OH: Woman's house and goods wrongly "repossessed"

[philip964]

Arrest them all, put them in jail overnight. Make them all hire attorneys to get them out of the mess. Sure they didn't have intent, but make them prove it. It would go a long ways to making sure it did not happen again.

Otherwise they will just do it again.

[JALLEN]

Wouldn't the bank's unwillingness to work to resolve the problem factor into the award of those lucrative punitive damages?

I have been involved in foreclosure proceedings in CA for nearly 40 years, own a foreclosure trustee business, and am one of the leading expert witnesses in cases involving foreclosures in CA.

I'm informed that Ohio, where this occurred is a judicial foreclosure state, unlike say California which is predominantly non-judicial. The foreclosure almost certainly proceeded to judgment properly. The error likely occurred in enforcing the judgment, regaining possession. Most often, the buyer at a foreclosure sale is the lender itself, as there is little market value in excess of the loan amount by the time foreclosure sale occurs. Most of the time, not always. The bank usually hires a property management firm to take care of these things. That is likely where the error occurred. Hopefully, they have E&O coverage, or the bank will pay.

Punitive damages are awarded only where malicious acts were involved, not mere negligence. Negligent can be gross, of course, but I don't see anything in this scenario to imply gross negligence. For example, if you run a red light, hit a busload of newly graduated MDs, killing them all, the impact is certainly terrible, but as long as simple carelessness, nothing more, is the cause, there is no punitive damages. If you intentionally ran the light intending to hit the bus, that's murder in some degree. If you were drinking your coffee and shaving, while reading the newspaper stretched out across the steering wheel going 85 mph, that might be gross negligence. (I actually witnessed a man doing this on the 405 in Orange County some years ago!)

[Cedar Park Dad]

Wouldn't the bank's unwillingness to work to resolve the problem factor into the award of those lucrative punitive damages?

I have been involved in foreclosure proceedings in CA for nearly 40 years, own a foreclosure trustee business, and am one of the leading expert witnesses in cases involving foreclosures in CA.

I'm informed that Ohio, where this occurred is a judicial foreclosure state, unlike say California which is predominantly non-judicial. The foreclosure almost certainly proceeded to judgment properly. The error likely occurred in enforcing the judgment, regaining possession. Most often, the buyer at a foreclosure sale is the lender itself, as there is little market value in excess of the loan amount by the time foreclosure sale occurs. Most of the time, not always. The bank usually hires a property management firm to take care of these things. That is likely where the error occurred. Hopefully, they have E&O coverage, or the bank will pay.

Punitive damages are awarded only where malicious acts were involved, not mere negligence. Negligent can be gross, of course, but I don't see anything in this scenario to imply gross negligence. For example, if you run a red light, hit a busload of newly graduated MDs, killing them all, the impact is certainly terrible, but as long as simple carelessness, nothing more, is the cause, there is no punitive damages. If you intentionally ran the light intending to hit the bus, that's murder in some degree. If you were drinking your coffee and shaving, while reading the newspaper stretched out across the steering wheel going 85 mph, that might be gross negligence. (I actually witnessed a man doing this on the 405 in Orange County some years ago!)

I'm sure her lawyer will see it differently.

[JALLEN]

No harm in asking, wise men sometimes say.

[seamusTX]

You forgot M.L. King street.

How could I forget? I lived on Martin Luther King Jr Memorial Drive in Chicago for years.

It was not a bad neighborhood, either (for Chicago).

However, they don't often build new MLK streets. They rename an old one. Martin Luther King Jr Memorial Drive used to be South Parkway. (Before that it was Grand Boulevard, which was easily confused with Grand Avenue—but I digress.)

- Jim

[chasfm11]

Wouldn't the bank's unwillingness to work to resolve the problem factor into the award of those lucrative punitive damages?

I have been involved in foreclosure proceedings in CA for nearly 40 years, own a foreclosure trustee business, and am one of the leading expert witnesses in cases involving foreclosures in CA.

