Monday, January 8, 2018

Lies my Missouri public defender told me: With Carol's freedom at stake in bogus "assault" case, Patty Poe cooked up some double whoppers, with cheese (Part 2)


How could Carol and I tell Missouri public defender Patty Poe was lying to us, over and over? We'll start by examining our communications with her on a central question in Carol's case: Was our eviction legal? In other words, did the cops who broke Carol's arm have lawful grounds to be on our rented property, much less to be breaking into our residence?

If you have an Internet connection, conducting legal research is much easier than it was 15-20 years ago, when it generally required a trip to a law library and the ability to sort through shelves full of reporters, law reviews, treatises, etc. In our case, Carol made Google her friend and sent Poe information about Missouri eviction law, a topic Poe admitted she knew almost nothing about. (Carol's five emails, and Poe's responses are embedded at the end of this post.) Here is Carol's email on eviction law. (My name was on the email because the eviction also involved me.) Because the subject is so central to the case, it's the longest email in the series:


CAROL'S ASSERTIONS 

Patty:

Our research shows cops had no lawful grounds to be on the rented property on 9/9/15, which means Carol was the victim of an unlawful search and seizure under the Fourth Amendment -- and all evidence gathered during such an event must be excluded, with charges against Carol dismissed. Understanding Missouri tenant/landlord law is central to describing the Fourth Amendment violations. Here are the key points:

(1) Eviction was unlawful because rent was not late for one month – Under Missouri law, eviction proceedings cannot begin in a rent-and-possession case until rent is late for one month (RSMo 535.120). Rent for Roger and Carol Shuler was paid through July 31, 2015. Landlord Trent Cowherd initiated eviction proceedings by filing a rent-and-possession petition on Aug. 5, 2015. (See docket for Trent Cowherd v. Roger Shuler, et al, case no. 1531-AC04535 at case.net.) The Shulers’ rent was only five days late at this point, and eviction proceedings could not begin until Sept. 1 or shortly thereafter. The actual eviction took place on Sept. 9, but the proceedings were initiated 25 days too early, under Missouri law.

(2) Eviction was unlawfully scheduled – Judgment was entered in the underlying eviction case on Aug. 31. (See docket for Trent Cowherd v. Roger Shuler, et al, case no. 1531-AC04535.) That started a 10-day window (ending on Sept. 10) when execution could not take place under Missouri law (RSMo. 534.350). But the eviction was scheduled for Sept. 9, unlawfully inside the 10-day window.

(3) Eviction was stayed by the Shulers’ timely filed notice of appeal -- A notice of appeal, with proper payment of fees and bond, puts a stay on eviction, under Missouri law (RSMo. 534.350). There was no money judgment against the Shulers, so there was no bond. (See RSMo. 534.380.) The Shulers filed their notice and paid their fees on Sept. 8, and it appears in the case docket. (See docket for Trent Cowherd v. Roger Shuler, et al, case no. 1531-AC04535.) All lawyers in the case were notified on Sept. 8 -- via email from Roger Shuler, plus documents in the file show the notice of appeal was available to them via secure, electronic case.net file, and the Mo. Court of Appeals had sent correspondence, noting receipt of the appeal. The eviction was stayed, as a matter of law, but it took place the next day anyway. There is no excuse for the attorneys, the landlord and the sheriff to allow this to happen. It represents gross negligence -- Fourth Amendment violations.

(4) Judgment in eviction lawsuit was interlocutory (non-final) and could not support execution -- The judgment on Aug. 27 was listed in the docket as an “interlocutory judgment,” and contained the same description when it was entered and filed on Aug. 31. (See docket for Trent Cowherd v. Roger Shuler, et al, case no. 1531-AC04535.) This apparently is because the Shulers’ counterclaim, and other issues, were set for hearing on Oct. 1, 2015. With very few exceptions, none of which applied in the underlying eviction case, interlocutory judgments are not appealable. The Shulers, at the time, did not realize it was an interlocutory judgment and went ahead and filed their notice of appeal. But based on the docket and the designation “interlocutory judgment,” the 10-day window for appeal could not have begun until sometime after Oct. 1. That means the eviction on Sept. 9 was even more premature, and more unlawful, than was originally thought.

