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In June of 1999, Nicholas Charles Herbert (aka Nick Ashton and Nick Hanson) was jailed in San Diego and charged by the district attorney’s office with selling homes out from under the owners — elderly people who had no idea what was going on. To effectuate his thefts and fraudulent sales, Herbert forged such things as escrow instructions, deeds, notes, trust deeds, and appraisals, the district attorney charged.

Herbert later confessed, “On or about November 23, 1998, I stole approximately $240,000 from Carlin T. Elmendorf by unlawfully selling his property at 3811 Kendall Street, San Diego, CA, without his knowledge or consent. I netted approximately $213,000.” (It was one of several Herbert confessions for illegal sales of houses owned by the elderly.) According to proceedings in a civil suit initially filed March of 2007 in superior court in San Diego, Herbert had pulled off the stunt by forging Elmendorf’s name on a deed that purportedly transferred the property to someone supposedly named Ian James Grossman.

In August of 1999, Herbert was sentenced to five years and eight months in state prison. After he got out, and after his probation period was over, Herbert took aim a second time at the very same house on Kendall Street. According to the 2007 civil suit, in which defendants filed several cross-complaints, Herbert forged Grossman’s name on another document that transferred the property to Gold Coast Realty Investments, a company Herbert controlled. Then Herbert took out a $700,000 loan on the property and later transferred the home to an Orange County company through a fraudulent deed, according to multiple complaints in superior court. (Herbert is now in jail in Orange County, awaiting trial for other alleged real estate scams, but I will get into that below.)

“Ian James Grossman does not exist,” says Edward (Sean) Doheny, who represented Elmendorf in the civil suit. “We looked for Grossman. He is a straw man. Gold Coast is an alter ego for Nicholas Herbert.”

So who is Carlin Elmendorf? Well, “He’s insane and mentally incompetent,” says Doheny, and those afflictions helped Elmendorf get his house back. As Doheny showed at the civil trial, Elmendorf, 78, suffered a brain tumor while he was in the Marines in the 1950s. The resulting surgery has affected his mental capacity ever since. A psychiatric expert testified that he has the executive functioning capabilities of a typical third or fourth grader. Elmendorf has never held a job and doesn’t even collect the payments he receives from the U.S. military. His grandparents built the 3811 Kendall Street home 76 years ago. His mother lived in it until 1973, when she died and it passed to Elmendorf.

In attempting to filch Elmendorf’s house a second time, Herbert had competition. That’s what all those civil complaints were about. One Justin Killman attempted to claim the Kendall Street house on the legal theory of “adverse possession.” Killman sued Elmendorf, Gold Coast (Herbert), the Orange County firm, and some other entities, claiming that the house was his. “Herbert no-showed. He was on the lam in Tennessee,” where he was recently arrested and returned to Orange County, says Doheny.

Under adverse possession, a person can claim title to an empty home if, among several things, he occupies it openly, pays taxes on it, and is on the property uninterruptedly and continuously for at least five years (with an exception that eventually snuffed out Killman’s claim).

In the complaints that were tried in June, Judge Michael Anello had several problems with Killman’s assertions. For one thing, Killman’s testimony “is subject to certain credibility problems,” declared the judge. Killman couldn’t show that he occupied the house openly; neighbors didn’t notice him there for a long time, although some complained of “rowdy parties,” said the judge. There were other reasons why Killman couldn’t meet the test of adverse possession, but perhaps the most important one was Elmendorf’s insanity. As Anello explained, under California law, the normal five-year period doesn’t apply in the case of a minor or someone who is insane. Under such circumstances, the period of required occupancy can run to 20 years, and the clock doesn’t begin to run until an insane person is cured. Pronounced the judge, “If Mr. Elmendorf was the legal owner of the subject property, and if he was insane at the time Mr. Killman commenced his purported adverse possession of the subject property, and if he has been insane ever since that date, then the prescriptive period hasn’t even begun to run yet, and for that reason alone Mr. Killman could not prevail on his adverse possession claim.”

