The Home Equity Theft Reporter Cases & Articles: Cops Accept "The Bank Sent Me!" Defense In Home Break-In Probe Targeting "Trash-Out" Agent; Say No Crime Was 'Intended'

Wednesday, October 13, 2010

Cops Accept "The Bank Sent Me!" Defense In Home Break-In Probe Targeting "Trash-Out" Agent; Say No Crime Was 'Intended' - "It's A Civil Matter!"

Sarasota Herald Tribune columnist Tom Lyons writes:

The oldest trick in the book when cops want to avoid investigating a complaint is to simply insist it is a civil matter. Sometimes I can’t blame police for saying that. [...] Sometimes that phrase probably does save all involved a lot of useless trouble.

But the sheriff’s offices in Sarasota and Charlotte counties use that dodge when a bank sends property preservation contractors — that is, hired burglars -- to break into a house and change the locks while the resident owner or tenant is not there. That's outrageous. And it doesn't matter that there is probably a foreclosure lawsuit under way on that house.

***

But the old "that's a civil matter" dodge is exactly what was used when, for instance, tenants at a house in Punta Gorda found that men had broken in by jimmying a sliding glass door. The renters also reported some valuable items stolen, and said a beer that had been in the fridge was found half consumed on a table.

The sheriff's investigators did go to the trouble, at least, to get the denials of any theft from the men who broke in. And the investigators accepted those assurances, even though one of those men's fingerprints was on the beer bottle.

That beer issue aside, the men were excused because they worked for a company that is paid by banks to break into homes, and there was a work order to prove it. No charges were filed against the professional housebreakers or the bank officers who sent them.

In Sarasota, sheriff's investigator Jeff Bell explains that there has to be criminal intent to charge a crime, and there isn't any bad intent when a bank is just sending someone to secure houses that may have been abandoned during a drawn-out foreclosure lawsuit.(1)

Sorry, but that's weak. When a house is clearly abandoned and power is off and mold is growing, that's one thing. But when a house is obviously lived in, insisting that a housebreaking there isn't a crime is just bizarre.

For more, see Break-in? Not if bank is calling the shots.

(1) As reasonable as it may sound that "there has to be criminal intent to charge a crime," a victim of this type of violation must be ready to follow up and ask the cop making such a statement whether there is such a thing as criminal negligence. In other words, is it possible that a crime can be committed by someone who, despite a complete lack of intent to commit the crime, acted in such a negligent manner that the conduct rises to the level so as to constitute criminal negligence? (After asking the question, just be quiet and carefully listen to see whether the cop tries to tap dance his/her way around the question, or sincerely accepts the legitimacy of the question and decides to take a second look at the case (Since a cop is arguably less likely to try and BS an attorney asking a question like this, a victimized homeowner or renter may want to secure the services of counsel to ask the questions).

In Florida, the recording of a notice of pendency (ie. lis pendens - typically filed at the commencement of a foreclosure action) in the public records operates as notice to the world of litigation pending involving the property against which the lis pendens is recorded, and serves as constructive notice of the proceeding, the claims made therein, and the documents forming the causes of action (that can be found in the court file associated with the particular action at the local courthouse) against the property in the proceeding (F.S. 48.23 and the case law thereunder).

The issue here is whether the foreclosing lender's trash-out contractor has a legal obligation to:

ask the lender to provide him/her with a copy of a writ of possession (obtained after a foreclosure sale when the home's occupants are officially booted out by the local sheriff's office) evidencing that the lender is now in legal possession of the premises, or

familiarize him/herself with the court file associated with the foreclosure action (which, under F.S. 48.23, he/she is deemed to have constructive notice of) to determine whether a writ of possession stripping legal possession from the homeowner and turning it over to the lender was issued (or evidence that the writ was actually executed by police),

visit the Civil Division of the local Sheriff's Office (the department that handles evictions) and inquire as to whether a writ of possession was executed for the premises, or

take any other action (checking for active utility meters outside the premises, inquiring of neighbors, etc. to determine whether anyone is living in the home or whether they witnessed the last occupants moving out) that leads to solid, objective evidence that the premises has been abandoned (particularly applicable when the foreclosure action is not yet completed)?

In Florida and elsewhere, "A person has no right to shut his eyes or ears to avoid information, and then say that he has no notice; that it will not suffice the law to remain willfully ignorant of a thing readily ascertainable by whatever party puts him on inquiry, when the means of knowledge is at hand." Sapp v. Warner, 105 Fla. 245, 141 So. 124; aff'd on rehearing 143 So. 648 144 So. 481 (Fla. 1932), among scores of other cases throughout the country to the same effect.

The question for police and prosecutors, in my view, is whether the foreclosing lender's trash-out contractor exercised prudent, reasonable diligence in determining that the bank legitimately had the right of possession to the premises, or whether the contractor negligently or willfully closed his/her eyes to readily obtainable facts, and simply indulged in possibilities or probabilities before deciding to break into the premises.

If it's the latter, the question for law enforcement then is whether such careless or reckless conduct rises to the level of criminal negligence. ( It seems to me that the standard of diligence to which a trash-out contractor should be held before committing a home break-in should, at a bare minimum, be the same as that legally required of a process server serving a lawsuit.)

Until the cops get up to speed in this area of law enforcement, the victimized homeowner's (or tenant's) recourse in these situations is limited to hiring a lawyer and suing the perpetrators. As noted in earlier posts, media reports reveal that at least one Massachusetts law firm is apparently going around the country taking on these illegal lockout cases on behalf of screwed-over homeowners. See:

Bank admits mistake on Willcox home foreclosure (involving an Arizona homeowner) (for a copy of the resulting federal lawsuit, see Newman v. Bank of America, N.A. and go here for the attached Exhibits),

Family's recently purchased home, gutted by property removal service (involving a Michigan homeowner) (for a copy of the resulting federal lawsuit and accompanying Exhibits , see Rought v Deutsche National Trust Company, Trustee, et al.).

For those homeowners (and tenants) who've been screwed over by wrongful lockouts by foreclosing lenders (and their confederates) and seek some possible guidance on how much their cases might be worth if they seek to sue, see: