Monday, April 7, 2008

A Judge Ignores the Law--In Real Time

In a previous post, I reported that Shelby County Deputy Bubba Caudill told me that Circuit Judge Hub Harrington had instructed him to proceed with a sheriff's sale on my house even though I had filed a notarized Claim of Exemption.

I told Bubba that Harrington was giving him bad information, that by law my filing of a Claim of Exemption meant that the sheriff's sale was stayed, the other party had to file a sworn contest, and a hearing had to be held to assess the merits of the opposing claims.

Well, I wanted to make sure that Legal Schnauzer readers--and Bubba, for that matter--don't have to take my word for it. (Bubba told me, by the way, that he's become a reader.) Just check the law. In fact, I will do it for you.

The place to go is Rule 69 of the Alabama Rules of Civil Procedure. Rule 69 is titled, very cleverly, "Execution." Go down the page a bit, and we see this (key words in all caps):

(d) Claim of Exemption. At any time after a levy or seizure but prior to a sale of such property, a judgment debtor may file a notarized claim of exemption with the sheriff. If a claim of exemption is filed with the sheriff, the judgment debtor shall also file a copy thereof with the clerk of the court. Sale of any property claimed as exempt by the judgment debtor which has not been previously sold, shall thereafter be STAYED, unless the creditor successfully contests the claim.

OK, we've got that straight. I did what a judgment debtor is required to do. What happens next?

(e) Contesting a Claim of Exemption. After notice from the sheriff that a claim of exemption has been filed by a judgment debtor, the judgment creditor may institute a contest of such claim by filing with the sheriff an AFFIDAVIT as required by law within the time provide in Sec. 6-10-26 Code of Alabama 1975. If a timely contest of a claim of exemption is filed, the sheriff shall forthwith return the process and other papers to the court to which the process is returnable, accompanied with a full statement of the facts, and a HEARING to determine said contest SHALL BE SCHEDULED BY THE COURT at the earliest practicable time and the contest shall be TRIED AND DETERMINED as other contests of claims of exemption are tried and determined.

What happens if the judgment creditor doesn't do his part?

(f) No Contest Filed. If the judgment creditor, in person or by that party's agent or attorney, fails to file a timely contest with the sheriff after notice of the judgment debtor's claim of exemption, THE SHERIFF SHALL FORTHWITH RELEASE TO THE JUDGMENT DEBTOR ALL PROPERTY CLAIMED AS EXEMPT that had not been sold prior to the filing of the claim of exemption. The sheriff shall then return the process and other papers to the court to which the process is returnable, accompanied with an itemized affidavit of the sheriff's costs of making the levy and keeping the property subject to the claim of exemption, WHICH COSTS SHALL BE TAXED AGAINST THE JUDGMENT CREDITOR.

So that's the law, and you don't need a law degree to understand it. It's also law that Shelby County Circuit Judge Hub Harrington evidently told Deputy Bubba Caudill to ignore. Now, why would a judge do that?

Particularly, why would a Don Siegelman appointee such as Harrington do this? Lord knows, judicial corruption is a bipartisan problem across the nation. But in my experience here in Alabama, it appears to be an overwhelmingly Republican problem.

My understanding is that Harrington is a RINO (Republican in Name Only). Based on his recent behavior, it looks like he's become a RTAT (Republican Through and Through).

The sad fact is this: Across the country, many of our courthouses are run by political considerations, not the law. In Shelby County, the presiding judge is J. Michael Joiner, who I understand was a mediocrity as a lawyer and he's a certified horror story as a judge. But half of south Shelby County is named Joiner, so he will be judge for life--unless we get a real U.S. attorney in the Birmingham area and they put Joiner in federal prison, where he belongs.

My guess is that Harrington, if he wants to win when he comes up for election, had better toe the line with Joiner. If he doesn't, Joiner will promote some other GOP schmo to run against him--and that means Harrington will be right back to being a regular lawyer.

One thing I've learned: Being a lawyer, or at least being a mediocre lawyer, sure must suck compared to being a judge. Really outstanding lawyers probably have no desire to be a judge because they would have to take a huge pay cut. But for a mediocre lawyer, getting a spot on the bench evidently is something worth holding onto for dear life.

And if that means butchering the law in a case like mine, well so be it.


mooncat said...

So what's the bottom line? Did they sell your house or not? I'm guessing not, but you've been so darned cool about this thing, it's hard to tell.

legalschnauzer said...

No, they postponed the auction because of an error in the ad that they are required to run three weeks, by law. They say they are going to correct the ad and start the process over again, so I guess we'll be back in same spot in another 3-4 weeks.

In the meantime, I'm learning quite a bit about the applicable law and will try to shine a light on just how unlawful, and absurd, this whole scare tactic is.

If I seem cool, I guess I'm doing a good job of disguising my angst. I don't feel too cool, that's for sure.