Opposition and  Memorandum in Opposition to Motion in Limine  to Preclude Defense  of Superior Title of Residential Real Estate Dorothy LaFortune's home was foreclosed and a Writ of Possession issued.  LaFortune contends that the foreclosure and writ were unlawful.  Nevertheless, this 50-something former dance teacher was removed from her Biddeford, Maine, home by a SWAT team: "THEY" thought the Alabama Militia had come North to Maine to help her resist removal!  After they handcuffed her and removed her, they charged her with Criminal Trespass. The DA is a former President of Maine's Senate.  He wants to stop LaFortune from claiming that the home from which she was removed was hers.  To do that he brought a Motion in Limine to Preclude Defense of Superior Title on the grounds of collateral estoppel (issue preclusion). So LaFortune contacted Barb to oppose the motion. The opposition discusses collateral estoppel (issue preclusion) and void judgments.  In Barb's opinion, the bureaucrats of the City of Biddeford goofed, the DA's motion is frivolous, and LaFortune was not trespassing.


 

***  CAUTION *** For those familiar with statutory interpretation,  enjoy the section immediately below. For those who feel UNcomfortable reading technical material, skip the section below . . . and maybe come back to it after you have read the brief.  It might make more sense then. After writing this brief, I learned that §§ 6006 and 6007, to which I refer in a section below, had been repealed.   I do not know when they were repealed.   This will teach me to be extra careful when researching statutes in a State other than my Home State, that is, in another State where I've been admitted  pro hac vice!  Those two sections were in chapter 709 of Title 14 of the Maine Statutes and related to matters between landlords and tenants.  Section 6006 addressed which court -- District or Superior --  had jurisdiction when a tenant claimed title in himself or someone such as an agent of his.  And Section 6007 addressed the occasion where a tenant's claim against the landlord was frivolous.  I just finished the AMENDED OPPOSITION.  Although §6006 was repealed, the right to remove the case to Superior Court was retained in the Maine Rules of Civil Procedure.   I was able to reach the same result using the rules.  As soon as I have a chance, I'll html the document and add it to this file.  Issues 1, 2, and 5 did not change at all.  I just cut out the references to §6006, argued the rules, and combined Issues 3 and 4.  Worked out nicely....I think!  :)  In fact, in a few ways, it might even have been improved. Rather than waste time html'ing the Amended Opposition, in which only the arguments for Issues 3 and 4 changed, I refer the reader to Drano Series #131, where I uploaded the Amended Motion to Dismiss, which contains the revision of Issues 3 and 4.   In the Amended Motion to Dismiss,  I put the argument into ONE issue.   Significant is that LaFortune does not fit into any of the definitions of "tenant" provided in chapter 709.   Yet, if we were to assume that the person who bought the tax and sewer liens on Dorothy's property from the City became the lawful owner and thus the Landlord, then Dorothy would have become the tenant.  But the facts here are abundant and strong and therefore make any such assumption not only unreasonable but also impossible . . .  and Dot never become the tenant. Clearly, Tim Q. Ly, who paid the City allegedly for LaFortune's house, considered himself a landlord after his alleged or purported purchase , but given that there was recorded no Notice of Automatic Impending Foreclosure, the foreclosure sale was unlawful and thus void.  Where the sale was void, Ly never attained the designation of "landlord," which, in turn, made the FED, too, unlawful and void.  Where both the foreclosure and FED were unlawful and void, so were the Writ of Possession and the subsequent forceful removal of LaFortune from HER property. Clearly, where the City was still sending tax bills to LaFortune and accepted a tax payment from her in July 2003 -- a full year after the purported sale to Ly --  the property was still LaFortune's and it stayed that way when in November 2003, the SWAT team handcuffed her and took her out of her house.


 

,STATE OF MAINE SUPERIOR COURT Location: York, ss. Docket No.  CR-03-1979  State of Maine Plaintiff v. Dorothy LaFortune Defendant  _______________________________________________    OPPOSITION AND MEMORANDUM IN OPPOSITION TO  MOTION TO LIMINE  TO PRECLUDE DEFENSE OF SUPERIOR TITLE

Now comes Defendant Dorothy LaFortune ["LaFortune"] and opposes the State’s Motion in Limine to collaterally estop her from presenting any evidence in support of her defense that she was the owner of the Graham Street property from which she was forcibly removed and detained, and that she was therefore not trespassing as the State has charged.\1/\2/  FN1"‘Collateral estoppel’ . . . means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 1970.SCT.41216 at ¶20 <http://www.versuslaw.com> (1970), citing United States v. Oppenheimer, 242 U.S. 85. FN2 That statute reads, "A person is guilty of criminal trespass if, knowing that that person is not licensed or privileged to do so, that person: Remains in any place in defiance of a lawful order to leave that was personally communicated to that person by the owner or another authorized person." 17-A M.R.S.A. 167; 402(1)(D).  As grounds for her opposition, LaFortune states there are many, but restricts them here to five of the most compelling ones: Collateral estoppel, or issue preclusion, is inapplicable where the rulings of a civil proceeding would interfere with the due process of a criminal proceeding. The rulings of a civil proceeding, based on a lower standard of proof (preponderance of the evidence), are insufficiently reliable to meet the higher standard of proof (reasonable doubt) and procedural safeguards required for a constitutional result in a subsequent criminal proceeding. To introduce as evidence the District Court rulings in Ly v. LaFortune\3/ and then use the common-law doctrine of collateral estoppel offensively to block any challenge by LaFortune of the ruling that Ly had the superior right of possession of the subject property would be tantamount to directing a verdict before the trial even begins.   FN3 Ly v. LaFortune, Biddeford District Court Docket #BID-SA-02/311 (filed 7/30/02) (Douglas, J.), aff’d York Superior Court Docket #AP-03-012 (received 2/25/03) (Fritzsche, J.), aff’d 2003 ME 119, SJC Docket YOR-03-292 (10/14/03) (Levy, J.)   A Maine District Court does not have jurisdiction over the determination of title, making the order void ab initio and unavailable for use under the doctrine of collateral estoppel, or issue preclusion.   The plaintiff, Ly, of the forcible entry and detainer action bears the burden of acting to bring the action within the cognizance of the Superior Court, even though it was the defendant, LaFortune, by making a claim of title, who introduced the need for a shift to the Superior Court. Where Ly did not bear his statutory burden, the judgment in Ly v. LaFortune is both void and unlawful.   The basis for the DA’s motion has no basis in constitutional, statutory, or common law: the one case he cites [State v. McKeil, infra] is a probation-revocation hearing, which is not analogous to the criminal trial required in this case. Moreover, Defendant-Probationer McKeil, having been already convicted of the underlying crime, and LaFortune, who has never been convicted, are not similarly situated.