I'm informed that Ohio, where this occurred is a judicial foreclosure state, unlike say California which is predominantly non-judicial. The foreclosure almost certainly proceeded to judgment properly. The error likely occurred in enforcing the judgment, regaining possession. Most often, the buyer at a foreclosure sale is the lender itself, as there is little market value in excess of the loan amount by the time foreclosure sale occurs. Most of the time, not always. The bank usually hires a property management firm to take care of these things. That is likely where the error occurred. Hopefully, they have E&O coverage, or the bank will pay.

Punitive damages are awarded only where malicious acts were involved, not mere negligence. Negligent can be gross, of course, but I don't see anything in this scenario to imply gross negligence. For example, if you run a red light, hit a busload of newly graduated MDs, killing them all, the impact is certainly terrible, but as long as simple carelessness, nothing more, is the cause, there is no punitive damages. If you intentionally ran the light intending to hit the bus, that's murder in some degree. If you were drinking your coffee and shaving, while reading the newspaper stretched out across the steering wheel going 85 mph, that might be gross negligence. (I actually witnessed a man doing this on the 405 in Orange County some years ago!)

I don't doubt your analysis but I don't like it either. This is exactly why these kinds of things continue. There are no real consequences.

On the "gross negligence" angle, I was on a civil jury (the one and only time I'm likely ever to be allowed on one here) and we heard a case of a very obese woman who slipped and fell at night on a small supermarket parking lot on a $.25 piece sized piece of watermelon rind that her husband had just stepped over. The plaintiff's lawyer argued gross negligence even though the store didn't sell anything but whole melons. There was no evidence presented that the store had a track record of problems with cleanliness inspectors or other claims from customers about trip hazards. One tiny piece of rind was sufficient. In the jury room, half of the jury members were ready to give her $500,000. An hour later, we returned a unanimous verdict for the defendant. I insisted that if we were going to give her money that we also award the same amount to every patient in the local charity hospital. I held firm that everyone of them "deserved" it as much as she does. We got down to relying on the evidence presented and there were suddenly a lot of hanging heads. I'm convinced that if I had not been there, the woman would have gotten a significant cash award.

My point is that juries do not necessarily interpret the law exactly as lawyers do. Perhaps they should. If a gross negligence case were actually filed against the bank executives and it could be show that the foreclosure process had the same kinds of rampant flaws in it that were proven against banks during this last mortgage default crisis, it might be successful. Many of the things that stores will and will not do today are the result of litigation against other stores. I believe that it would only take one such case against bank executives to bring about change. Other than that, I agree that the banks, which have had much more powerful lobby groups that citizens and have "had their way" with Legislators regarding possibly punitive laws, will continue as they are. People like this poor lady will have their lives turned upside with little recourse.

[MechAg94]

She might not get punitive damages, but I assume that she had a lot of irreplaceable personal property that was thrown away as worthless when they sold off the furniture and stuff. It is hard to put a $$$ figure to that type of property.

Also, should she be able to get "new replacement cost" of all that furniture and stuff or would they try to just give her actual value (as in used)?

[MechAg94]

The police closed the case after finding out that a bank in a neighboring county had made the error.

I am not sure if this quote means anything or not. Does this indicate a judge in another county approved the foreclosure? Wouldn't the local judge have something to say about that?
I would have thought the local cops would be more inclined to take action if this was an outside bank or group doing this.

[EEllis]

She might not get punitive damages, but I assume that she had a lot of irreplaceable personal property that was thrown away as worthless when they sold off the furniture and stuff. It is hard to put a $$$ figure to that type of property.

Also, should she be able to get "new replacement cost" of all that furniture and stuff or would they try to just give her actual value (as in used)?

That is most likely the whole dispute. She of course came in with a high number and the bank may be willing to pay but want to pay the actual damages not a jacked up sum.

[seamusTX]

She might not get punitive damages, but I assume that she had a lot of irreplaceable personal property that was thrown away as worthless when they sold off the furniture and stuff. It is hard to put a $$$ figure to that type of property.

