Schnauzers Being Schnauzers

We are dealing with some pretty heavy stuff around here lately, so we could stand to lighten the mood.

I can think of no better way to do that than with a little video of miniature schnauzers doing what they do best--playing, having fun, being court jesters, living life with gusto.

Here's a schnauzer trying to tell her owner something. Sounds like this girl lives in Europe. Our Murphy was the real "Great Communicator;" she would put Reagan in the shade. She got to where she could spell all kinds of words, like "l-u-n-c-h" and "S-o-n-i-c," which was her favorite place to go for a ride--and dinner. (No human food for our girl. She chilled out happily in the back seat while we pigged out on all that stuff that's bad for you.)



Here's a big schnauzer and a little schnauzer doing some roughhousing. Murphy loved this kind of stuff. Her favorite game was hide and seek.



Here's a schnauzer and a cat having a good time. This schnauzer has a true tail, which you don't see much in the U.S. Think this video might come from Europe. I've read where tail docking is banned in some European countries.



And this might be my favorite video of all time. Who says cats and dogs can't be friends?

Showdown in Shelby County, Part II

What's it like to be cheated in George W. Bush's America, in Karl Rove's Alabama?

Come along for our little version of show and tell. We hope you find it educational.

First, we have a clip that was filmed about 20 minutes before our house was to be unlawfully auctioned. Columbiana, Alabama, truly is in the middle of nowhere. But between wind gusts and motorcycles, and general traffic, and even a siren, we had all kinds of background noise. Hope you can hear most of what's going on. On a lighter note, I told my inexperienced cinematographer that when I mentioned "Shelby County Courthouse" on this first clip, she was to pan and show the courthouse itself. You'll notice that I had to say the magic words several times and actually point at the courthouse before my cinematographer thought, "Oh yeah, there's a courthouse over there!" Guess you get what you pay for in cinematographers these days. Actually, my cinematographer deserves a whole lot of credit for this story being told. I write the words, but many of the thoughts, and the majority of the courage needed to put those thoughts on paper, come from her. If this just involved me, I probably would have caved in a long time ago. But to quote Hillary Clinton, I'm not giving up.




In this next clip, we have the "auction" itself. Speaking of background noise, I didn't realize how many birds were chirping and having a grand time while this was going down. Guess they were wrens, with maybe a mockingbird or two in the choir. Wish I'd had Atticus Finch on my side. Don't find too many Atticus Finch's around in Alabama these days. The deputy conducting the "auction" is Bubba Caudill, who looks like he came from a cast party for Smokey and the Bandit. The attorney who places the winning "bid" is Bill Swatek, who looks like he came from a cast party for the "The Grifters." Notice the look on Swatek's face when he's asked why he waited three-plus years, after I started a blog, to suddenly get interested in this "judgment." Notice the look on his face when he's asked why he's never asked for the money. By the way, when Swatek saw we were in the vicinity, he went back in the courthouse and about four additional deputies appeared. Guess we were a big security risk. This all prompted my cinematographer to quip, "How many deputies does it take to screw up an auction in Shelby County?"




In the next clip, your correspondent tries to summarize events and tells you what the actual law says--how the scene you just witnessed could not take place.




Finally, we note that Bill Swatek and Bubba Caudill are bold enough to unlawfully "auction" my house, but they aren't bold enough to hang around and answer questions about it afterward. That's the way most bullies are, isn't it? When you push back, they curl up their lip and go hide behind someone's skirt.



Hope this has given you a feel for corruption in George W. Bush's America--May 12, 2008. We have much more coming on this story, and we have more video reports coming. We have all kinds of documents to share, and they will show you exactly the kind of attorney Bill Swatek really is. They also will show what his client, my criminally inclined neighbor Mike McGarity, is all about.

I stopped by the Sheriff's Office and tried to get a comment from Sheriff Chris Curry. Unfortunately, he was "out to lunch." I'm going to try to set up an appointment for an on-camera interview with him. If you would like to e-mail Sheriff Curry and encourage him to talk on camera with Legal Schnauzer, you can contact him at ccurry@shelbycountyalabama.net.

Hope you will stay tuned as I continue to channel my inner Michael Moore and try to expose the cockroaches who have tarnished a country that used to stand for something.

Showdown in Shelby County

Have you ever wondered what corruption looks like, live and in color? Have you ever wondered what it might feel like to be a regular citizen being cheated in George W. Bush's America, right here in 2008? Have you ever wondered what justice looks like in Karl Rove's Alabama, the state where Turd Blossom made his national reputation by turning our state courts into a corrupt Republican enclave.

If you ever have wondered about any of these things, we are about to enlighten you here at Legal Schnauzer. As I've been writing about for months, government officials in Shelby County, Alabama, have been threatening to auction my house (and my wife's house) in order to satisfy a "judgment" in the grand total of $1,525.

Neither the opposing party nor his attorney has ever even asked for the money--no phone call, no demand letter, nothing. In fact, the supposed "judgment" sat around gathering mold for three-plus years; never heard a thing about it. But when I started writing this blog in June 2007, giving voice to the judicial and government corruption I've witnessed in Alabama, someone suddenly got interested in that "judgment." Someone clearly wanted my voice quieted.

That somebody was Pelham, Alabama, attorney William E. Swatek, who filed a writ of execution that prompted Shelby County Sheriff's deputies to threaten first our cars and then our house. Bill Swatek is not just any corrupt attorney. He is a proud practitioner of a special kind of corruption. You might say he's turned it into an art form, considering that he has a record of unethical behavior going back almost 30 years.

And here is something particularly important about Bill Swatek: His son, Dax Swatek, is a Montgomery-based Republican consultant who has served as a campaign manager for both Governor Bob Riley and U.S. Attorney Alice Martin. Dax Swatek also has worked closely for Bill Canary. And Bill Canary has close ties to Karl Rove. And we all know who Karl Rove has close ties to.

If you are at all familiar with the Don Siegelman case, you don't need an introduction to any of those names I just mentioned. They are central to the story that landed the former Alabama Governor in federal prison. They also are central to the unfolding story of corruption in the Bush Justice Department, a tale that is likely to turn into perhaps the worst scandal in the nation's history over the next 12 to 24 months--if a Democratic Congress has the guts to the get to the bottom of it.

The videos you are about to see, on one level, look like a frustrated, exasperated citizen in the middle of nowhere, crying out for justice to authorities who clearly don't give a rip what the law says. Seen on one level, these videos are just about one couple's pain. This is all taking place in a backwater called Columbiana, Alabama, so why should anyone care?

But the attorney in the video, the sleazeball bidding on my house, is Bill Swatek. And I laid out his political lineage above. He has a pretty direct connection right to the Bush White House. And that has allowed him to get away with repeatedly cheating my wife and me--even though public records show we are hardly Swatek's only victims. He's been cheating people for almost 30 years, but Republicans in Karl Rove's Alabama protect him like the Golden Goose.

So come along for my video journey through the ethical morass that has enveloped Alabama and much of our nation over the past eight years. Many historians already are saying George W. Bush is likely to go down as the worst president in American history. The scenes you are about to see are one of many reasons why.

Some of you might have wondered what it was like to sit in the courtroom and watch Don Siegelman be railroaded and hauled off to prison in chains. The videos you are about to see might give you a little taste for what that was like.

That was a criminal case, and mine is a civil matter. That involved loss of freedom, and mine involves loss of clear title to my house.

I don't mean to imply that my pain remotely compares to what the former governor has been through. But cameras, to my knowledge, weren't allowed in the Siegelman courtroom, so the vast majority of Americans have no idea what that looked like, what that felt like.

So maybe we can help fill in that gap. We'll give you a little taste of what injustice is really like--on the front line, in a war for America's soul.

Those videos are coming next.

Fighting Back in George W. Bush's America

I had a front row seat yesterday for corruption in George W. Bush's America, watching up close and personal as corrupt Republicans in Shelby County, Alabama, "auctioned" my house--or at least a portion of my interest in it.

Under the law, they actually didn't do anything. You can't conduct a sheriff's sale without a judgment lien, and you can't get a judgment lien without filing a certificate of judgment. After attorney slimeball Bill Swatek and sheriff's deputy dirtbag Bubba Caudill went through the charade of playing "Monty's Cookie Jar" with my house, I stopped in the probate office in the Shelby County Courthouse.

I checked the computer records myself and saw no judgment lien on my property. But to be doubly sure, I walked across the hall and checked with a woman in the probate office. She checked records back to 2000 and found no judgment lien on my house. I told her that my house had just been auctioned on the courthouse steps, which caused her eyebrows to go up like pyramids. "You would need a judgment lien to do that wouldn't you?" I said. "You would think," she said.

To make de-dog doubly sure, I went back across the hall and down a ways to another probate office. A friendly woman told me they do wills and estates in this office, but she could help me with anything. (The other woman was friendly, too. Nice to see that some decent people do work at the Shelby County Courthouse. The dirtbags are the judges, lawyers, sheriff types and other "officials.") I asked her about a judgment lien on my house, and she checked her computer and didn't find any. I told her the story about the auction on the courthouse steps. Her eyebrows did a pyramid thing, too. "Kind of hard to do that without a judgment lien isn't it?" I said. "You would think," she said.

I've got much more coming on yesterday's Showdown on the Courthouse Steps, hopefully with video of the whole shootin' match. I was trying to channel my inner Michael Moore, complete with goofy ball cap. You can tell me how I did--assuming I can figure out how to get the video up. Working on that, in between trying to put out forest fires.

In the meantime, here's a copy of the Claim of Exemption I filed a week or so ago. By law, this little number had to put a stay on the sale. I told our guy Bubba that, both on the telephone yesterday morning and on camera while I was channeling Roger, I mean Michael, Moore. At one point, I think Bubba actually said he didn't care what the law says. Will have to double check the audio on that. Regardless of what he said, his actions clearly shows he doesn't care what the law says.

I was waving the Alabama Rules of Civil Procedure around the way Jimmy Swaggart waves the Old Testament. Bubba acted like Superman (after way too many all-you-can-eat buffets) trying to get away from kryptonite.

This Claim of Exemption should give you an idea of just how unlawful the Bubba & Bill Show was yesterday:


IN THE CIRCUIT COURT OF SHELBY COUNTY, ALABAMA
CLAIM OF EXEMPTION FORM
My name is Roger Shuler, and I am the defendant in the case Mike McGarity v. Roger Shuler, Civil Action CV 00-1248. I received a writ of execution, signed by clerk Mary Harris on September 21, 2007, stating that I owed a judgment in the amount of $2,229.64. I received a sheriff's notice of levy on February 8, 2008. On February 29, 2008, I received a notice of sheriff's sale, informing me that my home was to be sold at auction at noon on April 7, 2008, on the front steps of the Shelby County Courthouse. I was told that sale was postponed due to an error by the Sheriff's Office, and I received noticed that it was rescheduled for noon on May 12, 2008.

Pursuant to Rule 69 (d) of the Alabama Rules of Civil Procedure, I state as follows:

• The judgment in this matter is void because the court acted in a manner inconsistent with due process. Greene v. Connelly, 628 So. 2d 346 (Ala., 1993). The judgment in this matter also violates the 14th Amendment of the U.S. Constitution. The U.S. Supreme Court has held: "The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. . . . The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. Marshall v. Jerrico 446 U.S. 238 (1980). The record in this case is replete with "erroneous and distorted conceptions" of the law, showing that judges did not act as impartial arbiters. Therefore, the judgment is void and my property is exempt from levy.

