# Petition for Writ of Certiorari — Crossley v. Liberty Bank & Trust Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 519 U.S. 1149

## Text

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961010 SEP 35 0 19%
wepmet OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

LARRY A. CROSSLEY

Petitioner,
vs.

LIBERTY BANK & TRUST CO., THOMAS J.
HROMATKA, C.E.O., HERTZ FARM MANAGEMENT
INC., GARY LOOS AS RECEIVER, FARMERS CO-OP
ASSOCIATION FOREST CITY, FARMERS CO-OP
ELEVATOR CO. LELAND, DON SEVERSON, GARY
STERLING, RONALD G. PYLE, RONALD PENNING,
AND YET TO BE NAMED JOHN DOES,

Respondents.

Petition for Writ of Certiorari to the
United States Court of Appeals for the
Eighth Circuit.

PETITION FOR WRIT OF CERTIORARI

LARRY A. CROSSLEY
Non-Lawyer Petitioner
Route 1, Box 45
Carlos, MN 56319
(320) 732-2290

QUESTIONS PRESENTED

1. Certiorari should be granted to
supervise the departure from the accepted
and usual course of judicial proceedings.

2. Certiorari should be granted to
resolve the conflict among the Eighth
Circuit and the State Court relative to
the application of Title 42 U.S.C. §1983,
1985(3), 1986, Title 7 U.S.C. §2000 et.
seq. and Iowa Code 561, 656, 554, 646,
680, I.R.C.P. 256.

ii

PARTIES TO THE PROCEEDING

Petitioner, Larry Crossley, is a
resident of Todd County, Minnesota.
Crossley was the plaintiff in the United
States District Court for the Eighth
Circuit proceedings of this case and was
the Apellant before the United tates
Court of Appeals for the Eighth Circuit.

Respondents Liberty Bank & Trust Co.
and Thomas J. Hromatka C.E.0., the baéankx is

a corporate owned bank existing by virzue
of the laws of the State of Icwa.
Respondent Liberty Bank does business in
Winnebago County, Iowa and was a cGetéencaent
to the action in the lower esuct
preceedings. Thomas J. Hromatka was the
acting C.E.O. and a resident in Winnezras
County and also a defendant in the icwer
court proceedings. Liberty Bank & Trust
Co and Hromatka were also an Arcrellee
before the United States Court of i:sreais
for the Eighth Circuit.

Respondents Hertz Farm Manegement
<

Inc. and Gary Loos as receiver, existing
by virtue of and acting under the laws of
the State of Iowa whose office is in Cerro
Gordo County, Iowa and does business in
North Central Iowa including Winnebago
County, Iowa, were defendants ‘to the
action in the lower court proce¢dings.
Gary Loos was acting as receiver in the
Iowa District Court proceedings. Eertz

and Loos were also Appellees before che
United States Court of Appeals fcr
Eighth Circuit.

iii

Respondents, Farmers Co-op Assoc.
Forest City, Farmers Co-op Elevator Co.
Thompson, Farmers Co-op Elevator Co.
Leland, the grain elevators are
cooperatives organized and operating by
virtue of the laws of the State of Iowa.
Rake Cooperative Elevator of Rake Iowa own
Thompson and Leland Cooperative Elevators.
Respondents Don Severson, Gary Sterling,
Ronald G. Pyle and Ronald Penning are or
were acting as elevator managers or
assistant managers for the defendant grain
elevators and all are or were doing
business in Winnebago County Iowa and were
defendants to the lower court proceedings.
The three grain elevators were |
cooperatives and managers or assistant ;
managers were also Appellees before the ;
United States Court of Appeals for the
Eighth Circuit. |

There are John Doe and Jane Doe
defendants that were to be named prior to
‘rial as discovery was completed.

There are no other parties to this
action.

eS

TABLE OF CONTENTS
Page

QUESTIONS PRESENTED ..+2«-+see¢ee8-s i
PARTIES TO THE PROCEEDING ...... dd
TABLE. OF CONTENIB « eo so ene uvnee 89

TABLE OF CITATIONS « «© © «© = s © 8 « » V

OP iRauee Bee 6 6 et lw eet eee; 1
STATEMENT OF JURISDICTION 2
STATUTE INVOLVED 2
Stace OF tmp CABS »« © © es wh we ew 9
REASONS FOR GRANTING THE WRIT .... 16
CONCLUSION 29
APPENDIX

Appendix A - Opinion of the

United States Court of Appeals

for the Eighth Circuit Filed

pul hs Bee ee se ee ee we la

Appendix B - Opinion of the

United States Court of Appeals

for the Eighth Circuit Filed

GeRURSY IGsbeee «6 a a we eee ws 2a

y
i
;
;

V

imaBLE OF CITATIONS
Page
Cases Cited:

ANDERSON VS. BOYD, 714 F.
UO sg ke le a iy ig ye 25

ANDERSON V. LIBERTY LOBBY, INC.,

477 U.S. 242,248, 106 S. Ct.

2505, 2510, 91 L. Ed. 2d 202

eee 6 As. eee et ee ow oa 19

BENNETT V. ELDON MILLER, INC.,
SMe MMI Se gc katy ak ea ay 20

BECKER V. GUSTAFSON,
es ee BET ig egg wa ie 20

CELOTEX CORP. V. CATRETT
BUG Bs Co. 2000 (49UG) 6 « ow 6 ss 16,18

CHAPMAN VS. CALIFORNIA,
ER + PE ee 26

COLE V. GILL, 1863,
eR ° ¢ am nO rere aa ee re 19

COMMUNITY STATE BANK V. COTTINGTON,
3 OM A Rs Serre eae 20

CONTINENTAL GRAIN CO V.
FRANK SEITZINGER STORAGE,

837 F. 2d 636, 838

(Eighth Circuit 1988) ...... 18

EX PARTE VIRGINIA,
BUG Wells OEP ESETS) 4 © «+ 8 ws 27

vi

TABLE OF CITATIONS-continued

Page
FEDERAL LAND BANK V. FAUGHT BROS.,
468 N.W. 2d 793, 795
[2ONe 2eee! « 6 0 ks Se a wee 20
GENERAL MOTORS CORP. VS.
BLEVINS, 571 F. Supp. 38
(1956) : = 6 es 26
GREEN V. FORNEY, 1907,
434 iowa 316, i431 Noms 976 . « « 19
GREENLAND V. FAIRTRON CORP.
SOO N.W. 2d 36, 37
tC” Bi 2 a ee re er 21
GRIFFIN V. BRECKENRIDGE,
403 U.S. 88, 102-03 (1971) ... 23
ROLDEN vs. HARDY,
LG SB. tha. Dae eae «= eee 27
HUGHES vs. ROWE,
i073 S. Cr. © (1980) 27
JOHNSON V. SHOPF
G77 U.u. OC seus se 5. Ct
at 2592, 669 F. Supp. 291, 295
(i) ae. Atel. <4) ee ae teeta ee 18

KAYLOR V. FIELDS,
661 F. 2d 1177, 1184

(BSGMGH Ciretee BOA! 6 os © #8. 68 23

vii

TABLE OF CITATIONS-continued
Page

MASSEY V. SMITH,
aoe Be 406 asada, 1356
[Aer SEeeeEe ATs) 5 » 6 & » « 23

MORELLO VS. JAMES,
Cle 0s 2 wee SEOs). gf «he ye 8 21

OLMSTEAD VS. UNITED STATES,
6 3. Cr. SOS (19a0) States . .« « 24

OWEN vs. HAAS,
CEL we Oe See ARP 6 ew ce ee 27

RINALDI vs. YEAGER,
RR MR Oe Bee eee 27

SEBASTIAN V. UNITED STATE,

931 F. 2d 900,904 n.11

(Eighth Circuit 1976), cert.

denied, 429 U.S. 856 (1976) ... 23

SWANK V. ST PAUL CITY RY.

(1895) 61 Minn. 423

63 N.W. 1088: U.S. Moser (1924)

OM TB 4) Pe a eat 24

THREE RIVERS CABLEVISION, INC.
V. CITY OF PITTSBURGH, D.C. Pa.
oe soe ©, oe, Soe. ee 23

UNITED STATES VS. GOOD
REAL PROPERTY, 114 S CT. 492

er: -< = 6g oe we. te. ioe a 25,27

viii

TABLE OF CITATIONS-continued

Page
WILLIAMS VS. DRESSER IND. INC.,
tae Be Bee. 41466 t39ee) « «ss 26
YOST V. DEVAULT,
1859, 9 Iowa 60.
IOWA CODE STATUTE 561.4 .... 19
Statutes Cited:
Se Wee BESOei a \s 6 8 oes 2
ae ak ee 17
Se tabeoex Bees - kok ee ee ee eee
29
G2. U.S ys BL Pee tel: a oleae kw eee eee
29
Be Uellees: BOPEE. (e688 ee es eee
29
Fed. Rules Civ. Proc. Rule 56,
28 U.S.C.A. Federal Civil
Procedure 2461 Oe Las ae en a ee 17
towa Code $554.9307 << .+ ss 22
Iowa Code §561 Sie Sey ae 19,20
Iowa Code §628 a es ah ae Boe 20
[eee Cee Bean eke 468 ee ee 19

Iowa Code §654 ig eh ce 24

ix

TABLE OF CITATIONS-continued

Page
poe GOGe .SOSe §. see 3 8S 24
Other Authority Cited:
ae Pees 3 6 6 Se wR 14,21
Sem aes Sk es 6 aS RS 14
aa ee er ee 14
Fi eS gc Se a ae ee 14

ee I aoe 14,21

1

OPINIONS BELOW

On January 10, 1996, the United
States Court of Appeals for the Eighth
Circuit issued its opinion, affirming the
decision of the District Court. That
opinion was unpublished.

On July 1, 14996, the United States
Court of Appeals denied the suggestion for
rehearing en banc, and also petition for
rehearing by the panel was also denied.

STATEMENT OF JURISDICTION

Petitioner seeks review of the
opinion of the United States Court of
Appeals for the Eighth Circuit and its
judgment of July 1, 1996. That judgment
affirmed the lowe~- court’s grant of
Summary disposition. Petitioner invokes
the certiorari jurisdiction conferred on
this Court by 28 U.S.C. §1254(1).

STATUTE INVOLVED

42 U.S.C. §1983 provides:

$1983. Civil Action For Deprivation
Of Rights.

Every person who, under color of
any statute, ordinance,
regulation, custom, or usage, of
any State or Territory or the
District of Columbia, subjects, or
causes to be subjected, any
citizen of the United States or
other person within the
jurisdiction thereof to the
deprivation of any rights,
privileges, or immunities secured
by the Constitution and laws,
Shall be liable to the party
injured in an action at law, suit
in equity, or other proper
proceeding for redress. For the
purpose of this section, any Act
of Congress applicable exclusively
to the District of Columbia shall

3

be considered to be a statute of
the District of Columbia.

42 U.S.C. §1985(3) provides:

§1985(3). Conspiracy To Interfere
With Civil Rights.

(3) If two or more persons in any
State or Territory conspire to go
in disguise on the highway or on
the premises of another, for the
purpose of depriving either
directly or indirectly, any person
or class of persons of the equal
protection of the laws, or of
equal privileges and immunities
under the law; or for the purpose
of preventing or hindering the
constituted authorities of any
State or Territory trom giving or
securing to all persons within
such State or Territory the equal
protection of the Laws; or if two
Or more persons conspire to
prevent by force, intimidation, or
threat, any citizen who is
lawfully entitled te vote, from
giving his support cor advocacy in
a legal manner, toward or in favor
of the election of any lawfully
qualified person as an elector for
President or Vice

President or as a Member of
Congress of the United States; or
to injure any citizen in person or

property on account of such
Support or advocacy; in any case

of conspiracy set forth in this
Section, if one or more persons
engaged therein do, or cause to be
done, any act in furtherance of
the object of such conspiracy,
whereby another is injured in his
person or property, or deprived of
having and exercising any right or
privilege of a citizen of the
United States, the party so
injured or deprived may have an
action for the recovery of damages
occasioned by such injury or
deprivation, against any one or
more of the conspirators.

42 §1986 provides:
$1986. Action For Neglect To Prevent

Every person who, having knowledge
that any of the wrongs conspired
to be done, and mentioned in
section 1985 of this title, are
about to be committed, and having
power to prevent or aid in
preventing the commission of the
same, neglects or refuses so to
do, if such wrongful act be
committed, shall be liable to the
party injured, or his legal
representatives, for all damages
caused by such wrongful act, which
Such person by reasonable
diligence could have prevented;
and such damage may be recovered
in an action on the case; and any
humber of persons guilty of such

5

wrongful neglect or refusal may be
joined as defendants in the
action; and if the death of any
party be caused by any such
wrongful act and neglect, the
legal representatives of the
deceased shall have such action
therefor, and may recover not
exceeding $5,000 damages therein,
for the benefit of the widow of
the deceased, if there be one, and
if there be no widow, then for the
benefit of the next of kin of the
deceased. But no action under the
provisions of this section shall
be sustained wnicn is not
commenced within one year after
the cause cf action has accrued.

7 U.S.C. $2000
§2000. Homesteac Protection.

(3)The term “homestead property”
means the princiral residence anc
adjoining property possessed and
occupied by a berrower specified
in paragraph (2) of this
subsection, including reasonable
number of farm out buildings
located on the acjoining land that
are useful to the occupants of the
homestead, and nce more than 10
acres of adjoining land that is
used to maintain the family of the
individual.et.sec.

Iowa Code §561.
§561. Homestead.

561.16 Exemption.
The homestead of every person is
exempt from judicial sale where
there is no special declaration of
statute to the contrary. Persons
who reside together as a single
household unit are entitled to
claim in the aggregate only one
homestead to be exempt from
judicial sale. A sinc person may
claim only one homestead to be
exempt from judicial
the purposes of this
“nousenold unit” means

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Z1 Debts For Whicn Homestead

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e created by written
by persons having the
power to convey, expressly
stipulating that it shall be
liable, but then only for a

deficiency remaining after
exhausting all other property
pledged by the same contract for
the payment of debt.

3. Those incurred for work done
or material furnished exclusively
for the improvement of the
homestead.

4. If there is no survivor or
issue, for the payment of any
debts to which it might at that
time be subjected if it had never
been held as a homestead.

Iowa Code §656

§656 Forfeiture Of Real Estate

Contracts.
Iowa Code §554 Uniform Commercial .
Code.
§554.9307, §554.9313, $554.9$315,
Rights of Third Parties-Perfected
and Unperfected Security
Interests-Rules of Priority

Iowa Code §646 Recovery of Real
Property.

§646.23 Growing Crors-Bond. If
the defendant avers that the
defendant has a crop sowed,
planted, or growing on the
premises, the jury, finding for
the plaintiff, and also finding

that fact, shall further find the

value of the premises from the

date of the trial until the first
day of January next succeeding,
and no execution for possession
shall be issued until that time,
et. seq.

§646.24 Writ of Possession.

When the plaintiff shows that the
plaintiff is entitled to the
immediate possession of the
premises, judgment shall be
entered and an execution issued
accordingly.

Iowa Code §680 Receivers.

§680.1 Appointment.

On the petition of either party to
a civil action or proceeding,
wherein the party shows that the
party has a probable right to, or
interest in, any property which
is the subject of the controversy,
and that such property, or its
rents or profits, are in danger of
being lost or materially injured
Or impaired, and on such notice to
the adverse party as the court
shall prescribe, the court, if
satisfied that the interests of
one or both parties will be
thereby promoted, and the
substantial rights of neither
unduly infringed, may appoint a
receiver to take charge of and
control such property under its
direction during the pendency of
the action, and may order and

9

coerce the delivery of it to the
receiver.

Iowa Rules of Civil Procedure rule 258.

Rule 258. Execution; Duty of
Officer.

STATEMENT OF THE CASE

This matter concerns a state
foreclosure action of real estate
purchased by Donald and Patricia Crosslev
on contract from James and Frances Ballard
in 1973. In April of 1985 Donald and
Patricia Crossley gave Forest City Bank
and Trust co. an assignment for security
purposes of their vendee’s interest in the
property. Forest City Bank and Trust ana
Donald and Patricia Crossley let their
Vendee’s interest go into default on April
1, 1986. With the real estate contract in
Gefault Frances Ballard vendor in Oct. cf
1986 sold certain of and assigned all of
her interest in the property as vendor tc
Larry Crossley.

On October 20, 1988, Liberty Bank and
Trust filed a petition to foreclosure
their vendee’s interest in the real estate
contract in the Iowa District Court which
named Donald and Patricia Crossley and
Larry Crossley and France Ballard as
defendants’ in Case No. 13978.

