions about our personal finances, and winding up with 14 pages of notes.

Here are Jann Blalock's words from a phone conversation with me:

I probably have 14 pages of notes on your account right now at this time. Okay, the first time that I got involved with it was last night when your wife went absolutely hysterical.

Why would Mrs. Schnauzer go "absolutely hysterical"? Was it because Tracy Mize told her that Ingram was going to cause her house to be "sold on the courthouse steps"--over an alleged debt that did not involve her?

Gee, I can't imagine why that would cause anyone to be upset.

Aside from the offensive language that was aimed at me, the alleged debtor, you have collectors causing a third party to--in their own words--become "absolutely hysterical." And Kallon claims this does not violate Section 1692(d)?

* Courthouse Steps Invoked--Speaking of "courthouse steps," that seems to be a favorite tactic of the Ingram firm. I suspect it's a favorite of many debt collectors. They hit you with images that your home--not the rights to some of it, but the whole shebang--is going to be sold in a public, humiliating fashion. In our case, Ingram reps told my wife that her entire home, which she jointly owns, was going to be sold over an alleged debt that did not involve her. I've yet to see anyone cite law that says such a step can be taken in order to satisfy a credit-card debt allegedly involving one owner of a jointly-owned home.

Section 1692e(4) of the FDCPA prohibits "the threat to take any action that cannot be legally taken or that is not intended to be taken." But Ingram used that unlawful scare tactic multiple times, and we have proof. Here is a brief segment of one conversation:

Roger Shuler: [Ms. Mize told my wife that] our house is going to be auctioned off on the courthouse steps.  Do you think that's not . . .  

Jann Blalock: We didn't say the house, we said the deed to the house, and that's what happens with any judgment, Mr. Shuler.

Notice they are threatening to sell the deed to our house--the entire house--over an alleged credit-card debt totaling in the range of $10,000 to $15,000 (including a lot of unexplained fees). Never mind my wife's interest in the house over a legal claim that did not involve her. And never mind that they could not talk to her, a third party, other than to ask where I was located.

I try not to use terms like "outrage" loosely, but that's the best word I can think of to describe Ingram's actions in our case. And it also describes Judge Abdul Kallon's unlawful handling of the case.

Much more is coming, both about Ingram and Kallon.

Meanwhile, let's check out an appellate document that provides a pretty good summary of issues that came up in our case--and undoubtedly come up in tens of thousands of debt-collection cases around the country. (By the time this document was due, we had given up on lawyers and decided to represent ourselves.)


Ingram--Appellate Reply Brief

ABC News Exposes Debt Collectors and Their Ugly Tactics

Elisabeth Leamy of ABC News

Sleazy debt collectors are back in the national spotlight, thanks to a recent investigative report from ABC World News Tonight.


Complaints against debt collectors have increased 17 percent over the past year. And reporter Elisabeth Leamy shines light on some of the industry's most shocking tactics, such as use of obscene and racist language and threats to have alleged debtors arrested.

The ABC story certainly grabs the viewer's attention, focusing on collectors that probably are on the fringe of the industry. (See link to video below.) But we would like to see Leamy follow up with a piece about the slightly more subtle tactics that some mainstream collectors use. These tactics might not immediately shock the viewer, but they, too, are illegal and probably are highly effective for collectors, helping them turn handsome profits in a time of economic hardship for many Americans.

We also would like to see ABC News focus on the role of debt-collection lawyers, such as Derrick McGavic of Eugene, Oregon, who recently was forced to give up his law license and close his practice after a barrage of consumer complaints.

As regular readers know, Mrs. Schnauzer and I have encountered mainstream collectors, such as Pennsylvania-based NCO, and their lawyers, such as Angie Ingram of Ingram and Associates in Birmingham. Like the sleazy outfits spotlighted by ABC News, NCO and Ingram treat the Fair Debt Collection Practices Act (FDCPA) as barely a bump in the road, something that doesn't even slow them down in their underhanded pursuit of profit.