• The judgment in this matter is void because numerous necessary parties were not joined in my counterclaim. "The absence of a necessary party requires a dismissal of the cause without prejudice or a reversal with prejudice or a reversal with directions." Holland v. City of Alabaster, 566 So. 2d 244 (Ala., 1990). Therefore, the judgment is void and my property is exempt from levy.

• The judgment in this matter must be set aside because the sheriff has failed to give written notice of my right to claim exemptions. I've even notified Deputy Bubba Caudill of this, and I've still never received the notice that is required by law. McLaren v. Anderson, 81 Ala. 106 (1886). Therefore the judgment in this matter is to be set aside and my property is exempt from levy.

• The judgment in this matter is void because a verdict was improperly rendered with fewer than 12 jurors. Rule 48 of the Alabama Rules of Civil Procedure states that a jury of fewer than 12 jurors is proper only when it is stipulated by the parties. The parties did not stipulate the use of fewer than 12 jurors, so the judgment is unlawful, and my property is exempt from levy.

* The sale in this matter cannot proceed because records in Shelby County Probate Court show that no certificate of judgment has been filed in this case, and therefore no lien exists on the subject property. "The judgment creditor's rights in the property attach upon the act of recording the certificate of judgment." Garrett v. Garrett, 628 So. 2d 659 (Ala., Civ. App., 1993). The judgment creditor in this case has failed to act in accordance with Ala. Code 6-9-210, 211, so any levy on my property is unlawful.

• The levy is moot because the case already has been settled. I filed a notarized claim of exemption in this matter the week of March 31-April 4, as required by law. The opposing party has never filed a contest, so that claim of exemption is due to be upheld. There is no Alabama law stating that a valid claim of exemption is set aside merely because the sheriff made a mistake on the notice of levy. The opposing party has had way more than the allowed 10 days to respond--and has done nothing. "Because the claim of exemption was not property contested, it was considered to be correct and was due to be upheld." Young v. Strong, 694 So. 2d 27 (Ala. Civ. App., 1997)

• The court and the sheriff's department have butchered this case and this process from start to finish. "The judgment lien statute is in derogation of the common law and is to be strictly construed." AmSouth Bank v. Bischoff 678 So. 2d 1102. (Ala. Civ. App. 1995). Furthermore, Alabama courts have held: "Substantial compliance in every essential particular is required before the benefits conferred by such statutes can be obtained or enjoyed, and an omission of any material or particular requirement cannot be deemed a substantial compliance. Duncan v. Ashcraft, 25 So. 735 (Ala., 1898).

• The sale in this matter is due to be stayed because the subject property is exempt for multiple reasons, primarily because both the judgment itself and the levy process have been reached in an unlawful manner.
_____________________
Roger Shuler
Pro Se
_____________________
Notary Public
My commission expires: ___________________

Roger Shuler
5204 Logan Drive
Birmingham, AL 35242

Corruption, Live and in Color!

Today was the day my (our) house was to be sold on the courthouse steps in Columbiana, Alabama. What happened?

Well, I had the day off and was on the scene for what appeared to be a well-orchestrated charade. Shelby County Sheriff's Deputy Bubba Caudill conducted the sale, and Bill Swatek (my neighbor's slimy lawyer) made the only bid--of $2,700 something dollars. Probate records show there is no certificate of judgment, no judgment lien, no lien of any kind on our property. By law, no sheriff's sale can be done under such circumstances.

But the law means nothing in Shelby County anyway. Was the sale for real? Don't know right now. Under the law, it definitely isn't real. In George Bush's America, who knows what will happen? We might be evicted tonight, for all I know.

Based on my understanding of the law, they can't truly sell our house anyway--it is jointly owned by my wife, who was not a party to the lawsuit. They can only get a lien on a tiny portion of my share of the house. I will write more on this in a bit.

I called Bubba Caudill this morning and told him that, under the law, he could not move forward with the sale. Bubba didn't seem to care what the law says. In fact, he seemed rather proud to be ignorant of the law. He must fit in great at Columbiana.

I told Bubba that he probably had committed a federal crime--wire fraud. He didn't seem to care. Guess he's counting on John McCain winning in November. If McCain doesn't win, Bubba and a few others folks in Shelby County might wish they had handled this situation differently.

The most interesting thing is this: I showed up with a video camera and taped the whole thing. I asked Bill Swatek if I could interview him on camera and he suddenly decided he had a meeting inside the courthouse and scurried away like a cockroach.

I asked Bubba if I could interview him on camera, and he refused--fine public servant that he is. Guess he doesn't mind holding bogus sales of people's houses, but he doesn't want to answer questions about it.

I followed him around the corner of the courthouse, like Sam Donaldson going after Ronald Reagan.

If I can figure out how to put the video on a computer, Legal Schnauzer readers will see all the action, live and in color.

Film at 11!

Clean Up Your Yard, Lose Your House

Does that headline sound ridiculous to you? It should.

But it pretty well sums up the basis for efforts by Alabama Republicans to unlawfully seize and auction my house.

We noted in a recent post that the judgment against me was for a tort called conversion. A jury found that I unlawfully "converted" property belonging to my neighbor, and that's why there was a judgment against me in the amount of $1,525.

Let's look at the facts, and the law, and see just how absurd this judgment is.

In the first two or three years after my troublesome neighbor moved in next door, I repeatedly found all sorts of stuff in my yard. I found whiffle balls, baseballs, fireworks debris, golf balls (plastic and hard), a soccer ball, a football or two, miscellaneous trash, and paintballs. (Our house had been vandalized with paintballs numerous times.) I saw some of the stuff come from my neighbor's yard. I didn't know for sure where the rest of it came from.