ARGUMENTS 1. Collateral estoppel, or issue preclusion, is inapplicable where the rulings of a civil proceeding would interfere with the due process of a criminal proceeding. The rulings of a civil proceeding, based on a lower standard of proof (preponderance of the evidence), are insufficiently reliable to meet the higher standard of proof (reasonable doubt) and procedural safeguards required for a constitutional result in a subsequent criminal proceeding. "‘Collateral estoppel’ . . . means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 1970.SCT.41216 at ¶20 <http://www.versuslaw.com> (1970), citing United States v. Oppenheimer, 242 U.S. 85. "[A] State cannot use the result in a civil proceeding to bind a criminal defendant on any Element of a crime as a matter of collateral estoppel."McKinney v. State of Alabama, 424 U.S. 669, 689 n. 5, 96 S.Ct. 1189, 1200 n. 5 (1976) (Brennan, J., concurring).  It would be fundamentally unfair to bind a defendant in a criminal proceeding to rulings based on an earlier civil hearing with lower standards. In criminal proceedings the state's burden of proof is beyond a reasonable doubt. In [civil] proceedings, the commissioner's burden of proof is simply by a preponderance of the evidence. State v. Wagner, 637 N.W.2d 330, 337 (Minn.App. 2001), citing Johnson v. Comm'r of Pub. Safety, 392 N.W.2d 359, 362 (Minn.App. 1986).\4/ Thus "the difference in the burden of proof in criminal and civil cases precludes application of the doctrine of collateral estoppel." One Lot Emerald Cut Stones and One Ring v. U.S., 409 U.S. (Fla.) 232, 235 (1972) (civil forfeiture action); State v. Wagner, 637 N.W.2d 330, 339 (Minn.App. 2001), citing One Lot Emerald. FN4In a civil implied-consent proceeding, the defendant is not entitled to all the substantive constitutional rights associated with criminal matters. Wagner, 637 N.W.2d at 337-338. "For example, only the criminal defendant has a right to a trial, a right against self-incrimination, a right to a hearing to determine probable cause, and a right to a hearing to determine the legality of the seizure or admissibility of evidence. Unlike criminal proceedings, the due-process right to potentially exculpatory evidence does not extend to civil implied-consent proceedings. Wagner, at 338 (internal citation omitted). "[T]he general common-law rule [is] that ‘a criminal judgment is not admissible as evidence in a civil action to establish a fact determined in the criminal action,’" State v. Wagner, 637 N.W.2d at 339, quoting Travelers Ins. Co. v. Thompson, 281 Minn. 547, 552, 163 N.W.2d 289, 292 (1968) (citations omitted). "[T]he law has never supported the proposition that a criminal defendant is bound by an earlier civil proceeding." Wagner, at 339, citing McKinney, 424 U.S. at 689 n. 5, 96 S.Ct. at 1200 n. 5. "Differences in procedures [too] between criminal and civil proceedings present an objection to the use of a civil judgment in a subsequent criminal action." Illinois Farmers Ins. Co. v. Reed, 647 N.W.2d 553, 562 (Minn.App. 2002), citing Wagner, 637 N.W.2d at 338 (the result in a civil proceeding cannot be used to bind a criminal defendant on any element of a crime).\5/ FN5  But such an objection does not apply to the use of a judgment of conviction as collateral estoppel in a civil case. Because there are greater procedural protections in a criminal case--the standard of proof is higher and the procedural safeguards are numerous and more stringent--the judgment of conviction necessarily meets all of the procedural requirements of a judgment in a civil case. See, e.g., United States v. Gramling, 180 F.2d 498, 501-02 (5th Cir.1950) (stating that possession in a criminal case is sufficient to show possession in a civil case); United States v. Dantzler Lumber & Exp. Co., 810 F.Supp. 1277, 1282 (Ct. Int'l Trade 1992) (stating that a criminal judgment is conclusive in a subsequent civil action because of the higher standard of proof); Everest Mgmt. Corp., 466 F.Supp. at 172 (discussing higher standard of proof and procedural safeguards in a criminal trial); Mueller v. J.C. Penney Co., 173 Cal.App.3d 713, 721, 219 Cal.Rptr. 272 (Cal.Ct.App.1985) (same); Hopps, 506 A.2d at 297 (noting criminal trial's higher standard of proof and presumption of innocence); S.T. Grand, Inc. v. New York, 32 N.Y.2d 300, 344 N.Y.S.2d 938, 298 N.E.2d 105, 107 (N.Y.1973) (discussing the various safeguards in a criminal case); Crowall v. Heritage Mut. Ins. Co., 118 Wis.2d 120, 346 N.W.2d 327, 331 (Ct.App.1984) (noting higher standard of proof and other safeguards in a criminal case). Illinois Farmers Ins. Co. v. Reed, 647 N.W.2d at 562-563.  A "defendant has a right to a jury trial ‘on all issues relating to each element of a given criminal charge.’" Richard B. Kennelly, Jr., Precluding the Accused: Offensive Collateral Estoppel in Criminal Cases, 80 Va. L. Rev. 1379, 1388 n. 52, quoting State v. Stiefel, 256 So. 2d 581, 585 (Fla. Dist. Ct. App. 1972) (dictum). "[T]he Sixth Amendment right to a jury trial is incorporated into Due Process because it is fundamental to the American scheme of justice." 80 Va. L. Rev. 1379, 1388 n. 52, citing Duncan v. Louisiana, 391 U.S. 145, 149 (1968). Collateral estoppel against the accused is also impermissible "under due process considerations which assure an accused a jury trial on all issues relating to each element of a given criminal charge." 80 Va. L. Rev. at 1388 n. 195, citing Stiefel. "[C]ollateral estoppel is tantamount to a partially directed verdict of guilty." 80 Va. L. Rev. at 1388 n. 52, citing United States v. Panetta, 436 F. Supp. 114, 122 (E.D. Pa. 1977) (dictum), aff 'd without op., 568 F.2d 771 (3rd Cir. 1978); United States v. Bruno, 333 F. Supp. 570, 576 (E.D. Pa. 1971). It would abridge the "constitutional right of the accused to have the case against him proven beyond a reasonable doubt at his trial." 80 Va. L. Rev. at 1388 n. 52, quoting Rouse v. State, 97 A.2d 285, 289 (Md. 1953), cert. denied, 346 U.S. 865 (1953). It would abridge the constitutional right of the accused to have a jury consider the evidence without judicial intervention. See United States v. Pelullo, 14 F.3d 881, 896 (3d Cir. 1994); United States v. De Angelo, 138 F.2d 466, 468 (3d Cir. 1943); United States v. Bruno, 333 F. Supp. 570, 576 (E.D. Pa. 1971). Essentially, "collateral estoppel is unavailable to the government because it would permit the state to obtain a conviction without proving all the elements of the crime charged." 