Wednesday, March 09, 2011

Adverse Possession, Sheriff Fraud, and the Fate of Joel McNair

Attention Tampa Bay Area News Reporters:

I study law and I write.  See my links below.  I started my Lawmen E-Letter at a Google group on 1 May 2006 and have posted over 4,000 messages to it since.  I am not an attorney, I do not practice law, and I do not give legal advice.  I educate.  I focus my writings mostly on law and keeping government honest.  I discovered massive errors in Florida loyalty oaths in 2006 and my efforts led government to correct some of them in 2007.  I wrote about it in my report Loyalty Oaths in Florida. Lately I have focused most on foreclosure defense and have conducted two seminars on the subject.

I write to all of you because you reported stories regarding adverse possession, a topic that interests me because of its potential kinship to foreclosure and its public benefit.  Most of you reported about Joel McNair of Sarasota, who has 60 or more houses in adverse possession.  He set up a membership for people seeking a home.  He charges an initiation fee, monthly membership dues, and other fees, then puts members into a house that he adversely possessed and maintains for that purpose.  The Sarasota Sheriff's Office (SSO) arrested him twice for grand theft and scheme to defraud in association with the enterprise.  Some rightful owners who had abandoned the realty he AP'd complained that he trespassed or took some personal possessions that remained in the house, etc.  The Assistant State Attorney David Bouviane from the 12th Circuit State Attorney Office has yet to indict him.

I write to encourage you to reopen your investigation and FOLLOW RELATED DETAILS CLOSELY, reporting it to your audiences.  Why?  Because my  discoveries suggest fraud and conspiracy in the SSO, possibly in the SAO, and possibly in league with officials of the Polk County Sheriff's Office (PCSO) and 10th Circuit State Attorney.

I obtained the probable cause affidavits and arrest warrants for McNair from the SSO under the sunshine laws.  I studied them.  The affidavits contain identical charging boiler plate language and an array of facts that, in my opinion, cannot possibly support such charges.  One or more of the affidavits contains strong evidence of perjury under oath, a 3rd degre felony that warrants immediate arrest of the perjurer.  I have listened to the recorded interview between SSO officials and Joel McNair.  In it McNair clearly explained the nature of his enterprise and its support by Florida Statutes 95.12 through 95.18, the Adverse Possession statutes.  The explanation contained NONE of the elements that would justify the charges that led to his arrest.  And yet, the SSO caused his first arrest on related charges a few days after the interview.

I believe the SSO arrested McNair as a consequence of a politically motivated conspiracy to imprison him for his novel use of AP laws.  The court set bail at $120,000 for the two arrests.  He must have paid a bail bondsman $12,000 to get out of jail.  Obviously, the SSO intends to crush him financially so he cannot sustain his enterprise or defend himself against their attack.  Their attack seems brutal and mean-spirited to me.  And it ignores the benefits he gives to the community through his program.

I suggest that you all get busy investigating the possible conspiracies involving and collusion between SSO and PCSO intended to destroy anybody who tries to make an enterprise out of adverse possession.

You ought to do your own homework on this point of law.  Adverse Possession constitutes a time-honored, legislature-approved tradition of putting realty to its highest, best use.  It gives rightful owners a 7-year window of opportunity to use the court to move adverse possessors off their land.  See my blog articles for insights as to the benefits of adverse possession to communities and rightful owners.

http://bobhurt.blogspot.com/2011/02/adverse-possessor-joel-mcnair-arrested.html
http://bobhurt.blogspot.com/2011/02/comments-on-adverse-possession-in-era.html

I have started working on articles about
  • The Crimes of the SSO and 12th Circuit Courts in the McNair Case
  • The thin line between AP and Crimes of Trespass, B&E, Grand Theft
  • How AP Benefits Rightful Owners and the Community
  • Checklist for taking AP of "abandoned" realty.

I have attached 4 related files that you might find useful:
  • Harvard Law Review article from 1917 on AP
  • A Mockup of a Letter giving notice of AP benefits to a Rightful Owner
  • A PARTIAL analysis of the probable cause affidavit and arrest warrant (incomplete, and needs to include ALL the docs I obtained from SSO)
  • One of the Probable Cause and Arrest Warrant documents from SSO
I imagine if you contact McNair, he will gladly give you additional documents, such as legal research to support his activities, recordings of interviews, and the information packet he supplies his members.  I shall send him this message at joel@mcnair.com to let him know that I have contacted you about this.

