If that's the case, and we have our way, she's going to have to find some funds (and then some) to compensate us for what amounts to civil theft. Our research indicates it could be criminal theft, and we are looking at filing a complaint -- against Duke and others responsible -- with the appropriate law-enforcement agency.
In a Motion to Dismiss (MTD) filed on December 1, Duke offered no defense at all -- in fact, she did not mention the excess foreclosure funds. After we responded to her MTD, Duke filed a reply that mentions the funds, but again, offers no valid defense. This time, Duke admits that the funds went to her, but she cites no law showing they were supposed to wind up in her hands,
For one thing, Duke's reply was due to be filed by December 19, per an order from U.S. District Judge R. David Proctor. It was filed on December 22, meaning it was three days late and is due to be denied in its entirety. (Court's order and Duke's reply are embedded at the end of this post.)
Even if you ignore the timeliness problem with Duke's reply, she still offers no defense that holds up. From her reply:
The Plaintiffs continue to allege that Defendant Duke "essentially stole 'converted' roughly $9,000 in excess foreclosure funds" from them. . . . There are no other allegations of anything Duke did that would give rise to a cause of action against her.
These allegations in the Plaintiffs' Complaint do not "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Twombly 550 U.S. 544, 556, 127 S.Ct. 1955 (sic). Again, it's not the inclusion of Duke in a list that warrants her dismissal but rather the Plaintiffs' failure to comply with basic pleading standards.
The claim that "there are no other allegations" against Duke is plainly false. But even if it were true, a rational person might conclude that claims Duke stole thousands of dollars are serious, on their own. That Duke seems incapable of understanding would make me chuckle -- if it wasn't my money we are talking about. (Note: Duke's citation to Twombly is incorrect. The opinion was issued in 2007, not 1955.)
The closest Duke comes to presenting an actual defense is to haul out the infamous Twombly case for the proposition that it requires heightened pleading standards. But we already have shown, in court documents and at this blog, that no such standards are required in the Eleventh Circuit (covering Alabama, Georgia, and Florida), per a case styled Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010).
Duke does make one other reference to the excess foreclosure funds. From her reply:
With regard to Count Five, the only item allegedly converted by the Defendants, including Duke, is the proceeds from the foreclosure sale. Again, Duke received funds in satisfaction of a valid judgment against the Plaintiffs. There is no evidence that the judgment was invalidated prior to the receipt of funds. Therefore, the conversion count must fail.
We learn two important facts here:
(1) Duke admits she received the funds. Huntsville attorney Robert Wermuth, who represented Chase Mortgage in the foreclosure, told me via e-mail that the funds went to Duke, and we now know he actually told the truth about that.
(2) Like Wermuth, Duke can cite no law that shows she was entitled to receive the funds. The actual law on the issue can be found at a case styled Cheryl Williams v. Wells Fargo Home Mortgage (S.D., Alabama, 2015). Wermuth and Duke seem blissfully unaware of the findings in Williams, which are based on a 1968 Alabama state-court ruling, which provides binding precedent in our case -- and it's not exactly new law:
[A] mortgagee (Chase) is, in a sense, a trustee for the mortgagor (Carol and me), and is charged with the `duty of fairness and good faith in its execution to the end that the mortgagor's property may be disposed of to his pecuniary advantage in the satisfaction of his debt.'" Springer, 562 So. 2d at 139 (quoting J.H. Morris, Inc. v. Indian Hills, Inc., 212 So. 2d 831, 843 (Ala. 1968) (emphasis added)). Thus, "[t]he mortgagee, as trustee for the mortgagor, is obligated to apply that profit realized after foreclosure and during the redemption period to the reduction of the mortgagor's debt.
Translation: The money is ours, and we've been deprived of it for more than two years. Liberty Duke does not come close to showing otherwise.
Garrison-strange, Order Re Lib Duke MTD by Roger Shuler on Scribd
Garrison-strange, Duke Reply by Roger Shuler on Scribd
Isn't she admitting to theft?
That's how I read it, @1:48. In fact, I see no other way to read it.