Do NCO and Ingram representatives scream obscenities or resort to racist language? We have not experienced that, although they did insult us a number of times. But they do make unlawful threats, of a slightly more subtle variety than the "we're going to have you arrested" standby. And like some of the alleged debtors featured on ABC, we captured these moments on audiotape. We soon will be sharing this audio with Legal Schnauzer readers so you can get a feel for how these outfits operate.

Our problems started from a debt I allegedly had on an American Express card. Millions of Americans have cards from AMEX, MasterCard, VISA and other well-known national companies. NCO and Ingram are the types of firms that often wind up trying to collect for those companies--and you can expect them to bend, or flat out break, the law. Based on our experiences, here are a few things you can look for:

* Failure to provide written notice of debtor rights--This so-called "mini Miranda" warning is required by the FDCPA, and neither NCO nor Ingram provided it before launching a phone campaign in our direction. Why is that? The mini Miranda is designed to alert the alleged debtor of a potential problem and educate them about their rights under the law. That works against collectors. We suspect they much prefer to catch individuals cold via the phone, in an effort to strong-arm money out of them that they might not even owe--or that the collectors almost certainly cannot prove they owe.

* False statements about who they represent--Ingram reps told us repeatedly that they worked for American Express, that they had been hired by American Express, that Angie Ingram was American Express' lawyer. That was a blatant lie, which amounts under the law to fraud. Discovery in our ongoing lawsuit shows that Ingram was hired by NCO and, in fact, is a member of the NCO Attorney Network. Ingram admitted in discovery that it had no documents from American Express even showing that I had a card, much less that I owed a debt on one. Why the lies? Our guess is that the Ingram reps know it is more effective to say they work for a national credit-card company than to tell the truth--that they work for a debt collector that the listener probably has never heard of.

* Threats to sell our house "on the courthouse steps"--In our view, this tactic is more lowdown than the use of obscene or racist language. What is one of the greatest fears for many Americans? Losing their home, having nowhere to live. Ingram reps repeatedly told us that they were going to sell our house, the whole thing, "on the courthouse steps" Never mind that they can't do that under the law, especially for an alleged debt, in a relatively small amount, that was only in my name--while my wife and I jointly own our house. In fact, an Ingram rep told Mrs. Schnauzer that they were going to sell her house, moments after admitting that the alleged debt did not involve her. Why use of the term "on the courthouse steps"? That makes it a form of public humiliation for the alleged debtor. Again, we suspect this kind of threat is extraordinarily effective in getting targets to cough up money they might not even owe. It also is grossly unlawful.

Perhaps the most interesting part of the ABC News report came from Fred Williams, a Buffalo News reporter who spent three months working undercover as a debt collector. Williams also has written for Kiplinger's, Personal Finance, and USA Today and probably has done more than any other American journalist to expose unethical debt collectors. You can check out Williams' reports here:

Fred Williams: Fight Back Against Unfair Debt Collection Practices

Buffalo News: Unlawful Debt-Collection Practices Work

Kiplinger's: Confessions of a Debt Collector

What was perhaps the most eye-opening information that Williams learned while working undercover? That debt collectors violate the law intentionally, that they train their people to use abusive and unlawful tactics.

We suspect that is the case with NCO and Ingram. We have been repeatedly stonewalled in our efforts, through the discovery process, to get information about their training materials. U.S. District Judge Abdul Kallon has repeatedly violated clear federal law by allowing the debt collectors to withhold information.

Perhaps that should not be a surprise. Before being appointed to the bench by President Barack Obama, Kallon worked for the Birmingham firm of Bradley Arant, a notoriously right-wing, pro-business outfit. While at Bradley Arant, Kallon specialized in defending businesses that discriminate against employees. He even helped "investigate" the rampant sex and race discrimination that is alleged in multiple lawsuits against Campus Crest Communities and CEO Ted Rollins, a topic we have covered at Legal Schnauzer.

Even though we have NCO/Ingram violations on audiotape, Kallon has found a number of creative ways to let them off the hook, so far. What a guy! And what a "great choice" by Obama to be a federal judge. Another example of a Democratic administration's dreadful performance on justice issues.