(5) There was no valid court order, signed by a judge and authorized by a court, allowing the eviction -- None of the eviction notices left on the Shulers' door was signed by a judge, as required by RSMo. 534.350. They were signed by Deputy Scott Harrison or Cowherd attorney Craig Lowther (or both), with a notation that “this is a court order.” Without the signature and authorization of a judge (and without a stamped Greene County seal, as required by law), the notice was not a lawful court order and suggests that Harrison and Lowther may have committed a fraud on the court, and perhaps even a crime – one that caused severe physical, emotional, and financial damages for the Shulers. Since the underlying judgment was interlocutory, it's unlikely Judge Kelly Halford Rose signed a court order because she had not issued a final judgment yet in the Cowherd lawsuit.

(6) Even if it were true (and it isn't) the allegation of an "assault" by Carol Shuler actually involved lawful conduct under Missouri's Castle Doctrine Law -- Carol is allowed under Missouri Castle Doctrine Law (RSMo. 563.031) to protect her home and herself and loved ones from what she “reasonably believes” to be unlawful intruders. There is no question that Carol Shuler had a reasonable belief that Officer Jeremy Lynn was an unlawful intruder. And evidence shows that Lynn was, in fact, an unlawful intruder -- and police officers are not exempted under the Castle Doctrine; if they are going to break into someone's home, they need to make sure they are doing it lawfully. Carol did not push Lynn, as alleged, but it would have been lawful if she had. In short, the GCSO and PA's office brought a criminal charge against Carol for alleged behavior that, even if it happened, is lawful under Missouri's Castle Doctrine.

(7) The eviction was an unlawful forcible entry and detainer -- RSMo. 534.020 states as follows: "If any person shall enter upon or into any lands, tenements, or other possessions, with force or strong hand, or with weapons, or by breaking open the doors or windows or other parts of a house, whether any person be in it or not, or by threatening to kill, maim or beat the party in possession, or by such words or actions as have a natural tendency to excite fear or apprehension of danger, or by putting out of doors or carrying away the goods of the party in possession, or by entering peaceably and then turning out by force or frightening by threats of other circumstances of terror, the party out of possession, and detain and hold the same in every such case, the person so offending shall be deemed guilty of a "forcible entry and detainer" within the meaning of this chapter." The actions of the landlord and GCSO personnel clearly represent a "forcible entry and detainer," making this an unreasonable search and seizure under the Fourth Amendment.

(8) Evidence obtained from an unlawful search must be excluded -- Under longstanding Fourth Amendment law, evidence obtained during an unreasonable search and seizure must be excluded. Mapp v. Ohio, 367 U.S. 643 (1961). In the instant case, all evidence was obtained during a search and seizure that violated the Fourth Amendment. Therefore, it all must be suppressed, and there is no factual basis for Carol Shuler’s arrest, incarceration, or a trial. The "assault" charge must be dismissed.


POE'S RESPONSES 


(1) Patty Poe sez: My interpretation of RSMo 535.120 allows for an action to be brought whenever 1 months rent is arrear, it does not contain any information as to how late the rent must be.

The Reality: I'm not sure what Poe is trying to say here. Her response seems to be an accurate statement of the law. But in our final in-person meeting with her, she tried to take a simple issue and make it complicated, by saying that when rent is one day late, the entire month is late. This was her way of claiming that landlord Trent Cowherd, by bringing an eviction proceeding against us when our rent was only five days late, was within the law.

Unfortunately for Poe and Cowherd, that's not what Missouri law says. First, language from House Bill 481, which ushered in the one-month provision in 2009: "(30) Changes when an eviction proceeding can commence from when the rent is six months in arrearage to when it is one month in arrearage. (Section 535.120)"

Until eight years ago, rent had to be six months late before a landlord could bring an eviction proceeding. Under the previous law, Poe's version of calculating time obviously was not correct. And there is nothing in the new law that indicates the calculation of time has changed; it simply says a landlord can proceed with an eviction claim when rent is late by one month, rather than six months.

On top of that, Wikipedia makes clear that the term "arrear" and "arrears," when used properly, don't mean quite the same thing: "Payment in arrear is a payment made after a service has been provided, as distinct from in advance, which are payments made at the start of a period. For instance, rent is usually paid in advance, but mortgages in arrear (the interest for the period is due at the end of the period). . . . Payment at the end of a period is referred to by the singular arrear, to distinguish from past due payments. For example, a housing tenant who is obliged to pay rent at the end of each month, is said to pay rent in arrear, while a tenant who has not paid rental due for 30 days is said to be one month in arrears."

