Alabama law states that the filing of a notice of appeal and appeal bond destroys any lien growing from the challenged judgment. My wife, Carol, and I had no opportunity to file an appeal and destroy Duke's judgment because Duke and GOP thug Rob "Uday" Riley had caused me to be unlawfully incarcerated for five months in Shelby County, during which the time for appeal ran. It's hard to imagine a more grotesque violation of due-process rights.
Alabama law requires a certificate of judgment, which helps produce a lien, to include certain information. A check on court records in Shelby County shows that Duke's certificate does not include much of the required information. Alabama law has held that the required information is necessary to create a lien; it is clear that merely filing a copy of the judgment does not meet statutory requirements. That means Duke's lien, which she used to abscond with $7,112 of surplus foreclosure funds that otherwise belonged to us, was invalid.
We've already shown that Duke's judgment lien contained a number of flaws, and Chase Mortgage (which held the mortgage on our home) had an obligation as our trustee to ensure that we were treated fairly and in good faith.
The flaws mentioned previously derive mainly from case law. The flaws mentioned above come from statutory law. The bottom line? Liberty Duke's judgment lien misses the mark on multiple legal platforms. (Documents embedded at the end of this post provide specifics on some of the numbers involved with Duke's lien and our efforts to save our house from foreclosure.)
Let's take a close look at the issues that indicate Liberty Duke had no legal right to more than $7,000 of our funds. The record suggests she tried to benefit financially from having me kidnapped (arrested with no apparent warrant) and thrown in jail for five months. In my book, it's hard for an alleged "human" to stoop much lower than that:
(1) We don't notice the receipt of notice
The requirement of notice can be found at Code of Alabama 6-9-82. Here is how it reads:
Notice where levy on real estate.
When the levy is on real estate, personal notice thereof must be given to the defendant or a notice thereof in writing left at his residence, if resident in the county; if not resident in the county, then by putting up a written notice at the courthouse door, and the manner of giving notice must be stated in the return.
Notice that the law requires personal notice; you can't just stick it in the regular mail and hope it gets there. There is no question that Duke and her lawyer, Christina Crow of Union Springs, failed to meet this relatively simple requirement. Why did they drop the ball here? Our guess is that notice would have given us the opportunity to challenge both the lien and the judgment, and they knew both had no basis in law.
(2) Jail is unappealing
If there is a way to file an appeal while in jail, I don't know what it would be. You likely would have a better chance if you were in a prison, which is designed to hold people for lengthy periods of time and generally includes access to some research materials and writing implements. Jails are holding facilities, for short-term stays, and I did not have even a functioning pencil or a decent sheet of paper while I was incarcerated. Filing an appeal is challenging under normal circumstances -- I know because I've filed several -- but it's darned near impossible to file one from jail. Even if it were possible, it's highly prejudicial (not to mention a violation of due process) for someone to be forced to file an appeal from jail.
Under Rule 4 of the Alabama Rules of Appellate Procedure (ARAP), I had 42 days to appeal Judge Claud Neilson's bogus "final order" in the Riley/Duke lawsuit. That time period elapsed while I was locked up, depriving Carol and me of an opportunity to extinguish Duke's lien. State law on this subject can be found at Code of Alabama 6-9-61:
Destruction of lien upon execution of bond for appeal, etc.
The execution of a bond for an appeal by which the judgment is suspended or the execution of a bond by the defendant upon the proper officer granting an injunction, stay of execution, or restraining order destroys the lien created by the recording of the certificate of the judgment or the levy of the execution upon personal property. The clerk of the court in which such bond, injunction, stay, or restraining order is granted shall, at the request of the party filing such bond or obtaining such order, note such fact on the margin of the record where the certificate of judgment is recorded in the event such certificate has been filed in the probate office.
You never know what to expect from Alabama's hideously corrupt appellate courts. But assuming someone actually reviewed our appeal before stamping it "Affirmed, No Opinion," there is no way, under the law, that Judge Neilson's judgment could hold up -- and no way for Duke's lien to escape the trash bin.
(3) A certificate of judgment that comes up short
An article titled "Alabama Collection Law" spells out the information that must be present in a certificate of judgment in order to create a lien. From the article, which includes citation to Code of Alabama 6-9-210:
A Judicial Lien is created by filing a certificate of judgment with the Office of the Judge of Probate. Recording the certificate of judgment creates a lien on all the debtor's property in that county. The certificate of judgment should contain the following information: 1. style of the case including the name of the court entering judgment; 2. amount of judgment; 3. judgment date; 4. amount of cost; 5. name of parties; 6. name of plaintiff’s attorney; 7. address of each defendant or respondent as shown in the court proceedings; 8. clerk's signature. Ala. Code § 6-9-210 (1975)
Of the eight items that must be present for a certificate of judgment to create a lien, at least two are missing on Liberty Duke's certificate -- No. 5, name of parties, and No. 7, address of defendants. (A copy of the certificate of judgment is embedded at the end of this post. We invite readers to check it for missing items.)
In fact, the name of my wife, Carol, who was sued as a defendant (just like me) is nowhere to be found on the certificate of judgment. How can Carol be forced out of a house she jointly owned because of a certificate of judgment that does not name her? How can either of us be forced out of property that is not identified by address on the certificate of judgment?
Do these missing items matter? Consider this from the "Alabama Collection Law: article:
Prior case decisions indicated that all the statutory requirements must be met to create a lien. The most recent cases regarding this issue have held that the requirements must be viewed in relation to the purpose of the requirement, to impart notice of a judgment lien to title searchers. Bowman v. SouthTrust, 551 So. 2d 984 (Ala. 1989); John Deere Co. v. Blevins, 696 So. 2d 1080 (Ala. Civ. App. 1996), but see AmSouth Bank v. Holberg, 789 So.2d 833 (Ala. 2001) for the proposition that merely filing a copy of the judgment does not meet statutory requirements.
The law apparently is murky on this subject, but Liberty Duke's certificate of judgment clearly does not meet all statutory requirements. That means she likely never had a valid lien at all. Our guess is that our addresses were not included on the certificate because someone did not want us to have notice of the lien, as required by law.
Speaking of surplus foreclosure funds, we recently discovered documents that show the exact amount involved, plus other correspondence leading up to the foreclosure on our home. Some of those documents are embedded below.
If you check Liberty Duke's certificate of judgment below, the amount listed is $9,450. Isn't it interesting that the amount owed to us, and the amount "owed to her" would wind up being almost identical. It's almost as if Judge Claud Neilson, when he unlawfully awarded attorney fees for Duke (and against a pro se parties, Carol and me) knew the amount someone wanted Duke to receive -- no matter how unlawful it might be.
Why did the figure dip to $7,112 when it went to Liberty Duke. I can only assume that Chase and its lawyers subtracted more than $2,500 in "fees." Mortgage companies and their law firms seem to extract such fees throughout the foreclosure process. Had the money gone to us, as it should have by law, it's not clear if those fees would have been applicable. But I'm guessing Stephens Millirons would have found a way to attach them anyway.
How does the law firm justify those fees? They certainly did not exert any energy to fulfill their trustee obligations to us.