We have much more coming on the actions of NCO and Ingram--and Judge Abdul Kallon's efforts to let them get away with rampant violations of state and federal laws. It's an ugly story, but we hope it will help educate other consumers who someday are likely to get calls from the "bottom feeders" of the debt-collection industry.

We are pleased to see that Fred Williams and reporters from ABC News already are on the story.


ABC News: The Shocking Tactics of Debt Collectors


[Image: abcnews.com]

Will Federal and State Judges Be Exposed in Swiss Banking Scandal?

Julian Assange and Rudolf Elmer

U.S. Supreme Court Justice Clarence Thomas might not be the only judge feeling a tad uncomfortable in the coming days. Thomas is under scrutiny for his failure to disclose his wife's income for at least five years--and possibly going back more than 20 years. But we are seeing signs that other stories soon will be breaking about judicial chicanery.

Federal and state judges are among those likely to hold Swiss bank accounts that have become the subject of a WikiLeaks investigation, reports a California-based human-rights organization.

Closer to home, we've had considerable interaction in recent weeks with two federal judges--William M. Acker Jr. and Abdul Kallon, both of the Northern District of Alabama. We soon will be presenting detailed information showing that Acker and Kallon are violating their oaths to uphold the law. We have seen evidence that at least one of these judges has engaged in a possible criminal conspiracy.

The WikiLeaks banking story began when former Swiss banker Rudolf Elmer handed over two computer disks containing information about thousands of offshore accounts. Elmer claims the disks provide evidence of massive potential tax evasion and other illegal activities involving international bankers. Swiss officials have arrested Elmer for possible breach of banking-secrecy laws, an action that WikiLeaks founder Julian Assange condemned.

U.S. judges, at both the federal and state level, probably are in the middle of the Swiss banking activity, says Joseph Zernik, Ph.D., of Human Rights Alert (NGO), a Los Angeles organization devoted to exposing human-rights violations by the American justice system.

In a blog post dated January 17, 2011, Zernik writes:

In view of the pending WikiLeaks release of Swiss banking data, Human Rights Alert (NGO) and Joseph Zernik, PhD, suggest that significant numbers of U.S. and state judges are likely to be among U.S. citizens holding numbered bank accounts in Switzerland.

Review of numerous cases in the U.S. and state courts shows a tight alliance between judges and large financial institutions, in disregard of the judges’ oaths of office, through the conduct of alleged fraud on the courts in litigation involving financial institutions. Such conduct undermines the stated U.S. government efforts to establish honest and effectual banking regulation.

How would judges benefit from offshore accounts? It would allow them to hide their financial ties to financial institutions and then rule unlawfully in favor of those institutions in court. The whole process, if proven, would amount to a massive fraud on American courts. Writes Zernik:

A growing body of evidence suggests that both U.S. and state judges have accepted financial benefits from large financial institutions. In 2008 Dr Zernik filed requests with California Judge Terry Friedman (Los Angeles Superior Court), U.S. Judge Virginia Phillips, and U.S. Magistrate Carla Woehrle (U.S. District Court, Central District of California) for statements on the record regarding financial benefits to them or family members residing with them from such institutions (pursuant to the California Code of Judicial Ethics). All three refused to provide such statements.

In 2009 whistleblower Bradley Birkenfeld led to the discovery that an estimated 40,000 U.S. wealthy citizens were holding Swiss numbered accounts with UBS-AG. Birkenfeld was swiftly sentenced by a U.S. court to years in federal prison. He was never able to collect rewards provided by the False Claims Act and stated U.S. policies, which could have amounted to billions of U.S. dollars. The criminal prosecution of the culprits--banking executives--never materialized, and the U.S. government negotiated an agreement with the Swiss government, according to which the names of the vast majority of the offenders were never released by UBS-AG.

Banking executives feel free to violate the law, Zernik writes, because they know it is unlikely they will face prosecution in American courts:

Regardless of mounting credible evidence of racketeering by Bank of America and its senior executives, including Brian Moynihan, U.S. banking regulation agencies refuse to take action. It is claimed that conduct of such agencies is caused, at least in part, from the realization that under conditions that prevail today in the U.S. courts, there is no way to prosecute banking executives.