For months, my neighbor, his family members, and guests made repeated trips onto our yard to retrieve stuff--even after they had been told (both verbally and in writing) to stay off our yard. One of the so-called adults, Mike McGarity, even threatened to sue me for telling him to stay off my property. (I'm not making this up, folks. Of course, when I later discovered McGarity's substantial criminal record, that explained a lot of things.)

When McGarity continued to trespass after our repeated warnings, we finally swore out a complaint for criminal trespass third degree. McGarity pled not guilty, and a bench trial was held before Shelby County Circuit Judge Ron Jackson. As I noted in a previous post, McGarity inadvertently confessed to trespassing, and Jackson (according to the trial transcript) found that he trespassed. But in a decision that only a truly corrupt judge can make, Jackson gave McGarity a stern warning but issued an acquittal. That's what allowed McGarity to sue me.

But back to conversion. In making his finding, Jackson stated that if we posted written warning and anyone came on our property, the outcome would be different. Actually, that isn't the law at all. Under Alabama law, a property owner does not have to give warning--written or otherwise--in order to have a prosecution for trespassing. In essence, the burden is on the would-be trespasser to make sure he is licensed, invited, or privileged to enter property. If you think about it, this law makes perfect sense in a country that values private property. If you had to warn everyone to stay off your property, you essentially wouldn't have private property. That's why the burden falls on the would-be trespasser. (By the way, you don't have to be a property owner to assert your property rights. The same laws protect renters also.)

After the criminal trial, because of Jackson's statement about written warning, we decided to post a no-trespassing sign on our property, on the boundary facing McGarity's house. All of a sudden, McGarity, his family members, and guests could not come wily-nily on our yard anymore.

How did this go over? Well, our no-trespassing sign was stolen twice. But we kept putting one back up. And eventually, when stuff kept coming on our yard, McGarity and Co. could not come and get it.

When I would go outside in the evening, or early in the morning before going to work, I would often find something in our yard that shouldn't have been there. (By the way, under the law, it is a civil trespass to kick or throw an object either over, under, or onto someone else's property. Again, our country supposedly takes private-property rights seriously. It's one of the primary concepts that makes us different from the former Soviet Union.)

I had no idea who these objects belonged to. There were probably more than a dozen guests involved in the activity on his property, so I had no way of knowing who owned the stuff that wound up on my yard. And under the law, I had no obligation to go around trying to find the owner. It was up to them to come to me. But they didn't come to me.

I picked the stuff up, put it in a bag in my garage, and figured someone would claim it at some point. But no one ever did.

It wasn't until after McGarity sued me for malicious prosecution that he claimed ownership of these items that had come on my property. After McGarity had sued me, his attorney (the esteemed William E. Swatek) requested that I bring the items in my trusty bag to a discovery conference at my lawyer's office.

My attorney, Michael B. Odom (then of Adams and Reese/Lange Simpson, now of Haskell Slaughter) should have objected to this discovery meeting and refused the request. After all, the lawsuit was for malicious prosecution, and these objects had nothing to do with that. But Odom went along with it. (By the way, Odom wasn't acting alone; his mentor, Jesse P. Evans III, took my case, but Odom did most of the work. Both of them now are at Haskell Slaughter. Their handling of my case was disgraceful, and I will be presenting many more details of how they sold their own client down the river, in order to suck up to a corrupt judge. Why would they suck up to a corrupt judge in Shelby County? Well, Shelby is the fastest growing county in Alabama, and Evans represents a number of developers, folks who build subdivisions, shopping centers, etc. A lot of those developers have major projects in Shelby County, so Evans and Odom have huge financial incentives to kiss the fanny of corrupt local judges. And hey, if a guy like me gets ruined financially along the way, that's just collateral damage.)

During this "object inspection" meeting, Swatek took pictures and even got paintball gunk on himself, while I tried not to laugh.

Maybe Odom didn't object to the meeting because he thought the whole thing was a joke. Well, it's not a joke now. My house is at threat because of that stupid "ball meeting," which my attorney never should have allowed. And by the way, Odom didn't treat it like a joke when it came to billing. He made sure I was billed for his "professional" time.

Swatek took the information from this little meeting and filed an amendment to McGarity's lawsuit, claiming I had "converted" these objects. Odom indicated to me in a letter that he thought the whole thing was absurd. But I'd like to say, "Dude, it's not your house being threatened now is it?"

As I noted in a previous post, Swatek's conversion amendment was filed approximately 65 days late. Odom, correctly, filed a motion to strike. But Judge J. Michael Joiner never ruled on it and allowed the conversion claim to go forward.

At that moment, Odom knew for sure that Joiner was corrupt. But did Odom do anything to protect his client (me)? Nope.

Odom could have filed an interlocutory appeal, asking an appellate court to order Joiner to strike the conversion claim. He could have filed a motion for recusal, demanding that Joiner step down from the case. But Odom did nothing.

And that's a classic example of how a corrupt judge like Joiner can get your own attorney to work against you.

Here I am, almost six years later, still dealing with the results of Odom's negligence.

A few more nuggets to show you how nutty this judgment is:

* The jury in the civil case found that McGarity had indeed trespassed and awarded me $1 in damages. (Even though it cost us $200 to determine that his fence was on our yard and to get it moved.) As I noted earlier, the objects being kicked or thrown onto my property from his property represent a civil trespass, and the jury found it was a trespass. Under a legal doctrine called estoppel, you cannot benefit from your own wrong. In other words, McGarity cannot commit a civil trespass against me and then turn around and benefit when I pick up the object off my property. I raised this issue in a postjudgment motion with Judge G. Dan Reeves, and he never ruled on it.