Our rent, like most rent, was due in advance -- and it could not be one month late until it had not been paid for 30 days. That means Cowherd jumped the gun on eviction by 25 days.


(2) Patty Poe sez: Under RSMo 534.350 the 10 days of execution begins to run the day of the judgment. The execution may be timely based on the partial judgment, but may not be based on the formal interlocutory judgment. Unfortunately, as to the criminal charge, it doesn't matter. What matters is were the officers acting in good faith, did they believe they were executing a judgment. I disagree with your interpretation of bond, if you wanted to stay the execution of the judgment an appeal bond needed to be posted.

The Reality: Lies don't come much bigger than this. The statute Poe cites simply does not say what she claims. The governing law is Missouri Supreme Court Rule 74.01, which holds "A judgment is rendered when entered. A judgment is entered when a writing signed by the judge and denominated "judgment" or "decree" is filed." The docket in our eviction case at case.net shows the judge issued an order on the date of our hearing, Aug. 27, 2015. But it was not entered with the court until four days later, Aug. 31. That set the beginning of our 10-day period for appeal, which ended on Sept. 10. Our eviction, however, was scheduled for (and carried out on) Sept. 9. This might be the single most unreal issue in our eviction -- it actually was scheduled on a date when, by law, it absolutely could not be scheduled. (We later learned some complicating issues that made the scheduled eviction even more unlawful than we thought. For example, the eviction judgment was an interlocutory order and could not be final until after a scheduled hearing on Oct. 1, 2015. Plus, no judgment -- other than a default judgment -- becomes final in Missouri for 30 days. So Cowherd jumped the gun even more than we originally thought.)

The rest of Poe's response here is pure rubbish, as we have shown in previous posts.


(3) Patty Poe sez: See above. Poe is referring to the final sentence of her response No. 2, which reads: "I disagree with your interpretation of bond, if you wanted to stay the execution of the judgment an appeal bond needed to be posted."

The Reality: Poe is wrong, and she probably knows it because she makes no citation to law to support her claim. RSMo 534.380 spells out the reality, under Missouri law: "Applications for appeals shall be allowed and conducted in the manner provided as in other civil cases. Application for appeal shall not stay execution for restitution of the premises unless the defendant gives bond within the time for appeal. The bond shall be for the amount of the judgment . . . "

Anyone can view the docket in our eviction case at case.net, check the judgment and see there was no money judgment against us -- no "amount" is listed. Thus, there is no bond to pay. Patty Poe can "disagree" all she wants, but she is wrong.


(4) Patty Poe sez: See above. Poe is referring to the second sentence in her response No. 2: "The execution may be timely based on the partial judgment, but may not be based on the formal interlocutory judgment."

The Reality: As usual, Poe makes no citation to law, so it's hard to determine what she's trying to say. Even she seems to admit execution of an eviction cannot be based on an interlocutory judgment, so that agrees with Carol. Not sure why she just didn't say, "I agree."


(5) Patty Poe sez: "A judgment was entered, signed by a judge, which allowed the landlord to execute a notice to vacate which was signed by the clerk."

The Reality: Poe is thoroughly screwed up here. Yes, a judgment was entered and signed by a judge, but that has nothing to do with a Notice to Vacate. It can involve a Writ of Execution, but that must be authorized and signed by a judge (per RSMo 534.350), and Poe essentially admits that wasn't done. It also must be stamped with the Greene County seal -- apparently to prevent corrupt landlords and lawyers from conducting self-evictions -- and that wasn't done either.


(6) Patty Poe sez: "Castle Doctrine does not apply in Carol's case. Pursuant to RSMo 563.031 law enforcement are exempt from the protections of the castle doctrine. What matters is were the law enforcement officers reasonably believe they are executing an arrest (RSMo 563.046). In Carol's case, based on the execution for possession, the law enforcement officers thought they were reasonably executing an arrest for trespass."

The Reality: We've already shown Poe is filled with copious amounts of horse manure on the Castle Doctrine issue, which doesn't even apply in Carol's case because "victim" Jeremy Lynn admits he "caused physical contact" with Carol, so she could not have assaulted him under the central element in the Missouri statute. I have no idea where Poe gets the notion that deputies thought they reasonably were executing an arrest for trespass. We have received written statements from four deputies on the scene, and none of them has claimed they were on the scene for any reason having to do with alleged trespass.


(7) Patty Poe sez: Nothing.