Human Rights Alert suggests that U.S. officials in general, and state and U.S. judges, in particular, are likely to be among the Swiss accounts holders. Moreover, a Swiss law, which would prohibit deposits by U.S. government officers while in office in Swiss bank accounts, is likely to materially affect restoration of U.S. government and U.S. financial markets integrity and stability.

Through the pending release of both U.S. and Swiss banking records WikiLeaks is therefore likely to support effective banking regulation in the United States, where U.S. agencies and the U.S. courts are acting in disregard of the law.

All of this hits close to home for your humble blogger. I haven't written much lately about my personal legal situation, but that's about to change. Mrs. Schnauzer and I have seen disturbing signs that U.S. judges William M. Acker II and Abdul Kallon are either grossly incompetent, corrupt--or both.

Acker is overseeing my employment lawsuit against the University of Alabama at Birmingham (UAB). Kallon is handling lawsuits Mrs. Schnauzer and I have filed against unethical debt collectors (NCO and Ingram and Associates) and against Shelby County officials and individuals regarding an unlawful sheriff's deed that was placed on our house. All three cases have grown out of interactions with our criminally inclined neighbor, Mike McGarity, and his ethically challenged attorney, William E. Swatek.

We don't know if Acker or Kallon are involved with Swiss bank accounts, but we have seen signs that they favor corporate interests. There is little doubt that my termination at UAB was driven by individuals with ties to former Republican Governor Bob Riley, his son Rob Riley, and the Business Council of Alabama. I know of at least one case, a whistleblower complaint involving Medicare fraud, where Acker made a number of curious rulings that favored Rob Riley.

At the heart of the NCO/Ingram case is an alleged debt on an American Express card. Before being appointed to the federal bench, Kallon worked at the Birmingham firm of Bradley Arant Boult and Cummings. That is one of the most conservative, pro-business law firms in the state--and for good measure, it has strong ties to the Riley family; Rob Campbell, Bob Riley's son-in-law, works there.

American Express certainly qualifies as a major player on the U.S. financial scene, and if handled correctly under the law, our lawsuit probably would reveal any number of unlawful actions by AMEX and companies associated with it.

Are Acker and Kallon trying to protect corporate interests in Alabama? Are my wife and I dealing firsthand with the corrupting influence that financial institutions have on our court system--the very issue on which Joseph Zernik has reported?

Whether or not Swiss bank accounts are involved in our personal court cases, the answer to both of those questions appears to be yes. And we will be providing details about the actions of Acker and Kallon in upcoming posts.

Summary Judgment: The Weapon of Choice for Corrupt Judges

Most Americans probably are familiar with the term summary judgment. But our guess is that relatively few know what it means. And fewer still realize how it can be used against them in a court of law.

My wife and I have extensive experience with the summary-judgment process, and we've seen how bad judges can abuse it in order to cheat parties who come before them. In fact, we have a summary-judgment motion pending now in a lawsuit we filed against debt collectors for violations of the Fair Debt Collections Practices Act (FDCPA).

Will the judge in that case get it right? Will he rule according to the law? If he does, it will be a rarity in our experience. And we will keep you updated, in real time, on how summary judgment is handled in one Alabama case.

First, let's look at the issue in a broader sense. I'm sure many lengthy treatises have been written in law journals on summary judgment. But the subject can be boiled down to a fairly straightforward idea: Summary judgment is a process by which a judge determines whether a case, as a matter of law, can go to a jury. It's the most common form of dispositive motion, one that comes up in almost every lawsuit.

Under the law, a judge is supposed to handle summary judgment according to a relatively strict formula. In Alabama, it is considered a nondiscretionary ruling, and I believe that is the case in all jurisdictions. In other words, a judge is not free to decide how he pleases on summary judgment. He is bound by law to follow the prescribed formula.

Here's how it's supposed to work. Either party can file a motion for summary judgment, but our impression is the vast majority are filed by defendants. The motion must be executed properly, citing case law to support the legal arguments that are made. It also must be supported properly, with evidence--usually in the form of affidavits, documents, deposition testimony, etc.