* McGarity never offered any evidence in the trial that these objects belonged to him. And here is a key point: A fundamental component of conversion is that the alleged converter must use the property for his own beneficial use and enjoyment. McGarity never presented any such evidence. The idea behind conversion is that you want this object and you want to use it. I just picked this stuff up off my yard to keep my property from looking unsightly. I didn't want it and I didn't use it.

* How did the jury come up with a figure of $1,525 against me. McGarity claimed that I had "converted" $25 worth of balls. Most of them, he said, were whiffle balls. There must be hidden gold in those whiffle balls because it takes a lot of whiffle balls to be worth $25. The jury awarded McGarity $25 for the balls and $1,500 in punitive damages. You heard that right: A Shelby County jury awarded 60 times compensatory damages because I picked wayward whiffle balls up off my yard. How nuts is this? First, punitive damages cannot be given at all, except under specific circumstances, which were not present in this case. But even if punitive damages are proper, the usual ratio is no more than 3 to 1, even in cases of heinous conduct. Again, I raised this issue with Reeves in a postjudgment motion, and he never ruled on it.

A whole lot more nutty stuff went on in the trial, and we will get to that later. But this gives you the lowdown on what led to the $1,525 judgment against me--and subsequent threat to seize my house. Like I said, I'm not creative enough to make this stuff up.

So next time you find junk in your yard, and you don't know who it belongs to and no one ever claims it, be careful what you do--you could wind up losing your house because of it.

A Junkyard Judgment

Now that we've shown the process for attempting to seize my house has been unlawfully conducted, let's turn our attention to the judgment itself.

To show all the ways this judgment is unlawful would require numerous posts of considerable length, and we will go into those details down the road. But for now, we'll focus in a fairly general way on the major factors that make this a "junkyard judgment."

Some of the stuff you are about to read might sound comical to you. In fact, I would find a lot of it funny if I weren't the one being cheated. But this stuff really happened; I'm not clever enough to make it up. So feel free to let out a guffaw from time to time:

* Confess to a Crime, Be Found Not Guilty--This all started because my wife and I were victims of a crime--criminal trespass third degree, which is not even a misdemeanor under Alabama law; it's called a violation. In other words, it's about as low as you can go in the crime pecking order. But when Mike McGarity moved in next door to us in December 1998, he evidently wasn't happy with his own lot because he immediately started trying to take over ours. He built a fence on our yard that enclosed 300-400 squared feet of our property. Then he, his family members, and their guests made a regular habit of trespassing on our yard. We told him on multiple occasions to keep himself, his family members, and guests off our property. He responded first by sassing us and then by threatening to sue me for "harassment." (You heard that right--telling someone to respect your property rights is harassment, in this guy's mind.) When a lawyer friend wrote McGarity a letter, explaining the law and saying he would receive no more warnings, that still didn't solve the problem. The trespassing continued. So I filed a criminal complaint, thinking the Shelby County District Attorney's Office could handle such a matter professionally. Making the assumption that anyone in Shelby County could do something correctly was my first big mistake. I'll save details for later, but the DA's office messed up our case on numerous fronts. Still, though, when the case went to trial, they managed to get McGarity to inadvertently confess to the crime. But District Judge Ron Jackson, after giving McGarity a stern warning and finding that McGarity had indeed trespassed, found him not guilty anyway. Imagine O.J. Simpson telling Judge Ito: "Your honor, I've got to admit, I stabbed those people that night. I was having a rough day, man, and I thought they were disrespecting me." "No problem, Juice, I understand," Ito says. "People disrespect me all the time, too. The world's tough on short people. Just don't stab anyone else, OK? Not guilty! Next." That's pretty much what happened in our case. Like I said, I couldn't make this stuff up.

* Finding Favor for a Disfavored Tort--Once McGarity was acquitted, that gave him the right to turn around and sue me for a tort called malicious prosecution. This could happen to any victim of a crime. If someone ever mugs you or steals something from you, you had better think twice about swearing out a criminal complaint. If they are found not guilty, maybe because the judge is buds with the thug's lawyer, you are liable to be sued for malicious prosecution. So you see, crime really does pay in the US of A. It's not supposed to, under the law. But as I said in a previous post, we are a nation of "men," not laws; John Adams' vision has been turned on its head. Malicious prosecution essentially means that you prosecuted a case, either criminally or civilly, without having probable cause or grounds to do so. The fact that a judge or jury found in the defendant's favor does not even create a prima facie case for malicious prosecution. If you want to get heavily into malicious prosecution law in Alabama, check out this case. It will tell you just about everything you need to know. But for our purposes now, here's the main point: Malicious prosecution is a "disfavored tort." And here is why:

Malicious-prosecution actions are disfavored in the law. Cutts v. American United Life Ins. Co., 505 So. 2d 1211, 1214 (Ala. 1987). Our Supreme Court has stated:

"One of the reasons for this rule is that public policy requires that all persons shall resort freely to the courts for redress of wrongs and to enforce their rights, and that this may be done without the peril of a suit for damages in the event of an unfavorable judgment by jury or judge. If this were not the case, a large proportion of unsuccessful civil actions would be followed by suits for malicious prosecution, and there would be a piling of litigation on litigation without end."

Remember that line: "All persons shall resort freely to the courts for redress of wrongs and to enforce their rights, and that this may be done without the peril of a suit for damages in the event of an unfavorable judgment by jury or judge."

That, folks, is the law in Alabama. Did it apply to me in Shelby County? Nope.