Defendants, Donald and Patricia
Crossley asserted counter claims against
the Bank for fraudulent misrepresentation
and breach of contract. These defendants
also asserted a counter claim for breach
of an implied dutv of aqood faith and fair

10

dealing arising out of a bank/customer
relationship. The counter claims were
tried to a jury which found against the
Donald and Patricia Crossley. As a result
of the jury’s verdict, the counter claims
were dismissed by order of Judge Jon
Stuart Scoles in the foreclosure action
filed on October 24, 1990.

On October 24, 1990, the Court
entered its FINDINGS OF FACT, CONCLUSIONS
OF LAW AND ORDER, the court entered
judgment in favor of Liberty Bank and
against Donald and Patricia Crossley in
the amount of 332,324.78, plus interest.
In addition, the order provided that
counsel for the Liberty Bank should
prepare a DECREE OF FORECLCSURE to be
entered by the court.

On May 13, 1991, the court filed its
DECREE IN FORECLOSURE, and provided for
foreclosure of the equitable mortgage.
Liberty Bank set redemption at six(6)
months and WAIVED ANY RIGHT TO A
DEFICIENCY AGAINST THE DEFENDANT’S IN CASE
NO. 13978.

The Winnebago County Court in their
decree in foreclosure never obtained a
judgment against defendants Larry Crossley
or France Ballard.

In its order of the Winnebago County
Court Decree dated May 13, 1991 the Iowa
District Court at p.2 stated:

2. The plaintiff’s equitable
mortgage is established as a lien
against the real estate above
described and is superior and
paramount to the interest, liens
and claims of the defendants,
except to the extent of the

11

vendor’s interest in the real
estate contract executed on March
23, 1973. The court need not
decide in this proceeding whether
Frances Ballard or Larry Crossley
has legal or equitable title to the
property, because that is not in
issue in this foreclosure action.
The vendor’s interest in the
property, whomever may later be
determined to hold it, is superior
to the interest foreclosed upon by
the plaintiff.

On July 12, 1991, Appellant-
Crossley filed his declaration of
Homestead with the Winnebago County

recorder, homestead book, page 96-
9.

On July 17, 1991, the property was
sold at sheriff’s sale to Liberty Bank,
for the sum 405,271.43, representing the
entire judgment, interest, attorney feeds,
and cost amount to obtain the farmland.

On January 21, 1992, following the
expiration of a six month period of
redemption, Appellee Bank traded in their
writ of possession to get sheriff’s deed
that was issued in favor of Liberty Bank,
the decree stated,

“On expiration of the period of
redemption for the mortgaged real
estate, if possession be not
immediately then surrender (sic) to
the grantee of the sheriff’s deed
to be issued under said execution,
a writ of possession shall be
issued directing the sheriff of
this county to put such

12

grantee in possession of mortgaced
premises.”

On March 25, 1992, Liberty Bank and
Hertz Farm Management Inc., filed and
served the defendants with a petition in
small claims court on a action for
Forcible Entry and Detainer, Case No. e-
4997-0392.

On April 16, 1992, small claims court
came on for hearing in magistrate court,
Gefendants argued that the magistrate
court did not have jurisdiction.
Magistrate ruled against the defendants
anc order a writ of possession tc ke used
against the defendants immediatei:, and
directed that the defendants Larry, Donald
end Patricia Crossley be removed -r-7n the
premises and that Liberty Bank and Herzz

pr
Farm Management Inc. be put in pessession
thereof.

On April 20, 1992, defendar-= ecsted
bond and filed appeal to the Winneldacc
District Court, hearing was held in May of

192, on the defendants’ appeal.
On June 16, 1992, Judge Sternen
arroll entered the courts rulins énad

filed same on June 17, 1992, cour: gs

concludes that the magistrate did nor }
jurisdiction to hear this case, the
Gistrict court does.” “According iy, the
magistrate’s court ruling should be
reversed and the case dismissed. ‘ourt
goes on to state, “IT IS THEREFORE ORDERED
that plaintiff’s action for FORCISLE ENTRY

AND DETAINER brought in the Towa District

Court Small Claims Division, is
DISMISSED.”

13

On June 29, 1992, the Appellee
Liberty Bank filed a praecipe for writ of
possession, directing the clerk of court
to issue a writ of possession in
compliance with the decree in foreclosure
dated May 13, 1991, five months after they
had received a sheriff’s deed.

On July 31, 1992, the sheriff of
Winnebago County removed defendants from
their homestead, and without a judgment
against Appellant-Crossley and with
Pppellee Liberty Bank waiving their
judgment against the homestead.

On June 2, 1993, Appellees Liberty
Bank filed and recorded an amended
sheriff’s deed with the Winnebago County
recorder book 281, page 127, and later on
June 17, 1993, Appellee Liberty Bank filed
the amended sheriff’s deed with the
Winnebago County Clerk of Court.

On July 23, 1991, Appellant-Crossley
filed his Federal Complaint where it
showed that the defendants’ had violated
his constitutional rights, violations cf
42 U.S.C. sections 1983, i985, 1986, ana
RICO. On April 6, 1992, Judge Donald E.
O’Brien, Chief Judge of the United States
District Court dismissed Appellant-
Crossley’s Complaint that stated, “IT IS
FURTHER ORDERED that if plaintiff fails in
his attempt to have the Iowa District
Court’s Order of November, 1990,
overturned, he may refile, without payment
of any additional fees, any new and
different claims than those previously
asserted. “This was Case No.C91-3050.

On December 22, 1993, the clerk of
the United States District Court for the
Northern District of Iowa Central Division

a
__ = ™

14

gave Aprellant-Crossley a new Case No. 923-
3083.

