Wednesday, May 8, 2019

U.S. Judge Gerald Bard Tjoflat, who helped cheat Don Siegelman in political prosecution, blasts Alabama lawyer Ken Lay for allegedly violating precedent, but the judge himself has a history of failing to follow rules

Gerald Bar Tjoflat
A federal judge in the Deep South recently upbraided an Alabama lawyer for filing a complaint that allegedly violated court rules. The judge was so incensed that he upheld the trial court's dismissal of the complaint and threatened to order the lawyer to pay the opposing parties' "double costs and their expenses, including the attorney's fees they incurred in defending these appeals." Our research, however, indicates the judge is not so good about following court rules himself.

U.S. Circuit Judge Gerald Bard Tjoflat played a prominent role in cheating former Alabama Governor Don Siegelman. For good measure, Tjoflat also was part of three-judge panels that issued unlawful rulings -- wildly contrary to precedent -- that cheated me on several matters. In fact, Tjoflat is a central figure in a cheat job against me at this very moment. (Details on that in future posts.)

As for the most recent matter, Tjoflat used his opinion in Jackson v. Bank of America, NA, 898 F. 3d 1348 (11th Cir., 2018) to label the pleadings of Birmingham attorney Kenneth James Lay as frivolous "garbage." Tjoflat further claimed Lay and his clients -- Karun and Ursula Jackson, of Daphne, AL -- "obstructed the due administration of justice."

Lay, of the firm Hood and Lay, represents the Jacksons in a wrongful foreclosure proceeding. Tjoflat, who turned 89 in December, was appointed to the federal bench by Richard Nixon and elevated to the appellate bench by Gerald Ford. Tjoflat is the longest serving federal-appeals judge in active service and has served on the 11th Circuit Court of Appeals (covering Alabama, Georgia, and Florida) and its predecessor, the Fifth Circuit, since 1975.

It's ironic that the Jackson case involves the loss of a house because we've seen signs that Tjoflat repeatedly violated black-letter law on the appeal of our own wrongful-foreclosure complaint, which we call "The House Case" to distinguish it from "The Jail Case" (involving my unlawful arrest and incarceration for blogging in Shelby County, AL.) We've also uncovered evidence that suggests Tjoflat routinely violates statutory law (28 U.S. Code 455) and ethics rules that prohibit a federal judge from hearing a case in which he has a financial interest.

Does Tjoflat tend to side with banks, mortgage companies, and the like? The public record reflects the answer is a resounding yes, and our research reveals why Tjoflat might favor certain financial institutions in cases that come before him. (More on that in an upcoming post.)

In the Jackson matter, Tjoflat almost seemed to take offense that Lay's clients weren't happy about facing a foreclosure and eviction that they considered dubious, at best -- and the record includes factual allegations that show why they might have felt that way.  From the Atlanta-based Daily Report:

In a blistering opinion, Tjoflat chided Lay for filing a clearly deficient complaint as part of a scheme “engineered to delay or prevent execution of a foreclosure judgment on a residence and the consequent eviction of its occupants.”

Lay “effectuated this scheme by filing a multi-count, incomprehensible complaint that flouted the Federal Rules of Civil Procedure and this circuit’s well-established precedent,” Tjoflat wrote.

In addition to upholding the trial judge’s dismissal of the case, Tjoflat said the frivolous filings constituted an abuse of judicial process and ordered Lay to show cause why he should not be ordered to pay the defendants’ double their costs for defending the appeal.

Lay did not respond to requests for comment.

Notice that Tjoflat goes apoplectic when an Alabama lawyer supposedly acts contrary to precedent. We will seek comment from the judge about his own failures to follow "well-established precedent, and we feel certain he will have plenty of excuses for that.

Tjoflat got his judicial dander up because Lay filed what the judge considered to be a "shotgun pleading." What is that? The Daily Report explains:

After granting multiple extensions to an Alabama lawyer fighting a foreclosure, a federal appeals panel was decidedly unimpressed when he said in oral arguments that their concerns about his “shotgun” complaints may be “an issue in federal court,” but they “are not disfavored in Alabama courts.”

Federal rulings have defined shotgun complaints as containing multiple counts, each incorporating by reference the preceding allegation with no clear cause of action asserted. They often assert those claims against multiple defendants without specifying which is responsible for each claim.

Here is how Tjoflat, in his opinion, characterized the complaint Lay filed on the Jacksons' behalf:

The Jacksons' complaint alleged fourteen causes of action under Alabama and federal law in separate counts, spanned twenty pages, and contained 109 paragraphs of allegations. The causes of action were not defendant-specific, all were based on all of the complaint's twenty-four introductory paragraphs, and all fourteen causes of action incorporated all previous allegations. This made it impossible for any Defendant to reasonably frame an answer. The crux of the complaint appears to be that Defendants classified their home mortgage as in default, accelerated their loan, turned over their  account for foreclosure, and reported the foreclosure to the credit reporting agencies without any legitimate basis for doing so.

How does that run afoul of 11th-Circuit procedure? Tjoflat explains, while noting that "All told, Mr. Lay sought and obtained ten extension requests from this Court":

The amended complaint is an incomprehensible shotgun pleading. It employs a multitude of claims and incorporates by reference all of its factual allegations into each claim, making it nearly impossible for Defendants and the Court to determine with any certainty which factual allegations give rise to which claims for relief. As such, the amended complaint patently violates Federal Rule of Civil Procedure 8, which requires a plaintiff to plead "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). At twenty-eight pages long and having incorporated all 123 paragraphs of allegations into all sixteen counts, it is neither "short" nor "plain."

Kenneth Lay
This Court has filled many pages of the Federal Reporter condemning shotgun pleadings and explaining their vices:
Shotgun pleadings, whether filed by plaintiffs or defendants, exact an intolerable toll on the trial court's docket, lead to unnecessary and unchannelled discovery, and impose unwarranted expense on the litigants, the court and the court's parajudicial personnel and resources. Moreover, justice is delayed for the litigants who are "standing in line," waiting for their cases to be heard. The courts of appeals and the litigants appearing before them suffer as well. Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir. 1997).

Did Lay waste court resources by filing a deficient, "incomprehensible" complaint and seeking an excessive number of time extensions? Maybe. Does Tjoflat have  legitimate gripe about the "shotgun pleading"? Possibly.

But our reading of Tjoflat's opinion suggests the Jacksons raised legitimate legal issues involving the foreclosure on their home -- and we see no sign that either the trial or appellate court addressed those. That's in keeping with Tjoflat's documented history of favoring financial institutions -- and the apparent reasons, which we'e uncovered, for such unlawful favoritism. It's also in keeping with Tjoflat's history of issuing opinions that run contrary to black-letter law -- and we have personal experience with that.

We will examine both of those issues in upcoming posts.

(To be continued)

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