Most malicious prosecution cases arise in the shopping environment. A shopper is suspected of shoplifting, a security guard apprehends the person once he leaves the store, the shopper is found not guilty, shopper sues Wal-Mart or whoever for malicious prosecution. Such actions, though, should rarely succeed. And outside the shopping environment, they should almost never succeed. In my case, I had not only probable cause ("I have strong reason to believe my neighbor trespassed"), I had actual cause ("Judge, the ding-dong just confessed to trespassing"). By law, the case had to be kicked in a few months time, and the neighbor or his attorney should have had to pay my legal expenses under the Alabama Litigation Accountability Act. Instead, it dragged on for five-plus years, and I'm out thousands of dollars.

* Oh Yeah, You Were Right All Along--By law, the lawsuit against me couldn't go to trial for procedural reasons. (More on that in a bit.) But it also had to be kicked early for reasons of fact and law. For example, an absolute defense to a malicious prosecution claim comes if the defendant consulted an attorney, and shared all the relevant facts with the attorney, prior to proceeding with the prosecution. I consulted both a private attorney (the guy who wrote the warning letter to McGarity) and a public attorney (a member of the DA's staff). In other words, I could have just sworn out a complaint with the magistrate (usually a non-attorney; it's the circuit clerk in Shelby County), but went the extra mile of consulting two attorneys before moving forward. I made this very argument in all three of my motions for summary judgment and presented uncontroverted evidence that I had consulted attorneys and shared all relevant facts with them. All three motions for summary judgment were denied. But when the case went to trial, Judge G. Dan Reeves dismissed the malicious prosecution claim and did not allow it to go to the jury. Why? Because, he said, I had consulted an attorney. I wanted to say, "You fool, I made that very argument and supported it with facts five years ago!" By the way, McGarity's attorney, William E. Swatek, represented him in the criminal trial and therefore knew I had consulted two attorneys all along. In other words, Swatek knew from the outset that McGarity had no malicious-prosecution claim, but Swatek filed the case anyway. That's the kind of thing that should get a lawyer severely disciplined, maybe even disbarred, considering Swatek's sleazy history. But the Alabama State Bar has done zip.

* Deadline, What Deadline?--If you ever get involved in a court case, you will learn early on that deadlines matter. Consider statutes of limitation. If you think you have a medical malpractice case, which has a two-year statute of limitation, and you bring the case two years and one day after the alleged malpractice occurred, you are toast. Your case will get booted. Same thing with the many deadlines that are imposed during a case. The judgment against me was based on a tort called conversion. (More on that in a bit.) McGarity amended his complaint to add the conversion claim approximately 65 days late. And he did it without seeking leave of court, as required by law. In fact, I had already filed a motion for summary judgment at the time McGarity filed his conversion claim. There is no way on earth that such a claim can proceed. It must be struck, and my attorney made such a motion. But the judge never ruled on it, the conversion claim went to trial, and that's what a jury based a $1,525 judgment on--and that's why my house is being threatened now. Again, I'm not making this absurd stuff up. The guy's conversion amendment was 65 days late and still moved forward.

* Conversion? What the heck?--What is conversion? The short answer is that it's a civil form of theft. Here's an example: You and I are eating at the same restaurant. As I'm leaving, I grab a coat that I think is mine. As I head to my car in the parking lot, I think, "Gosh this coat feels unusually good. Wonder why." You run up to me in the parking lot and say, "Hey, you've got my coat; this one is yours." By now, I've figured out that your coat is much better than mine and costs a whole lot more. I want to keep it, so I refuse to give you your coat back. You now have a case against me for conversion. It's not theft because the taking wasn't unlawful. (I made a mistake.) But by keeping the coat, after you identified it and asked for it back, I have committed a civil wrong against you. How did I get a finding of conversion against me? Well, that's a real howler, and we'll address it in a separate post coming right up.

* You've Got No Case? No Problem--Of all the problems in the judgment against me, the biggest involves summary judgment. What is summary judgment? It's a stage reached in most lawsuits, where one party files a motion saying that the other party either has no case or no defense, and there is no reason for the case to go to trial. The motion for summary judgment must be supported with evidence, usually in the form of affidavits. Once a properly supported motion for summary judgment is filed, the burden shifts to the nonmoving party to present substantial evidence of such weight that it requires the case to go to trial. If the nonmoving party fails to respond as required, Alabama law is abundantly clear: Summary judgment must be granted, and the case is dismissed. In my case, the nonmoving party (my neighbor) failed to respond as required three times. In fact, in two instances, he filed no response at all--he filed no answer to my motion for summary judgment and filed no evidence. Why? He had no case, and his attorney knew he had no case. And yet all three of my motions for summary judgment were denied.

Judges who deny summary judgment under such circumstances clearly are biased. As we noted in a recent post, such rulings violate the 14th Amendment of the U.S. Constitution: "The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. . . . The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. Marshall v. Jerrico 446 U.S. 238 (1980).

These are just a few of the reasons the judgment against me is unlawful. But these are the highlights, and as I noted up front, some of them border on the laughable.

This, however, is serious business. And it shows that America in the Age of Rove is not the America most of us learned about in our grade-school history texts. Our constitution is clear: A citizen cannot be deprived of life, liberty, or property because a corrupt judge has an erroneous or distorted conception of the facts or the law.

But former Alabama Governor Don Siegelman just spent nine months in federal prison, and the evidence is overwhelming that it's because of the actions of corrupt federal prosecutors and a corrupt U.S. judge (Mark Fuller). Three defendants in a Mississippi case--Paul Minor, Wes Teel, and John Whitfield--are currently in federal prison (a fourth, sitting Mississippi Supreme Court Justice Oliver Diaz, was tormented for years before being acquitted on bogus charges, twice) because of a clearly corrupt prosecutor and a U.S. judge (Henry Wingate) who should be impeached and probably convicted of federal crimes.

