That’s not good. Former GOP US Senate hopeful indicted for de-fence-ive actions.

Current Meade County Commissioner, Former Legislator, & 1998 GOP US Senate hopeful Alan Aker was indicted yesterday for some actions that weren’t exactly prudent, according to a Lawrence County Grand Jury.

From KEVN:

Meade County Commissioner Alan Aker has been indicted by a Lawrence County Grand Jury on felony intentional damage to property charges.

and…

A Lawrence County Sheriff’s report recounts an incident on Elk Creek Road in February.  The report alleges that after a dispute over payment for work where Aker was hired as a contractor, that Aker came back to the property and cut off about 50 feet of railing from the project and took it with him.

Read it here.

So, when he goes to trial, is he going to have to hire counsel for his de-fence?

30 thoughts on “That’s not good. Former GOP US Senate hopeful indicted for de-fence-ive actions.

  1. Guy

    I guess Lawrence County ought to get busy indicting any and all car repo companies with felony charges!

    Surely a responsible use of taxpayer resources…

    1. @SoDakCampaigns Post author

      Actually, I think it’s the difference between real property and personal property. When it’s permanently affixed, as a fence would be, I don’t think it’s quite as simple as hooking up a tow truck and hauling it away.

  2. Anon

    I’ll add to his go fund me account. The fact that he is been indicted is a joke. I’m proud to have him as an elected official!

  3. Troy Jones

    Anony,

    No, you can not repossess a fence. Once it becomes attached to the real property (building or land), it becomes what is legally called a fixture and part of the real property and subject the mortgage (if one). Whether it has a mortgage or not, additions to real property can also become subject to a mechanics lien which does get preference in most cases over the mortgage. As this is described above, Aker’s remedies were to pursue his rights provided by his mechanics lien (which is fairly easy to establish a mechanic’s lien and get paid in full). If Aker didn’t follow procedures to “perfect” his mechanics lien, his remedies are limited to that of an unsecured creditor.

    I’m surprised by the cavalier attitude about this as it is an affront to principle of property rights and “a person’s home is his castle.”

  4. Anonymous

    A fence may indeed be legally repossessed if the contract stipulated as much for nonpayment, and/or the contract stipulated that the installer retained a secured interest in the installed fence until full payment was made.

    Self-help repossession is also permitted under the UCC (SD adopted the UCC in SDCL Chapter 57A) rgardless of whether the goods are attached to real property or not.

    Without such information, “legal advice” otherwise is worth no more than nothing. Furthermore, a copy of the contract would not have to be presented to the grand jury.

    The silly suggestion that a “person’s home is his castle” has nothing to do with improvements outside the home.

  5. Troy Jones

    Andrew,

    The applicable section of the SD Codified Laws is 44-9. The contract is irrelevant because contracs which either supersede homeowner (castle protections) exemptions or mortgagors are unenforceable.

  6. Anonymous

    2 Faced Jones: (as Rev. Hickey calls him):

    As with most things, you’re largely blowing smoke out of your behind is a lame effort to maintain your “image”. False pride is a sin.

    Chapter 44 does deal with mechanics’ liens. And such liens are perfectly good means of protecting a contractor’s interest in a fence already installed. But they are not the only ways to assert an interest in the property. As was written with 100% accuracy, many contractors claim a security interest in the project BY CONTRACT—obviously this would precede the project.

    Then s/he purposely misstates the “homestead exemption” in chapter 44 as a household! They are wholly unrelated. Then s/he tosses in “castle protections” as if that is at all related to secured interests! Nonsense.

    Contracts can and do create secured interests (after all, a purchase for a house is simply a contract, and the mortgage is the loan for that house). It’s the filing date on a perfected secured transaction that matters. There is nothing in SD statute or case law that states a contract provisions asserting a secured interest in a contractor’s job supersede a mortgage. Of course, s/he cannot provide any legal basis for this false claim about “superseding” other interests in property, because filing & perfecting a secured interests would be beyond 2 Faced Jonesy’s knowledge—but since when has that stopped him/her? The UCC is clear—the filing date matters: “first in time, first in right” is the mantra. In other words, if the contractor’s filing date on an installed fence precedes a mortgage interest filing, the contractor’s interests is prioritized BEFORE the mortgage. And secured transactions are secured transactions—the TYPE of property secured does not matter according to the UCC.