80 Va. L. Rev. at 1388 n. 52, citing State v. Thomas, 276 A.2d 391, 397 (N.J. Super. Ct. Law Div. 1971) (dictum).  2.  To introduce as evidence the District Court rulings in Ly v. LaFortune and then use the common-law doctrine of collateral estoppel offensively to block any challenge by LaFortune of the  ruling that Ly had the superior right of possession of the subject property would be tantamount to directing a verdict before the trial even begins. The adjudication to which the State wants this court to give conclusive effect is that which arose out of Ly v. LaFortune. In that case, the District Court ruled that Tim W. Ly had superior title and the right of immediate possession of the subject property on Graham Street in Biddeford. Ly v. LaFortune, 2003 ME 119, ¶2. LaFortune disputed that fact in LaFortune v. City of Biddeford, which she filed prior to Ly filing his FED case against her. She lost against the City and appealed to the SJC, and the SJC has not yet resolved the dispute. Where the trespass statute requires the State to prove that a lawful order was violated and where "the term ‘lawful order’ has independent meaning [, and] not every order is a lawful order," the prosecution is obligated to prove that the order upon which it is relying is lawful. State v. Anthony, 2002 ME 94, ¶5, quoting State v. Tauvar, 461 A.2d 1065, 1067 (Me. 1983).\6/ FN6  "Defiance of a lawful order" is an element of the offense, and the State is required to prove each element of the offense. State of Maine v. Anthony, citing 17-A M.R.S.A. 167; 32 (1983). Given that LaFortune has never been given an opportunity to have a full and fair hearing on her claim to her superior title of the Graham Street property, not only has the criminal charge of trespassing on that property been brought prematurely, there is no lawful order to preclude. The First Circuit in United States v. Levasseur, 699 F. Supp. 965 (D. Mass.), rev'd on other grounds, 846 F.2d 786 (1st Cir. 1988), in determining whether suppression motions filed in a criminal court in New York could be suppressed by collateral estoppel in a Massachusetts case, acknowledged that "invoking collateral estoppel against theaccused is more easily justified regarding suppression motions than regarding a substantive element of the offense." 80 Va. L. Rev. at 1385-1386. Thus, it seems likely that Levasseur would prohibit issue preclusion, so as "to ensure that the accused herself has had a jury determinethe specific issue at hand." 80 Va. L. Rev. at 1418.\7/  FN7  LaFortune did not have a jury in Ly v. LaFortune, supra at n. 3,or in LaFortune v. City of Biddeford, supra at n. 9. And the issue to be given conclusive effect must have been "actually litigated and determined by a valid and final judgment" and must have been "essential to the judgment." Restatement (Second) of Judgments §27. Those – that there was actual litigation and that the final judgment was valid -- are the threshold requirements for the application of issue preclusion and those are the issues that the prosecution must prove in order to prove that the order it seeks to preclude was a lawful order. 3. District Court does not have jurisdiction over the determination of title, making the order void ab initio and unavailable for use under  the doctrine of collateral estoppel, or issue preclusion. Certain facts are undisputed. For instance, on 10 April 2002, the City of Biddeford published the pending sale of its tax liens on LaFortune’s Graham Street property. The newspaper advertisement set forth 5 June 2002 as the date on which the sealed bids would be opened, reviewed, and awarded.  On 22 May 2002, without notice to LaFortune as required by 36 M.R.S.A. 943 and notwithstanding the publicly announced date for bidding, City Manager Bruce Benway ["Benway"] and Tax Collector Gayle Doyon ["Doyon"] prematurely both conducted a sealed-bid sale of the tax liens on the subject property and opened the bids. On 4 June 2002, the Biddeford City Council voted to accept a bid from Tim Q. Ly ["Ly"] and authorized the purchase by Tim Q. Ly of the subject property. On 21 June 2002, the City of Biddeford, through Benway and Doyon, delivered a Municipal Quitclaim Deed to Ly "to release the City of Biddeford’s interest, if any, arising from matured tax liens dated . . . and recorded. . . . Meaning and intending to convey to the Grantee, the Grantor’s tax-acquired interest." The consideration given by Ly in exchange for the deed was $80,000, a sum more than $50,000 in excess of the amount of the City’s monetary interest in the liens.\8/ FN8  It has never been revealed to LaFortune where the more than $50,000-plus surplus went. The statutes are specific as to the procedure to be followed, but they were not followed. On or around 24 June 2002, LaFortune challenged the validity of both the tax taking and the sale of the subject property, by initiating suit in York Superior Court against the City of Biddeford.\9/ FN9   LaFortune v. City of Biddeford, York Superior Court, Docket #AP-02-036 (filed 6/24/02) (Brennan, J.), aff’d __ ME ___ (SJC, [YOR-04-197] 2004). During or around the week between 30 July 2002 and 7 August 2002,\10/ Ly, seeking possession of the subject property, initiated a forcible entry and detainer ["FED"] action against LaFortune in York District Court,\11/ which had "exclusive original jurisdiction of all actions of forcible entry and detainer to recover the possession of real property." Bicknell Manufacturing Company v. Bennett, 417 A.2d 414, 416 (Me. 1980). FN10   There appears to be a discrepancy in the records.  FN11  See note 3, supra. A forcible entry and detainer action is "‘a summary proceeding to decide who is entitled to the immediate possession of land.’" Tozier v. Tozier, 437 A.2d 645, 647 (Me. 1981) (quoting Bicknell Mfg. Co. v. Bennett, 417 A.2d 414, 421 (Me. 1980)). In this matter, the determination of title is dispositive of the right to immediate possession.  If the Town failed to perfect its title through the tax lien process, the Andersons remain entitled to immediate possession of the property. If, on the other hand, the Town properly obtained title through the lien process, the Town is entitled to immediate possession of the property. Town of Pownal v. Anderson, 1999 ME 70, ¶5, __ A.2d __ (Docket #Cum-98-644) (1999) (emphasis supplied). This area of law requires careful attention to statutory requirements by both the Town and the taxpayer. Just as the taxpayer may lose her property if she fails to be vigilant in complying with the requirements, see Fitzgerald v. City of Bangor, 1999 ME 50, ¶ 17, __ A.2d __, so must the Town strictly adhere to its requirements.  