The motion and the evidence, taken together, are designed to show the judge, "Hey, there is no reason for this case to go to a jury. You can decide it now, as a matter of law, and dispose of it--in our favor."

The other side, the nonmoving party, is likely to say, "Not so fast." They can counter with a reply motion and evidence, arguing that summary judgment should be denied and the case should go to trial.

Here is a key point regarding summary judgment: Any close calls must go in favor of the nonmoving party. It's like the "tie goes to the runner" rule in baseball. Ties go to the nonmoving party on summary judgment.

How brazen can judges be about cheating on summary judgment? Consider the lawsuit our troublesome neighbor, Mike McGarity, filed against me. McGarity's case was so bogus that he had no evidence to support his case. On my first motion for summary judgment (MSJ), McGarity responded eight days past the deadline, which is the same as not replying at all. On our two other MSJs, which raised new issues not raised in the first, he did not respond at all.

All of our MSJs were properly executed and supported, and by law, they had to be granted--because McGarity did nothing to controvert our evidence. Judges in Shelby County, Alabama, however, denied our MSJs all three times. That's the kind of outlandish cheat job that led my wife and I to start this blog. We suspect those kinds of cheat jobs go on in American courts every day--and many parties, confused by legalese and voluminous paperwork, probably do not even realize how badly they are being screwed.

What about our pending case against the debt collectors--Birmingham-based Ingram & Associates and Pennsylvania-based NCO--over a debt they alleged I owed to American Express? Well, it's different from the case involving the neighbor, in several ways.

One, it's in federal court, not state court. Two, we are the plaintiffs this time. Three, the motion for summary judgment was filed by the defendants, which means we are the nonmoving party. Four, unlike our neighbor, we have timely filed motions and evidence to counter the defendants' MSJs.

There is one similarity between the two cases: The judge's decision should be easy. Granted I am not a disinterested party, but summary judgment simply cannot be granted for the debt collectors--not if the law is followed.

Why do I say that? There are a number of reasons, but here are two big ones:

* We have presented tape-recorded evidence that is indisputable proof of FDCPA violations--and the tapes also support our state-law claims. The defense has tried to dance around that topic in its MSJ, even making fraudulent attempts to have one of the tapes excluded. But there are no grounds to exclude the tapes, and they don't lie--the defendants violated the FDCPA, and state law, in serial fashion.

* Summary judgment, by law, cannot be granted if discovery is pending. And much discovery is pending. In fact, we've received almost no legitimate answers to our discovery requests, as the debt collectors have taken a classic stonewall approach. With major issues remaining in discovery, the MSJ cannot be granted.

U.S. District Judge Abdul Kallon is handling our case. Kallon was appointed to the federal bench last July by President Barack Obama, which would seem to be a point in our favor, as consumers. On the negative side, Kallon came from the Birmingham firm Bradley Arant, which has strong ties to Alabama Republican Governor Bob Riley. Also, Kallon probably owes his position largely to U.S. Rep. Artur Davis (D-AL), who has spent much of his gubernatorial campaign trying to gain favor with conservative business interests in our state.

The outcome of our summary-judgment issues might offer a little window into the soul of the federal justice system in the post-Obama era. For now, you can check out the issues at hand. Here is the MSJ filed by Ingram & Associates, followed by our reply:

Ingram MSJ



Shuler MSJ Response (Ingram)

Lying Lawyers Draw Inconsistent Punishment

The legal profession has a mixed record, at best, for dealing with lawyers who lie in official proceedings.

We've written extensively about lawyers who clearly have lied in court documents--and pretty much gotten away with it. So we were surprised to learn that a former University of Alabama law professor actually is being held accountable for lying to law-enforcement officials.

The case also raises questions about the fair administration of criminal justice, another major topic here at Legal Schnauzer.

Tari Devon Williams, a former assistant dean at the UA law school's Public Interest Institute, was sentenced last week to one year probation for lying to authorities about her husband, who was under investigation for using stolen identities to forge prescriptions and sell the drugs.

