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| Liberty Duke |
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.
Garrison-strange, Duke MTD by Roger Shuler on Scribd
Garrison-strange, Response to MTD4 (Duke) by Roger Shuler on Scribd
30 comments:
With Duke's ties to Rob Riley, it makes sense that she would be a thief.
What in the hell did she think she was doing? She thought you weren't going to notice?
It's hardly conversion. She has a valid lien.
Also, you are flat wrong about whether your complaint can be denied on MTD based on procedural ground, and she doesn't have to file an answer until and answer is due.
I expect that your claim will be dismissed shortly, because you have, among other things, failed to state a claim for which relief can be granted.
If you hired a lawyer, he would tell you there is no claim and to drop the matter.
Which is, besides the expense of paying someone to tell you something you don't want to hear, and refuse to understand, something you don't know how to do - take good advice.
You aren't going to get the money, because she had a valid lien.
@11:43 -- You are so full of shit I don't know where to being. In fact, I'm not going to begin with a toilet head like you. If you read this blog for any time, you would know I don't blindly take the word of a lawyer because they almost always are lying. I would like to find a lawyer someday who is made of sterner stuff, but I'm not sure he is exists.
I've cited the law here multiple times re: who the money belongs to, and it's us. If I don' get the money back, federal prison always will be an option for the thieves. Actually, it's an option either way. Trust me, you aren't conning anybody here.
BTW @11:43, give me a call at (205) 381-56763 if you wish to discuss further. Of course, you will have to ID yourself, and we both know you are a coward and a con, so no such call will take place. I like to make the offer anyway because I enjoy the sound of crickets -- and I enjoy outing cowards who don't know the first thing about the law.
11:43 is a poorly disguised troll. I've followed your reporting on this, and I've done my own research, and it's clear that excess foreclosure funds belong to the homeowner. 11:43 is just an earth worm or he is on the dark side.
Wonder why the money wound up with Liberty Duke and not with Rob Riley. They both had a judgment against you, right?
Wrong. There was no trial, no jury trial, and no final order in the case, so neither had a final judgment. Their "award" was in the form of attorney fees, which can't not be assessed, under Alabama law, against a pro se party. Neither one was entitled to a dime, and I've explained that here at LS. Look it up.
Sounds to me like this is a multi-party transaction -- probably involving Duke, her lawyer, Rob Riley, foreclosure lawyer, maybe official from Chase Mortgage.
Why was Uday Riley in such a giving mood? My guess is that it was another attempt to make sure Ms. Duke stays quiet about certain things. That might be why she made no defense to theft in her response. She's taking a "head in sand" approach to things. If this was to keep Duke quiet, it is sooooooo Rob Riley. Always doing things on the cheap -- unless it's for him -- and stealing someone else's money to do it.
What a guy!
Glad you mentioned Chase Mortgage, @2:46. Under the law they have a trustee relationship with us and a duty to make sure any excess funds go to us. They are in this up to their eyeballs:
http://legalschnauzer.blogspot.com/2016/09/chase-mortgage-and-stephens-millirons.html
This does smell of criminal activity, maybe federal because Chase operates out of another state (NY). Might be wise to get orange jump suits ready.
@2:57 -- You might find this of interest. Christina Crow, of Union Springs, was Duke's lawyer in bogus defamation claim against Carol and me. Certainly possible that Crow played a role in redirecting funds from us to her client. But once we filed lawsuit, Crow apparently dumped Duke at the altar and made it clear that she was no longer representing her. Wonder why that was.
Maybe Lib Duke is just a ho who is pissed that she sold her self cheap
Hey, Schnauzer, any chance that 11:43 called you to discuss?
@6:42 -- He hasn't. And I would say there is zero chance that he will.
Have you gone on the Alabama website for money and property not claimed?
No, I haven't, but that's an interesting suggestion. I'm not familiar with that site; can you provide a link or URL? Thanks.
As you know, a lawyer in the case has stated the funds were claimed -- by Liberty Duke. That's largely why I haven't searched under that general rock.
You are wrong. Liberty Duke had a valid lien against your property and it was paid off when the property was sold to clear the title. You are wrong wrong wrong.
As you are soon to find out.
11:16 -- You still seem to have feces coming out of your ears. Seems clear you are too lazy to look up the actual law, but this is from a 2015 ruling on the subject. Unlike you, I actually conduct research; you should try it sometime:
"Second, Springer recognized the existing rule that, "when mortgaged property is sold at a foreclosure sale `[t]he mortgagee becomes a trustee for the mortgagor as to the surplus received.'" 562 So. 2d at 140 (quoting Bartlett v. Jenkins, 105 So. 654, 655 (Ala. 1925)). Pursuant to that rule, "[w]hen property is sold at a foreclosure sale, conducted under the power of sale contained in a mortgage, at an amount greater than the indebtedness secured by the mortgage, the mortgagee is liable to the mortgagor for the surplus." Davis v. Huntsville Production Credit Association, 481 So. 2d 1103, 1106 (Ala. 1985). The defendants concede that "Alabama law is replete with cases permitting the borrower to insist on receiving the `surplus' realized by the mortgagee at a foreclosure sale." (Doc. 18 at 11)."
Even if Liberty had a valid lien against your house, I thought you were entitled to $10,000 because of homestead exemption based on it being your primary residence. They probably claimed you lived in jail.