I never knew or heard of McNair till after your articles appeared on the internet.  I have no business connection to him.  I have interviewed him and looked at his paperwork related to AP.  I understand his program to help others obtain affordable housing through AP.  I plan to obtain a list of some of his members and interview them.  I understand from him that CNN sent a crew to interview him week before last for over 3 hours.  Fortunately for all of YOU, they don't seem to have aired the interview yet.  Maybe if you do some follow up work, you can expose the crookedness I discovered in the SSO affidavits and the Court's warrant to your readers.  You might also write an update about his case, his enterprise, and the effect of nearly a month of related incarceration on his life.  MAYBE, you can interview some of McNair's members and find out FIRST HAND what they think of his program.  You might ask the SSO whether they have any reports from foreclosure plaintiffs of any injury from or by McNair with respect to AP of realty in which they claim to have an interest.  You might interview the deputies who drafted those Probable Cause Affidavits and ask who provided them with this charging boiler plate they inserted in them:

"Therefore this affiant believes that the adverse possession statute does not apply and that the defendant be charged with Scheme to Defraud as per FSS 817.034(3)(D) and Grand Theft as per FSS 812.014(2)a(1) in that: " [goes on to cite the two charges from the paragraphs in the statutes]

On their faces the affidavits prove the charging statements fraudulent.  Why? 
  1. First, the member occupants of the AP houses explained the membership program.  They KNEW THEY DID NOT RENT OR LEASE the property from McNair.  One gave the deputy the actual membership document that explained the money, and they corroborated what McNair said in his interview with SSO. 
  2. The AP law makes it clear that the owner may recover the abandoned realty any time within 7 years.  Since McNair files AP notices for most of them (and has a year after taking possession to do so), he showed thereby his knowledge that he could not possibly deprive the owner of the right or benefit of the property IF the owner only claimed it properly through court action. 
  3. The AP laws make it obvious that the Legislature contemplated PRECISELY this kind of situation - that people would abandon or ignore their land and that a squatter, by maintaining it, paying taxes and special liens and HOA dues, might after 7 years remove the rightful owner's right to dispossess the squatter.  Thus, AP cannot possibly, any way under the sun, commit grand theft of the realty.
  4. McNair revealed his AP status to all of his members, so he did not defraud them OR the rightful owner.

The judge who signed the arrest warrant should have seen the phrase "this affiant believes" as an utter invalidation of the affidavit which requires the affiant to state concrete first hand knowledge of the facts leading to an assessment that the defendant had committed a crime.  "Belief" does not comport with deprivation of liberty.  The judge should have thrown the affidavit out, ordered the deputy taken into custody for perjury under oath, and ordered the arrest of the senior officer or prosecutor who spoon-fed the above charging boilerplate to the deputy for insertion into the affidavit.  And I believe McNair has an excellent civil rights, false arrest, and wrongful imprisonment case against the judge and the SSO.  If you doubt this, look up the Tampa Trezevant case in your archives:  Trezevant v. City of Tampa, 741 F.2d 336, (11th Cir. 1984).  Or click here:

http://openjurist.org/741/f2d/336/trezevant-v-city-of-tampa-c-trezevant

Trezevant spent a few hours in jail because he walked through the wrong door to pay a bond for a bogus traffic arrest in Tampa.  He won a jury award for violation of his constitutional rights.


"Evidence that motorist cited for traffic violation was incarcerated for 23 minutes during booking process, even though he had never been arrested and at all times had sufficient cash on hand to post bond pending court disposition of citation, was sufficient to support finding that municipality employing officer who cited motorist and county board of criminal justice, which operated facility in which motorist was incarcerated, had unconstitutionally deprived motorist of his right to liberty. 42 U.S.C.A. Sec. 1983." Trezevant v. City of Tampa (1984) 741 F.2d 336, hn. 1
"Jury verdict of $25,000 in favor of motorist who was unconstitutionally deprived of his liberty when incarcerated during booking process following citation for traffic violation was not excessive in view of evidence of motorist's back pain during period of incarceration and jailor's refusal to provide medical treatment, as well as fact that motorist was clearly entitled to compensation for incarceration itself and for mental anguish that he had suffered from entire episode. 42 U.S.C.A. Sec. 1983." Trezevant v. City of Tampa (1984) 741 F.2d 336, hn. 5

