Linda D. Thompson
Attorney at Law*
200 Reynolds St.
Brundidge, AL 36010
Telephone- (334) 735-9050 Internet: Lindat@snowhill.com
*Admitted in Indiana, Georgia
February 10, 1998
Ms. Nancy McGillivray
By fax to: 1-617-223-9726
Dear Ms. McGillivray:
For the past month, the Sweeneys have offered a substantial sum to satisfy the current lien claimed by the FDIC. Chairman Andrew Hove admitted publicly that the amount offered was sufficient to satisfy the liens on the property, which I confirmed in writing, repeatedly, as you know from the copies I have sent you of letters I have sent to the FDIC over the past three weeks. FDIC has not denied nor refuted these confirmations, thereby rendering these confirmations admitted pursuant to the Uniform Commercial Code.
The problem apparently is not the "judgment" or "satisfying the judgment" because despite the fact FDIC has admitted that the money is sufficient, they refuse to accept it or to release their judgment and are simply ignoring us. This is in violation of their legal duties.1 In the meantime, they are releasing a 14-page "press kit" which contains numerous factually false statements very obviously in efforts by the FDIC to smear the Sweeneys, hoping thereby to reduce public inquiry into the illegality of their conduct and the eviction itself. These are the tactics of thugs, not responsible public servants.
I was just advised that a neighbor of the Sweeneys was approached recently by the local police chief and U.S. Marshals about setting up surveillance on the Sweeneys. The neighbor declined to allow this surveillance to be conducted from this neighbor's premises. The neighbor and the neighbor's job and the safety of the neighbor's children are now apparently being threatened by persons in banking. These threats are crimes which the U.S. Marshals service can investigate or refer for investigation and prosecution and you are requested to investigate these threats immediately.
You are also requested to notice that the one person who has shown up at the property armed and in fatigues, was State Representative Tim Clark, whose family apparently owns a substantial interest in Wainwright Bank. Clark appeared at the property in this garb, got his mug on TV cameras, thereby creating the image the FDIC wants to create of wild-eyed loonies on the property. Clark was not in fact supporting the Sweeneys, but the interests of FDIC.
Pursuant to 28 U.S.C. #2464,2 copy attached, it would appear you have the authority to stay proceedings upon payment of a bond. While #2464 speaks to admiralty cases, for numerous reasons too long to go into here, but which I would be happy to discuss with your counsel, you should have this same authority in this case, too. Alternatively, since the eviction ostensibly is so that the FDIC can sell the property in satisfaction of its judgment, it makes no sense to evict people who are offering a sum which the opposing party has publicly admitted is sufficient to satisfy the judgment that is the purported basis for the eviction.
The Sweeneys are prepared to tender $100,000.00 of the sum they proposed to the FDIC on January 12, within three days and the remainder within 45 days, thereby tendering the full amount they offered in their second proposal and which the FDIC agreed was sufficient to satisfy their claims. It is my hope that this will then put the FDIC in a position of either accepting the money in satisfaction of their judgment or explaining why not.
Secondly, information we have made available to you is sufficient to demonstrate that the order you have been provided to enforce is not lawful.
I implore you to uphold your sworn oath of office and duties:
28 U.S.C. #563; "The Director and each United States marshal and law enforcement officer of the Service, before taking office, shall take an oath or affirmation to faithfully execute the duties of that office."
28 U.S.C. #566(c) "Except as otherwise provided by law or Rule of Procedure, the United States Marshals Service shall execute all lawful writs, process, and orders issued under the authority of the United States, and shall command all necessary assistance to execute its duties."
See also footnote 1, 31 U.S.C. #371. As the head of an executive branch agency, you are prohibited from acting, on an unlawful claim. The FDIC is also precluded from continuing its present actions for the same reason. They have also already admitted this case has cost well in excess of the value of the property.
Specifically, the Sweeneys have provided you with over a ream of evidentiary material that demonstrates the order you hold is not lawful and was issued as the result of fraud, and was issued wholly without authority or jurisdiction. A short summary, supported by the material you have in your possession, which includes the relevant court dockets and supporting motions and orders, an affidavit by John Hanify and other relevant material is:
THE ORDER OF EVICTION IS UNLAWFUL:
A. LACK OF JURISDICTION: Specifically, the Federal Court never acquired jurisdiction of the case, therefore, everything done in the Federal Court was void ab initio (from the outset).