In his trial brief, Doheny noted, “Killman is a professional adverse possessor who preys on those who cannot defend themselves and are incapable of managing their properties.… Killman carries out his plan of taking properties belonging to the elderly and mentally infirm through a perversion of the adverse possession doctrine.” Judge Anello noted in his decision that Killman was trying to get a house on Bancroft Street through adverse possession at about the same time that he was working the same strategy on Kendall Street. Killman disagrees with the decision and has appealed.

According to Judge Anello, attorney Felipe Hueso, a friend and boss of Killman, told him about the house on Kendall Street. Hueso, brother of city council president Ben Hueso, had in the mid-1990s unsuccessfully attempted to adversely possess a Market Street property belonging to Elmendorf. Said the judge, “It was Mr. Hueso who introduced Mr. Killman to the subject of adverse possession, and it was Mr. Hueso who told Mr. Killman that the subject Kendall Street property might be a good opportunity for him. Against that backdrop, it is more likely than not that Mr. Killman knew that Mr. Elmendorf was elderly and mentally challenged even before he [Mr. Killman] ever saw the subject property for the first time in or about October 2000.”

In his trial brief, Doheny said that Killman was following “in the footsteps of his mentor, Felipe Hueso, the self-proclaimed expert on adverse possession.”

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Fred Williams March 7, 2009 @ 10:29 a.m.

Consider the following:

http://www.sfgate.com/cgi-bin/object/article?f=/g/a/2009/03/06/Tent_City.DTL&o=0

Homeless tent cities are growing, and beginning to house those not traditionally indigent. How big do they need to get before they simply find a neighborhood with a cluster of foreclosed homes and move in?

Organized properly, with women and children leading the way, the group would be able to colonize these properties and begin the process of adverse possession.

A few clever lawyers could help. If they would file the paperwork challenging the "owners" to prove their claims, there's a chance that the tangled web of contracts and counter-contracts between the banks would be so opaque that a judge might eventually side with squatters and award them ownership.

When we look at the central valley in particular, I could see this happening by summer.

The question is what the authorities do. Do they send in the SWAT team with flash grenades to smoke out the squatters? Do they just turn off water and electricity? Or do officials turn a blind eye, recognizing that regardless of the paperwork these families need someplace to live, and an otherwise vacant house is better than a tent in a field...

Interesting times we live in, and the official reaction to such acts of civil disobedience will be telling.

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sherrysun March 7, 2009 @ 8:03 a.m.

I take exception to your portraying a lawyer taking a LEGAL action along with a criminal in your article re: Kindall house . Whats wrong with taking an abandoned, burned out, blighted house, dangerous to the neighborhood, taxes unpaid for years and taking LEGAL action to remedy the situation? If one doesn't like the laws then work to have them changed. Don't punish someone for repairing, refurbishing, paying all those years of back taxes and making the house a productive safe part of the community! The lawyer OBVIOUSLY did NOT know that the original "owner" who abandoned the house would be deemed insane because he would have known his years of work and money put into the house would have been in vain. If the writer of the article knew real estate law, the article would have had a different tone. By including the lawyer with a criminal is to smear his name without knowing the facts!

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Don Bauder March 7, 2009 @ 10:07 a.m.

Response to post #23: Adverse possession is legal if certain conditions are met; the judge in this case clearly ruled that those conditions had not been met. He also said it was likely that the person trying to take over the house by adverse possession knew that the owner was elderly and insane. Best, Don Bauder

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Don Bauder March 7, 2009 @ 6:52 p.m.

Response to post #25: I don't know if police would chase out the squatters, although if the rightful owners complained, my guess is that they would Best, Don Bauder

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Don Bauder March 7, 2009 @ 6:54 p.m.

Response to post #26: And, fumber, when you lie down, do you make a tent of great proportion and significance? Best, Don Bauder

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SurfPuppy619 March 7, 2009 @ 7:32 p.m.

And, fumber, when you lie down, do you make a tent of great proportion and significance?

Only in his nocturnal emission dreams.......................Bada Bing!

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Don Bauder March 8, 2009 @ 7:37 a.m.

Response to post #29: Would fumber's tent be a tepee? Best, Don Bauder

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Don Bauder March 8, 2009 @ 10:06 a.m.

Response to post #31: I don't even know what bada bing means. That's another example of how far out of today's mainstream I swim. Best, Don Bauder

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SurfPuppy619 March 8, 2009 @ 11:51 a.m.