The City of Tampa loathed the verdict and monetary award.  They appealed and lost.  The appeal ruling contains this:


Applying this standard to the case at bar, the City of Tampa and HBCJ would have us find that there was no evidence of a policy that caused the deprivation of the plaintiff's rights. They would each have us look at their actions in this matter individually. The City of Tampa contends that Officer Eicholz properly escorted Mr. Trezevant to central booking and turned him over to HBCJ for processing. The City argues that once Officer Eicholz reached the booking desk and handed the citations to the deputy on duty, the City was absolved of all further responsibility. Even though Officer Eicholz was present and observed that Mr. Trezevant was being incarcerated, the City believes that Officer Eicholz had no responsibility to object to the incarceration.

The United States Court of Appeals for the Fifth Circuit has recently dealt with a similar legal issue. In Garris v. Rowland, 678 F.2d 1264 (5th Cir.1982), a warrant was issued and Mr. Garris was arrested even though a follow-up investigation prior to Mr. Garris' arrest had revealed that the charges against Mr. Garris were without substance. The Court found that while the City of Fort Worth Police Department had a policy that required follow-up investigations by a second police officer, there was no policy to coordinate the follow-up investigations with the original investigation so as to prevent the arrest of innocent people:

The HBCJ, on the other hand, argues that it did nothing wrong because all that its personnel did was accept a prisoner from Officer Eicholz on citations that were marked for arrest.3 The HBCJ would have us hold that their deputy did not do anything wrong because he believed in good faith that Mr. Trezevant was under arrest and that the deputy had no obligation to make any inquiry of Officer Eicholz concerning Mr. Trezevant's status. We cannot agree with either the city or the HBCJ.

The United States Court of Appeals for the Fifth Circuit has recently dealt with a similar legal issue. In Garris v. Rowland, 678 F.2d 1264 (5th Cir.1982), a warrant was issued and Mr. Garris was arrested even though a follow-up investigation prior to Mr. Garris' arrest had revealed that the charges against Mr. Garris were without substance. The Court found that while the City of Fort Worth Police Department had a policy that required follow-up investigations by a second police officer, there was no policy to coordinate the follow-up investigations with the original investigation so as to prevent the arrest of innocent people:

There was no policy or method providing for cross-referencing of information within the department to prevent 'unfounded' arrests such as occurred here, nor was there a policy providing for the follow-up investigator ... to check with the original investigator ..., who in this case was aware of Rowland's intention to arrest Garris and could have prevented such action. In summary, the record establishes that during this entire police operation, leading up to Garris' unlawful arrest, numerous mistakes occurred, all of which resulted from various officers carrying out the policies and procedures of the Fort Worth Police Department.

Garris, 678 F.2d at 1275. We find this reasoning to be persuasive.

In the case at bar, Mr. Trezevant's incarceration was the result of numerous mistakes which were caused by the policemen and deputies carrying out the policies and procedures of the City of Tampa and the HBCJ. There was certainly sufficient evidence for the jury to find, as it did, that pursuant to official policy Officer Eicholz escorted Mr. Trezevant to central booking where he was to be incarcerated until the HBCJ personnel could process the paper work for his bond. We cannot view the actions of Officer Eicholz and the jailer in a vacuum. Each was a participant in a series of events that was to implement the official joint policy of the City of Tampa and the HBCJ.4 The failure of the procedure to adequately protect the constitutional rights of Mr. Trezevant was the direct result of the inadequacies of the policy established by these defendants. The trial court correctly denied the motions for directed verdict and submitted the case to the jury.

In Gilmere v. City of Atlanta, 737 F.2d 894 (11th Cir.1984), this court explained that a municipality may be liable under 42 U.S.C. Sec. 1983 (1982) if unconstitutional action is taken to implement or execute a policy statement, ordinance, regulation or officially adopted and promulgated decision. Gilmere at 901. Liability may also attach where the unconstitutional deprivation is "visited pursuant to government 'custom' even though such custom has not received formal approval through the body's official decision making channels." Gilmere at 901 (quoting Monell v. Department of Social Services, 436 U.S. 658, at 690-91, 98 S.Ct. 2018 at 2035-36, 56 L.Ed.2d 611, rev'g in part Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)). However, the "official policy or custom must be the moving force of the constitutional violation" before civil liability will attach under Sec. 1983. Gilmere, 737 F.2d at 901 (quoting Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981)).
You can see from these comments the disdain the 11th DCA feels for municipalities that deprive citizens like McNair of constitutional rights.  Chief among them:  the right to privacy and to be left alone, and that no warrant shall issue but upon probable cause supported by oath or affidavit.  Implicitly, the Courts must punish those who swear falsely in order to effect the arrest and incarceration of an innocent man like McNair who uses the law to the advantage of himself and his members.