I would be mad as a hornet.
I am mad as a hornet, @1:55. So is my wife. As you can read in Duke's filing, she admits the funds went to her, and she offers no law to show she was entitled to them. That's why I agree with @1:48 that it sounds like an admission of theft.
Possible someone arranged for your arrest and foreclosure so that you and Mrs. Schnauzer would flee the state, making it difficult for you to keep up with your money?
That is very possible, in my view, @2:04. Makes me wonder about "friends" and family members who seemed interested in getting us out of Alabama.
My understanding is that Liberty Duke is a Republican with connections to Bob and Rob Riley. If that's the case, no one should be surprised that she stole your funds.
Someone who holds a judgment against you has a number of ways to try to collect. The law you cite seems to be saying that collecting from surplus funds on a foreclosure is not one of them.
I think you nailed it, @2:37. If anyone wants to offer up law that shows otherwise, feel free to do it. But the case law I've cited is grounded in one case that goes back to 1925, so this isn't new or uncertain law.
I should note that Liberty Duke does not have a valid final judgment against me. Several reasons:
(1) The order in question was for attorney fees. I was representing myself, and Alabama law prohibits an award of attorney fees against a pro se party.
(2) There was no final judgment in our case. There was no trial, no discovery, no jury, zilch.
(3) I was incarcerated during the time for a notice of appeal expired. I had no opportunity to appeal the matter. I'm not sure I could have appealed it, given that it was not a final judgment. Probably would have needed to seek an extraordinary writ of some sort, and they hardly are ever granted.
Liberty Duke claims in her filing that she has a valid judgment against me. That is a lie, and she should know that. If she doesn't, she needs to get competent legal representation, if there is such a thing in Alabama.
Here is more on the subject:
You are in the wrong venue for challenging the validity of Duke's judgment lien
Assume for the sake of argument that Duke's judgment was valid, would she have been entitled to the excess proceeds from the foreclosure sale?
@2:37 here: I think the foreclosure funds are viewed differently because they involve the homeowner's relationship with the mortgage company. As you have noted before, the mortgage company has a trustee relationship with the homeowner, and that seems to preclude a third party from interfering.
I think your analysis is spot-on, 2:37. I suspect Duke did not act alone on this. It smells to me like someone convinced her she was entitled to our money, when she isn't. If my research on the criminal implications is correct, more than one person could wind up in prison over this.
@3:02 -- The answer is no. It has nothing to do with whether she has a valid judgment or not. It has everything to do with our trustee relationship with Chase Mortgage. You don't have to take my word for it; just read the Williams case, which has link to it in the post.
@2:57 -- I'm not in the wrong venue. Our complaint raises a number of federal claims against Duke and others. State-law claims are properly before the federal court.
Williams is silent regarding junior lien holders.
You are, again, tragically wrong.
She's entitled to place a lien on your home and collect her judgement, and that's not unlawful conversion.
An MTD is not going to be an answer to your complaint, availing every defense. Right now it's basically limited to asking the court to dismiss her from the suit as you have not properly made any allegations against her, that there is no claim against which relief can be granted as a matter of law.
If you have any case, it's not against her.
She's entitled to collect the judgment.
Where is Duke's written judgement?
"It has everything to do with our trustee relationship with Chase Mortgage." You misunderstand the law as it applies to them - your "profit" is what exists after the title is cleared.
But you are correct that if you had any claim, it would be against people who gave your money away to some third party.
Duke is not obigated to return the money you owed her, even if the mortgage company erred. But they didn't err.
There was a valid lien, and the mortgage company satisfied it to clear their title to their property.
The only person who could end up incarcerated "over this" is you - if you escalate your weirdness to contempt of court, but lets hope your disappointment is limited to not getting money you owed other people back.
I hope you don't do anything stupid like talk about bashing in people's heads again.
Did you ever bring up use of force in relation to your eviction from the apartment your family generously provided you? Didn't you at one time write that police showed up loaded for bear because of a 911 call?
What planet are you on?