On June 13, 1994, Appellant-Crosslev
filed his Civil Complaint with Case No.
C93-3083 with violations “liberty” and
“property” rights, “civil rights”,
violations by the defendant-appellees’ cé
the lst, 4th, 5th, 7th, and 14th
Amendments of the United States
Constitution; violations of Title 42
§1983, 1985(3), 1986 and Iowa Code
Statutes 561, 561.21, 561.4, 654, 680,
554, 561.16, 646, I.R.C.P., Rule 258.

On October 27, 1994, Judge Mark W.
EFennett, U.S. District Court Judge filec
his order pursuant to Case No. C93-3085,

eee de=endants’ Motions to Dismiss
Appellant-Cressley’"s Complaint and dia
error in it’s order that states,

% me prior state court

sr and in Crossley I,

ey raised challenges to thé
iety of the foreclosure
dings, the sheriff’s sale,
le of the crops from the i¢s
and the notice of first

This series of legal
which all concerned the

surrounding the foreclosur

he real estate in question, @&
the same actions which Crossley
challenges in this case. The court
has little difficulty concluding
that the claims asserted by
Crossley involve “the same nucleus
of operative fact” previously
litigated in Crossley I and the
Iowa State Courts. Therefore, the

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15

court finds that Crossley’s claims
against Defendant Liberty Bank &
Trust are barred by operation of
res judicata, and the court shall
grant Defendant Liberty Bank &
Trust’s motion for summary
judgment.”

On November 4, 1994, Appellant-
Crossley filed his motion to court
pursuant to F.R.C.P., Rules 52(b) and Rule
59 with motion, brief and affidavit in
support of, Appellant-Crossley asserted
that the court made factual and legal
errors in its order of October 27, 1994,
in granting defendants’ motions to
cGismiss.

On January 5, 1995, Mark W. Bennett,
United States District Judge denied
szopellant-Crossley’s motion pursuant to
-.R.C.P., Rules 52(b) and Rule 59.

On February 6, 1995, Appellant-
Crossley appealed Judce Mark W. Bennett ~
crder’s to the United States Court of
appeals for the Eighth Circuit, the court
cid error in not fully complying with Rule
=6’s notice requirements.

The case was submitted December 29,
1995 to the United States Court of Appeals
for the Eighth Circuit. The Court of
Fopeals affirmed the holding of the lower
court on January 10, 1996.

Petitioner now seeks the review of
this Court.

ia

16

REASONS FOR GRANTING THE WRIT

be

| CERTIORARI SHOULD BE GRANTED TO
SUPERVISE THE DEPARTURE FROM THE
ACCEPTED AND USUAL COURSE OF
JUDICIAL PROCEEDINGS.

Apellant-Crossley alleged violations
of his Liberty and property rights in his
complaint against the named defendant-
appellees. Appellant-Crossiey alleged
deprivation of his homestead by named
defendants and deprivation of his 1992
crops by the named Appellees. The
Appellees filed Rule 12(b)(é) motions to
aismiss and did not file anv type of
answer to Appellant-Crossley’s Complaint.
No Rule 56 motions for summary judgment
were filed by Appellee’s. The Supreme
Court Justice, Rehnquist, held in CELOTEX
CORP. V. CATRETT 106 S. Ct. 2548 (1986),
that: (1) Rule 56(c) mandates the entry of
summary judgment after adeaquate time for
discovery against a party who fails to
make a showing sufficient to establish the
existence of an element essential to that
party’s case as to which that party will
bear the burden of proof at trial; (2)
there is no requirement that moving party
support its motion with affidavits or
other similar materials negating the
opponent’s claim; and (3) nonmoving party
need not produce evidence in a form that
would be admissible at trial in order to
avoid summary judgment. Appellant-

17

Crossley asked the court for time to do
discovery and Appellant-Crossley was
denied by the Court. Crossley was denied
adequate time to do discovery.

Rule 56 must be construed with due regard
not only for the rights of persons
asserting claims and defenses that are
adequately based in fact to have those
claims and defenses tried to a jury but
also for the rights of persons opposing
such claims and defenses to demonstrate,
in the manner provided by the rule prior
to trial, that the claims and defenses
have no factual basis. Fed. Rules Civ.
Proc. Rule 56, 28 U.S.C.A. Federal Civil
Procedure 2461.

Party seeking summary judgment always
bears the initial responsibility of
informing the district court of the basis
for its motion and identifying those
portions of the pleadings, depositions,
answers to interrogatories, and admissions
on file, together with affidavits, if any,
which it believes demonstrate the absence
of a genuine issue of material fact. Fed.
Rules Civ. Proc. Rule 56(c), 28 U.S.C.A.

The trial court did error in turning
appellee’s motion to dismiss into motion
for summary judgment without notice to
Appellant-Crossley, when no depositions,
answers to interrogatories, and admissions
on file, together with the affidavits, if
any, show that there is no genuine issue
as to any material fact and that the
moving party is entitled to a judgment as
a matter of law. There are numerous
genuine issues of material facts that were
ignored by the District Court. For
example, there was no judgment against

18

Crossley, Crossley was removed from his
homestead, Crossley was deprived of his
crops, Appellees only filed motions to
dismiss, Howard L. Draper did not timely
file Hertz Farm Management Inc.’s motion
to dismiss, Appellees elevators violated
and ignored the Iowa Code Statutes 554,
et. seq. U.C.C., Liberty Bank’s first
Sheriff’s Deed was void, Liberty Bank used
their writ of possession prior to the
removal of Crossley, Larry Crossley still
has paramount title to subject property,
Liberty Bank has not tendered the full
amount owing on the March 23, 1973 real
estate contract, and the named Appellees
did conspire to deprive Lary Crossley of
his Constitutional Rights. Appellees
defendants did not show that they were
entitled to a judomert as a matter of law.
Summary judgment is proper only “if the
pleadings, depositicns, answers to
interrogatories, and admissions on file,
together with the affidavits, if any, shew
that there is no genuine issue as to any
material fact and that the moving party is
entitled to a judomert as a matter of
law.” CELOTEX CORP. V. CATRETT, 477 U.S.
obi» See, 400 5S, CT. 2548, 2552, 91 L. Ed.
2d 265 (1986); CONTINENTAL GRAIN CO V.
FRANK SEITZINGER STOFAGE, 837 F. 2d 836,
838 (Eighth Circuit 1988). A moving party
is “entitled to judoment as a matter of
law: if the nonmoving party fails to make
a sufficient showing of an essential
element of a claim with respect to which
it has the burden of proof. Id. 477 U.S.
at 323, 106 S. Ct. at 2552 JOHNSON V.
SCHOPF, 669 F.

