replevin

STATE OF NEW MEXICO

COUNTY OF BERNALILLO

IN THE SECOND JUDICIAL DISTRICT COURT

                                                                                               

DAVID DERRINGER

            Plaintiff,

                                                                                                No. CV-12-10816

v.

BARRIE CROWE AKA BARRIE DERRINGER

AKA BARRIE BEVERLEY, ALAIN JACKSON,

GERALDINE (JERRY) CROWE, AND WARREN

CROWE; ALL AS INDIVIDUALS,

            Defendants,

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT BARRIE CROWE’S RESPONSE TO THE PLAINTIFF’S MOTION FOR ORDER FOR REPLEVIN OF ALL DAVID DERRINGER PROPERTY IN THE ILLEGAL AND YET ADMITTED POSSESSION OF DEFENDANT BARRIE CROWE AND DEFENDANT ALAIN JACKSON AND SANCTIONS APPLICABLE AND ATTACHED SUPPORTING

AFFIDAVIT FOR REPLEVIN

COMES NOW the Plaintiff, David Derringer, representing himself Pro-Se with his response as stated above.

The personal property of David Derringer is not controlled by a marriage, dissolution of marriage or adverse possession of those that are not the owners of the property.

            The David Derringer personal property is not controlled by the Derringer marriage or dissolution of marriage to Barrie Derringer because the David Derringer personal property and inheritance money can be traced as separate to anything owned by Barrie Derringer aka Barrie Crowe. Bayer v. Bayer, 800 P.2d 216, 110 NM 782, cert denied 799 P.2d 1121, 110 NM 749 Where separate character of property is established, it maintains that character until contrary has been made to appear by direct and positive evidence. The recovery of personal property of David Derringer is proper in a tort action against Defendants as they collectively have no right to have stolen/converted the property; have no right to have kept or continue to keep the property in adverse possession and fraud; and have no ability to obstruct the return of the property. Douglas v. Douglas, 686 P.2d 260, 101 NM 570 Property acquired in New Mexico by married couple takes its status at time of acquisition and by the manner of its acquisition.; Lucas v. Lucas, 621 P.2d 1289, 100 NM 556 Property in New Mexico takes its status as community or separate property at the time and by the manner of its acquisition. Barrie Crowe aka Barrie Derringer and Alain Jackson have “possession” of David Derringer’s money and personal property and will not either return it, or allow David Derringer the use, possession or “rights” to his own money and property. “The right of user is the right to exercise or employ a right or property.” Beggs v. City of Portales, 167 P.3d 953 N.M.App.,2007. Since the Defendants have had adverse possession of David Derringer’s money and property for quite some period of time, they own the Plaintiff extreme “damages” as well as the instant return or replacement of the property. Since the tangible personal property was acquired before the marriage and the money was inheritance, and some of the money was mandated to David Derringer under “community income”, the claims of personal property and money by David Derringer are provable, and totally in the jurisdiction of this court under acts of “tort”. Title takes status at time and by manner of acquisition. Ruckelshaus v. Monsanto Co., 104 S.Ct. 2862. David Derringer’s property rights of money and tangible property are created by the replevin laws of the State of New Mexico. “Property rights are created and their dimensions are defined by existing rules, statutes and case laws of state laws. Guild Trust v. Union Pacific Land Resources Corp., 682 F.2d 208.