So we know of at least four men who have been wrongfully deprived of their liberty. And now Republican public officials are trying to deprive me of my property. Actually, they've already deprived me of my property--thousands of dollars in cash. But that's not enough; they also want my house.

I can't predict how the GOP gambit will turn out. But I can promise that Legal Schnauzer readers are going to know the truth about what's going on.

My House, the Target

Do the Shelby County authorities who are threatening to seize and auction my home have a legal leg to stand on?

I'm pretty sure the answer is no. I say "pretty sure" because this kind of action is associated with an area of law that can get complex.

The two legal steps that lead up to a sheriff's sale are called a writ of execution and a notice of levy. These actions often are associated with bankruptcy, foreclosure, mortgage, and collections law. All very pleasant areas, and all quite complicated. In fact, my experience has been that a lot of generalist lawyers don't know the law on this stuff. These are areas that usually require specialists.

So I, as a non-lawyer, am not going to say that I'm absolutely right on everything you are about to read. But I'm pretty confident in saying this threat to seize my house is fraudulent from start to finish.

I'm also confident in saying there is a clear reason for that: These folks don't want my house or the $1,525 judgment that they have ignored for more than three years. Evidence strongly suggests that this is not about satisfying a "judgment." It's about creating a threat that they hope will result in the disappearance of this blog.

After all, the writ of execution was issued in September 2007, roughly three months after I started Legal Schnauzer. Given that it takes several months for many blogs to become known beyond the blogger and his or her immediate family, one can reasonably assume that someone in the GOP hierarchy tried to put a stop to Legal Schnauzer almost as soon as they found out about it.

So let's examine this effort to seize my house and just how badly it misses the mark, under the law:

* Due Process? What's That?--Alabama law says that a judgment is void when the court acts in a manner inconsistent with due process. Greene v. Connelly, 628 So. 2d 346 (Ala., 1993). The U.S. Supreme Court has held that a fundamental component of due process is the right to have a case heard by an impartial judge. Marshall v. Jerrico, 446 U.S. 238 (1980): "The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. . . . The neutrality requirement helps to guarantee that life, liberty, or PROPERTY will not be taken on the basis of an erroneous or distorted conception of the facts or the law." The initial judge in my case, J. Michael Joiner, is a regular golf buddy and former neighbor of the opposing attorney. And he and the followup judge, G. Dan Reeves, repeatedly made erroneous rulings. Under the 14th Amendment of the U.S. Constitution, their judgment is unlawful.

* A Party Without the Parties--Under Alabama law, a judgment is void when a necessary party was absent. Holland v. City of Alabaster, 566 So. 2d 244 (Ala., 1990). What happened in my case takes a lot of explaining, and I will save those details for later. But numerous parties I sought to add to my counterclaim were unlawfully excluded, so my case was gutted before it even started. A judgment based on such exclusion of necessary parties cannot stand, under Alabama law.

* Aw, You Don't Need That--Rule 69 of the Alabama Rules of Civil Procedure (ARCP) is abundantly clear: A Writ of Execution must be accompanied by written notice of right to claim exemptions. Almost immediately after receiving the writ, I wrote on this blog that I didn't receive the required exemptions notice. In fact, Shelby County Sheriff's Deputy Bubba Caudill admitted he had read that on the blog, and for good measure, I told him again verbally that I had never received the notice. I've still never received it. I've filed a Claim of Exemptions form only because I have a copy of the Alabama Rules of Civil Procedure, and I looked up how this process is supposed to be done. Alabama law says a judgment must be set aside when the sheriff fails to properly provide notice of right to claim exemptions. McLaren v. Anderson, 81 Ala. 106 (1886). (By the way, that's not a typo. That law dates to 1886. Not exactly new law, but folks in Shelby County still don't know about it.)

* Who Needs 12 Jurors?--The trial in my case was unlawfully conducted with 11 jurors. Under Rule 48 ARCP, this is proper only when stipulated by the parties. You can check a legal definition of stipulation here. The parties didn't agree among themselves to anything regarding the number of jurors. The judge simply made the decision, meaning the judgment was unlawfully reached.

* Lien on Me--It appears that a sheriff's sale cannot proceed without a lien on the subject property. And a lien cannot attach without a certificate of judgment, which must be filed with the Office of Probate. I've checked Shelby County's probate records, and no certificate of judgment has been filed in my case. This is governed by Code of Alabama 6-9-210 and 6-9-211. Case law also addresses the issue: "The judgment creditor's rights in the property attach upon the act of recording the certificate of judgment." Garrett v. Garrett, 628 So. 2d 659 (Ala. Civ. App., 1993).

* The Matter is Moot--This is the second attempt to unlawfully auction my house. The first sheriff's sale was scheduled for April 7 and postponed because the sheriff screwed up the description of the property in the advertisement that is required by law. But I filed a notarized claim of exemption prior to that first sale, and I know of nothing in Alabama law that indicates a lawful claim of exemption is negated because of a mistake by the sheriff. State law allows the opposing party 10 days to challenge a claim of exemption, and in my situation, they've had way more than the allowed 10 days. No challenge has appeared, so state law is clear: "Because the claim of exemption was not properly contested, it was considered to be correct and was due to be upheld." Young v. Strong, 694 So. 2d 27 (Ala. Civ. App., 1997).

One final point: Messing with someone's home is serious business under the law, and the law requires that it be done correctly. For example, Alabama law holds: "The judgment lien statute is in derogation of the common law and is to be strictly construed." AmSouth Bank v. Bischoff 678 So. 2d 1102 (Ala. Civ. App., 1995). Alabama courts also have held: "Substantial compliance in every essential particular is required before the benefits conferred by such statutes can be obtained or enjoyed, and an omission of any material or particular requirement cannot be deemed a substantial compliance." Duncan v. Ashcraft, 25 So. 2d 735 (Ala., 1898).