See Dubois v. City of Saco, 645 A.2d 1125, 1127 (Me. 1994); Blaney v. Inhabitants of Shapleigh, 455 A.2d 1381, 1387 (Me. 1983); Arsenault v. Inhabitants of Roxbury, 275 A.2d 598, 599-600 (Me. 1971).   Only if departure from the statutory requirements is explicitly allowed by statute will such departure be tolerated.  See  Avco Delta Fin. Corp. v. Town of Whitefield, 295 A.2d 921, 924 (Me. 1972).  Town of Pownal v. Anderson, 1999 ME 70, ¶14 (emphasis supplied).  In Ly v. LaFortune, LaFortune argued that there were deficiencies in the tax-lien process, and Biddeford District Court Justice Douglas so found:  Although both parties submitted copies of various official records relating to the city’s efforts to foreclose on the instant property, and the city manager was called to testify on the subject, the city itself was not a party to this action. The court, therefore, may not have had the benefit of fully developed record with regard to all actions taken by the city in connection with the foreclosure process in issue. Based solely on the record presented, it appears there may have been irregularitiesin the statutory foreclosure process for some of the years in question. However, as is discussed above, the city correctly followed the process with respect to the taxes committed on the property in August 1998. The city’s compliance with statutory foreclosure requirements in connection with the August 1998 tax commitment, coupled with Defendant’s awareness of, and responsibility for, her unpaid taxes, is sufficient to satisfy any due process safeguards, notwithstanding the fact that there may have been technical deficiencies in the foreclosure processes in other years. Ly v. LaFortune, Biddeford District Court Docket #SA-02-311, slip op. at 2-3 n. 1 (Douglas, J.) [emphasis supplied].\12/\13/ FN12   Those years in which there were technical deficiencies were prior to and after 1998 through 2003. Doing it correctly only one year out of a decade does not, however, constitute a preponderance of the evidence in the City’s or Ly’s favor in the civil cases. It certainly does create reasonable doubt in this criminal case as to whether the Ly order that the State wants to have admitted without challenge is a lawful order. It certainly does create reasonable doubt in this criminal case as to whether LaFortune was trespassing on the Graham Street property on the day a SWAT team was sent in to forcibly remove her from her home.  FN13   According to the Registry, nothing happened regarding the property in August 1998. In fact the deficiencies and/or irregularities were continuous for years. See Exhibit A, attached hereto this opposition to the Motion in Limine. In Exhibit A, LaFortune has summarized the deficiencies and/or irregularities found after a title search was performed for purposes of this opposition. But Judge Douglas did not take into consideration the provisions of both 14 M.R.S.A. §§6006 and 6007*** (1965) and Maine District Court Civil Rule 80D(c), by which LaFortune was entitled to have her claim that she had title to the subject property fully litigated in Superior Court. Bicknell, at 415. Where LaFortune made title the only issue to be decided, the FED case came "within the cognizance of the Superior Court. Bicknell, 417 A.2d at 416. Section 6006 establishes a hybrid jurisdictional relationship between the District Court and Superior Court by which the Superior Court hears and decides the issues that are open for decision, but the District Court continues to have a residual jurisdiction under which the final determination of the action by entry of a final judgment, as well as the issuance of process of enforcement, takes place in the District Court. Bicknell Mfg. Co. v. Bennett, 417 A.2d 414, 416-417 (Me. 1980).  Having been stripped of its jurisdiction by §6006 and 6007, the District Court committed reversible error (a) when the court took it upon itself to rule that Ly had superior title [2003 ME 119, ¶2] and (b) when the forcible entry and detainer action was not removed to Superior Court immediately upon LaFortune’s plea of title. Gray v. Hutchins, 150 Me. 96, 97 104 A.2d 423 (1954); Bicknell, at 415-416 (same). Those errors resulted in a void judgment, which, from its inception, was a complete nullity and without legal effect. Lubben v. Selective Service System, 453 F.2d 645, 649 (1st Cir. 1972).  Although we must dismiss the instant appeal, we recognize that the dismissal is attributable to a deficiency in the judgment that is symptomatic of, and indeed may have arisen from, an underlying confusion about what happens when, as here, an action of forcible entry and detainer comes within the cognizance of the Superior Court in consequence of a defendant's assertion of a claim of title. . . . The Superior Court becomes involved in forcible entry and detainer actions by virtue of the provisions of 14 M.R.S.A. §§ 6006 and 6007, as brought in play when a defendant "claims title in himself or in another person under whom he claims the premises." . . .  By statute, the District Court is given the exclusive original jurisdiction of all actions of forcible entry and detainer to recover the possession of real property. 14 M.R.S.A. §6003.[fn1]SeeAbbott v. Norton, 53 Me. 158 (1865) 2 Field, McKusick & Wroth, Maine Civil Practice, §180D.1 (2d ed. 1970). One qualification of this jurisdiction arises when a defendant "claims title in himself or in another person under whom he claims the premises", in which event Section 6006 provides for proceedings in the Superior Court. Reed v. Reed, 113 Me. 522, 95 A. 211 (1915); Cushing v. Danforth, 76 Me. 114 (1884); Abbott v. Norton, supra.  Bicknell, at 415-416.  Thus Biddeford District Court did not have the authority to determine which of the parties had superior title [Bicknell, at 415-416]. "Forcible entry and detainer is not a plenary action to quiet title to land but is, rather, a summary proceeding to decide who is entitled to the immediate possession of land." Bicknell, at 421, citing Throumoulos v. Bernier, 143 Me. 286, 61 A.2d 681 (1948).  