Contempt of court for what? Money I owed? (What money?) Talking about bashing in people's heads again? (When have I said that? I don't remember saying it, or anything like it?) Bring up use of force related to an eviction? (To whom? Are you trying to claim the eviction was lawful? How so?) 911 call? (There was no 911 call.)
Your comment is "insightful," except for the fact every sentence is nonsense.
Weak effort. I notice you cite no law to support your position. Is that because there is no law to support your position?
I'm not sure if I can answer your question. When I inquired with the Huntsville attorney about our foreclosure funds, he sent me a copy of a "final order" in the Riley/Duke lawsuit. He seemed to be suggesting it was filed with the court to form a lien, but I'm not sure if that actually happened or not. The "order" was not a final judgment, and it involved an unlawful award of attorney fees against a pro se party, so it was not valid. Aside from that, almost 100 years of Alabama law shows that the funds belonged to us, regardless of any supposed lien Duke had.
Forgot to mention that you can go to the Web site for Shelby County, Alabama probate court and check to see if there is a lien under Liberty Duke's name. There might be one -- I'm not sure; think I checked once, but I can't remember if I saw one or not -- but the law is clear that excess foreclosure funds must go to the mortgagor (Carol and me).
BTW: I think you have to use Explorer browser to access info on the Shelby Co. site.
Tragically, you are wrong. Williams does not mention junior lien holders because they are not entitled to excess funds from a foreclosure. If you read the case, that is clear. You claim Duke is entitled to "collect her judgment" from our foreclosure, but you cite no law to support that. You also cite no law to support your assertions regarding MTD. In other words, your argument is all flash and no substance.
3:38 and 3:40 are full of shit. A foreclosure wipes out junior liens, which clears title. That's why Ms. Duke has no valid lien, and the mortgage company had no grounds for sending her the money.
Mr. Schnauzer is correct about this, and I want to make sure the public understands because it's an important issue. I'm not sure who is the bigger con artist here, Liberty Duke or some of these commenters, who probably are intentionally trying to mislead people.
Why would I bother to cite law that you will simply misunderstand or reject? It's not as if you have ever taken good advice.
I find it amusing that some commenters attempt to make arguments that even Duke does not make in her filing.
Memo to various commenters from 5:47 to 6:09 --
I would be glad to run your comments if you can cite law that counters the finding I've cited in Williams or you contact me and ID yourself, so that I know whether to affix any credibility to your words or not.
Otherwise, I must treat your comments as the actions of a troll, and they will not be published. I'm not interested in the ramblings of a nameless individual who can cite no law to support his words.
So now Roger is attacking comments he wont post. LOL. What a true free speech advocate. Here's a piece of info for you, Roger - hiding the comments does not hide the fact that your blog largely consists of false information and paranoid rants.
You are a bit mixed up about the meaning of "free speech." There is no law that says a blogger or journalist has to run any comments, much less ones that are anonymous and devoid of fact or reason. In fact, an increasing number of news sites and blogs are doing away with comments altogether because they have become a wasteland of trolls and know-nothings. I'm considering such a move myself.
You have no right to "free speech" on my blog. If you think you do, you aren't very well informed. I offer the opportunity to comment, as a courtesy to those who are intelligent and decent enough to handle the responsibility. The vast majority of commenters here leave remarks in a responsible fashion. But the trolls, like yourself, have no right to free speech here, and I only ran your above comment because it presented an opportunity to show how stupid you are.
Memo to @6:47 --
I see no indication that you have any clue what you are talking about, and I certainly have no clue what you are talking about. If you want to contact me directly and clarify, have at it. Otherwise, your comment is nixed.
Why should I bother to publish a comment from someone who can't back up his own argument?
It's hard to tell who is who here, but a number of commenters (3:40 especially) seem to ignore an inconvenient truth: Ms. Duke's reply is untimely and must be rejected in total. Ms. Duke's dismissal motion made no mention of the excess foreclosure funds. The Shulers' facts and arguments are uncontroverted.
I've read both of Ms. Duke's documents, as published here, and there can be no debate that she has not addressed this issue in a timely or valid fashion. We can argue about it here in the comments section, but for purposes of the court proceeding, Ms. Duke has done nothing to defend herself.
