Friday, July 6, 2001
C.A. Rejects Bondsman’s Due Process Challenge to Voiding Of Lien on Property Bought With Stolen Money
By KENNETH OFGANG, Staff Writer/Appellate Courts
A Superior Court judge properly voided a bail bondsman’s liens on property the defendant bought with stolen money, the Third District Court of Appeal has ruled.
The court Tuesday rejected bondsman David A. Clark’s claim that he was denied due process when Sacramento Superior Court Judge Patrick Marlette held a hearing on short notice before voiding a trust deed Clark had recorded.
It was “Clark’s shenanigans” in attempting to block a sale of the property by recording multiple instruments of questionable validity that required the rapid hearing, Justice Rodney Davis wrote for the court. Clark was trying to obtain the property “on the cheap” by foreclosing on it and was guilty of unclean hands, the justice said.
Clark posted a $150,000 bond for Deborah Lynne Pollard, charged in January 1999 with embezzling more than $700,000 from her employer and putting more than $200,000 of that money down on a Sacramento residence.
The purchase price of the house was $378,000, with Pollard taking out a $175,000 loan. Prosecutors sought to seize the house under Penal Code Sec. 186.11, which allows such action in order to secure payment of fines and restitution in cases of fraud or embezzlement involving more than $100,000.
At the time of Pollard’s arrest, prosecutors recorded a lis pendens and obtained a temporary restraining order barring her from transferring or encumbering the house. They later moved to block her release on $150,000 bail, saying she could not use the house as collateral because it was purchased with stolen money.
Clark was allowed to post bail after assuring prosecutors that the defendant’s stepfather had taken responsibility for the bond. Days later, Clark recorded a $150,000 trust deed on the house as collateral for the bond.
Two months after the bond was posted, Pollard pled no contest to four counts of grand theft and Marlette ordered that the house be sold under Sec. 186.11. The court accepted a $344,000 bid, with the balance of the purchase-money loan to be paid from the proceeds.
Prosecutors discovered Clark’s trust deed and asked for a reconveyance, which the bondsman refused because the bond premium was unpaid. Marlette ordered the trust deed set aside—following the shortened-notice hearing to which Clark later objected on appeal—but days later, prosecutors discovered that Clark had recently recorded a lease agreement.
Minutes before the hearing on prosecutors’ motion to void that agreement, Clark recorded a quitclaim deed. About a month later, Marlette entered his final order on the matter—ratifying his prior orders, voiding the quitclaim and two further trust deeds Clark had recorded in the interim, and enjoining Clark from recording any further instrument regarding the property.
All of the trial judge’s orders were proper under Sec. 186.11, Davis concluded for the appeals court.
Clark, the justice noted, knew that Pollard had been accused of buying the property with stolen money and enjoined from encumbering it, yet he accepted and recorded documents which purported to impose such an encumbrance.
His claim that there was insufficient evidence to support the order voiding the deed “certainly comes with …chutzpah,” Davis wrote.
The justice also rejected Clark’s argument that, by not crediting him with $25,000 he paid the lender to keep the loan out of default after obtaining the quitclaim deed, the trial court was taking his property without compensation.
“As the trial court properly concluded, Clark did not have any legally recognizable interest in the property—the quitclaim deed was void from the outset; thus, there was nothing to ‘take’ from him,” Davis wrote. “The $25,000 payment for property in which Clark did not have any interest cannot establish an interest for taking purposes.”
The case is People v. Pollard, 01 S.O.S. 3248.
Copyright 2001, Metropolitan News Company