But if [a court] act without authority, its judgments and orders are nullities; they are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal, in opposition to them; they constitute no justification, and all persons concerned in executing such judgments, or sentences, are considered in law as trespassers.' Williamson v. Berry, 49 U.S. (8 How.) 495, 541 (1850). When the court lacks jurisdiction, "the court has no authority to reach merits" and should then dismiss the action. Melo v. U.S., 505 F.2d 1026, 1030 (8th Cir. 1974). "Where there is no jurisdiction over the subject matter, there is, as well, no discretion to ignore that lack of jurisdiction. See F.R.Civ.P. 12(h)(3)."\14/Joyce v. U.S., 474 F.2d 215, 219 (3rd Cir. 1973). FN14   F.R.Civ.P. 12(h)(3): "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." . . . whenever the right to property is claimed to have been changed under a judgment or decree by a court, and it is set up as a defence in another court, the jurisdiction of the former may be inquired into. The rule is, that where a limited tribunal takes upon itself to exercise a jurisdiction which does not belong to it, its decision amounts to nothing, and does not create a necessity for an appeal. Attorney-General v. Lord Hotham, Turn. & Russ., 219. Williamson v. Berry, 49 U.S. (8 How.) 495, 543 (1850) [emphasis supplied].  After the District Court issued its void judgment and/or unlawful order, LaFortune appealed the ruling in Ly v. LaFortune to the Superior Court. That court used M.R.Civ.P. 80D(f)(5) as grounds to dismiss the appeal, despite Justice Douglas’s acknowledgement of the City’s noncompliance with the statutes, i.e., of the existing "deficiencies" and "irregularities" in the process.  LaFortune had been denied a full and fair adjudication to which she was entitled. Restatement (Second) of Judgments, §§27-29 and the First Circuit’s Levasseur, 699 F. Supp. at 981. On 15 May 2003, Ly sought a Writ of Possession, and on 3 June 2003, over LaFortune’s opposition, the court issued the first Writ of Possession to Ly. Thereafter, diverse pleadings, including Motions to Stay, were filed in diverse courts.  During June 2003, LaFortune appealed the ruling of the York Superior Court in Ly v. LaFortune to the Maine Supreme Judicial Court. Superior Court had also denied Lafortune's motion for a stay and issued a Writ of Possession, but her request for a stay of the Writ of Possession was  granted by a single justice of the SJC.   Ly v. LaFortune, 2003 Me. 119, ¶3. SJC Justice Levy then affirmed the lower-court decisions on 14 October 2003. 2003 Me. 119.  On 4 November 2003, a second Writ of Possession issued from Biddeford District Court giving the sheriffs the authority to remove LaFortune from her Graham Street property.  On 12 November 2003, Ly’s Writ of Possession was again served on LaFortune. On 14 November 2003, Ly sought the assistance of the Biddeford police to enforce the writ and on 19 November 2003, a SWAT time forcibly removed LaFortune from her home on Graham Street. On or around 20 July 2004, LaFortune appealed the ruling of the York Superior Court in LaFortune v. City of Biddeford to the Maine Supreme Judicial Court, which has not yet disposed of the case. At no time since 24 June 2002 has LaFortune been given an opportunity to present evidence of her claims and defenses in her action against the Biddeford. At no time since 24 June 2002, when she filed LaFortune v. City of Biddeford, has LaFortune been given the opportunity that in York Superior Court "a trial bearing on the aspects of the merits of the action," that is, to determine whether she had superior title to the real property on Graham Street. LaFortune was similarly precluded in Ly v. LaFortune from defending her title during the trial in Biddeford District Court. In sum, it is both undisputed that LaFortune has been at all times denied a full and fair trial on her claim of title, and indisputable that judgment in Ly v. LaFortune issued before her claim of title was fully litigated, thereby voiding the judgment, if not making it unlawful.  Where two of the several basic requisites for the invocation of the doctrine of collateral estoppel – no full and fair trial and the lack of a valid judgment -- are absent, the doctrine of collateral estoppel is inapplicable. 4. The plaintiff, Ly, of the forcible entry and detainer action bears the burden of acting to bring the action within the cognizance of the Superior Court, even though it was the defendant, LaFortune. by making a claim of title, who introduced the need for a shift to the Superior Court. Where Ly did not bear his statutory burden, the judgment in Ly v. LaFortune is both void and unlawful.  This issue raised preliminary questions regarding the confluence of Rules 80D(i) and 73(b) and 14 M.R.S.A. §6006. The Court in Bicknell answered them.  The following are conclusions reached by the Court in Bicknell as to the confluence of Rule 73(b) and §6006:   "There are important mechanical differences between the Section 6006 procedure and the "removal" achieved under Rule 73(b)." Bicknell, at 417 (footnote omitted). "Rule 73(b) provides that a defendant, or other party against whom a claim is asserted, may ‘remove’ the action to the Superior Court upon filing a notice with the court within a specified time period and by paying a specified fee. . . ." Bicknell, at 417 (footnote omitted). "[A] Rule 73(b) "removal" contemplates that the Superior Court shall become the final forum in which the action is adjudicated, and shall make final disposition of the action, including entering judgment and ordering into effect relief that accompanies that judgment - all as if no proceeding in the District Court had ever occurred." Bicknell, at 417. LaFortune did not invoke Rule 73(b), for her action in York Superior Court had been filed prior to Ly filing his FED action in Biddeford District Court.    ". . . Section 6006 provides ‘[w]hen the defendant claims title in himself . . . , he shall, except as otherwise provided, recognize in a reasonable sum to the plaintiff, with sufficient sureties, conditioned to pay all intervening damages and costs and a reasonable rent for the premises. The plaintiff shall in like manner recognize to the defendant, conditioned to enter the action in the Superior Court within 30 days and to pay all costs adjudged against him. If either party neglects so to recognize, judgment shall be rendered against him.’" Bicknell, at 417. Where LaFortune had beaten the defendant to the courthouse door, by filing LaFortune v. City of Biddeford more than a month before Ly filed Ly v. LaFortune, she had, she contends, no need to act in accordance with §6006, for the "eligibility" referred to in §6006 does not fit into the fact pattern here: Thus, under Section 6006 a defendant must first claim title in himself or in another and thereafter recognize to the plaintiff in a reasonable sum before the action even becomes eligible to be brought within the jurisdiction of the Superior Court. Bicknell, at 417.  