Duke, representing herself, made three procedural arguments in a Motion to Dismiss (MTD). But she had no response to allegations that she essentially stole our money. That means our claim cannot, under the law, be dismissed. Her procedural arguments also fall well short of the mark. (Duke's MTD, and our response to it, are embedded at the end of this post.)
Until now, Duke is best known for her relationship with GOP operative Rob "Uday" Riley, and their joint effort to have me unlawfully incarcerated for five months in Shelby County. She might wind up being even better known as a thief.
I use the term "essentially stole" above because, for now, this is a civil matter, and the general civil term for theft is "conversion." We, however, have found a case in Florida that involved almost identical facts to our case, and it was treated as a criminal matter. In fact, a Florida lawyer who engineered the scam was convicted of embezzlement and wound up with a 10-year prison sentence.
Could a similar fate await Liberty Duke, plus the lawyers and mortgage bankers who helped her secure our money? We will address that question in an upcoming post.
For now, our focus is on Duke's Motion to Dismiss, and like almost all the other MTDs filed in our "House Case," it makes improper reliance on "Iqbal" and "Twombly," the two U.S. Supreme Court cases that have made it easier for defendants to get often valid lawsuits dismissed before they even start.
Duke claims that my wife, Carol, and I failed to meet the "heightened pleading standards" of Iqbal and Twombly. But, as we've already shown, the U.S. Eleventh Circuit (covering Alabama, Georgia, and Florida) has rejected heightened pleading standards, holding that the matter is governed (as it has been for almost 70 years) by Rule 8 of the Federal Rules of Civil Procedure.
In fact, we recently discovered a second Eleventh Circuit case on the subject; it is styled Saunders v. Duke, 766 F.3d 1262, 1266 (11th Cir. 2014). From Saunders:
Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). After Ashcroft v. Iqbal, 556 U.S. 662, 678-69, 685-86, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), which applied the Twombly pleading standard in a civil rights/qualified immunity context, there is no longer a "heightened pleading" standard in "cases governed by Rule 8(a)(2), including civil rights [cases]" under § 1983. Randall v. Scott, 610 F.3d 701, 710 (11th Cir.2010).
Based partly on Randall v. Scott, the Eleventh Circuit overturned the trial court's dismissal in Saunders, which involved civil rights and police brutality issues.
What about allegations in our lawsuit that Liberty Duke stole about $9,000 of excess foreclosure funds that belong to us, apparently with help from Huntsville lawyer Robert Wermuth, officials from Chase Mortgage, and perhaps others. This is from our complaint:
A friend helped the Shulers obtain a copy of the foreclosure deed, which showed the house drew a price about $9,000 above the amount owed on the mortgage. That amount, therefore, was the Shuler’s equity, and it was due to be paid to them. But Wermuth and Stephens Millirons never fulfilled their duties to disburse the funds to the Shulers. Instead, Roger Shuler had to contact the firm, only to be told that the money had been sent to Liberty Duke, as an alleged creditor in the Riley/Duke lawsuit. There never was a trial or final judgment in the Riley/Duke case, so Liberty Duke could not possibly have any lawful claim to the Shulers’ equity funds. She basically stole almost $9,000 from the Shulers . . .
You might think it would be important for Liberty Duke to respond to such a serious allegation, one that might turn out to be criminal, as well as civil. But she does not mention it in her MTD. My understanding is that a court must take our allegations on that issue as uncontroverted. I take it as an admission that Liberty Duke stole our money -- and she has taken no steps to make sure it is returned to its rightful owners.