"Bada Bing" is a term of exclamation (!!) used by the mafioso.

If you ever saw "The Godfather" this is what James Caan (Sonny) says to Al Pacino (Michael) when Mike is going to kill the rival mafia guy and the police captain at the Italian restaurant. Sonny said to Miachel "Put two in their head, Bada Bing!"

I think they said this on the Sopranos also, but never watched tha show so I don't know for sure.

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JohnnyVegas Feb. 18, 2009 @ 12:51 p.m.

Herbert should be charged under CA financial elder abuse laws. He should then be charged under federal law for mortgage scams, which undoubtedly crossed state lines and used wires in the process, in fact this fits all the elements of a RICO charge, which would be appropriate under these circumstances.

Herbert has a pattern and practice of ripping off the elderly and is clearly a danger to the community and therefore should serve a lengthy prison term.

CA has the shortest period for "adverse possession" of any state in the United States-which as stated is only 5 years. In most states it is 15-20 years.

I have never heard of an adverse possession case on a substantially valued property in CA-ever. Vacant and abandoned shacks and the like yes, but never on any property of even limited worth.

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Don Bauder Feb. 18, 2009 @ 2:25 p.m.

Response to post #1: I think Herbert got off with a light sentence on his rounds of thefts from the elderly in the late 1990s. I don't think he could be retried for those offenses, for which he has already served time. Maybe the Orange County court will put him away again for a longer term. Yes, this adverse possession case was on a property worth a pretty good sum, relatively. Best, Don Bauder

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Don Bauder March 8, 2009 @ 6:04 p.m.

Response to post #33: I saw the Godfather but don't remember the expression. Indeed, I don't even remember that particular murder. What I remember is that there lots of murders. Best, Don Bauder

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Burwell Feb. 18, 2009 @ 10:43 p.m.

I thought about exercising my legal rights many years ago when the U-T (or maybe the Reader) revealed that Rocque De La Fuente was not paying property taxes on numerous parcels of land he owned in Otay Mesa. I thought about plowing a field and planting soy beans on one of his delinquent parcels in order to establish adverse possession. Maybe some homeless guy could erect a tent on one of Rocque's parcels and live there for 5 years. He could use his disability money to pay off the delinquent property taxes and take Rocque's land by adverse possession.

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Don Bauder Feb. 19, 2009 @ 7:34 a.m.

Response to post #3: Yes, but once you took over Roque's assets, how would you sort them out? A chart of his holdings is an absolute miasma, resembling a plate of spaghetti, with various owners, including at least one offshore, holding percentages of each asset. A real mare's nest. Deliberately. Best, Don Bauder

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JohnnyVegas Feb. 19, 2009 @ 7:38 a.m.

You wouldn't need to sort all his holdings ouy (or the ownership entity), just the one you're camping out on. As long as you're there in the open and paying taxes-without permission you woudl qualify and the court would eb the one sorting out everything after that.

I would think if you planted seed and plowed an open plot that would qualify.

It is an interesting area of law.

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Don Bauder Feb. 19, 2009 @ 10:20 a.m.

Response to post #5: It is an interesting area of the law. It's used often in Latin America, usually to take over shacks. Use of the concept on a San Diego home of value is questionable. Remember, the judge noted that Killman was working on adverse possession of still another home at roughly the time he was trying the ploy on the Kendall St. home. Best, Don Bauder

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AriArk Feb. 19, 2009 @ 11:54 a.m.

Herbert needs a little more then jail time. After all he did try this twice on the same elderly person. Apparently because he thought that he could get away with it both times.

For people like Herbert that have been fully and justly convicted in a public court of law we need to bring back public stoning and execution...

It would only take a few public executions to be broadcast on the local nightly news for every idiot that was ever thinking of perusing a life of crime and doing something mean and cruel like this to completely drop what they were doing and go in a different life direction...

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Don Bauder Feb. 19, 2009 @ 2:35 p.m.

Response to post #7: And remember, Herbert had pulled the same stunt on a number of elderly persons when he got nailed by the DA's office in 1999. The Kendall St. home was only one of his targets. From the court information, it appears that Herbert greatly enjoys getting stoned -- but not in the way you suggest. Best, Don Bauder

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Burwell Feb. 19, 2009 @ 8:30 p.m.