The Reality: It can't be seriously disputed that the eviction was an unlawful forcible entry and detainer (per RSMo. 534.020), so Poe doesn't want to go there.


(8) Patty Poe sez: Nothing.

The Reality: Again, it can't be seriously disputed that evidence gathered during an unlawful seizure that violates the Fourth Amendment must be excluded (per Mapp v. Ohio, 367 U.S. 643, 1961). Even Poe knows she can't win this argument, so she doesn't go there.

(To be continued)


Previously:

Lies my Missouri public defender told me (Part 1) -- 1/3/18






23 comments:

Anonymous said...

I wonder if Poe's boss was in on this con game.

legalschnauzer said...

My guess is that he was, at least at county level, maybe up to state level. Poe, I believe, only has about one year of experience as a PD, so I doubt she would pull this stunt on her own.

Anonymous said...

The thing that jumps out at me is that the eviction was scheduled inside the 10-day window when nothing can happen with an eviction, as a matter of Missouri law.

legalschnauzer said...

@8:05 --

Agreed. Any sheriff's office, and they all deal regularly with evictions, should know this. And lawyer who deals with evictions, such as Craig Lowther, should know this. No excuse for letting this happen, and it really burns me that Patty Poe lied to us about this.

Anonymous said...

But . . . but . . . Poe's friend said you guys were wrong about this stuff.

legalschnauzer said...

@8:19 --

Right, and when asked, Poe refused to ID her friend, which speaks volumes to us.

I packed this post with citations to law for that very reason; it makes for a challenging read, but I wanted to drive home the idea that non-lawyers don't have to rely on the word of a lying lawyer and her mystery friend. You can look the law up yourself, and you can know your rights and responsibilities.

Anonymous said...

I think this conspiracy goes all the way to the top. LS has leveraged his original base in Alabama to cast a cold and truthful light on corruption at the state and national level -- and as he shows, they are connected. The rot in Missouri runs straight to the White House. As much as I hope I'm wrong, I think the feds are coming at you and Carol any day now. Please be careful.

Anonymous said...

When are you going to leave this poor girl alone? You extolled her virtues the first few times you mentioned her. But now that the case has not gone your way you have resorted to cyber-bullying. We get it--you weren't happy with your attorney.

Why not either hire your own or spend all this time online taking classes at one of the many online law schools that have popped up in recent years?

legalschnauzer said...

@9:01 --

Yep, a "stable genius" clearly is involved.

legalschnauzer said...

@9:02 --

(1) "Poor girl"? You do realize she's an adult, right? You do realize she chose to enter a big girl profession, so maybe she needs to hitch up her big girl pants, right?

(2) Actually, the case has gone our way to a great extent -- one count dropped, jail off the table. With decent representation -- and an honest judge (for the record, I have doubts about the judge's honesty, although she has gotten some things right) -- the whole thing would have been dismissed months ago.

(3) You don't dispute that Poe lied to us, so what's your problem? You think it's OK for an attorney, especially one paid with taxpayer dollars, to lie to her own client? I bet you'd feel differently if you or a loved one were the client. If that's the bull you're trying to sell, you came to the wrong place to sell it.

Anonymous said...

Until 2009, a Missouri landlord had to wait until rent was six months late to begin eviction proceedings. Now, rent only has to be late one month? That blows my mind. Is the Missouri legislature filled with prostitutes for the landlord lobby?

My God, if you got laid off -- or even had a cut in your hours and pay -- you could be homeless if you couldn't find a comparable job in about 3 weeks' time. That's damned inhumane, and I bet that provision was passed by legislators who claim to be "pro life" and "pro family."

A lot of renters are families -- mothers and fathers with children. Repugs treasure these children when they are in the womb, but once they are actually here, they can live on the edge of homelessness all the time. Disgusting.

legalschnauzer said...

@10:48 --

Yes, that's exactly what certain Missouri legislators are -- prostitutes for the landlord lobby. You nailed it. And yes, they don't give a damn about the welfare of children and families -- not if it inconveniences a landlord. And yes, it is inhumane.

Almost all of us will be renters at some point in our lives. I would encourage everyone to learn about landlord/tenant law in their home states -- especially provisions like this one.

Anonymous said...

Stuff like that change from rent being 6 months late to 1 month late in order to start eviction proceedings is a sad sign of what happens when lawmakers know they can get re-elected just by having an "R" by their name in certain areas.