That 3:40 (and others?) fail to acknowledge this tells me he/they have a horse in the race and are trying desperately to change the subject from the failings in Ms. Duke's pleadings.
Thanks for that reminder. We have anon commenters here offering defenses that Liberty Duke herself did not make.
Did Liberty Duke provide you with notice that she was seeking these funds? Did she initiate any kind of court proceeding to show she was entitled to them? If not, that sounds like a serious violation of due-process rights.
I received no notice whatsoever, via court action or anything else.
You've called her response untimely, but if it traveled through the regular mail there is probably some allowance for extra time. At any rate, the judge has some discretion on whether or not to accept the motion.
I didn't call it untimely; it is untimely. Look at the date it was due, and the date on the filing. She's not capable of sending something via Priority Mail, with guaranteed delivery date? That's what I've been forced to do. You think she's supposed to be held to a different standard?
Here's a suggestion: Stop while your credibility is only at zero, and not sub-zero. I don't know, or care, who you are, but you quickly are becoming a joke. As usual, you cite no Alabama law to support anything you say. Pathetic.
Since you seem to care so much for Liberty Duke, can you explain why she uses an address that matches to that of her one-time attorney, Christina Crow? Is Ms. Duke trying to disguise her real address for some reason? If so, what is the nature of her relationship with Dr. Ben Main, the brother of AL Sup. Ct. Justice and noted Riley devotee, Jim Main? What "services" does Ms. Duke provide to Ben Main? Do you know Ben and Jim Main, and are you carrying their legal water for them?
Answer the questions above, and maybe we can discuss your legal theories.
Why should I bother to publish a comment from someone who can't back up his own argument?
Nice comeback, LS. Touche.
What's with the "Liberty Belle" and Ben Main? Are they shacking up or something?
Our law professors told us of the superiority of the Socratic Method of the ancient Greek philosopher Socrates which enables young lawyers, and really anyone who embraces it, to think in new ways. What they didn't tell us was that during the War with Sparta or the Peloponnesian War, the Greek politicians turned on Socrates & placed him on trial for his life because they grew tired of his sometimes embarrassing constructive criticism. Rather than bargain with the court for his life, Socrates drank hemlock & died. The truly sad thing is that not long after Socrates died, Democracy in Greece died because the Greeks turned on the very principles that made them great. You know, things like the Freedoms of Speech & Association. The right to vote & have that vote count. The very rights some of our leaders in Alabama & the United States have attacked. Roger, the struggle of Socrates is with us to this very day. He was placed on trial all over again when you & countless others were, but the truly disturbing thing is that even Socrates in Ancient Greece was allowed to present his case to a jury. Your case has provided me with so much insight into why Socrates committed suicide. I now understand that he did so because Democracy in Greece was already dead & he did not want to live in a society that would not allow him the freedoms he held dear. As Brother Malcom X once said (paraphrase), if the Federal Government will not protect our rights, then we should appeal to the United Nations, which has already had to send observers to make sure that our votes are being counted. That really got under Secretary of State John Merril's skin too. If you want to really want to piss off the Alabama Supreme Court, the State Bar & the Federal Courts, request that the United Nations send observers to make them do their jobs.
Are Lib and Ben Main shacked up? I don't know. Let's see if @10:45 can answer that question for us. He seems to know everything else.
Roger, why no comments on this one in 24 hours?
I haven't received any publishable comments in 24 hours.
Afraid to publish cites to case law?
Mr. Shuler, I assume your wife's name was on the Deed. Thus, half of the 9,000 belongs to her. Therefore, if a lien existed against you, Chase has no ground to stand on for giving your wife's money to Liberty Duke.
You raise an excellent point, one I had not thought of. Here's the deal: Riley/Duke sued both Carol and me, and I've long wondered why because Carol had absolutely nothing to do with the blog until I was arrested. Once that happened, I was able to call her from jail, and over a period of weeks, tell her how to put up a post in Blogger, and she kept Legal Schnauzer alive while I was in jail.