Yes, but once you took over Roque's assets, how would you sort them out? A chart of his holdings is an absolute miasma, resembling a plate of spaghetti,

That's why Roque would be a perfect candidate for adverse possession. He would likely never catch on that some sneak was paying delinquent taxes on one of his parcels. If he checked the county tax rolls and saw the taxes were paid up, he would think his bookkeeper did it and not inquire further. He probably does not know where his many properties are located. He would never notice some sneak planting soybeans on his land.

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JohnnyVegas Feb. 19, 2009 @ 9:11 p.m.

Soybeans! It is so crazy it might actually work!

The problem with Roque is that he likes to litigate-and has the resources to.

If you ended up in court with a quite title/adverse possession petition on one of his properties you may be there for a decade or more...lol.

(BTW-his long running lawsuit with the City had been tossed out thanks to Aguirre- is that still in the court system??).

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Burwell Feb. 19, 2009 @ 10:17 p.m.

If I took adverse possession of Roque's land and paid taxes for three years before he found out and evicted me, could I sue Roque to recover the taxes I paid on his land? I see a financial risk in adverse possession, especially if the owner gets wise and kicks the possessor off the property before the 5 year period is up.

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strawman Feb. 19, 2009 @ 11:45 p.m.

Regarding "fraudulent loan packages" and banks "losing" money: MEMORANDUM The issues in this case were simple. There was no material dispute of the facts for the Jury to resolve. Plaintiff admitted that it, in combination with the Federal Reserve Bank of Minneapolis, which are for all practical purposes, because of their interlocking activity and practices, and both being Banking Institutions Incorporated under the Laws of the United States, are in the Law to be treated as one and the same Bank, did create the entire $14,000.00 in money or credit upon its own books by bookkeeping entry. That this was the Consideration used to support the Note dated May 8, 1964 and the Mortgage of the same date. The money and credit first came into existence when they created it. Mr. Morgan admitted that no United States Law Statute existed which gave him the right to do this. A lawful consideration must exist and be tendered to support the Note. See Ansheuser-Busch Brewing Company v. Emma Mason, 44 Minn. 318, 46 N.W. 558. The Jury found that there was no consideration and I agree. Only God can create something of value out of nothing. Even if Defendant could be charged with waiver or estoppel as a matter of Law this is no defense to the Plaintiff. The Law leaves wrongdoers where it finds them. See sections 50, 51 and 52 of Am Jur 2nd "Actions" on page 584 – "no action will lie to recover on a claim based upon, or in any manner depending upon, a fraudulent, illegal, or immoral transaction or contract to which Plaintiff was a party." Plaintiff's act of creating credit is not authorized by the Constitution and Laws of the United States, is unconstitutional and void, and is not a lawful consideration in the eyes of the Law to support any thing or upon which any lawful right can be built. Nothing in the Constitution of the United States limits the jurisdiction of this Court, which is one of original Jurisdiction with right of trial by Jury guaranteed. This is a Common Law action. Minnesota cannot limit or impair the power of this Court to render Complete Justice between the parties. Any provisions in the Constitution and laws of Minnesota which attempt to do so is repugnant to the Constitution of the United States and void. No question as to the Jurisdiction of this Court was raised by either party at the trial. Both parties were given complete liberty to submit any and all facts to the Jury, at least in so far as they saw fit. No complaint was made by Plaintiff that Plaintiff did not receive a fair trial. From the admissions made by Mr. Morgan the path of duty was direct and clear for the Jury. Their Verdict could not reasonably been otherwise. Justice was rendered completely and without denial, promptly and without delay, freely and without purchase, conformable to the laws in this Court of December 7, 1968. BY THE COURT, December 9, 1968 Justice Martin V. Mahoney, Credit River Township, Scott County, Minnesota.

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eds Feb. 20, 2009 @ 3:42 a.m.

Forget all the legal mumbo jumbo. Put a bullet in his head and let's move on. Oh, I'm sorry, I forgot I live in a weak and worthless society. Nevermind.

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Don Bauder Feb. 20, 2009 @ 7:23 a.m.