    Like his use of “her’s” in a discussion on grammar, 2 Faced Jones is simply spouting off again in legal matters that he little clue about. He would be better off spending the time in church.

    Calumny? Yeah, its’ a sin. So is false pride. It’s okay to be wrong. Just admit it and move on.

  7. Troy Jones

    Andrew Shiers,

    You are correct that a contractor can utilize the UCC/security agreement to secure their interests. Because most work done by contractors is deemed a fixture, few contractors do as in most cases it is inferior to their rights and privileges granted under Section 44. The primary “inferiority” is a mechanics lien can be attached to real property whereas an UCC/Security agreement doesn’t.

    And, your “the first in time” principle is correct. However, UCC security agreements do not “perfect” a position in real property (done via a mortgage).

    “The Uniform Commercial Code (“UCC”) is a set of laws that provide legal rules and regulations governing commercial or business dealings and transactions. The UCC regulates the transfer or sale of personal property. The UCC does not address transactions or financing of real property. Theoretically, the UCC standardizes business laws in these fields in the United States and seeks uniformity amongst the states. Since merchants almost always engage in interstate business, this is a vital benefit for them.” http://stimmel-law.com/en/article/uniform-commercial-code-basic-structure

    However, contractors can get a secured interest in real property (and thus fixtures) via a mechanic’s or contractor’s lien. And, by following the rules for perfection, the contractor then is given legal remedies.

    The point of the “castle” comment is people can only come on another’s property with permission. A car repossession company can take my car but have to wait until it is parked in a spot accessible by the public (usually a street or parking lot).

    I would like you to show me a law which allows a creditor (secured or unsecured) or contractor to come onto a person’s property to remove personal property or a fixture without a court order.

  8. Troy Jones

    http://rapidcityjournal.com/news/local/meade-county-commissioner-indicted-for-thousands-of-dollars-in-property/article_b7454450-61a5-5588-9a3a-7c0eb8e7869f.html

    Update on the charge.

    Legal means to enforce a mechanics lien: 44-9-23. Enforcement of lien–Venue of action–Commencement and conduct of proceedings. The lien may be enforced by action in the circuit court of the county in which the improved premises or some part thereof are situated, or of the county to which such county is attached for judicial purposes, or, if claimed under subdivision 44-9-1(2), of any county through or into which said railway or other line extends, which action shall be begun and conducted in the same manner as actions for the foreclosure of mortgages upon real estate, except as herein otherwise provided.

  9. Anonymous

    Two Faced Jones:

    UCC = SDCL Tule 57A

    A mortgage loan includes a promissory note (as all formal loans do). A promissory note is a negotiable instrument covered by Art 3:

    57A-3-104. Negotiable instrument. (a) Except as provided in subsections (c) and (d), “negotiable instrument” means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it:

    (1) Is payable to bearer or to order at the time it is issued or first comes into possession of a holder;

    (2) Is payable on demand or at a definite time; and

    Art. 9: 57A-9-102:
    (12) “Collateral” means the property subject to a security interest or agricultural lien
    [notice that there’s no distinction between person or real]

    (55) “Mortgage” means a consensual interest in real property, including fixtures, which secures payment or performance of an obligation.

    FURTHERMORE, a negotiable instrument (a promissory note on real property for example) is considered PERSONAL PROPERTY under the UCC.

    The UCC covers mortgages. You’re wrong, again.

    In SD, SD law prevails, not some citation from the internet, legal genius.

    You’re out of your league, again.

    MOVE ON.

  10. Anonymous

    2 faced Jones:

    Peaceable repossession of property (including personal and fixtures) is a long-standing and legally recognized principle:

    http://law.justia.com/cases/south-dakota/supreme-court/1987/15212-1.html

    More important, peaceable self-help (repossession) is enshrined in SDCL 57A-9-609 (UCC):

    Secured party’s rights with respect to collateral following default. (a) After default, a secured party:
    (1) May take possession of the collateral; and
    (2) Without removal, may render equipment unusable and dispose of collateral on a debtor’s premises under § 57A-9-610.
    (b) A secured party may proceed under subsection (a):
    (1) Pursuant to judicial process; or
    (2) Without judicial process, if it proceeds without breach of the peace.
    (c) If so agreed, and in any event after default, a secured party may require the debtor to assemble the collateral and make it available to the secured party at a place to be designated by the secured party which is reasonably convenient to both parties.

