E-mail from the AASPO regarding misconduct by Judge Ney
Subject: Judge Ney
Date: June 12, 2007 7:23:21 PM EDT
Judge Ney's misfortune last year was no accident. We worked to defeat his
promotion, based on our involvement with the Caudle case. See summary of our
actions and press release below. Unfortunately, the Virginia Supreme Court did
not accept the case for review, so we were never able to overturn his decision.
AASPO BLOCKS APPOINTMENT OF ACTIVIST JUDGE in Virginia who was supported by
the Democrats and the trial lawyers. AASPO campaigned to "Just Say Nay to Ney."
At the start of the Virginia legislative session in early January 2006, AASPO
contacted key legislators to voice opposition to the appointment of Justice
Terrence Ney, a local trial judge in Fairfax, to the Virginia Court of Appeals.
We highlighted the case of Caudle v. FBA, where Judge Ney held that a
Virginia lender could collect over $150,000 in attorneys fees to defend a $43,000
mortgage, even though Judge Ney admitted that the lender failed to mitigate
damages and the mortgage was procured by the fraud of a convicted real estate felon
The case is of great significance and has all the necessary elements to show
what can go wrong with the Virginia courts: judicial activism, equity
stripping, and an award of excessive attorneys fees.
AASPO filed an amicus brief urging the Virginia Supreme Court to accept the
case for review and overturn this harmful decision. Joining on the AASPO
amicus brief were four Virginia-based organizations: Virginia Land Rights Coalition
of McDowell, Virginia Poverty Law Center of Richmond, Virginia Property
Rights Coalition of Christiansburg, and Virginians For Property Rights of Manassas.
Stephen Merrill of Norfolk serves as local counsel. On Tuesday, January
3rd, the Virginia Supreme Court accepted the AASPO amicus brief. This is a
noteworthy milestone in that there are no rules of court guaranteeing that amicus
briefs will be accepted.
We then learned that Justice Ney neglected to provide the appellate court
with a record
, delaying review of the case. The Virginia Supreme Court accepts
very few cases for review and will reject an appeal for technical reasons.
Judge Ney failed to provide documents that should have been routinely included,
leaving an impartial observer to wonder whether this wasn't done purposely so
the case will not be reviewed and his decision not be examined and reversed.
Fortunately, we were able to take corrective action and filed a supplemental
letter in support of the petitioners.
We put the question to the Republican leadership: Should Ney be promoted?
The answer came back that Judge Ney will not be moving to the appeals court this
AMERICAN ASSOCIATION OF SMALL PROPERTY OWNERS
"restoring common sense to regulation"
FOR IMMEDIATE RELEASE CONTACT: F. Patricia Callahan
November 18, 2005 202-244-6277 firstname.lastname@example.org
AASPO CONDEMNS JUDICIAL ACTIVISM AND URGES VIRGINIA'S HIGH COURT TO OVERTURN
EQUITY STRIPPING IN AWARD OF EXCESSIVE ATTORNEYS FEES
Washington, DC. AASPO condemns a recent Virginia state court decision that
strips property owners of all equity in their property. On August 18th, a
Fairfax Court held that a Virginia lender could collect over $150,000 in attorneys
fees to defend a $43,000 mortgage, even though the trial judge admitted the
lender failed to mitigate damages and the mortgage was procured by the fraud of
a convicted real estate felon. AASPO, joined by four Virginia-based
organizations, filed an amicus brief today urging the Virginia Supreme Court to accept
the case for review and overturn this extremely harmful decision.
"We are alarmed that a Virginia Court would find a lender 'woefully - perhaps
purposefully - failed to mitigate damages' yet was entitled to attorneys fees
of approximately 400 per cent of the value of the mortgage," said AASPO
president, Pat Callahan.
Typically courts award attorneys fees between two and ten per cent of the
value of the mortgage, and the Virginia Supreme Court has expressed skepticism at
an award of 60%. Had the lender acted properly, the attorneys fees in
question would have been consistent with other cases. The Honorable R. Terrence Ney
issued the decision in Caudle v. FBA.
"The court in this case engaged in inappropriate judicial activism. The
judge admitted the lender should receive no attorneys fees under the deed of
trust, yet awarded them anyway on the theory that the lender was the prevailing
party in litigation brought by the property owner. This is not the law in
America, and, if upheld, will chill legitimate lawsuits against lenders by property
owners," charges Callahan.
The security interest that was the basis for the 400% fee award was procured
by the fraud of a felon who started a three-year sentence for similar fraud
soon after his lies created this deed of trust. Yet the court denied the
property owners a hearing on this issue. Instead, the court sought to justify such
a denial of due process by referring to dicta it issued in a prior case.
"Property owners in the United States are entitled to the due process of a
hearing before a court can deprive them of their equity. The Virginia Supreme
Court should reverse such an abuse of judicial power, to assure small property
owners they may have their day in court against lenders, particularly those
who finance crooks and seek to profit from their fraud," Callahan concluded.
Joining on the AASPO amicus brief were Virginia Land Rights Coalition of
McDowell, Virginia Poverty Law Center of Richmond, Virginia Property Rights
Coalition of Christiansburg, and Virginians For Property Rights of Manassas.
Stephen Merrill of Norfolk serves as local counsel.
The American Association of Small Property Owners is the only national
grassroots organization for the ten million small owners of residential and
commercial investment properties. Since 1993, AASPO has been working to restore
common sense and fairness to laws, regulations, taxes and litigation that are
needlessly penalizing small property owners. ###