Another F'closed Homeowner Illegally Driven From Home; Cops Decline To Pursue Criminal Charges; Call Premature, Unauthorized "Eviction" A Civil Matter

In Manatee County, Florida, the Bradenton Herald reports:

• Jodie Meyers knew she was losing her Hollybush Terrace home to foreclosure, but never expected the bank to be so quick in taking it. She and her three children already were in the process of moving out when GMAC Mortgage won a foreclosure auction of the four-bedroom house last month. Just three days after the auction, the locks had been changed — even though the family still had personal belongings inside. That angered Meyers, who contends that amounted to trespassing because GMAC couldn’t legally take ownership for another week.

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• [E]xperts said the episode highlights a little-known and sometimes gray area of the [Florida] foreclosure auction process: A waiting period before winning bidders can take possession. State law requires winning bidders to wait at least 10 full days before they can take title to a foreclosed property, in case there are any objections to the auction or new filings in the foreclosure court case. The waiting period begins when a court clerk issues a certificate of sale, usually on the same day as the auction. If there are no objections or new court filings at the end of that 10-day window, then the clerk can issue a certificate of title.(1)

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• Meyers said nothing was taken from her home and she later was allowed back into the house to gather more belongings. But the episode so steamed her that she called the Manatee County Sheriff’s Office in hopes of pressing criminal charges. Deputies declined, telling her it was a civil matter.(2) She later filed a report at the sheriff’s office. Nearly a month later, Meyers has moved out but still simmers over what happened. “The house still was mine,” she said. “The bank had no business being there.”(3)

For more, see Foreclosure wait period can lead to problems.

(1) Even after the Clerk of the Court issues the certificate of title, the foreclosing lender can't take immediate possession of the premises unless it is obvious that it is vacant and abandoned. If someone is still occupying the home, the lender is required to obtain a writ of possession from the court (if they haven't already obtained it), and have the local sheriff's department execute it by:

• posting a notice on the front door giving the occupants seven days notice, and
• returning at the end of the notice period to boot the occupants (if they haven't already left), and hand possession of the premises to the new owner.

(2) Whoever it was at the Manatee County Sheriff's Office that told the foreclosed homeowner that the incident was a civil matter either didn't know what he/she was talking about, or just didn't feel like pursing a criminal investigation. All they had to do was check the records in the Sheriff Department's civil division to see if a writ of possession had been executed by them at the subject location. Assuming that it wasn't, this incident clearly has the trappings of a criminal trespass that should have been prosecuted, irrespective of whether a foreclosure sale took place or whether a certificate of title (ie. foreclosure deed) was issued to the foreclosing lender by the Clerk of the Court.

(3) Hopefully for the foreclosed homeowner, she can find competent legal counsel (or, alternatively, competent legal counsel can find her) to file a civil lawsuit against all the perpetrators and give them a well-deserved financial hammering.

See Long Island Judge Hammers Wells w/ $155K Tab For Oppressive, Heavy Handed, Egregious Conduct For Pre-Sale Lockout Of Homeowner In Foreclosure for an example of the kind of liability a lender (as well as the real estate agents and other authorizing and carrying out the illegal lock changes) may expose itself to resulting from these premature, unauthorized "evictions".

For the New York court's ruling in the case, see Wells Fargo v. Tyson, 27 Misc 3d 684, 2010 NY Slip Op 20079 (Sup. Ct. Suffolk County, March 5, 2010), in which the judge made the following, among other, observations in summarizing the applicable New York case law that formed the basis for the judgment in favor of the prematurely-evicted homeowner in foreclosure (bold text is my emphasis, not in the original text).

• Distilled to its very essence, trespass is characterized by one's intentional entry, with neither permission nor legal justification, upon the real property of another (Woodhull v Town of Riverhead, 46 AD3d 802 [2d Dept 2007]).
• The injury arising therefrom afflicts the owner's right of exclusive possession of the property (Steinfeld v Morris, 258 App Div 228 [1st Dept 1939]; Kaplan v Incorporated Vil. of Lynbrook, 12 AD3d 410 [2d Dept 2004]).
• The elements of a claim for trespass are intent coupled with the entry upon the land that is in the possession of another. In order for trespass to lie, general intent is legally insufficient. Instead, there must be a specific intent, either to enter the land or to engage in some act whereby it is substantially certain that such entry onto the land will result therefrom (Phillips v Sun Oil Co., 307 NY 328 [1954]).
• The intent need not be illegal or unlawful (MacDonald v Parama, Inc., 15 AD2d 797 [2d Dept 1962]), but even one who enters the land upon the erroneous belief that he has the right to enter thereon will be held liable in trespass (Burger v Singh, 28 AD3d 695 [2d Dept 2006]).
• Trespass will lie against a party if entry upon the land was perpetrated by a third party, such as an independent contractor or other party, at the direction of the party to be charged (Gracey v Van Camp, 299 AD2d 837 [4th Dept 2002]).
• It follows then, both logically and legally, that the injured party must have been in possession, whether actual or constructive, at the time that the alleged wrongful entry occurred (Cirillo v Wyker, 51 AD2d 758 [2d Dept 1976]).
• In the matter that is presently sub judice, it is clear that a trespass has occurred on at least two separate occasions. It is apparent to the court that this trespass was perpetrated against the property of defendant and was done at the special instance and request and upon the affirmative directive of plaintiff.

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• In instances where the conduct complained of is willful, wanton or egregious, the court is vested with the power to award exemplary damages. Exemplary damages may lie in a situation where it is necessary not only to effectuate punishment but also to deter the offending party from engaging in such conduct in the future. Such an award may also be made to address, as enunciated by the Court of Appeals in Home Ins. Co. v American Home Prods. Corp. (75 NY2d 196 [1990]), "gross misbehavior for the good of the public . . . on the ground of public policy." Indeed, exemplary damages are intended to have a deterrent effect upon conduct which is unconscionable, egregious, deliberate and inequitable (I.H.P. Corp. v 210 Cent. Park S. Corp., 12 NY2d 329 [1963]).