    Either brush up on the UCC or just go away.

    Google search results are not SDCL.

  11. Anonymous

    Legal Genius Jones:

    –A car may be repossessed no matter where it is. peaceably preferably, but if the debtor or his agents cause damage, they have to pay for the damage and for the breach of peace, and maybe punitive damages

    –folks who have a LEGAL reason to be on your property (repossessing property for example, game personnel checking on hunters/fishers; surveyors; utility people; police searching outside the curtilage; adjacent landowners accessing their landlocked property ) are not trespassing, nor do they need permission; nor do they need a court order.

    You’re confusing one’s “domicile” (house) with real property.

    But confusion is the order of he day when you’re Two Faced Jones.

  12. Troy Jones

    Andrew,

    Nothing you say above is untrue or relevant to the issue at hand.

    1) Aker performed work as a contractor and was not paid in full.

    2) He may have perfected mechanics lien, a security interest via UCC (which if the work became a fixture on real property, would limits/complicates remedies allowed under the law), and/or a mortgage (which effectively prohibits self-help remedies).

    3) Based on the information publicly available, he didn’t pursue any remedies provided under SDCL 44 or 57 but entered the property without permission, removed a railing (likely a fixture because it is attached) without prior notice as there is an email that indicates Aker provided notice after removal.

    If I have misrepresented anything from the publicly available information, please offer the corrections. Or you know of additional information not publicly available, please offer the additional information.

    Without such clarification or additional information, I will stand by my position South Dakota law doesn’t allow contractor’s to exercise self-help remedies on private property. There is a hearing scheduled on May 16 upon which we’ll possibly gain more information.

    If you want to assert Aker should be exonerated, the following would be helpful if you can reference some legal authority which shows:

    1) The construction of a deck does not become a fixture and remains personal property (and thus opening up self-help remedies under the UCC).

    2) Individuals or businesses can enter another’s property without permission and exercise self-help remedies in response to non-payment for services or goods provided.

    The following was prepared by a South Dakota law firm of high repute. It spells out the remedies of a contractor for non-payment. To the matter at hand, it says:

    “South Dakota provides statutory protection to parties that supply skill, labor, services, equipment, or materials for the improvement of real property as a means of collection for services rendered. [1] The protection provided by the statutes is in the form of a mechanic’s lien, which can either attach directly to the real estate or to the funds available for payment of construction services, depending upon the specific circumstances as discussed in greater detail in this text. The rights and obligations of parties entitled to “lien rights” are very specific and are set out in South Dakota Codified Law Ch. 44 et seq. Lien rights are not in lieu of but are in addition to a claimant’s usual common law remedies, such as the right to sue on a contract to recover a money judgment against the debtor.[2]

    South Dakota’s lien laws were amended in 1999 by the South Dakota Legislature, and the revised statutes require specific actions to be taken by prime (general) contractors, subcontractors, sub-subcontractors, and suppliers to subcontractors to protect their respective interests on construction projects. To determine the actions required, each party must know their exact position within the contractual relationships between all parties involved in the project.

    A Prime Contractor must be “in privity” (in direct contract) with the owner to claim a lien on the owner’s real property.”

    It goes on to say: “If a Prime Contractor is not paid for services provided, the Prime Contractor is entitled to a lien that attaches directly to the real estate of the owner.[14] The following two steps must be followed by the Prime Contractor to effect a lien against the real estate:

    1. A Lien Statement By Lien Claimant must be filed,[15] and
    2. A lawsuit must be filed to “perfect” or enforce the lien.[16]”

    And finally, the requirements to enforce a lien: “A lawsuit must be filed in order to “perfect” a lien. Prior to “perfection,” liens are unenforceable.[23] The statutory time frame for filing the lawsuit is six years after the date of the last item of the lien claim as set forth in the filed and entered lien statement.[24] The lien may be enforced by action in the circuit court of the county in which the improved premises, or some part thereof, is situated.[25] The owner of the property can force a lien holder to file suit to forfeit its claim by making a written demand (Notice to Commence Suit to Enforce Mechanic’s Lien) upon the lien holder.[26] Once the lien holder receives the Notice, it must commence its lawsuit within thirty days or forfeit its lien.[27]”

    https://www.lienlawonline.com/samplepage/StateDocument.htm

  13. Anonymous

    2 faced Jones:

    LIENS are fine. Mechanics liens are fine.