It depends upon state law what kind of emotional or intangible damages an injured party can claim. In recent years changes in state laws have tended to clamp down on this, because of a few outrageous judgments. The lady is not likely to get much for her family photos or high-school trophies.

Almost no one ever goes to jail for this kind of "mistake." It has always struck me as ironic that a mope who robs a convenience store of $50 and a carton of cigarettes can be shot or go to prison for a dozen years, but a guy wearing an Italian suit who steals a billion dollars while sitting at a desk might have to pay back half of it.

If you want to get the law changed, go to http://www.legis.state.tx.us/Resources/FAQ.aspx#2" onclick="window.open(this.href);return false;

- Jim

[jimlongley]

Seems to me this is similar to a plot in a tv show or movie. The guy was away for some reason, like military, and came home to find someone else living in his home and his wife and kids gone along with all his stuff. He finally found out that they had been evicted by a police agency when a bank or other lender foreclosed on the wrong address, and his wife and kids were living in poverty in a different state. First he tried to get the issue corrected but kept running into "It's the other guy's fault." and eventually started acting in revenge, and the police had a hard time connecting him to the crimes because their investigation started with the loan officer who started the foreclosure, which was recorded at "123 Any St." and his property had been "123 Many St."

I think if I was sitting on a criminal jury and hearing her case after she assaulted the banker, judge, etc, I would have to find for justifiable.

[chasfm11]

If you want to get the law changed, go to http://www.legis.state.tx.us/Resources/FAQ.aspx#2" onclick="window.open(this.href);return false;

- Jim

That will never happen, no matter how many citizens want it. Even our Texas Legislature has proved beyond a shadow of a doubt in their handling of the "Rainy Day" fund that they will sell out to the highest bidder. The bank lobby to prevent the change to the laws is more powerful than any citizens movement could ever be. Along with the telecom companies (ATT has the largest lobby group of any other organization), banks control the politicians.

[Jumping Frog]

In all seriousness, what is unfathomable to me is the bank's refusal to reimburse the woman for her losses, which are demonstrably their fault. THAT is criminal.

It's a cause for civil action (i.e., a lawsuit). Who exactly would go to jail if they prosecuted a bank for a crime?

The people who made the mistake. Speaking of which, whose mistake was it? Did the bank give the repo guys the wrong address, or were they just not paying attention? Also, do they work for a separate repo company, or are thy employed directly by the bank?

Even if the bank gave the correct address to the repo company, that does not necessarily mean the bank is off scot-free. The bank can be sued for "vicarious liability" asserting "negligent entrustment" of the repo agent.

I am personally aware of several $20 million+ judgements awarded on the basis of "vicarious liability" asserting "negligent entrustment". This means basically that the bank negligently entrusted an external party to perform this task without ensuring proper controls and processes were in place, thus becoming liable themselves for the bank's failure.

[philip964]

If a personal injury, such as the previous slipped on a melon case mentioned above, goes to trial. The plaintiff does not have much of a case or wanted way to much money to go away. Insurance Companies and Plaintiff attorneys do not like to go to trial and would prefer to settle with out a trial. Defense attorneys do not mind going to trial as they are being paid by the insurance company.

Sometimes an inexperienced attorney will take a bad case to trial, just because they don't know better, or need the practice. Most good plaintiff attorneys will show the other side they have a good case and show a good case for the damages they have. And then settle. It saves them the expense of a trial and reduces the risk for their client of getting nothing from a jury.

Problem in this case is it is property damage, not personal injury. Yes there is some pain and suffering for the loss of the property, but that is not worth much. A lot of the time the attorneys fees are taken out of the settlement and are not covered in the damages. Thus she would even get less, as much as 50% less. Plus you may not be able to get an attorney to help you on a contingency basis, and you would pay out of pocket until you receive a your money.

It would probably be covered by a homeowners policy. They might give her the best deal. Then their insurance company would settle it with the other insurance company.

It sure would have been nice if the police arrested someone, just because.

[chasfm11]

It sure would have been nice if the police arrested someone, just because.

Why can't "you can beat the rap but you cannot beat the ride" apply to bankers as well as to CHLs?