Where M.Dist.Ct.Civ.R. 80D(g) prohibited the filing by LaFortune of a counterclaim in the forcible entry and detainer action [Bicknell, at 421 n. 8], LaFortune could only defend and claim superior title in Ly v. LaFortune by pleading many if not all the deficiencies and irregularities in the City’s foreclosure procedures, to wit, the City’s noncompliance with the strict statutory requirements.\15/ (Under Town of Pownal, supra at ¶5, LaFortune remained entitled to possession of the property.) And where LaFortune did plead superior title, Plaintiff Ly owes to LaFortune all costs incurred by her in defending herself and her interests in her property. Bicknell, at 417.  FN15  Where the city billed LaFortune for taxes until the tax-lien sale, there is an irrebutable presumption that it is undisputed that LaFortune had superior title to the subject property until the very moment when the city received the $80,000 consideration paid by Ly for the property. And where LaFortune’s answer to the complaint included the claim that she had title to the subject property, thereafter, apparently in accordance with the provisions of 14 M.R.S.A. §§ 6006 and 6007 (1965) and Maine District Court Civil Rule 80D(c), the action Ly v. LaFortune should have gone before the Superior Court. Bicknell, at 415.   "Then, once the case is in that posture of eligibility, the plaintiff [e.g., Ly] must thereafter recognize to defendant [e.g., LaFortune] and promptly ‘enter’ the action in the Superior Court. . . . The plaintiff is made to bear this burden of acting to bring the action within the cognizance of the Superior Court, even though it was the defendant, by making a claim of title, who introduced the need for a shift to the Superior Court." Bicknell at 417-418 (footnote omitted) [emphasis supplied]. Where LaFortune claimed superior title in Ly v. LaFortune by pleading many if not all the deficiencies and irregularities in the City’s foreclosure procedures, to wit, the City’s noncompliance with the strict statutory requirements, Plaintiff Ly – not LaFortune -- had the statutory burden of removing the case to Superior Court. Bicknell, at 417-418.\16/ The District Court failed to act sua sponte when Ly failed to act. (The court’s failure to act at this junction raises many issues, but they, for the time being, remain outside the relevant scope of this opposition.)  FN16   "Section 6006 is silent with respect to the extent of the Superior Court jurisdiction to make final disposition of the action once the title issue has been adjudicated." Bicknell, at 418.     6. "If plaintiff [e.g., Ly] fails to make adequate recognizance (and, presumably, to enter the action promptly in the Superior Court), the District Court must render judgment in defendant's [e.g., LaFortune’s] favor. See 2 Field, McKusick & Wroth, Maine Civil Practice §180D.3 (2d ed. 1970)." Bicknell at 418 [emphasis supplied]. Where Ly failed to recognize LaFortune’s recognizance and did not enter the action promptly in the Superior Court, the District Court was statutorily obliged to render judgment in LaFortune’s favor. The following is the conclusion reached by the Court in Bicknell as to the confluence of Rule 80D(i) and §6006: Rule 80D(i) is in "harmony with Section 6006. It clarifie[s] that . . . a forcible entry and detainer action could, in some manner, come into the Superior Court for a trial bearing on aspects of the merits of the action." Bicknell, at 417. Clearly,  given the noncompliance by Ly and the District Court with the relevant statutes, given the multiple acknowledgements by the District Court judge in footnote 1 of his memorandum and order that there were deficiencies and iregularities in the process followed by the City, and  given the explicit pronouncement by the Court in Town of Pownal v. Anderson, supra,that if the Town failed to perfect its title through the tax lien process, the defendants remained entitled to immediate possession of the property and that any departure – without explicit statutory permission -- from the statutory requirements will not be tolerated, the District Court did not have jurisdiction over the determination of title, making the court order void ab initio and unavailable for use under the doctrine of collateral estoppel, or issue preclusion. 5. The basis for the DA’s motion has no basis in constitutional, statu- tory, or common law: the one case he cites is a probation-revocation hearing, which is not analogous to the criminal trial required in this case. Moreover, Defendant-Probationer McKeil, having been already convicted of the underlying crime, and LaFortune, who has never been convicted, are not similarly situated. The case upon which the State here relies is State of Maine v. MacKeil, 461 A.2d 1054 (1983). The order upon which the State in MacKeil relied was a probation order, which arose out of an earlier conviction for a similar offense. The violation of that probation order formed the basis of the criminal trespass prosecution. Probation revocation involves a truncated hearing -- with no jury or formal rules of evidence, no right to counsel, and with a lower standard of proof -- that can result in a probationer's incarceration. [FN178: See 3 LaFave & Israel, supra note 36, at s 25.4(b)-(c), at 156 – 67.] The justification for the relaxation of the probationer's rights is that, although the specific probation violation must be adjudicated, the accused is also the convicted. As one court noted, "a criminal conviction after a trial at which the probationer was entitled to all the protections afforded a criminal defendant . . . certainly affords a more than sufficient basis for revocation of probation." [FN179: Roberson v. Connecticut, 501 F.2d 305, 308 (2d Cir. 1974).] Whereas the pre-conviction accused risks both stigmatization and loss of liberty, "the probationer risks not the absolute liberty to which every citizen is entitled, but only the conditional liberty properly dependent on observation of special probation restrictions." [FN180. State v. Maier, 423 A.2d 235, 239 (Me. 1980).] Probation revocation, therefore, represents a decision that the probationer's prior conviction justifies functional preclusion. The decision made by a judge at a revocation hearing is similar to the decision of whether to invoke issue preclusion. Both are made without a jury because a prior jury has already found the accused guilty beyond a reasonable doubt Richard B. Kennelly, Jr., Precluding the Accused: Offensive Collateral Estoppel in Criminal Cases, 80 Va. L. Rev. 1379, 1408 [emphasis supplied]. In sum, State v. McKeil is not analogous to the instant case. In fact, it is totally irrelevant.  