And MAYBE if you investigate the foreclosure issues, you can find a disgusting array of frauds like those below that call into question their right to force a sale of the realty in foreclosure which coerces rightful owners into abandoning their homes:
  • appraisal fraud - buyers pay 30% to 60% more than actual value
  • closing table fraud
  • induced fraud in signing bogus note and mortgage
  • lending fraud through which the borrower funded his own loan
  • Constructive destruction of the negotiable instrument status of the note
  • Separation of note and mortgage without contract of agency
  • fraudulent securitization of borrower chattel (the actual note)
  • Conversion of the note to economic benefit of lender without borrower's authority
  • Government-Financial Industry conspiracy to destroy equity and jobs, precipitating the foreclosure crisis
  • Oligarchic illegal operation of "Rocket Docket' Courts to help bogus foreclosers STEAL realty.
From what I can tell, you have ALL fallen asleep at the wheel.  You have the biggest juiciest stories in front of your noses that prove conspiracy between gov and biz to destroy home ownership in America, and YOU IGNORE THEM.  If you don't believe this, Contact MalcolmDoney at comcast dot net and get his story.  Malcolm, an English multimillionaire immigrant to the USA, lost his fortune in the real estate value collapse.  He left this morning for the "Rally in Tally" to tell legislators what they must do to repair this mess.  See his web site at http://dolphindevelopments.com.  He and I both can provide you with a roadmap to the fraud.  So can Tampa attorney Randy Reder and St Pete attorney Matthew Weidner.

If you want proof of appraisal fraud RIFE in Florida, contact Mortgage Attack, 727 669 5511.


EVERY FORECLOSURE VICTIM should file a Quiet Title and fraud action against the array of perps who cheated them in their realty purchase, mortgage, and securitization, BEFORE foreclosure happens.  The facts fully justify it.

If you doubt this at all, visit http://fcic.gov and read the Financial Crisis Inquiry Commission report for yourself.


I have one sticking point in all this AP  stuff:  I don't feel good that a rightful owner might abandon the realty and yet return to it from time to time to get mail, or leave personal items behind which disappear prior to or in the process of adverse possession.  Your report, if you deign to do another, should flesh out this issue.  I personally believe that if one who abandons the property can only blame oneself for disappearance of personal items left behind.  I asked McNair about this.  He said that he had no idea that anyone left anything behind.  He tells his crew to clean the place up, mow the grass, and dispose of any junk.  Well, maybe that procedure deserves some review and refinement.  People who abandon realty usually suffer emotionally and feel terrible about having to fo, so they leave a shoe in the door, so to speak.  Or maybe they move all but a few items to justify returning now and then for a visit.

One woman said she left a filing cabinet with important papers behind.  Should an APer box up and store such personal items for he rightful owner?  Or should he consider it junk?  What if the rightful owner abandons the place with the electricity and water still on?  How should an APer determine that the rightful owner abandoned the place and did not merely use it seasonally, moving possessions and furnshings in upon arrival, and out upon departure?

McNair told me he verifies that the property has an active lis pendens on record with the county clerk before taking adverse possession.  That would mean someone, like a foreclosure plaintiff, has challenged right to the realty, and so a dispute over right to dispose of the property definitely exists.   If asked, I would advise an abandoner to remove all valuable chattels from the realty.  Otherwise, vandals and thieves might feel incentive to destroy or steal it.  Abandoners should know that abandoning chattels in an otherwise empty house clearly indicates they don't want it. They should know the AP laws and realize that abandoning the property opens the door to adverse possession and loss of residual chattels.

Not to rub salt in a wound, the media should remind realty owners of the lessons of William the Bastard, later known as William the Conqueror for waging a war against the English king, vanquishing his army, killing the king and heirs, and putting the lands of England to a higher, better, Norman use.  Landowners should note that later occupants of William's throne sent minions to destroy most of the American aborigines in the 13 colonies and snatch their land, putting it to a higher, better, English use.  And today Adverse Possessors continue that great, time-honored tradition with the permission of government, albeit bloodlessly, thank God.

