Adverse Possession, Elements of

Possession must be:

1. Continuous for the statutory period.

a) No physical interruption or court action seeking possession

b) at common law the statutory period is twenty years

2. Open & notorious

a) the possession is visible so as to give the owner reasonable notice that the possessor is claiming ownership

b) this is so that the owner can defend his rights

3. Hostile and adverse

a) the possession must be under a claim of right [possessor actually believes that he owns the property], or possessor acknowledges he has no right to enter the property, but he has the intent to claim it for his own.

i. a minority of courts don’t allow a knowingly wrongful possessor to gain title, not wanting to reward a thief.

4. Exclusive

a) Can’t share possession with owner or public in general

5.  If all four elements are satisfied, the original owner can no longer exclude the adverse possessor who holds new title.

6.  Possession itself can be indicated by facts like fencing, living on the property, acts of possession as well as paying taxes (taxes alone is insufficient) or any other use a true owner would make of the property.

ECHO: Exclusive, Continuous, Hostile, Open

Subleases Masquerading As Assignments

The operative phrase is “entire interest” and whether or not this refers to the time left on the lease or the percent acreage. You can have a legal assignment of 100% of the acreage, but there must not be any time remaining on the lease term which will revert back to the assignor, otherwise what you’ve really got on your hands is a sublease of 100% of the parcel.

What is an assignment of a lease?

An assignment occurs when a tenant transfers away the entire remainder of his lease, in terms of duration.

Real property rights can be assigned just as any other contractual right. However, special duties and liabilities attach to transfers of lease interests. With an assignment, the assignor transfers the complete remainder of the lease term to the assignee. The assignor must not retain any sort of reversionary interest in the right to possess. If any portion of the original lease term is reserved by a tenant assignor, then the act is not an assignment, but instead is a sublease. Read more

Debt Arbitration Cases May Be Set Aside

OK, now that you’ve used Rule 12 to set aside the bank’s civil court judgment against you for lack of subject matter jurisdiction, there’s still hope even if you lose at Arbitration because of allegations of consumer fraud against The National Arbitration Forum.

Steal This Motion and Avoid a Debt Collection

IN THE ________ COURT OF ________ COUNTY,

ALABAMA

_________________________, Plaintiff

v.

CIVIL ACTION No. _____________________

_________________________, Defendant

MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

Defendant moves pursuant to Rule 12(b) of the Alabama Rules of Civil Procedure to dismiss the above-styled action and the associated judgment for the plaintiff in the amount of $_____________ awarded on the ______ day of _______________, 20______, on the ground that the Court lacks jurisdiction over the subject matter presented by the Complaint in that the plaintiff creditor seeks money damages for an account stated which is governed by an “arbitration only” clause appearing at Section 12.4 in the Credit Agreement between plaintiff and defendant, as amended and dated the _______ day of ____________, ________, which is attached hereto as “Exhibit A” and made a part hereof. Therefore, the above-styled action is not within the jurisdiction of this court and properly belongs before the American Arbitration Association as stated in the Credit Agreement.

This the _____ day of _________________, 20____.

________________________________

Attorney for _______________________

________________________________

Address

COMMENTARY:

In the modern world of consumer credit, most banks and lenders use their superior bargaining position to force you to sign an arbitration agreement that provides for arbitration as the sole method of dispute resolution including collection of the loan should you become past due on the payments. This is great for the lender if they actually follow through and take you to an arbitrator where you will be deprived of the rules of civil procedure, due process of law and a trial by jury.  Arbitration takes away most of the traditional tools that were available to a debtor who was seeking to avoid court ordered enforcement of a bad debt. Although you have consented to arbitration, more often than not your past due debt will be assigned along with all the other past due accounts in your district to a huge collection portfolio at a local law firm who prefers to handle all their business in the local state court for economic and political reasons (your bank and the collection attorneys fund the re-election campaigns of many judges). This is especially true when you have a smaller debt. In Alabama, your case will usually go before a District Court Judge where judgment will normally be entered against you so long as the creditor can prove you are in fact the actual debtor and are past due. You will have to pay to appeal the ruling to Circuit Court for a new trial if you feel that procedure or law was not properly applied in your case. More often than not, you will have to appeal two more times to the Court of Civil Appeals and Alabama Supreme Court where you will likely not get a reversal, but only an order for a new trial at Circuit Court that must be conducted consistent with the ruling of the Supreme Court. You will have to pay for the filing fees, your attorney’s fees and if you lose the bank’s costs and attorney’s fees.  At this point, the court costs and attorney’s fees will probably have exceeded the amount of the original debt if it was less than $5,000.

What most folks don’t realize is that when they signed the arbitration agreement they made a forum choice which removed their debt from the subject matter jurisdiction of the state courts. So, even if the collection attorney manages to get a judgment, it is void for lack of subject matter jurisdiction upon petition under Rule 12, and you may make a motion to have the judgment thrown out at any time, even years after it was entered. The only problem with that course of action is that after the civil court judgment is voided, the creditor may decide to take you to arbitration and if you lose the creditor will record the arbitration judgment to replace the voided civil judgment. This places you right back where you started from. However, this strategy can buy you some valuable time to file bankruptcy, keep your wages ungarnished and liquidate assets before the bankruptcy trustee takes control of the assets in your bankruptcy estate. As we’ve learned from O.J. Simpson, a judgment is worthless if the judgment creditor is unable to attach it to your wages or property. So, an arbitration agreement can actually work in your favor some of the time. A good arbitration agreement allows the creditor to choose either arbitration or civil court, but one would be surprised at how many lenders select arbitration as the sole source of dispute resolution in their lending agreement and at how many collection attorneys refuse to arbitrate, because they are too lazy to manage multiple dockets in both civil court and arbitration, hoping that the debtor will not challenge the lack of subject matter jurisdiction. In addition to challenging subject matter jurisdiction, you could even bring a breach of contract claim against your creditor for their refusal to arbitrate and a litigation accountability action against the collection attorney for suing you in civil court when he knew that you had agreed to arbitration.