            Now that Barrie Crowe aka Barrie Derringer claims as of the ruling of April 10, 2012 of DM-12-610 not to further be the wife of David Derringer (these matters are still on appeal, thus the judicial labor of the divorce is not finalized and settled in DM-12-610) David Derringer has every right to sue Barrie Crowe for redress of her unlawful possession of money and personal property of David Derringer. PruneYard Shopping Center v. Robins, 100 S.Ct. 2035 Formerly 148k2(1) U.S.Cal.,1980 “Essential stick in bundle of property rights is right to exclude others.”; Muckleroy v. Muckleroy, 498 P.2d 1357 N.M.,1972 Aproperty@ includes every interest a person may have in a thing that can be the subject of ownership, including the right to enjoy, use, freely possess and transfer that interest@ David Derringer has every right to demand all of his property back that was unlawfully detained by Barrie Derringer aka Barrie Crowe; has every right to demand back his inheritance money that is invested as “equity” in the 2005 Silverado Chevy; the money paid to relieve Barrie Derringer of her pre-marriage debt with IRS of $7,000.00; and the right to retrieve the money Barrie Derringer illegally spent without consultation or authorization for attorney fees to Defendant Alain Jackson; and the payments during the marriage to yet another Barrie Derringer pre-marriage debt to IRS of $100 per month over a period of two years amounting to another $2,400.00; and all personal property taken by Barrie Derringer and her 12 accomplices in the break-ins of the Derringer storage on February 4, 25, and March 8, 2012, and the other David Derringer property simply “kept” by Barrie Derringer of wedding ring, piano and trumpet music, horse/goat/llama papers, four pairs of boots, and many other items in adverse possession of Barrie Derringer and claims also that such property is in possession of Alain Jackson.  The Final Judgment of DM-12-610 mandates that Barrie Derringer is responsible for all pre-marriage debt, which of course includes all IRS debt of which David Derringer paid $7,000.00 with his inheritance funds and another $2,400.00 of “community income” that must be paid back to the Plaintiff. The $12,000.00 “equity” in the 2005 Chevy truck is the Plaintiff’s sole and separate inheritance funds and now that Barrie Crowe aka Barrie Derringer has total possession of the vehicle has to be paid back to David Derringer immediately, even if Barrie Crowe has to refinance the 2005 Chevy into only her name on the loan.

            All David Derringer’s property has to be returned, and the court can take “judicial notice” that at no time are the Defendants contesting either that they have David Derringer property, the Defendants do not contest any of the items that are claimed by David Derringer, and the Defendants do not contest the amount of money claimed by the Plaintiff; thus enabling this court “sua sponte” to grant replevin as a matter of New Mexico statutory law. Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 89 S.Ct. 601 U.S.Ga.,1969 State has a legitimate interest in resolving property disputes.

            This court has subject matter jurisdiction of the Plaintiff’s claims to his own personal property and money, and the Defendant Barrie Derringer aka Barrie Crowe testified in DM-12-610 to having the wedding ring and other tangible items and that she would give them back to David Derringer, which she never has. Additionally, in the discovery of this case acknowledgement of the Defendants was made that they had adverse possession of the David Derringer property, as well as Barrie Derringer aka Barrie Crowe has illegally protected and attempted at all times to keep the identities of the 12 persons that were involved in the break-ins of storage from the Plaintiff, but which has to be revealed under discovery (see Motion for Order for Discovery Compliance) and in the meantime, Barrie Derringer aka Barrie Crowe is entirely liable for the larceny/conversion of the Plaintiff’s property no matter whom of the 12 persons is in physical adverse possession of same. Citizens State Bank of Barstow, Tex v. Vidal, 114 F.2d 380C.A.10.N.M.,1940 The essential ingredients of Aproperty,@ where value is the test, are that it be subject to ownership, transfer and exclusive possession and enjoyment and may be brought within court's dominion and control through some recognized process. The Defendants have taken the Plaintiff’s property illegally, have admitted to having possession of same, have illegal possession of money of the Plaintiff and all without the consent of the Plaintiff and worse, have deliberately kept that property and money for a considerable period of time and the Plaintiff is due “damages” for such illegal detention of the Plaintiff’s property. David Derringer has entitlement to his property and money with interest and ownership of such property. Rea v. State of Missouri, 84 U.S. 532U.S.Mo. Property interest@ and Aownership@ are words of precise legal signification. The Defendants have simply stolen the Plaintiff’ rights to use and own his own property. In re Marshall, 550 F.3d 1251C.A.10.Kan.,2008 Right to use an item or to control its use is interest in property under Kansas law.