“After the foreclosure sale of the mortgaged property, if there are no other liens on the property, any surplus must be paid to the mortgagor. However, if there are inferior liens and there is a surplus, all encumbrances inferior to the mortgage on which the sale is based must be paid in the order of time in which they respectively became liens.” Bailey Mortgage Co. v. Gobble-Fite Lumber Co., 565 So.2d 138, 144 (Ala.1990)
Sorry, but Bailey doesn't support your case. It comes closer to supporting mine, per the first sentence. No. 1, Bailey mostly is about a default judgment. No. 2, it is about a mechanics lien. No. 3, it is based on 1971 law that since has been updated.
Meanwhile, I've cited 2015 case law that supports my position. Actually, it's not my position, it simply is the law. Even Liberty Duke makes no claim in her motion that she is lawfully entitled to the money. Not sure why you are trying (and failing) to make a case that even she doesn't try to make.
The law is clear that Chase Mortgage had a trustee relationship with us (mortgagor) and a duty to ensure that any surplus went to us. I notice you haven't tried to get around that language because you can't do it. Nice try, though.
A lien is a lien. Bailey is still good law and it applies to judgment liens. A foreclosing mortgagee has an obligation to pay the surplus to junior lien holders. You may dispute the validity of the judgment lien but it is on the record and Chase had no obligation to question its validity.
11:20 -- Do you have a rock for a noggin? Have you read the law I cited at 11:53? No, of course not because it conflicts with your agenda. It doesn't matter whether a "lien is a lien" or whether "Bailey is still good law" for a couple of reasons: (1) Bailey doesn't say what you want it to say; and (2) Davis v. Huntsville Production Credit Associations wraps up the applicable law, thusly.
"Pursuant to that rule, "[w]hen property is sold at a foreclosure sale, conducted under the power of sale contained in a mortgage, at an amount greater than the indebtedness secured by the mortgage, the mortgagee is liable to the mortgagor for the surplus." Davis v. Huntsville Production Credit Association, 481 So. 2d 1103, 1106 (Ala. 1985). The defendants concede that "Alabama law is replete with cases permitting the borrower to insist on receiving the `surplus' realized by the mortgagee at a foreclosure sale." (Doc. 18 at 11)."
You are welcome to continue this discussion, but you are going to have to call me directly at (205) 381-5673.
If there were a lien, checks would be cut to Riley and Duke, since they are the plaintiffs. As it stands by law,Riley could sue both Duke and the bank for his fair share.Thus the fly in the buttermilk and the paradox of this situation. Riley and Duke rode in on this horse together. Why attorney Riley doesn't want his money?
Davis dealt with the foreclosure of a second mortgage not a first mortgage like yours. There were no liens junior to the second mortgage. But you go ahead and take that one sentence from the case that is helpful, ignore all the other case law out there, and see where that gets you. This case will end like all the others and, of course, it will be the result of a vast right wing conspiracy to get you.
You raise an excellent question, Shaheed. My guess is that the money going to Duke was a matter of simple theft to make sure she stayed quiet about her relationship with Riley, and perhaps others. Riley didn't want his because he knew he wasn't entitled to it under the law, and he didn't want that spotlight to come back and bite him on the ass. But he was willing to let Duke think she was entitled to it, so it might help keep her quiet. And if it bit her on the ass, he didn't care.
If Duke were smart, and she apparently isn't, she would come clean on her relationship with Riley because he's always going to string her along. When I first wrote about these two, I noted that she was paid a certain figure in hush money and then became unhappy when she realized she had sold her self short.
@2:12 -- You really should quit while you are behind. The Davis case does not swing on whether there is a second or third mortgage. Here is the key finding:
"When property is sold at a foreclosure sale, conducted under the power of sale contained in a mortgage, at an amount greater than the indebtedness secured by the mortgage, the mortgagee is liable to the mortgagor for the surplus. Atlas, supra, 251 So.2d at 237; Bartlett v. Jenkins, 213 Ala. 510, 511, 105 So. 654, 655 (1925). The result is unchanged by the fact that the purchaser at the sale is the mortgagee. Muscle Shoals Bank, supra, at 298. See, also, Pruett v. First National Bank of Anniston, 229 Ala. 441, 157 So. 846 (1934).
"It is obvious in this case that Davis was entitled to the surplus proceeds from the foreclosure sale. The purchase amount exceeded the indebtedness secured by the second mortgage . . . "
Assuming you can read plain English, Davis (mortgagor) was entitled to surplus proceeds on a second mortgage. In your previous comments, you lied. That, of course, is no surprise to me.
2:12 --
I don't know how you pull the Bailey case out of your ass, but even the Huntsville lawyers who allowed this theft scheme don't raise Bailey as grounds for anything. Neither does Liberty Duke, the beneficiary of the theft.
You seem to be playing your own peculiar brand of "inside baseball" that nobody else cares about, perhaps because you are so far out on the lunatic fringe.
YAWN.....
You are boring.
Get back to your red neck version of TMZ and who signed up to get a little stank on the side. Thats about the extent of your journalism bona fides anymore, reporting on dummies to looked at a web site.
Stay out of legal arguments that time and time again you have been proven inadequate and incapable of understanding.
Now go get your shine box...
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