Contrary to the FDIC's claims of "it's resjudicata" or "it's been up to the Supreme Court and back ' " no court has reviewed this issue. The trial Court and the court of appeals reviewed only an issue of "venue," however, the issue of Jurisdiction arises only under the authority of the U.S. Constitution. It is not waiverable. U.S. Const. Art. III, Sec. 2, C, 1. 3 and see 28 #U.S.C. 1441. 4 Jurisdiction was a threshold issue that was never addressed at all. If the federal court had no jurisdiction, nothing that occurred in the federal court subsequently has any legal standing whatsoever, it is void.
The lack of jurisdiction occurred because under 28 U.S.C. #1446,5 the RTC had 30 days to remove, when a basis for federal jurisdiction became known. That basis occurred when the RTC was appointed Conservator of ComFed on December 12, 1990. A federal statute allows the RTC to elect to proceed in federal court, thereby invoking 28 U.S.C. #1441 and removing according to 1446. Therefore, the RTC had 30 days to remove once RTC became a party to the case. The RTC did not become a party to the case until January 14, 1991 -- more than 30 days after it could have removed. Subsequently, John Hanify, the RTC's attorney, engaged in an elaborate charade, which has involved record tampering and obstruction of justice -- both of which are federal crimes -- by a Federal Court clerk, as well as John Hanify, who physically removed the entire original State Court file and secreted it in his office, and presented less than all of it to the federal Court.
A file stamped copy of Hanify's "Notice of Removal," dated January 30, 1991, by the Middlesex (State) Court, also demonstrates that the RTC's removal did not occur by January 11, 1991 (within 30 days). This notice to the Court was required by § 1441 to be served "promptly" upon filing a notice of removal with the Federal Court, 28 U.S.C. #1441 (and within 30 days or by January 11, 1991). Not only does the file-stamp on the date this notice was provided to the State Court show the notice was not served before January 11, the case could not have been removed since the RTC was not a party, if it ever was, before January 14, 1991, the date Judge Sullivan of the Middlesex Court granted RTC's motion to substitute.
In fact, the only contemporaneous evidence that even gives the appearance that a removal occurred on January 11, 1991, is a federal court file-stamped "Notice of Removal" stamped as "received" on January 11, 1991, but even this "Notice of Removal" was not actually entered in the federal court until February, which the Federal Court's own computer records show.
The January 11 file stamp, however, raises the issues of obstruction of justice and tampering with official records, not some mere clerical correction, since the RTC was not substituted into the case on January 11 and could not have removed nor could Hanify have filed a notice of removal on that date. In other words, it is evidence of criminal conduct that to date has gone unprosecuted.
The existing Court dockets plainly show this case was not removed from the State Court and could not have been because the RTC was never a party before the removal deadline of January 11, 1991.Secondly, this fact is admitted by the FDIC and the RTC because in Federal Court, the FDIC itself filed a belated motion years later to substitute the RTC into this case, which was never granted. If the RTC was never a party, federal authority -- the statute allowing the RTC to remove to federal court -- was never invoked and there was no basis that would have allowed the case to be removed to federal court at all.
A final proof that this case was not removed to federal court is that ComFed, by its attorney, John Hanify, took an appeal of the State Court case-to the Massachusetts Appellate Court. That Appeal was pending in the Massachusetts Appellate Court in January 1991 when he claimed to have "removed" the case from the trial court to the Federal Court. In January, contemporaneous to his claimed date of "removing" the action to federal court, John Hanify filed a motion with the Massachusetts Appellate Court to extend the time to file the brief in the pending appeal. On February 15, 1991, after his claimed "removal" to federal court, Hanify filed a motion to dismiss the appeal, which was denied. The appeal was not dismissed until April, 1991 -- months after the supposed so-called "removal" to federal court. Hanify never even attempted to remove the case from the Massachusetts Appellate Court, either. I attach a copy of the State Appellate Court's docket proving this. 6
B.COLLUSION AND ILLEGAL CONDUCT BY JUDGE EDWARD HARRINGTON (WHO ISSUED THE ORDER YOU ARE ASKEDC TO ENFORCE):
JOHN HANIFY is the original lawyer for ComFed Savings Bank, who then represented the government's Resolution Trust Corp. (RTC), the agency that took over the failed bank and was supposed to investigate the fraud of the bank's officers and lawyers. (A clear conflict of interest). His law firm is HANIFY& KING.