            The Defendants have not opposed the actual replevin, but only attempted to contest the legal jurisdiction of the case, trying thus to burden the domestic courts with tort actions outside of their jurisdiction and do so with corrupt intent to stop this litigation and render the Plaintiff without redress. This court can easily see that the tort cause of this action is the one with jurisdiction over the money and personal property of the Plaintiff, and subject matter and party jurisdiction is proper in CV-12-10816. In re Luna, 406 F.3d 1192 AChose in action,@ which includes the right to bring an action to recover a debt, money, or thing.” The Defendants have stolen the property of the Plaintiff by “violent actions” of theft and conversion as well as Defendant Barrie Derringer aka Barrie Crowe simply keeping and taking things upon her irrational leaving of the Derringer marriage without cause and wrongfully believes apparently that she can simply keep things from the Plaintiff or use them for extortion and ransom to get the Plaintiff to stop appeals or other court matters pending. Arizona & C. R. Co. v. Denver & R. G. R. Co., 84 P. 1018N.M.Terr.,1906 One is not required to surrender his property to whomsoever may choose to lay violent hands on it, no matter how great the price or certainty of payment. The owner has the right to retain the property itself under such circumstances, and is entitled to the protection of the courts in so doing.; The Idaho, 93 U.S. 575U.S.N.Y.,1876 The title of the true owner of personal property cannot be impaired by the unauthorized acts of one not the owner. Since the Plaintiff can prove undeniably and uncontested by the Defendants the ownership of inheritance funds and community income withheld and stolen by Barrie Derringer aka Barrie Crowe, the Plaintiff has the right to replevin, even an order sua sponte from this court. U.S. v. Estep, 760 F.2d 1060. 1985 An adverse claimant may prove ownership of money by positive identification of the money, and may also prove that claimant in possession holds the money unlawfully.; Trujillo v. Tucker, 171 P. 788N.M.,1918 Any competent evidence may be introduced to establish the fact of ownership and right of possession of personal property.

CONCLUSION

            The Defendants and particularly Barrie Derringer aka Barrie Crowe have admitted in court under oath to having the Plaintiff’s property; have agreed under oath to the return of that property and have never done any return, even though lying in the discovery that Barrie Derringer aka Barrie Crowe and Alain Jackson have returned the Plaintiff’s property. Thus, there is ample judicial discretion not only to Order the Plaintiff’s money and property returned, Order disclosure of all 12 persons that may be in illegal possession of such property and some extreme sanctions and damages for the Plaintiff for willful detention of the money and property, that has been admitted to under oath by Barrie Derringer in DM-12-610. NMSA 37-1-4. Accounts and unwritten contracts; injuries to property; conversion; fraud; unspecified actions Those founded upon accounts and unwritten contracts; those brought for injuries to property or for the conversion of personal property or for relief upon the ground of fraud, and all other actions not herein otherwise provided for and specified within four years. The Plaintiff has brought the action of CV-12-10816 under the force of Barrie Derringer doing torts and not being accountable for any of her actions, involving many other persons in such actions, and willfully detaining money and property for fraudulent and criminal purposes of extortion, ransom and simply being irresponsible and vicious, for no underlying causes by David Derringer, that did nothing to Barrie Derringer but be a devoted husband during the marriage. How pathetic is it that David Derringer is forced by Barrie Crowe aka Barrie Derringer to sue a woman wife that he loves, and more pathetic that a woman would do such violent and vicious acts of torts to a husband without any underlying reasons or cause.

REQUEST FOR RELIEF

1.                  Order “replevin” of all monies owed, all property of the Plaintiff returned or restitution, replacement, and compensation at the fair market value of any property missing, or damaged.

2.                  Order “damages” and “sanctions” for the illegal detention of the monies and personal property of the Plaintiff for the extended period of time.

3.                  Order sanctions and restitution of the forced need of the Plaintiff to file both the suit CV-12-10816 and the motion for replevin when the Defendants have already admitted to possession; admitted that they would return the property; admitted that they should return the property; and have not contested any of the monies or property claimed by the Plaintiff in items or amounts.

Respectfully submitted by: ______________________________________

David Derringer Pro-Se, Box  7431, Albuquerque, New Mexico 87194

CERTIFICATE OF SERVICE   May 6, 2013

I hereby certify that I mailed a copy of this pleading for filing to:

Second Judicial District Court

400 Lomas NW

Albuquerque, New Mexico 87102

I hereby certify that I mailed a copy of this pleading to Defendant Jackson at:

423 6^th St. NW. Albuquerque, New Mexico 87102

And to the attorney Floyd Wilson for Defendant Barrie Crowe:

Floyd Wilson

12480 Hwy. 14 North. Ste. 105

Cedar Crest, NM 87008

And to the attorney for Geraldine and Warren Crowe:

O’Brien & Padilla P.C.

6000 Indian School Road NE Suite 200

Albuquerque, New Mexico 87110