    But genius, they’re not the only way to secure, protect, and recover property.

    You then went on to lie about the law several times in some lame-o effort to save face. Why were they lies? Because you were told what the law is.

    Now, as it pertains to this case, we do know the guy was indicted. We do NOT know what his defenses might be–as was suggested, the contract may specify a secured interest in the fence, or he pursued self-help under the UCC and long standing SD law, or he could certainly have a perfect mechanic’s lien. The indictment neither supports nor refutes any of that.

    Your claims about needing a court order to repossess property is simply wrong, as were your statements about real v. personal property, repossession on private v. public property, the “castle” doctrine, and what constitutes trespass–you’re WRONG as a matter of law.

    And no, we don’t know if he had a perfected mechanic’s lien, perfected or not.

    Get over it.

    Th

  14. Troy Jones

    Andrew,

    You are not an attorney so I reject your legal conclusions of what is a matter of law. I’m not an attorney so you can reject my legal conclusions of what is a matter of law.

    Quite simply, my position is simple: Whether Aker has security interest under the UCC, mechanics lien, or mortgage, he can not self-help enter another’s property and remove a fixture from that property for non-payment.

    If you have a legal reference which says that decking isn’t a fixture, I’ll revisit my position.

    If you have a legal reference which says one can come on another’s property and remove personal property applicable to this case (car repossession has unique provisions because they are titled motor vehicles), I’ll revisit my position.

    Otherwise, I’ll stand by my position unless the court determines such self-help remedies are permitted in this circumstance.

  15. Anonymous

    2 Faced Jones:

    You haven’t a clue with whom you’re dealing with, so stop with the Sherlock Holmes bs.

    Decking or fencing or a carport is likely to be fixture–it does not matter, freakin’ genius. And repossession of vehicles has NOTHING to do with them being titled–there’s nothing unique about repossessing property whether titled or not, whether a fixture or not, through self help or not.

    You were given a case that allowed a secured creditor to enter the property of another to retrieve ag equipment and a crop with no court order or law enforcement involvement. If a crop is not a fixture on the property, then nothing is!

    Did you even bother to read it?

    http://law.justia.com/cases/south-dakota/supreme-court/1987/15212-1.html

    Your “position” is based on nothing other than pigheaded stubbornness in never admitting you’re wrong. Would your stubbornness please Sydney?

      1. Anonymous

        Corrected:

        You’re right.

        I stooped to 2 face’s level. It’s tough when treated by an arse not to react accordingly. Rev. Hickey and a few others have experienced his endless beratings, misstatements, and general vindictiveness and have reacted similarly.

        I apologize, again.

  16. Troy Jones

    Andrew,

    One fact in the court case you reference that is not present here as fas as we know:

    The bank took its self-help remedy of repossession AFTER they had a court order which authorized repossession.

    Charlie, his personal comment is ignored. He previously did it as well

    1. Charlie Hoffman

      Troy if I hated you or loved you there would be moral codes which I live; and will die by, which would not allow me to cross a certain line in either arguing or attacking you personally. Anon 4:19 crossed that line. Hopefully he never has to ask God why.

  17. mhs

    As Troy’s former attorney, let me just say, I never met a case I couldn’t find a statute to bend to my version of the facts.

  18. Troy Jones

    Charlie,

    We will answer for everything and in the end I pray I get more Divenue Mercy than Divine Justice. Andrew is not someone who can touch me where he tried to go.

    MHS, you can go through life over paid and underpaid. And you my friend were one of the best bargains ever. Your advice was always what I needed even when it wasn’t what I wanted to hear.

    Andrew, I wish you to have a good night. Sleep well.