For purposes of the Riley/Jackson suit, they had absolutely no grounds to sue Carol, but they did, and the cops came to our house trying to arrest her at least 3 times during the first week or so I was in jail. In fact, they were trying to arrest Carol at the same time they arrested me in our garage because I could hear them talking about it while I was in back of the squad car, with pepper spray dripping off of me. (Continued in comment below.)
I've written here before that I think one reason they sued Carol was to arrest both of us and exert more pressure on us, with the possibility that they could kill us if they did not get information they wanted and (with the case sealed) no one would have known what became of us.
But you have raised another possibility. Because they also sued Carol, her name is on the lien (along with mine), so they (on paper) could get her money, too.
Here is the big question your comment raises: Were my arrest and the foreclosure tied together? Did they arrest me, and try to arrest Carol, knowing they were going to work with Chase Mortgage and its lawyers to get our house into foreclosure and steal our money? Was the whole purpose of my arrest to set us up for a wrongful foreclosure, and that is the primary issue in our "House Case," currently in federal court.
Thanks for your comment. Need to think more about this. Could be profound. Welcome your thoughts, as always.
I don't know, @2:53, afraid to publish your name?
There are weapons, but only The Ninja is himself a weapon! He meditates on the fact that he has no home & no family support & calls upon his spirit guides. It is just him & whatever simple, everyday objects he can use to effect on his enemy, like his shurigin or throwing stars & his Kitana. May the Zen be with you always.
Carol started posting on LS almost immediately, and anyone familiar with blogger knows that all she needed was a password - its a very simple interface. Once she had posting priviledges, she had the power to publish and unpublish and edit every single post existing on the blog. Any number of persons told her so immediately, and if she couldn't make out what is obvious from the dashboard, she had access to all of bloggers own simple tutorials.
It was your own stubborness that led to you staying in jail, you could have cured your contempt charge immediately, and if you had done that you probably would have picked up even more commentary and practical support in favor of overturning the charge, and aid in challenging the injunction. Carol could have unpublished the whole blog (with the ability to put it back) if it came to that and have started a new one related to your situation. She had the power to do all of that and refused.
Why did she refuse? Was this her doing, or yours? Eventually she made a deal and removed posts and obtained your release through the purge of contempt. But she could have done so as soon as you gave her access to the blog publishing tools.
Also, why didn't Carol get her own counsel and protect her own interests, separate from yours? Why would she throw sue papers out of the car instead of simply assert in court she had no control over your actions?
Of course they put pressure on you. That's the point of a lawsuit. They alleged you published untrue and defamatory things about them, and wanted you remove them.
Why do you ever bring a lawsuit? To do exactly the same thing.
If you thought those remarks were true and you had evidence they were true, I'm not sure what advantage you thought was to be had by avoiding dealing with the allegations in court. You put yourself in a position of vulnerability, not strength. At every step you box yourself in to limited choices and bad outcomes.
Your comment is simplistic, at best. I'm not talking about putting pressure on me, or anyone else, via a lawsuit. I'm talking about extrajudicial pressure involving foreclosure proceedings on our house. That's a matter between us and our mortgage holder. For Rob Riley and Liberty Duke to intervene is unlawful on multiple grounds. If Riley/Duke had such a strong case, why did they need to apply extrajudicial pressure? Why didn't they seek a jury trial and discovery?
As for your "avoiding dealing with the allegations in court" claim, I've explained this umpteen times, and I don't know why people like yourself can't understand it. Alleged "service" in our case was via a bogus traffic stop that violated the Fourth Amendment, and I had every right to challenge service via a Motion to Quash, which I did. We were prepared to tackle constitutional and other issues once the service issue had received a determination. I was waiting on that ruling when I was kidnapped from my own home by ShelbyCo deputies. You are OK with that kind of arrest, with no warrant and no lawful grounds?
I engaged the court, and I did not avoid anything. Feel free to check the file, if it's not still sealed, and check for yourself.