Response to post #9: If San Diego real estate developers saw soybeans growing, they would immediately rip out the growing things and plunk down several tract homes. Roque might notice them. Best, Don Bauder

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Don Bauder Feb. 20, 2009 @ 7:26 a.m.

Response to post #10: I don't know where that suit is. He turned down a nice settlement, and then a higher court knocked out any pending payment. I think Roque has lost but he might be carrying the suit further. Best, Don Bauder

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Don Bauder Feb. 20, 2009 @ 7:28 a.m.

Response to post #11: You will have to take this up with Roque and his lawyers. Good luck. I have had many unrewarding adventures dealing with them. Best, Don Bauder

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Don Bauder Feb. 20, 2009 @ 7:32 a.m.

Response to post #12: What did the jury mean: only God can create something of value out of nothing? Central banks do it every day. Best, Don Bauder

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Don Bauder Feb. 20, 2009 @ 7:34 a.m.

Response to post #13: Herbert will no doubt get a fair trial in Orange County that will cost the government a bundle. Best, Don Bauder

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realnews Feb. 20, 2009 @ 3:01 p.m.

So our council member's brother is going around advising on adverse possessions?

And how does he come to know about them?

Does this bode well for people in the district?

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Don Bauder Feb. 20, 2009 @ 3:44 p.m.

Response to post #19: The Hueso family may know a lot about the adverse possession business. Best, Don Bauder

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SurfPuppy619 Feb. 25, 2009 @ 6:24 p.m.

If I took adverse possession of Roque's land and paid taxes for three years before he found out and evicted me, could I sue Roque to recover the taxes I paid on his land?

Yes, you could recover the taxes you paid under the doctrine of equity= "quantum meruit".

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Don Bauder Feb. 25, 2009 @ 6:41 p.m.

Response to post #21: If you win the suit against Roque, good luck collecting. Best, Don Bauder

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bartleby88 March 15, 2009 @ 12:44 a.m.

Adverse possession to take over a property?? Never heard of that. Usually I see in encroachment cases where some dude builds his fence over his neighbor's property line and no one says anything until they want to sell their property and have survey done. Leave it to some Mexican mafiosos to think up this use of adverse possession. Kinda sounds like the garbage being spewed by the Justice Department to justify torture and warrantless wiretapping.

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Don Bauder March 15, 2009 @ 7:33 a.m.

Response to post #35: As I said, adverse possession is not illegal if certain conditions are met. The judge ruled that they were not met in this case. You generally see adverse possession in poor areas marked by rundown shacks. It's used a lot in Latin America. Best, Don Bauder

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SurfPuppy619 March 15, 2009 @ 9:26 a.m.

Adverse possession to take over a property?? Never heard of that. Usually I see in encroachment cases where some dude builds his fence over his neighbor's property line and no one says anything until they want to sell their property and have survey done.

What you have just described is adverse possession.

Adverse possission simply will not work on a property of any value in CA because no one is simply going to let anyone come in and take over a valuable property.

AP- It was designed for, and only works on, property that has been abondoned. Property that is almost always uselss and of little value- property someone does not care if oyu take.

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Don Bauder March 15, 2009 @ 9:15 p.m.

Response to post #37: There is no question that it is very difficult if not almost impossible to take over valuable CA property by adverse possession. Best, Don Bauder

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shyvioletblue July 2, 2011 @ 9:11 a.m.

i know this is a little late, but better late than never! here is why Bada Bing! is associated w the Sopranos tee vee show: the main mafia characters hold some of their meetings in a back room at an exotic dancers club called "Satin Dolls" on rt.17 in Lodi, NJ. its named for the Duke Ellington song.

the club has/had a big neon sign for years and years- decades even, that had the outline of a sexy woman and said bada bing! on it. this sign was up waaaaaay before the sopranos show was even thought of- even before cable tee vee was invented.

tho i think in the show the club not called "Satin Dolls" called something else- but no matter.

so, the show was filmed there on the regular but it is a real club as well and you can visit their website if you would like more info: satindollsnj.com

i used to live in hackensack, NJ and that is right next to lodi, NJ. i havent been down rt. 17 past Satin Dolls in the past 4-5 years tho so i dont know if the sign that says bada bing! is still there. that sign was easy to love tho- it had so much character! just like the people around there;)

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