EDWARD HANIFY is John Hanify's father. Ed Hanify's law firm is ROPES and GRAY. Ropes and Gray also appeared in the case after Hanify took it to Judge Harrington.
Federal Judge EDWARD HARRINGTON formerly worked with John Hanify in the U.S. Attorney's office in Boston and continued to work in the U.S. Attorney's office, when Hanify became involved in this case, and then became the judge in the case, with Hanify appearing before him representing the RTC.
Harrington is the Judge to whom John Hanify took the Sweeneys' State Court file, who threw out the Sweeneys' judgment, but who allowed the $1.6 million judgment against them to stand (both judgments were from the same State court case), and who subsequently issued the "orders of eviction" you say you plan to enforce.
Judge Harrington was nominated to his current position by Ted Kennedy. Ed Hanify (John Hanify's father) testified before Congress on behalf of Judge Harrington's nomination (the Massachusetts Bar Association, however, testified against his nomination).
Ed Hanify's law firm, Ropes and Gray, represented Ted Kennedy in the Chappaquiddick litigation. Kennedy owes his career to Ropes and Gray, and Judge Harrington owes his Federal Judgeship to both Kennedy and to Ropes and Gray. Ropes and Gray appeared in the case before Harrington on the issue of Hanify's fraudulent removal of the file, and Harrington allowed a wholly bogus group "affidavit" to be submitted in evidence to "prove" Hanify had removed this case. John Hanify, Harrington's former associate, was very plainly also a material witness.
Everyone of the above is reasons Harrington was disqualified from acting in this case.
However, finally, Judge Ed Harrington's son WILLIAM T. HARRINGTON, went to work for John Hanify's lawfirm while the Sweeneys' case was before Judge Harrington and has worked there for the past two years. Thus, Harrington Issued these orders you have two of which Issued as recently as 1997 -- Illegally, because there Is no question he was dis-qualified to act in this case.
The law mandating his disqualification, aside from the Canons of Judicial Ethics, is (28 U.S.C. 455.
The enforcement of an order which you know, or should know, and have plenty of reason to know, is unlawful, would be in violation of your duties to the public and your sworn oath of office.
Additionally, the authority of the U.S. Marshals, as you know, includes serving process and summons, but does not include forcibly ejecting anyone from property that is not within the territorial boundaries of the United States itself, which only includes Washington, D.C. and "needful buildings" such as the Federal Court (U.S.Const. Art. 1, Sec. 8, Cl 17).7 The U.S. Constitution affords no such authority to the United States, and the 10th Amendment 8 to the U.S. Constitution strictly forbids it. Until and unless the FDIC records and domesticates its judgment 9 in a Massachusetts court and obtains a writ of assistance directing the local Sheriff to evict the Sweeneys, the eviction itself will be an unlawful seizure.
Under the present circumstances, if the Sweeneys are evicted, that eviction will be unlawful. Rest assured that the Sweeneys will exercise their full legal remedies to require each and every person who had a legal obligation and duty to obey and uphold the law, and failed to do so, to account for their conduct in criminal and civil proceedings, and before Congress. While the Sweeneys certainly can proceed with these remedies even if they are evicted, the eviction and the seizure of their property under the circumstances, will be one more wrong done to them that could have and should have been prevented if those responsible for upholding the law, including yourself, would simply do so.
"A federal officer who, in the performance of what he conceives to be his official duty, transcends his authority and invades private rights, is liable to the individuals injured by his actions:' See, e.g., Hathcote v. State, 55 Ark. 183, 17 S.W. 721 (1891); In re Lewis, 83 Fed. 159 (D. Wash., 1897), as cited in the Report of the Interdepartmental Committee for the Study of Jurisdiction over Federal Areas within the States (committee members: U.S. Attorney General, Asst. Attorney General, General Counsel for the Department of Defense, General Counsel for GSA, Legal Adviser fo rthe bureau of the budget, Solicitor for the Department of the Interior, General Counsel for the Department of Agriculture, General Counsel for the Department of Health, Education and Welfare, General Counsel of the Veterans' Administration, and others)U.S. Govt. Printing Office, April 1956, and Bivens v. Six Unknown Named Agents of the Federal Narcotics Bureau, 403 U. S. 3 88(1971).
