Thursday, May 8, 2008

My House, the Target

Do the Shelby County authorities who are threatening to seize and auction my home have a legal leg to stand on?

I'm pretty sure the answer is no. I say "pretty sure" because this kind of action is associated with an area of law that can get complex.

The two legal steps that lead up to a sheriff's sale are called a writ of execution and a notice of levy. These actions often are associated with bankruptcy, foreclosure, mortgage, and collections law. All very pleasant areas, and all quite complicated. In fact, my experience has been that a lot of generalist lawyers don't know the law on this stuff. These are areas that usually require specialists.

So I, as a non-lawyer, am not going to say that I'm absolutely right on everything you are about to read. But I'm pretty confident in saying this threat to seize my house is fraudulent from start to finish.

I'm also confident in saying there is a clear reason for that: These folks don't want my house or the $1,525 judgment that they have ignored for more than three years. Evidence strongly suggests that this is not about satisfying a "judgment." It's about creating a threat that they hope will result in the disappearance of this blog.

After all, the writ of execution was issued in September 2007, roughly three months after I started Legal Schnauzer. Given that it takes several months for many blogs to become known beyond the blogger and his or her immediate family, one can reasonably assume that someone in the GOP hierarchy tried to put a stop to Legal Schnauzer almost as soon as they found out about it.

So let's examine this effort to seize my house and just how badly it misses the mark, under the law:

* Due Process? What's That?--Alabama law says that a judgment is void when the court acts in a manner inconsistent with due process. Greene v. Connelly, 628 So. 2d 346 (Ala., 1993). The U.S. Supreme Court has held that a fundamental component of due process is the right to have a case heard by an impartial judge. Marshall v. Jerrico, 446 U.S. 238 (1980): "The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. . . . The neutrality requirement helps to guarantee that life, liberty, or PROPERTY will not be taken on the basis of an erroneous or distorted conception of the facts or the law." The initial judge in my case, J. Michael Joiner, is a regular golf buddy and former neighbor of the opposing attorney. And he and the followup judge, G. Dan Reeves, repeatedly made erroneous rulings. Under the 14th Amendment of the U.S. Constitution, their judgment is unlawful.

* A Party Without the Parties--Under Alabama law, a judgment is void when a necessary party was absent. Holland v. City of Alabaster, 566 So. 2d 244 (Ala., 1990). What happened in my case takes a lot of explaining, and I will save those details for later. But numerous parties I sought to add to my counterclaim were unlawfully excluded, so my case was gutted before it even started. A judgment based on such exclusion of necessary parties cannot stand, under Alabama law.

* Aw, You Don't Need That--Rule 69 of the Alabama Rules of Civil Procedure (ARCP) is abundantly clear: A Writ of Execution must be accompanied by written notice of right to claim exemptions. Almost immediately after receiving the writ, I wrote on this blog that I didn't receive the required exemptions notice. In fact, Shelby County Sheriff's Deputy Bubba Caudill admitted he had read that on the blog, and for good measure, I told him again verbally that I had never received the notice. I've still never received it. I've filed a Claim of Exemptions form only because I have a copy of the Alabama Rules of Civil Procedure, and I looked up how this process is supposed to be done. Alabama law says a judgment must be set aside when the sheriff fails to properly provide notice of right to claim exemptions. McLaren v. Anderson, 81 Ala. 106 (1886). (By the way, that's not a typo. That law dates to 1886. Not exactly new law, but folks in Shelby County still don't know about it.)

* Who Needs 12 Jurors?--The trial in my case was unlawfully conducted with 11 jurors. Under Rule 48 ARCP, this is proper only when stipulated by the parties. You can check a legal definition of stipulation here. The parties didn't agree among themselves to anything regarding the number of jurors. The judge simply made the decision, meaning the judgment was unlawfully reached.

* Lien on Me--It appears that a sheriff's sale cannot proceed without a lien on the subject property. And a lien cannot attach without a certificate of judgment, which must be filed with the Office of Probate. I've checked Shelby County's probate records, and no certificate of judgment has been filed in my case. This is governed by Code of Alabama 6-9-210 and 6-9-211. Case law also addresses the issue: "The judgment creditor's rights in the property attach upon the act of recording the certificate of judgment." Garrett v. Garrett, 628 So. 2d 659 (Ala. Civ. App., 1993).

* The Matter is Moot--This is the second attempt to unlawfully auction my house. The first sheriff's sale was scheduled for April 7 and postponed because the sheriff screwed up the description of the property in the advertisement that is required by law. But I filed a notarized claim of exemption prior to that first sale, and I know of nothing in Alabama law that indicates a lawful claim of exemption is negated because of a mistake by the sheriff. State law allows the opposing party 10 days to challenge a claim of exemption, and in my situation, they've had way more than the allowed 10 days. No challenge has appeared, so state law is clear: "Because the claim of exemption was not properly contested, it was considered to be correct and was due to be upheld." Young v. Strong, 694 So. 2d 27 (Ala. Civ. App., 1997).

One final point: Messing with someone's home is serious business under the law, and the law requires that it be done correctly. For example, Alabama law holds: "The judgment lien statute is in derogation of the common law and is to be strictly construed." AmSouth Bank v. Bischoff 678 So. 2d 1102 (Ala. Civ. App., 1995). Alabama courts also have held: "Substantial compliance in every essential particular is required before the benefits conferred by such statutes can be obtained or enjoyed, and an omission of any material or particular requirement cannot be deemed a substantial compliance." Duncan v. Ashcraft, 25 So. 2d 735 (Ala., 1898).

Have my criminally inclined neighbor and his ethically challenged lawyer met the requirements under the law? Have the bozos who run Shelby County met the requirements under the law?

Not even close.

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