19

Supp. 291, 295 (D Minn. 1987). However,
summary judgment should not be granted if
a reasonable jury could return a verdict
for the nonmoving party. ANDERSON V.
LIBERTY LOBBY, INC., 477 U.S. 242, 248,
106 &. Ct. 2505, 2510, 91 L. Ed. 20 202
(1986). The Appellee’s filed Rule

12(b) (6) motions to dismiss and did not
file any type of answer to Appellant-
Crossley’s Complaint. No Rule 56 Motions
for summary judgment where filed by the
Appellees gave no explanation for the
taking of Appellant-Crossley’s homestead
and Appellant’s 1992 crops. Appellant-
Crossley explained to the court that there
were no judgments in the State Court
action against him, and also explained
that the Appellee Bank had waived any
right to a deficiency judgment and
therefore according to IOWA CODE STATUTE
651.16, states, “The homestead of every
person is exempt from judicial sale where
there is no special

declaration of statute to the contrary.”
GREEN V. FORNEY, 1907, 134 Iowa 316, 111
N.W. 976. To merely mark out, plat and
record a tract of ground as a homestead,
is not sufficient to make it such. Its
occupancy and use, as a home, by the
family, are the essential requirements.
COLE V. GILL, 1863, 14 Iowa 527. In order
to render premises occupied by a family
exempt as a homestead, no plat need be
filed. YOST V. DEVAULT, 1859, 9 Iowa 60.
IOWA CODE STATUTE 561.4 Appellant filed
the declaration of homestead with the
Winnebago County, recorder in homestead
book on page 98-9. Appellant-Crossley
also filed with the Winnebago County

20

recorder an affidavit of right of
possession on July 12, 1991, book 10, page
277-8. IOWA CODE STATUTE 561 AND 628
gives a person that is being foreclosed on
certain rights. “Vendors, who were
authorized to claim as much as “0 acres in
homestead property..

BECKER V. GUSTAFSON, “279 N.W. 2d 744.
Appellant was in possession of the
homestead and resident of the household
unit and Appellees Bank had waived
deficiency judgment on subject property
and therefore can not show that a receiver
was needed or appropriate, BENNETT V.
ELDON MILLER, INC., 106 N.W. 2d 257.
Appellee Hertz Farm Management Inc., has
caused damage to Appellant, Crossley was
forced to pay rent to the receiver on land
that they had no right to possession of,
the receiver canceled Appellant-Crossley’s
insurance policy on the property. THE
SUPREME COURT OF IOWA will allow the
appointment of a receiver in the case of a
deficiency. See COMMUNITY STATE BANK V.
COTTINGTON, 444 N.W. 2d 487, and cases
cited therein. However, the court may not
appoint a receiver where a deficiency has
been waived se¢ FEDERAL LAND BANK V.
FAUGHT BROS., 4€8 N.W. 2d 793, 795 (Iowa
1991). “Where the right to a deficiency
has been waived there exists no right to
appoint a receiver based on a claimed
potential for deficiency.” It is
interesting to note that the same Iowa
District Court Judge heard the Faught case
as well as the Crossley case, in both
cases the District Court Judge appointed
the receiver when any right toa

21

deficiency judgment had been waived in
both cases.

Appellant-Crossley alleged
Constitutional Violations of “good faith”
and “obligation of contract clause”
guaranteed by the lst and 14 Amendments of
the U.S. Constitution in his Complaint,
which happens to be Constitutional issues,
as Appellant finds support in MORELLO VS.
JAMES, 810 F. 2d 344 (1987) which states:

“dismissal reversed as every
citizen has riaqnt of access to
the courts where oppression
damages on constitutional
grounds are alleged as
allegations must be accepted as
true.”

Like the Old demurrez, a& motion to
dismiss admits the wel! p_eaded facts in
the complaint for the purcecse of testing
their legal sufficiency. CREENLAND V.
FAIRTRON CORP. 500 N.W. 22 36, 37 (Iowa
1993). The motion may net be supported by
its own allegations of facz not contained
in the complaint. Where uron full reading
of Appellant’s complaint it is clearly
alleged of violations of these Amendments
as well as others wherein acts, actions, -
conduct, and policies of tne defendants’
have inflicted severe irreparable damages
upon Appellant and innocent third persons
where the Federal Court cic error in not
meriting denial of Appellees’ motions to
dismiss.

Had the facts been viewed in a light
most favorable to the Petitioner, the
motion for summary judgment would have
been denied. This is because the record
did support issues for trial. Instead the

22

circuit court acted as a super jury and
decided the facts against the Petitioner.
This was reversible error.