Further, in that the law is in toto overwhelmingly counter to the proposition set forth in the State’s motion in the case at bar, the motion was frivolous, if not brought in bad faith with the expectation that LaFortune would be unable to muster a vigorous defense to the State’s assertion. Conclusion WHEREFORE, LaFortune prays the State’s motion be DENIED and that this court award attorneys’ fees to LaFortune’s counsel, who when they offered their services pro bono to LaFortune could not have anticipated having to meet a frivolous motion right out of the box. Respectfully submitted, Dorothy LaFortune,  By her attorneys, _____________________________________ Barbara C. Johnson, Esq., Mass. B.B.O.  6 Appletree Lane Andover, MA 01810-4102  978-474-0833   Local Counsel,  _________________________________________ Thomas A. Grossman, Esq., Maine B.B.O.  Grossman & Grossman, PC 40 Babcock Street P.O. Box 2011 Brookline, MA 02446 617-975-0005  9 September 2004 CERTIFICATE OF SERVICE I, Barbara C. Johnson, hereby certify that I caused to be emailed on 9 September 2004 and served by first-class mail on 11 September 2004 a true and accurate copy of this document on District Attorney Mark W. Lawrence, York County Courthouse, P.O. Box 399, 45 Kennebunk Road, Alfred, Maine 04002-0399. __________________________________ Barbara C. Johnson 9 September 2004


 

EXHIBIT A:  SUMMARY OF TITLE SEARCH (A RUNDOWN) The Judgment of Foreclosure and Sale, BID-94-CV-323, Saco and Biddeford Savings Bank v. Dorothy Ruel, dated 2/13/95 and recorded at Book 7390, page 271, on 4/21/95, but it appears not to have shown up at Registry. Two Notices of Impending Automatic §943 Foreclosures [Book 8622, Page 006, setting a foreclosure date of 12/29/97; and Book 9240, Page 327, setting a foreclosure date a year later, of 12/30/98] had undated notary signatures.\17/    FN17   Since 2000, a jurat of a notary must be dated; otherwise the jurat is defective. 32 M.R.S.A. §352(2), as amended [2001, c. 275, Pt. B, §1 (amd).]: A record of a deed or other instrument, . . . made prior to January 1, 2000 for the conveyance of real property, or of any interest in the property, and recorded in the registry of deeds of the county in which the real property is located is valid and enforceable even if: (2) [t]he records in relating to the title to real property fail to disclose the date when received for record or the records have not been signed by the register of deeds or other duly authorized recording officer for the county. In other jurisdictions, too, the date is required in the jurat of notary public. Com. v. Reynolds, 36 Mass.App.Ct. 963, 635 N.E.2d 254, 255 (1994) ("As to the jurat of a notary public . . . within Massachusetts, . . . the act of affixing one's signature and writing in the date on which one's commission expires is formality adequate to the occasion").  Five Notices of Impending Automatic §943 Foreclosures were filed AFTER the scheduled foreclosure date: e.g., notices filed in Book 8622, Page 006; Book 9240, Page 327; Book 8732, Page 069; Book 9825, Page 163; and Book 9825, Page 237.\18/ Where Notice of Impending Automatic Foreclosure is filed AFTER the scheduled date for sale, the Notice is not notice.   FN18   The Notices included claims by the City that demands for payment were made of LaFortune, but none of the Notices included the dates of demands. Given the lack of safeguards of a homeowner’s fundamental right to own real property, the statute is likely unconstitutional. One Municipal Lien Certificate, recorded in Book 7096, Page 004, was discharged in Book 11771, at both Page 292 and Page 293. Two Municipal Lien Certificates to which two Notices of Foreclosure (those at Book 9825, Page 163, and Book 9825, Page 2370) referred were not recorded. The Notice of Impending Automatic Foreclosure (a) recorded in Book 9825, Page 163, (b) pursuant to 14 M.R.S.A. §943, and (c) of a non-existent or, at the very least, un-recorded Municipal Lien Certificate for Sewer arrearages has no effect, given that it is not a notice pursuant to the applicable statute, namely, 38 M.R.S.A. 1208. The Municipal Lien Certificate recorded in Book 9515, Page 141, pursuant to 14 M.R.S.A. §§942, 943 for Sewer arrearages has no effect, given that it is not the lien that is required under 38 M.R.S.A. 1208, which sets forth explicitly the lien to be used for sewer arrearages. The Municipal Lien Certificate recorded in Book 10060, Page 125, pursuant to 14 M.R.S.A. §§942, 943 for Sewer arrearages has no effect, given that it is not the lien that is required under 38 M.R.S.A. 1208, which sets forth explicitly the lien to be used for sewer arrearages. There was no recording of Notice of Impending Automatic Foreclosure on the Municipal Lien Certificate recorded on 6/10/92 in Book 11695, Page 199. It was this foreclosure which culminated in the alleged sale of LaFortune’s Graham Street property to Tim Q. Ly. Under 36 M.R.S.A. §943, the City was not to issue a Quitclaim Deed until after the period of redemption, but held onto it only a 2½ weeks after the purported acceptance on 4 June 2002 of Tim Q. Ly’s allegedly sealed bid, made on 22 May 2002. Note: On 4/10/02, the City published that the foreclosure sale pursuant to 36 M.R.S.A. §§841, 942, and 943 would take place on 22 May 2002 and that the bids would be opened, reviewed, and awarded on 5 June 2002. They were opened on 22 May 2002 and approved on 4 June 2002. The Bottom Line: Between 1991 and 1994, there were recorded municipal liens primarily for sewer arrearages and one for taxes. All of them appear to have been discharged by actual payment. During April 1995, the Saco & Biddeford Savings Institution was granted a judgment of foreclosure and sale of the property located at 22 Graham Street in Biddeford, but that institution never did foreclose. According to Attorney Roger Elliott, a mistake had occurred in the processing of the foreclosure and caused a fatal noncompliance with the applicable statute. After 1995, there was either waiver of the right to sell or noncompliance by the City. If and when the Notices of Impending Automatic Foreclosure were in compliance with 36 M.R.S.A. §943, the city took ownership of the Graham Street property by operation of law when the liens were automatically foreclosed upon expiration of the period for redemption.  