Anonymous said...

Your "Poor girl" comment is one of the most stupid ones I've seen in a while, @9:02. Come to think of it, it's damned sexist, too. And you equate accurate journalism with "cyber bullying"?

Wimp!

Anonymous said...

Pretty dense post here, LS. It's quite a slog to get through, but I found plenty of useful information in it, especially for anyone who rents, thinks they might rent someday, or knows someone who rents.

legalschnauzer said...

@1:25 --

I agree it's a bit of a slog, definitely not the most accessible post I've ever written. I thought long and hard about ways to make it an easier read, but kept coming back to the idea that I needed all of these legal citations in there. Tenant/landlord law can get pretty complicated, and the post reflects that, but I hope folks will make the extra effort it takes to get through this one.

Laws vary from state to state, so the Missouri information is likely to differ from what you might find in other states -- but I think the information this post provides a good starting point for learning about tenant rights in any state.

Anonymous said...

Comments are full of wrong information. The rent only has to be late, and the landlord can begin. If ones months rent is due the first, and you don't pay it, depending on your lease terms the landlord can begin the eviction process. If you had vacated or paid up before a demand or on demand, you would have been in a better position.

Your landlord gave you notice to quit a month before the natural termination of the lease (one party had given notice they would not be party to a renewal or other extension). You stayed and didn't pay.

I presume the action included some kind of unlawful detainer claim and a rent demand.
You stayed two months over and never paid. Not sure why you expected this was your right, let alone a just thing to do to a property owner.

Anonymous said...

How are you going to get around the fact that the officers certainly believed they were there to oversee a valid, court-ordered eviction, and even went to the trouble of not only checking case.net but consulted the county attorney?

Carol's belief that no one could properly enter her home might mitigate any otherwise criminal actions fighting off someone she thought was an improper intruder, and indeed the prosecutor has agreed to leniency and taken jail completely off the table.

She really didn't have a right to be staying at the property and the eviction was legal. No one has lied, defrauded or conned you on the point.

But what she believed (rather than knowing she had no right to be there, but believing they had no right to remover her) can possibly soften the court to her situation. But if you are combative and unrepentant in court - either of you, you run the risk of having that attitude squashed with a harder penalty.

Anonymous said...

Is my memory correct that the landlord in your case did not make a demand for rent? If that's the case, how can he turn around and claim your rent was late?

legalschnauzer said...

@2:22 --

To your first question, yes, your memory is correct.

To you second question, without a demand for rent, there can be no eviction via a rent-and-possession case. The law on that is real simple, and we addressed it in the following post:

https://legalschnauzer.blogspot.com/2017/11/weve-discovered-four-more-grounds-upon.html

From that post:

Under RSMo 535.020, a landlord must make a demand for rent before seeking to "dispossess" a tenant via eviction:

Whenever any rent has become due and payable, and payment has been demanded by the landlord or the landlord's agent from the lessee or person occupying the premises, and payment thereof has not been made, the landlord or agent may file a statement, verified by affidavit, with any associate circuit judge in the county in which the property is situated, setting forth the terms on which such property was rented, and the amount of rent actually due to such landlord; that the rent has been demanded from the tenant, lessee or person occupying the premises, and that payment has not been made, and substantially describing the property rented or leased.

legalschnauzer said...

Here is more about landlord Trent Cowherd's failure to demand rent:

Did Cowherd demand rent from us? Nope, and that's because our rent was paid through July 2015. A Notice to Vacate, dated July 2, 2015, was attached to our door -- and it makes no mention of late rent or a demand for rent. Cowherd simply tells us to be out by the end of the month (July 31). It is lawful in Missouri for a landlord to tell a tenant to vacate -- but at least one month's notice must be given, and it wasn't in our case. Also, such a notice is not grounds for a rent-and-possession case, which is what Cowherd filed. To file a rent-and-possession case in Missouri, you must want the tenant to leave because rent is late. But Cowherd's own Notice to Vacate shows our rent wasn't late, and that wasn't the reason the landlord sought to dispossess us.

Itsmehoney said...

Po Patty 😉

legalschnauzer said...

Here is the Notice to Vacate we received from landlord Trent Cowherd. It makes no demand for rent, and it makes no mention of rent. It also does not give the 30 days' notice required by law:

https://drive.google.com/file/d/0B1GXKJS567CoMXBnNHUwSGdacmc/view?usp=sharing