Feel free to contact me regarding the above or attached info.  

I'll post this to my blog so that I won't forget that I asked you to pursue this story and show the crookedness of governments who persecute adverse possessors like Joel McNair.  I do hereby ask you.  Open up this government fraud to public scrutiny like a can of Limburger cheese.


--
Bob Hurt - See my Blog
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Clearwater, FL 33763
727 669 5511
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4 comments:

EndAdversePossession said...

Adverse possession (aka legalized land theft) is an arcane, unnecessary and unjust law. Like laws of slavery, it is abhorrent and needs to be abolished. Already in states like Colorado and New York, sweeping legislative changes have made it harder for people to twist and pervert AP, and some jurisdictions have completely abolished it altogether.

There is a formal fallacy in logic called an "appeal to history." Just because AP has been around for hundreds of years, it does not follow that we need it today. Times have changed, needs have changed, and it is now time for adverse possession to end.

Bob Hurt said...
This comment has been removed by the author.
Bob Hurt said...

Let's look honestly at this. Review "sleeping on your rights." Rights come with the responsibility to protect them yourself.

You cannot take land with you when you die. Unless you have improved it, you have no more and no less right to it than did the American aborigines when the kings of England, France, and Spain sent their minions here to take the land on behalf of the king.

The law means NOTHING other than what judges say it means. So as an attorney, you become successful in court by doing WHATEVER you must to prevail for your client. WHATEVER means just that. If you can get away with it, you can suborn the jury, prosecutor, and judge with money, and intimidation. WHAT EVER YOU CAN GET AWAY with. Right? No. But the system works that way, so use it or lose to it.

AP laws perform a good service historically and RIGHT NOW in pressing land owners to highest, best use. Municipal governments exercise their AP power through eminent domain where they condemn a dozen houses for the purpose of building a Trump Tower in their place. They approve it because it improves their revenues and puts the land to a higher, better use.

I consider ED far more abusive than AP. Why don't you focus on that form of outright theft of value and stomping on rights?

Appeal to history does not constitute a logical fallacy if the history's lessons apply to present circumstances. They usually do, and that explains why people refer to them with the adage: "Those who forget history are prone to repeat it." We talk about TENDENCY, here, STATISTICAL likelihood.

You did not explain HOW times changed or what justifies a change in AP laws.

I'd like changes to shorten the AP time limit to 3 years, punish law enforcers for ejecting or intimidating APers without a court order, require counties to accept tax from whoever pays it first after it becomes due, clarify what constitutes abandonment.

AP law functions somewhat like leaving your wallet on the front seat of the car and your door unlocked when you park it in on the street in downtown Seattle at a busy time of day. One should not abandon and ignore valuable property because otherwise someone will take it. NO LEGISLATION can cure that human characteristic. Meanwhile, owning and possessing property imposes distinct and often onerous responsibilities on everyone involved. If you want to play, you must pay, and payment includes taxes, HOA dues, maintenance, and watchcare.

AP law takes a civilized approach to the responsibility versus rights dilemma by giving the rightful owner PLENTY of opportunity to stop the AP. The owner can write a letter of permission to use the land and apply conditions. That terminates AP instantly. Or the owner can sue in quiet title or for na writ of possession or ejectment to have the APer removed from the land and have any boundaries in question restored.

Anybody who sleeps on his rights to the end of the statutory AP period falls into the same category as those who fail to pay property tax. You may purchase their tax lien certificates at auction, give two years for the owner to pay, and if the owner doesn't, you can force a tax deed sale. You WILL get your money, and the owner will lose the realty or pay the tax plus interest. Why should only government have the right to take away realty for failing to attend to obligations to the world around him?

Remember that the government of the USA and states are just contrived, johnny-come-lately interlopers who stole the land from previous ownaers. You see the same squabbles over land in Palestine that you saw in all of the MidEast during WWI. WHAT LOGIC justifies any different approach than that of taking realty and putting it to higher better use, with or without anybody's permission. If we actually could really own the land and prove title back to Adam and Eve, we'd have a sound legal argument for possession. Otherwise, might makes right, and even more so with the government on your side.

Get used to it.

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