Finally, an attorney who reviewed the file said no summons had been issued at the time of attempted service. That means we were not summoned to court. Do you recommend that people appear in court when they aren't summoned? Do you recommend people ignore improper service, even though the court has no jurisdiction over the individual without proper service? Are you saying Judge Neilson's actions in the case were correct? Can you cite any examples, even one?
You support public corruption? That's what your comment suggests.
Why would Carol need separate counsel? We were sued together. If you thought this was such a good idea, why didn't you bring it up at the time and offer to fund it. Hiring one attorney is expensive, hiring a second attorney is even more so. I guess money grows on trees in your world?
Secondly, Carol and I were prepared to argue that issue (and others) once we received a ruling on the service issue. But I got arrested first, heard deputies talking about trying to arrest Carol, so there was no way she was appearing in court after that.
You have a problem with our approach? Why.
You seem to be fact-challenged. A few examples:
1. Carol started publishing posts about 11-12 days after my arrest. But there is a big difference between publishing a post and trying to find 10-12 posts for removal, when they were published over a year's time. To try to explain over limited time on a jail phone, with loads of noise in the background on my end . . . well, I'd suggest you try it sometime.
2. What you call "stubborness," I call "having principles" and respect for the rule of law. The posts in question could not be determined defamatory by a single judge without a trial, and I knew that. You are going to blame me because I knew the law? Go ahead if it makes you feel better.
3. Are you saying the contempt charge was lawful? If so, what do you base that on? You are saying prior restraints are lawful in First Amendment cases? Where did you come up with that? Are you saying citizens should comply with a court order that is blatantly unlawful, issued by a court that had no jurisdiction over them due to improper service? BTW, I didn't even know what "Judge" Nielson wanted from me until a hearing on Nov. 14, 2013, and that came after I had already been in jail for three weeks.
4. Who are these people who "told her so"? How do you know what people told Carol? Are you one of the people who told her something, pretending to be her friend/supporter, when you clearly were not? Are you just a con artist, but we're supposed to take, or even consider, your advice?
Can you cite a single action Neilson took in the case that was lawful? Give it a shot.
Finally, you claim caving in immediately to a corrupt judge and corrupt lawyers would have helped me get "practical support." Are you out of your mind? It would have led to more arrests. Any time I wrote the slightest thing that irritated someone, the cops would be sent to my house. You need to go back on your meds because your "thinking" (if you can call it that) is haywire.
Hi, Roger. Why haven't you published my comment about parallel citations or corrected your post? Are you uninterested in accuracy? Unwilling to admit you made an error?
I'm very interested in accuracy, but I need to know the source. You are welcome to contact me via phone or e-mail. Without that, I have no reason to believe anything you send in a comment is accurate. Unwilling to discuss out from behind a wall of anonymity? I think not. That's the way it usually is with cowards.
That's a joke, right? You need to know who's telling you about the existence of parallel citations before you, I don't know, Google the concept and discover that you made an ass of yourself? Or simply go to the Wikipedia page, which lists all the parallel citations for Twombly in the sidebar—including 127 S.Ct. 1955? Sorry, dude, but none of that depends on my identity. I didn't come up with the concept of parallel citations, and it's nuts to think that your ability to do the most basic fact-checking is contingent on knowing who I am.
What difference does a parallel citation make? I've been citing the correct law on Twombly for years, probably long before you ever read this blog. Aside from that, I've stated from the outset on this blog that I'm not a lawyer, and I'm certainly not an expert on parallel citations.
Here's the important issue: Randall v. Scott holds that there is no heightened pleading standard in the Eleventh Circuit, so Twombly is a non-factor. That's a substantive matter, one you scrupulously avoid. It doesn't fit your agenda, so you ignore it -- much the way you hide your identity because you know your weak-ass garbage won't hold up under scrutiny, and you don't want to be publicly embarrassed and outed as a con artist.
I'm sure your argument would be that a judge has discretion on whether to apply Randall v. Scott. That's always your argument when things aren't going your way. If you think I'm nuts, go to some other blog. You are not needed here, and you won't be missed. Ta-ta.
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