The following are examples of the conduct of the City of Biddeford after it filed its Notices of Impending Automatic Foreclosure pursuant to 36 M.R.S.A. §943: failed to record discharges of those tax liens until 6/24/02, after it had sold the property to Tim Q. Ly, as also required under 36 M.R.S.A. §943, repeatedly failed to conduct a sale on any of the dates set out explicitly in the Notices,  repeatedly waived its ownership of the property when it sent Dorothy LaFortune (a/k/a Dorothy Ruel) tax bills for each of the ensuing years, and repeatedly caused a growing cloud on the title, inhibiting the sale of the property. By the above conduct in (a) through (d), the City repeatedly waived its rights to ownership.  And in addition to the above conduct, the City sent LaFortune ["Dorothy Ruel"] a tax bill in 2003, which she paid and received a receipt. See figures on next page. With that bill, the City was continuing to consider LaFortune the owner of the Graham Street property. When the foreclosure sale was advertised on 4/10/02, the following – according to the Registry records – were true:  there were three municipal instruments that had been recorded but not either discharged or waived or reincarnated either by statute or by judicial process; they were:


 

Figure 1. Tax bill for period from July 1, 2002 through June 30, 2003 after the alleged purchase by Tim Q. Ly of the property

Figure 2. Receipt for Tax Payment Installment

Municipal Lien Certificate – Sewer Charges -- dated 06/06/01 in the amount of $564.13 plus interest of $53.60 and $34.74 in costs, and recorded in 6/7/01 in Book 10698, Page 200.  Municipal Lien Certificate dated 06/06/01 in the amount of $1630.53 plus interest of $70.60 and $34.74 in costs and recorded on 6/07/01 in Book 10699, Page 214.  Municipal Lien Certificate dated 06/10/01 in the amount of $1523.78 plus interest of $72.97 and $34.94 in costs, and recorded on 6/10/02 in Book 11695, Page 199.  When the sale occurred on 22 May 2002, the period of redemption on none of them had expired.  When the sale occurred on 22 May 2002, the City had not made a statutorily proper demand on LaFortune for payment of any of the three liens.  When the sale occurred on 22 May 2002, the City had not recorded a Notice of Impending Automatic Foreclosure for any one of them.  In sum, the City had not complied with §§942 and 943, thereby causing the bidding and subsequent sale of the Graham Street property to be unlawful, as well as causing the order allowing the Writ of Possession to be an unlawful order.  Moore v. Dick, 187 Mass. 207, 211-212, 72 N.E. 967 (1905), where the court, in setting aside a foreclosure sale on account of defective notice, stated: "It is familiar law that one who sells under a power (of sale) must follow strictly its terms. If he fails to do so there is no valid execution of the power and the sale is wholly void ... (citations omitted). The manner in which the notice of the proposed sale shall be given is one of the important terms of the power and a strict compliance with it is essential to the valid exercise of the power." McGreevey v. Charlestown Five Cents Sav. Bank, 294 Mass. 480, 483-484, 2 N.E.2d 543 (1936). Tamburello v. Monahan, 321 Mass. 445, 447, 73 N.E.2d 734 (1947).  Bottomly v. Kabachnick, 434 N.E.2d 667, 670, 13 Mass.App.Ct. 480, (1982). [¶18] The automatic foreclosure of a tax lien under section 943, upon the failure to redeem, divests an owner of her equity of redemption. See City of Auburn v. Mandarelli, 320 A.2d 22, 30 (Me. 1974). We have stated that:   after the filing of the tax lien certificate and notice properly given thereon and the passage of eighteen months' time, during which the taxes remain unpaid, complete record title to the property is placed in the municipality. The former owner's right of redemption and in fact his title are extinguished. Morissette v. Connors, 350 A.2d 332, 333 (Me. 1976).{13}\19/ In addition, "[u]nder Maine law, a mortgage on real property is a conditional conveyance with legal title vested in the mortgagee." Duprey v. Eagle Lake Water and Sewer Dist., 615 A.2d 600, 602 (Me. 1992). "The mortgagor retains only the right to possess the premises and the equity right of redemption." Id. (citing Martel v. Bearce, 311 A.2d 540, 543 (Me. 1973)). Because tax lien foreclosures vest full and unencumbered title in the municipality upon the failure to redeem, pursuant to section 943, the mortgagees' interests appear to be divested as well.{14}  Ocwen Federal Bank, FSB v. Anne Gile et al., 2001 ME 120, ¶18 (2001) (Yor-00-625). Unfortunately, the Court in Ocwen wrote: " This opinion does not address the issue of post-deadline waiver of an automatic foreclosure deadline" [id., at n. 8]. Neither does it address the issue with which LaFortune is concerned here.  FN19  {13} . See also Magno v. Town of Freeport, 486 A.2d 137 (Me. 1985) (stating "in the absence of contrary provisions by statute or constitution, a municipality's title to property acquired under the tax-lien-mortgage- foreclosure statute . . . is absolute" and the municipality has "no duty to reconvey the property to the former taxpayer-owner on any theory of equity and good conscience" if payment is then tendered).  Ocwen, 2001 ME at ¶18 n. 13. The issue here appears to be one of first impression: Whether a city waives its absolute ownership when it sends a tax bill to the mortgagor – i.e., the owner of the property prior to the foreclosure -- on a date after the foreclosure but before a sale of the property to a third-party. LaFortune contends that Biddeford waived its absolute ownership each and every time it failed to sell the property and continued to send her tax bills. And further, when the City failed to follow the foreclosure procedures of §§ 942 and 943, it did not re-acquire ownership of her Graham Street property.