Very truly yours,
FOOTNOTES AND ATTACHMENTS:
1. 31 U.S.C. & 3711, Collection and compromise
(a)The head of an executive or legislative agency
(1)shall try to collect a claim of the United States Government for money or property arising out of the activities of, or referred to, the agency;
(2)may compromise a claim of the Government of not more than $100,000 (excluding interest) or such higher amount as the Attorney General may from time to time prescribe that has not been referred to another executive or legislative agency for further collection action; and
(3)may suspend or end collection action on a claim referred to in clause (2) of this subsection when it appears that no person liable on the claim has the present or prospective ability to pay a significant amount of the claim or the cost of collecting the claim is likely to be more than the amount recovered,
2. 28 U.S.C. #2464, Security: special bond
(b)The Comptroller General has the same authority that the head of the agency has under sub section (a) of @ section when the claim is referred to the Comptroller General for further collection action. Only the Comptroller General may compromise a claim arising out of an exception the Comptroller General makes in the account of an accountable official.
(c)(1) The head of an executive or legislative agency may not act under subsection (a)(2) or (3) of this section on a claim that appears to be fraudulent, false, or misrepresented by a party with an Interest in the claim, or that is based on conduct in violation of the antitrust laws.
(2)The Secretary of Transportation may not compromise for less than $500 a penalty under section 6 of the Act of March 2, 1893 (45 U.S.C. 6), section 4 of the Act of April 14, 1910 (45 U.S.C. 13), section 9 of the Act of February 17, 1911 (45 U.S.C. 34), and section 25(h) of the Interstate Commerce Act (49 App, U.S.C. 26(h)).
(d)A compromise under this section is final and conclusive unless gotten by fraud, misrepresentation, presenting a false claim, or mutual mistake of fact. An accountable official is not liable for an amount paid or for the value of property lost or damaged if the amount or value is not recovered because of a compromise under this section.
(e)The head of an executive or legislative agency acts under-
(1)regulations prescribed by the head of the agency; and
(2)standards that the Attorney General and the Comptroller General may prescribe jointly.
(f)OMITTED (details of compromising claims.)
(a) Except in cases of seizures for forfeiture under any law of the United States, whenever a warrant of arrest or other process in rem is issued in any admiralty case, the United States marshal shall stay the execution of such process, or discharge the property arrested if the process has been levied, on receiving from the respondent or claimant of the property a bond or stipulation in double the amount claimed by the libellant, with sufficient surety, to be approved by the judge of the district court where the case is pending, or, in his absence, by the collector of the port, conditioned to answer the decree of the court in such case. Such bond or stipulation shall be returned to the court, and judgment or decree thereon, against both the principal and sureties, may be secured at the time of rendering the decree in the original case. The owner of any vessel may deliver to the marshal a bond or stipulation, with sufficient surety, to be approved by the judge of the district court, conditioned to answer the decree of such court in all or any cases that are brought thereafter in such court against the vessel. Thereupon the execution of all such process against such vessel shall be stayed so long as the amount secured by such bond or stipulation is at least double the aggregate amount claimed by libellants in such suits which are begun and pending against such vessel. Similar judgments or decrees and remedies may be had on such bond or stipulation as if a special bond or stipulation had been filed in each of such suits.
3. U. S. Constitution, Article III Sect. 2. (Jurisdiction of the Federal Courts)
(b)The court may make necessary orders to carry this section into effect, particularly in giving proper notice of any such suit. Such bond or stipulation shall be indorsed by the clerk with a minute of the suits wherein process is so stayed. Further security may be required by the court at any time.
