W.Va. developer tells state to back off rent case

Jessica M. Karmasek Aug. 1, 2011, 1:57pm


MARTINSBURG, W.Va. (Legal Newsline) -- A West Virginia real estate developer contends the State does not have jurisdiction in a case alleging he fraudulently collected rent from tenants.

The case is now before the Fourth Circuit Court of Appeals.

Last month, plaintiff George Van Wagner filed an emergency petition for writ of prohibition and asked the U.S. District Court, Northern District of West Virginia, to issue an order directed at the magistrate and circuit courts of Berkeley County to abandon their cause of action.

The other defendants named include West Virginia Attorney General Darrell McGraw, for the State; Pamela Jean Games-Neely, Berkeley County prosecuting attorney; and Corporal Joseph Walker with the West Virginia State Police, Martinsburg detachment.

On June 15, Van Wagner was named in a criminal complaint, charging him for fraudulent schemes in violation of state code in the collection of rent from properties deeded to Vanwood LLC, of which he claims to be an owner.

According to court documents, Van Wagner also has cases pending before the state's Northern Bankruptcy Court and the Fourth Circuit. Both matters are directly related to the properties deeded to Vanwood -- the same properties Van Wagner mentions in his July 18 petition.

In his petition, Van Wagner argued that the State does not have concurrent jurisdiction.

"The case is already being heard in federal courts, and do not contend matters that cannot be addressed in those federal cases," wrote Van Wagner, who is representing himself.

The crux of the State's complaint is that Van Wagner collected rents from properties that he believes he is entitled to.

"As there has not been a final disposition in the federal courts, Plaintiff would be entitled to collect rents unless ordered by the federal courts to the contrary," Van Wagner wrote.

He argued the State does not have jurisdiction because there is a diversity in citizenship.

"Should the charges remain in state court, the Plaintiff herein would be permitted to call witnesses and be permitted to cross-examine those witnesses in accordance with WV Rules of Criminal Procedure," Van Wagner wrote.

"As the property being disputed is between three states, WV state court cannot compel their appearances."

Van Wagner also argued that the amount in controversy of the original disputed claim exceeds $75,000 and he will not waive his right to have the case heard in federal court.

He also believed there is a federal question of whether a state can bring charges where a matters has not been federally adjudicated.

U.S. District Judge John Preston Bailey denied Van Wagner's request in a July 20 order.

Bailey said there is no question that the case implicates "a vital interest" for the State.

"The State has the duty to protect its residents from fraudulent schemes," he wrote.

Van Wagner, Bailey said, also failed to claim bad faith on the part of the State, argue that a section of West Virginia Code is "flagrantly and patently violative of express constitutional prohibitions," or assert that any other extraordinary circumstances exist to justify the court's
interference with ongoing state criminal proceedings.

Van Wagner filed a notice for appeal with the Fourth Circuit on July 22.

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