Have my criminally inclined neighbor and his ethically challenged lawyer met the requirements under the law? Have the bozos who run Shelby County met the requirements under the law?

Not even close.

A Legacy of Sleaze

Regular readers know that I have nothing good to say about William E. Swatek, the Pelham, Alabama-based attorney who filed the fraudulent lawsuit against me that is at the heart of this blog.

Swatek has an almost 30-year history of unethical behavior in the legal profession, so I am hardly alone in being harmed by this dirtbag.

If I were threatened with waterboarding and forced to say something positive about Bill Swatek, it would be this: "He appears to be about retirement age, so hopefully we won't have to live much longer with his ugly carcass in the legal profession."

Well, looks like the Swatek "legacy" will carry on in Alabama law after Bill Swatek retires.

We recently discovered that Bill's son, Chace Swatek, has joined daddy's "practice" in Pelham. Perhaps Chace is just killing time until a better gig comes along. But maybe he intends to carry on the proud Swatek tradition in the hallowed halls of Shelby County justice.

That certainly would be good news for folks who enjoy being screwed in Shelby County courts.

Stay tuned to Legal Schnauzer for details on the Swatek "legacy" that the Chacester might take over. It's kind of like Sonny or Michael taking over the Corleone family business.

Chace evidently is Bill Swatek's youngest son. The oldest son, Dax, is a Republican "campaign consultant" in Montgomery who has worked for such luminaries as Bob Riley and Alice Martin.

(By the way, what's with naming your kids Dax and Chace? A Schnauzer life lesson: Never trust people who give their kids weird, self-important names.)

I don't know much about Chace Swatek or what he plans to do in his father's miserable law practice. Chace evidently went to law school at Pepperdine University, which is the place where the esteemed Kenneth Starr is now dean. Glad to see Chace has his right-wing credentials in order.

According to a source of mine, those credentials didn't help Chace pass the California bar exam. (In fairness to the Chacester, the California bar exam is considered one of the toughest in the nation. Numerous famous folks have flagged that sucker. Wonder how many times Chace flagged it before he gave up and moved home to Alabama. Obviously, the Alabama bar exam isn't too tough if the likes of Bill Swatek and Mike Joiner passed it.) According to my source, right-wing credentials also didn't help Chace in a real-estate development business on the Gulf Coast. According to court documents, looks like right-wing credentials didn't help Chace avoid a $2,896.87 court judgment against him and for an outfit called Velocity Investments. Even all the strngs daddy pulls in Shelby County apparently couldn't help Chace get off the hook on that one. Ouch.

Wonder what Velocity Investments is about? I guess their name means if you don't pay them, they'll come after you real quick.

Of course, Chace is living at home, so I guess he doesn't have to worry about meeting a budget like most adults.

If you go belly up in enough ventures, maybe daddy's law practice starts to look pretty good. But the history of that law practice doesn't look so good. In fact, it's about as ugly as it gets in the legal profession.

And we will soon be laying it all out for you in gory detail.

A Roadmap of Corruption in Real Time

My house is scheduled to be unlawfully seized and auctioned at noon on May 12 on the steps of the Shelby County Courthouse in Columbiana, Alabama.

With that as a backdrop, we are going to spend quite a bit of time in the next few days, showing you exactly how corrupt this action is. And we will be naming names, showing you the public officials--all Republicans--who are behind it.

The process of threatening my house--and the house of my wife, who is co-owner, and the home of our kitty kats, Baxter and Chloe--is corrupt on multiple levels. So we will address the corruption in two segments, showing that:

* The actual process of seizing my house--the writ of execution, the notice of levy, the sheriff's sale--is unlawful and corrupt from start to finish.

* The underlying judgment upon which the house seizure is based is also unlawful. In fact, the corruption leading up to the judgment is so pervasive that we will deal with it now in fairly general terms, saving many of the details for later.

At the risk of tooting my own horn, I think we are embarking on a journey that is perhaps a first in American journalism--of either the mainstream or nontraditional variety.

I can't think of another instance where a reporter (a citizen journalist or mainstreamer) has outlined exactly how corrupt judges and associated officials go about their dirty business. If anyone can think of another such case, please let me know.

To borrow an important phrase from Don Siegelman, "This is not about me." This is about our broken justice system at the state-court level, which affects far more Americans than our federal courts do. But like the Siegelman case, my situation also illustrates corruption in our federal justice system. Corrupt state-court judges are criminals, and the crimes they commit--because they usually involve the mail or wires--tend to be federal crimes. But is the Bush Justice Department interested in pursuing these state judges who happen to be Republicans? Not in the least.

In fact, my story will show you the two sides to Alice Martin, the U.S. attorney for the Northern District of Alabama. Ms. Martin went after Don Siegelman (a Democrat) like a rabid wolverine, firing off a case that was so weak that a federal judge bounced it out of court before it barely got started. But when presented with clear wrongdoing by Republican judges in Alabama, Martin turns into a shih tzu.

That's called political prosecution, the subject of an ongoing Congressional inquiry. We will show you that Alice Martin is Exhibit A when it comes to the ugly practice of political prosecution.

We will get to details on Alice Martin in a few weeks. But first, we will deal with the corrupt Republicans who are threatening my home. Thanks to the technology of blogging, I can give Legal Schnauzer readers an inside look at "corruption in real time." This isn't stuff that happened last year or last month or even last week. It's happening right now.

So please come along for a ride that should be educational--for you and for me.

To provide the foundation we need to understand this corruption in real time, we will work backwards--showing first exactly how the home-seizure process is unlawful and then showing how the underlying judgment is unlawful, as well.