Williams pleaded guilty last October to federal crimes involving obstruction of justice and making a false statement to a law enforcement officer.

Williams' husband, Isaac Smith, had entered a plea agreement acknowledging he had engaged in a conspiracy to commit health-care fraud.

We certainly don't endorse what Williams did, but we have to ask these questions: Why is she being punished when other lawyers routinely get away with lying in court proceedings--essentially lying to judges? Is it OK to lie to a judge but not to a law-enforcement officer?

Just consider a few stunts we've seen lawyers pull.

First, there's our old friend, William E. Swatek, who puts the "dirt" in the term dirt bag. We caught Swatek red-handed lying in a court document, and no one has done a thing about it--to this day. Here is how we described it in an earlier post:

During the course of litigation, Swatek filed a Motion to Clarify (dated November 16, 2001), seeking to join three additional neighbors in the lawsuit against me. The motion claims that the three additional neighbors had viewed photographs of property belonging to them and wanted to assert conversion claims against me. However, one of the neighbors, Eric Hallmark, told me in a phone conversion that he was not familiar with the motion and had no intention of joining a lawsuit against me. At a deposition on December 3, 2003, Swatek stated that prior to filing his Motion to Clarify, seeking to add Hallmark (and two other neighbors) to the lawsuit against me, he had a meeting with them in his office. Swatek further stated that he was “positive” the motion was drafted with their permission. Obviously these statements by Swatek are at odds with Hallmark's statements, which I have on tape. The motion Swatek crafted clearly was fraudulent, and he used the U.S. mail to send it to me in order to seek an advantage during litigation.

I'm not a prosecutor, but Bill Swatek's actions sure sound an awful lot like mail fraud. I reported it to multiple officials in the Bush Justice Department, and nobody did a thing about it. I reported it to the Alabama State Bar, and nobody did a thing about it.

So why is Tari Devon Williams going on probation?

Swatek hardly is alone in his shady tactics. Two Birmingham lawyers, Wayne Morse and Laura Nettles, have knowingly filed false documents in a lawsuit my wife and brought against debt collectors NCO and Ingram & Associates. Here is how we described it in an earlier post:

Wayne Morse, an attorney for Ingram & Associates, had filed a motion claiming he never received an audio file of my conversation with one of his client's representatives. Morse, who is with the Birmingham firm Waldrep Stewart & Kendrick, alleged that I had "withheld" the evidence, and it therefore should be excluded. There is a slight problem with Morse's claims--they aren't true. And our lawyers have filed e-mails with the court showing that Morse indeed received the audio files.

Now, lawyers for NCO have joined Morse's bogus motion, claiming that they also did not receive the audio files. Never mind that our lawyers have filed e-mails with the court showing that NCO's lawyers did receive the audio files.

Laura Nettles, an attorney for the Birmingham firm Lloyd Gray & Whitehead, wrote the motion for NCO.

The motions from Morse and Nettles clearly were designed to deceive U.S. District Judge Abdul Kallon, who is handling the case, and affect the outcome of litigation. Is it obstruction of justice to lie to a federal judge? I intend to file complaints with the appropriate authorities, but will anyone take it seriously? I'm not holding my breath.

Again, why is Tari Devon Williams going on probation?

As for the fair administration of justice, consider Williams' husband. Isaac Smith was charged with health-care fraud, and he will pay a serious price for it.

But what about Rob Riley, a Homewood attorney and the son of Governor Bob Riley? As we have reported in a series of posts, a whistleblower has accused Riley and several accomplices (some with ties to UAB) of operating a company, Performance Group LLC, that practices health-care fraud. The Bush Justice Department refused to even investigate, and so far, we've seen no signs that the Obama DOJ will do any better.

We certainly don't advocate a "get out of jail free" card for everybody. Tari Devon Williams and Isaac Smith should be held accountable for their wrongdoing.

But what about Bill Swatek, Rob Riley, Wayne Morse, and Laura Nettles? Will they be held accountable? Is there reason to think our system makes any effort at applying the law equally?