(c)if a special bond or stipulation in the particular case is given under this section, the liability as to said case on the general bond or stipulation shall cease. The parties may stipulate the amount of the bond or stipulation for the release of a vessel or other property to be not more than the amount claimed in the libel, with interest, plus an allowance for libellant's costs. In the event of the inability or refusal of the parties to so stipulate, the court shall fix the amount, but if not so fixed then a bond shall be required in the amount prescribed in this section.
"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State or the citizens thereof, and foreign states, citizens, or subjects."
4. 28 U.S.C. 1441. Actions removable generally
"(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.
5. 28 U.S.C. #1446. Procedure for removal
"(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
"(c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.
"(d) Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury. Where removal is based upon this subsection, the time limitations of section 1446(b) of this chapter may be enlarged at any time for cause shown.
"(e) The court to which such civil action is removed is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have jurisdiction over that claim."
"(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process pleadings, and orders served upon such defendant or defendants in such action.
6. 28 U.S.C. 4 455, Disqualification of justice, judge, or magistrate
"(b) The notice of removal of a civil action or proceeding shall be filed witnin thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
"If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.
"(c)(1) A notice of removal of a criminal prosecution shall be filed not later than thirty days after the arraignment in the State court, or at any time before trial whichever is earlier, except that for good cause shown the United States district court may enter an order granting the petitioner leave to file the notice at a later time.
"(2) A notice of removal of a criminal prosecution shall include all grounds for such removal. A failure to state grounds which exist at the time of the filing of the notice shall constitute a waiver of such grounds, and a second notice may be filed only on grounds not existing at the time of the original notice. For good cause shown, the United States district court may grant relief from the limitations of this paragraph.
"(3) The filing of a notice of removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded.
"(4) The United States district court in which such notice is filed @ examine the notice promptly. If it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand.
"(5) If the United States district court does not order the summary remand of such prosecution, it shall order an evidentiary hearing to be held promptly and after such hearing shall make such disposition of the prosecution as justice shall require. If the United States district court determines that removal shall be permitted, it shall so notify the State court in which prosecution is pending, which shall proceed no further.
"(d) Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.
"(e) If the defendant or defendants are in actual custody on process issued by the State court, the district court shall issue its writ of habeas corpus, and the marshal shall thereupon take such defendant or defendants into his custody and deliver a copy of the writ to the clerk of such State court.
"(f) With respect to any counterclaim removed to a district court pursuant to section 337(c) of the Tariff Act of 1930, the district court shall resolve such counterclaim in the same manner as an original complaint under the Federal Rules of Civil Procedure, except that the payment of a filing fee shall not be required in such cases and the counterclaim shall relate back to the date of the original complaint in the proceeding before the International Trade Commission under section 337 of that Act."
(a)Any justice, judge, or magistrate of the United States shall disqualify himself In any proceeding in which his impartiality might reasonably be questioned.
6. Massachusetts Appellate Court Docket showing pending appeal by ComFed and action taken after purported "removal"
(b) He shall also disqualify himself in the following circumstances:
(1)Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidential facts concerning the proceeding-,
(2)Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3)Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4)He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5)He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i)Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii)Is acting as a lawyer in the proceeding;
(iii)Is known by the judge to have an Interest that could be substantially affected by the outcome of the proceeding;
(iv)Is to the judge's knowledge likely to be a material witness in the proceeding.
(c)A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
(d) For the purposes of this section the following words or phrases shall have the meaning indicated:
7. U. S. Const. Art. 1, Sec. 8, CL 17 (legislative authority of Congress and from which the powers of U.S. Marshals are delegated):
"To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the states in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;"
8. U. S. Constitution 10th Amendment
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
9. 28 U.S.C. § 1962. Lien (necessity to domesticate judgment; see also 10th Amendment)
Every judgment rendered by a district court within a State shall be a lien on the property located in such State in the same manner, to the same extent and under the same conditions as a judgment of a court of general jurisdiction in such State, and shall cease to be a lien in the same manner and time. This section does not apply to judgments entered in favor of the United States.
Whenever the law of any State reguires a judgment of a State court to be registered, recorded, docketed or indexed, or any other act to be done, in a particular manner, or In a certain office or county or parish before such lien attaches, such requirements shall apply only if the law of such State authorizes the judgment of a court of the United States to be registered recorded, docketed, indexed or otherwise conformed to rules and requirements relating to judgments of the courts of the State,