WWYD - Mistaken Foreclosure

[chasfm11]

I wasn't sure where to put this but did want to offer the situation for discussion

http://losangeles.cbslocal.com/2012/09/ ... oreclosed/" onclick="window.open(this.href);return false;
CBS Los Angeles September 5, 2012 9:44 PM

The owners of a modest home near Twentynine Palms lost their cherished possessions after a bank mistakenly foreclosed their residence.

Here is an interesting fact: the family didn't even have a mortgage!

Why does this interest me?

1. I assume that the Foreclosure process requires paperwork to be filed with some governmental entity. Why wasn't some verification that this family was actually behind in mortgage payments made.
2. I thought that force-able entry into a home needed a LE presence. Yes, I know that TwentyninePalms is the People's Republic of Kalifornia but the thought of privately paid "security" kicking in doors and kicking out people scares the "stuff" out of me.

But most important, I asked myself what I would have done? There is no question but that someone kicking in my front door is going to be met with a force response. However, I suspect that the organization involved was like Dog The Bounty Hunter and brought enough muscle to overcome physical resistance. It is also likely that, unlike Dog, they could carry weapons and would have responded with them.

I see this as another of several no-win scenarios. It also doesn't surprise me that Wells Fargo is involved. My personal dealings with them confirm that they are completely out of control through stupidity and inept business practices. Financial punishment in the form of winning a lawsuit will never provide compensation to this family.

[Purplehood]

I get the impression that this is a seasonal home.
If so, the WWYD really does not apply as it appears that no one was home.

[philip964]

So would the police arrest everyone involved and charge them with a criminal enterprise, from the security firm all the way up to the loan officer. Or since it was a "mistake" all criminal charges are forgiven?

I think a judge has to sign the order. If I was the judge who signed the order I would put them all in jail for a few days on contempt just because.

[chasfm11]

I get the impression that this is a seasonal home.
If so, the WWYD really does not apply as it appears that no one was home.

Perhaps but if they can do it to this house, it can happen anywhere. I've been concerned with no-knock warrants and this situation seems to expand that in a way that I would have never guessed. It is possible for someone to be present in a seasonal home, too.

[A-R]

So would the police arrest everyone involved and charge them with a criminal enterprise, from the security firm all the way up to the loan officer. Or since it was a "mistake" all criminal charges are forgiven?

I think a judge has to sign the order. If I was the judge who signed the order I would put them all in jail for a few days on contempt just because.

Interesting portions of the Texas Penal Code relevant to this discussion:

Sec. 8.02. MISTAKE OF FACT. (a) It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.(b) Although an actor's mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser included offense of which he would be guilty if the fact were as he believed.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 8.03. MISTAKE OF LAW. (a) It is no defense to prosecution that the actor was ignorant of the provisions of any law after the law has taken effect.(b) It is an affirmative defense to prosecution that the actor reasonably believed the conduct charged did not constitute a crime and that he acted in reasonable reliance upon:(1) an official statement of the law contained in a written order or grant of permission by an administrative agency charged by law with responsibility for interpreting the law in question; or(2) a written interpretation of the law contained in an opinion of a court of record or made by a public official charged by law with responsibility for interpreting the law in question.(c) Although an actor's mistake of law may constitute a defense to the offense charged, he may nevertheless be convicted of a lesser included offense of which he would be guilty if the law were as he believed.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Unless their "mistake" somehow broke the law (example: if they did not obtain any necessary court approval), they would have a defense to prosecution - just like we all would have if we entered a building that was "off limits" to CHL by virtue a "gunbusters" sign [PC 30.05(f)] but was not properly posted as such under PC 30.06

I'm not a lawyer of course, and am not saying what happened was "right" in any way. Just saying this is likely the "out" they would have as long as their mistake was truly one of fact (wrong address) and not of law.

Only other way I could envision a criminal prosecution is if someone up the chain of command with the bank and/or "crew" willfully disregarded information that this was the wrong house.

Situations like this are why I'm all for punitive civil damages given the right circumstances. Whatever the actual value of what was unlawfully seized from these people, the liability for the bank's mistakes should be 10-times that amount to compensate them for their pain and suffering.

[jimlongley]

I don't much care if the mistake was "of fact" or "of law" if I am home and they come busting in they get the same response as any criminal would.

I think the president of the bank owes the homeowner the contents of his home, with no hold backs.

[SRH78]

Wow, it is pretty amazing that could even happen. I highly doubt they simply showed up and busted in. However, if they did, they would be creating a terrible situation and had better have empty hands and find their way back out the door very quickly.

[RoyGBiv]

I would think (hope) that if anyone broke down my door without warning and I shot them, it would be considered self defense. Having papers doesn't allow anyone to bust down my locked door without knocking and making some attempt to inform me of the situation.

Just my OPINION. IANAL

[The Annoyed Man]

This is troublesome to me because I paid cash for my home and have owned it free and clear since day one. But, I do have a zero balance HELOC with B of A, which has had a zero balance for about 5 years now. But other than that HELOC, I've never even had any kind of mortgage on this property.