Petitioner submits that certiorari
should be granted because the Eighth
Circuit’s judgment departed from the
accepted and usual role to be performed by
a court on motions for summary judgment.
This case should have proceeded to trial
on the merits. This Honorable Court
should reject the Court of Appeals’
insistence on being a fact finder.

bb s

CERTIORARI SHOULD BE GRANTED TO
RESOLVE THE CONFLICT AMONG THE EIGHTH
CIRCUIT AND THE STATE COURT RELATIVE TO
THE APPLICATION OF TITLE 42 U.S.C.
$1983, 1985(3), 1986, TITLE 7 U.S.C.
§2000 ET. SEQ. AND IOWA CODE 561, 656,
554, 646, 680, I.R.C.P. 258.

Appellent-Crossley dispossessed from his
homestead, they had his crops harvested
and hauled to three local Elevators which
are all named defendants in his complaint,
the named appellee-defendants and managers
had actual knowledge of the “notice of
security interest in farm products” that
is filed with the secretary of State of
Iowa. UCC filings which states “This
notice is tendered pursuant to IOWA CODE
STATUTE 554.9307, as amended, and Public

Law 99-198, para. 1324.” The respondent
Elevators/Managers were in contact with

23

Liberty Bank & Trust Co. and ignored the
UCCs and issued moneys to Liberty Bank for
Crossley’s grain, Crossley received no
money, there actions are in direct
conflict with Iowa Code §554. “Where
private entity acts in concert with state
actor, private entity is also subject to
liability under this section.” Title 42
U.S.C.A. Statute 1983” THREE RIVERS
CABLEVISION, INC. V. CITY OF PITTSBURGH,
D.C. Pa. 1980, 502 F. Supp. 1118. “To
state a claim under 42 U.S.C. Section
1985(3) a complaint must allege four
elements”, GRIFFIN V. BRECKENRIDGE, 403
U.S. 88, 102-03 (1971), Appellant-Crossley
did alleged all four elements in his
complaint, and has alleged discriminatory
motive on the part of the conspirators.
MASSEY V. SMITH, 555 F. 2d 1355, 1356
(Eighth Circuit 1977). Appellant-
Crossley’s complaint did state a claim
under title 42 U.S.C. section 1983, 1985
and 1986. “A cause of action under
section 1986 is dependent on a valid claim
under section 1985. SEBASTIAN V. UNITED
STATE, 531 F. 2d 900,904 n.11 (Eighth
Circuit 1976), cert. denied, 429 U.S. 856
(1976); KAYLOR V. FIELDS, 661 F. 2d 1177,
1184 (Eighth Circuit 1981).

Appellant filed new and different
claims against different appellee’s on
June 13, 1994, with the court, the
complaint alleged violations of due
process of law, liberty and property
rights which are Civil right, which
appellees’ defendant’s violated
Appellant’s lst, 4th, 5th, 7th, and 14th
Amendments of the United States
Constitution, violations of Iowa Code

24

Statutes 561, 561.21, 561.4, €54, 680,
554, 537, 561.16, 646, I.R.C.P., Rule 258,
Title 28 U.S.C. 1331, 1332, and 1343,
Title 42 U.S.C. §1983, 1985, and 1986.
All violations took place after Judge
O’Brien’s order dated April 6, 1992, the
District Court would not acknowledge this
fact and the fact that the Respondents
were not named Defendants in my first case
in Federal District Court. The Winnebago
District Court order dated October 13,
1993, on the 1992 crops was én erroneous
decision of the court “an erroneous
decision does not bind the parties in a
subsequent action on a different cause of
action” SWANK V. ST PAUL CITY RY. (1895)
61 Minn. 423 63 N.W. 1088: U.S. Moser
(1924) 266 U.S. 236.

Appellant-Crossley filed his motion
pursuant to Rule 59 with the hopes that
the search for truth in the light of
justice be accomplished pursuant to truth,
justice and adjudication cn full material
facts without “conclusions” used which are
untrue, unfounded and without statute or
constitutional foundations where everyone
should be aware of two (2) basic
principles in jurisprudence with keeping
in mind the warning expressed by Justice
Brandeis in his dissenting opinion as
found in OLMSTEAD VS. UNITED STATES, 48 S.
CT. CT. 564 (1925) states,

“If the government becomes a
law-breaker, it breeds contempt
for its laws.”

Defendant’ s-Appellee’s herein, one
and all, have once again brought fraud
upon this Court by the very findings of
their pleadings as filed. These are

25

“conclusions” as dismissal of Appellant’s
complaint was entered without Appellant’s
issue’s being heard so the court based its
“conclusion” had to be based either on
“political reason” or “moral personal
reason”, both which are not founded with
either the “commands” of the Constitution
of the State of Iowa which is found in a
very recent decision by the United States
Supreme Court, Justice Kennedy wrote so
very clear of the mandates of all federal
courts which were denied to Appellant.
See UNITED STATES VS. GOOD REAL PROPERTY,
114 S CT. 492 (1994) where the following
statement is made as
“Certain wrongs affect more than
a single right and, accordingly,
can implicate more than one of
the Constitution’s commands.
Where such multiple violations
are alleged, we are not in the
habit of identifying as a
preliminary matter the claim’s
‘dominant’ character. Rather,
we examine each constitutional
provision in turn.”
Appellant-Crossley herein hopefully pray
the facts will surface in the search for
the truth, since Appellant’s allegations
must be accepted as true is supported
against all Defendant-Appellees as seen in
ANDERSON VS. BOYD, 714 F. Supp. 906 (1983)
wherein is found the following:
“Dismissal reversed as judges
and court officials are not
immuned from civil rights
allegations and a motion to
dismiss for failure to state a
claim does not override civil

26

rights allegations as complaint
must be liberally construed as
allegations must be accepted as
true.”
Appellant’s allegations in complaint that
has been buried without redress which are
Constitutional rights of Appellant by the
7th Amendment of the U.S. Constitution and
the Constitution of the State of Iowa.
Appellant’s issues is reversible error
where as found in GENERAL MOTORS CORP. VS.
BLEVINS, 571 F. Supp. 38 (1956) opinion
reveals that,
“Rignt and justice is right to
contract protection of the 14th
amendment as protection is a
Mandated constitutional right.”
Appellant finds suproort in WILLIAMS VS.
DRESSER INDUSTRIES INC., 795 F. Supp. 1144
(1992) states:
“Concealment of material facts
may amount to fraud... where the
concealment is of intrinsic of
the article which the other
party by the exercise of
ordinary prudence and caution
could not discover (cit.); and
misrepresentation may be
perpetrated by acts as well as
worcs and by artifices designed
to mislead.”

Discovery is a due process right
wherein dismissal of Appellant-Crossley’s
complaint did deprived Crossley of “due
process” in civil matter, CHAPMAN VS.
CALIFORNIA, 87 S. CT. 824 (1967) that
states:

27

“Constitutional rights requires
due process.:
See also EX PARTE VIRGINIA, 100 U.S. 339
(1879) Wherein the entire opinion came
down to the following:
“14th Amendment requires “due
process” and “equal protection”
of property rights.:”
“Due process” is a “peoples right”
see HOLDEN vs. HARDY, 18 S. CT. 833 (1898)
wherein as seen in HUGHES vs. ROWE, 101 S.
CT. 6 (1980) holds:
“Action without full hearing is
a “due process” violation and a
civil rights violation as well.”
The Federal Court’s decision in this case
has been in conflict with all of the cases
cited so far in this petition, the merits
of this case have been totally overlooked,
in RINALDI vs. YEAGER, 86 S. CT. 1497
-(1966) where it states,
“equal protection is
constitutional right where
denial of access to the courts
is found.”
Appellant-Crossley finds support in UNITED
STATES vs. GOOD REAL PROPERTY, supra, as
it must also be respectfully seen by
review of OWEN vs. HAAS, 661 F. 2d 1242
(1979) states:
Summary judgment reversed as
implied power with gross
negligence combined with
deliberate indifference in local
body is a person with proper
jurisdiction with right of
discovery with failure to state
a claim motion reversed as
parties have right to amend

28

complaint as there is alleged
actual and implied knowledge
found is civil rights complaint
that should not be dismissed at
pleading stage.”

Curiously the Eighth Circuit engagéd
in no real historical or legislative
analysis of § 1983, 1985(3), 1986. If it
had it would have had to address the cases
cited in this petition. No analysis of
Crossley’s liberty and property rights
were addressed by the Federal District
Court and undoubtedly not reviewed by the
Eighth Circuit Court of Appeals.

Petitioner submits that certiorari
should be granted because the Eighth
Circuit judgment is in conflict with the
previous Circuit Court decisions and
United States Supreme Court decisions,
along with the Iowa Supreme Court
decisions. This case should have
proceeded to trial on the merits. This
Honorable Court should reject the Court of
Appeals decisicn and supervise the
application of Iowa Code and Federal Code.

29

CONCLUSION

One would have to conclude,
therefore, that the highest Court of the
land has indeed, provided a clue to
whether the irregularities of the District
Court should bar redress of federal
statutes, Civil Rights, and Constitutional
Rights to citizens of this Country.
Petitioner maintains that it would be
illogical to conclude that this Court
would wish to see an inconsistent
application of the cases decided by this
Honorable Court and Lower Courts. Why
would this Honorable Court abandon the
Constitution as to some Federal Statutes
and not do so as to others? Of course,
there is no good reason to suppose, that
would be this Court’s approach; which
makes it important for certiorari to be
granted in this case to settle the
conflict that has persisted among the
circuits on this issue.

Application of the decision in this
case undermines the very purpose of 42
U.S.C. §1983,§1985(3), and §1986. This
position is taken by several Courts of
Appeal. For this reason, Petitioner
submits that this Honorable Court should
resolve the conflict.

Respectfully submitted,
ix2 a/er siey a
Non-lawyer Petitioner
Route 1, Box 45

Carlos, MN 56319
(320) 732-2290

la

APPENDIX A - OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT FILED JULY 1, 1996

No. $5-1437NISC

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

LARRY A. CROSSLEY,

Liberty Bank & Trust Co., etc.,
et al.,

TY a i= a sijic
vetencants-arcellicees

Oe Ne ee ee ee we Ot
--

Order Denying Petition for Rehearing
and Suggestion for Rehearing En Banc

The suggestion for rehearing en banc
is denied.
The petition for rehearing by the panel
is also denied.

Decided and Filed July 1, 1996

Order entered at the discretion
of the Court:
Michael E. Gains
Clerk, U.S. Court of Appeals,
Eighth Circuit

2a

APPENDIX B - OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT FILED JANUARY 10, 1996

No. 95-1437

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

LARRY A. CROSSLEY,
Plaintiff-Appellant,

Vv.
Liberty Bank & Trust Co., etc.,

et al.,
Defendants-Appellees.

Submitted: December 29, 1995

Filed: January 10, 1996

Before WOLLMAN, MAGILL, and
HANSEN, Circuit Judges.

3a
PER CURIAM.

Larry Crossley appeals from the
district court’s? orders granting summary
judgment in favor of defendants, and
denying his motion for reconsideration.

Having carefully reviewed the record and
the parties’ briefs, we conclude the
judgment of the district court was
correct. Accordingly, we affirm. See 8th
Cir. R. 478.

A true copy.
Attest:

CLERK, U. S. COURT OF APPEALS,
EIGHTH COURT.

The Honorable Mark W. Bennett, United
tes District Judge for the Northern
trict of Iowa.

ta
is
—

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0387%3A1. Public record. Not legal advice.