We have had two recent approved Short Sales from SETERUS and OCWEN who have sent in Preservation Teams from (Safeguard Properties) to change locks and add their own combo boxes to the properties, without the knowledge of Sellers or the Listing Broker. When I confronted both Lenders they made nothing but excuuses and pointed fingers back to Safeguard. I just wanted to alert you all to be aware...
The agent of the bank and the bank are totally responsible. The moment they entered they were trespassing under ALL state laws. File a police report. Then file siut against the bank and the agnet of the bank for felony tresspass, theft and damage to property. Make sure that you tell the police that you want FELONY prosecution of the person who entered, and then sue the bank and the agent, name everyone.
Your atty in this suit may tell you NOT to close as they have violated your rights and invaded your privacy, paid someone to steal from you and committed many crimes against property.
Such violations may mean that YOU can recover more than your mtg from them. Press this hard. make sure that you call the county prosecutor's office as well. While a bank has the right to "protect" its interests, it by definiton knew that you resided there and that there was a sale. Any action by the bank under those circumstanceds violates the law, your mortgage, and your privacy. They will have to settle on this, but file before you move out or sign
If the sellers are not making payments then...........
The mortgagee’s right to protect its interest in the collateral securing the mortgage note begins with its contract with the borrower/mortgagor. Some variation of this right is contained in almost all mortgage/deed of trust documents, whether they are FNMA/FHLMC Uniform Instruments, FHA, VA or sub-prime. This language commonly provides that a mortgagee is entitled to take all necessary actions to protect the value of the mortgaged property. A typical provision is found in Paragraph 7 of the VA Uniform Mortgage Instrument for the state of Ohio:
Protection of Lender’s Rights in the Property. If Borrower fails to perform the covenants and agreements contained in this Security Instrument, or there is a legal proceeding that may significantly affect Lender’s rights in the Property (such as a proceeding in bankruptcy, probate, for condemnation or forfeiture or to enforce laws or regulations) then Lender may do or pay for whatever is necessary to protect the value of the Property and Lender’s rights in the Property. Lender’s actions may include . . . entering on the Property to make repairs (emphasis added).
The FNMA Uniform Instrument takes this right further in Paragraph 9:
Protection of Lender’s Interest in the Property and Rights Under This Security Instrument. Lender may do and pay for whatever is reasonable or appropriate to protect Lender’s interest in the Property and rights under this Security Instrument, including protecting and/or assessing the value of the Property, and securing and/or repairing the Property . . . Securing the Property includes, but is not limited to, entering the Property to make repairs, change locks, replace or board up doors and windows, drain water from pipes, eliminate building or other code violations or dangerous conditions, and have utilities turned on or off (emphasis added).
IN virtually every state, breaking and entering and malicious mischief of any occupied dwelling is at least a misdemeanor and in many a felony. The party that changed the locks did so as an agent of the bank. They caused loss of property and destroyed personal property (emptying the refrigerator of good food proves knowledge of occupancy). THis is either felony or misdemeanor, either way criminal. In order to change locks the party would have to have VERIFIED that the property was abandoned.
By the way, a REALTOR SIGN and ACTIVE listing proves property not abandoned at all. Otherwise every house for sale and empty would be allowed to change locks and foreclose under those same paragraphs. Sorry, but abandnment does not mean empty even..it means ABANDONED. Here in FL we have tens of thousands of houses that are empty 1/2 to 3/4 of the year. There are Mortgages and notes on every one. They are NOT abandoned at all and any attempt to enter and change locks would most likely be a felony here.
I defy you as a land lord to enter the premesis and change a lockset against a tenant who has not paid thier rent. In some states you would be arrested, in others lose up to 3 months rent and not be allowed to evict for many months. If you are trying to tell me that the "peaceful enjoyment" of ANY owner-resident's property can be violated by a lender without due process you are sadly mistaken. I dont care if it is a judicial or non-judicial state.
I can't wait until someone tries this in TX or FL in a house that looks emtpy when someone is home. That would be a class one felony and if the owner was armed they would be shot dead instantly and rightfully so. No man has the right to enter another's property especially when occupied!
Time for some major arrests and convictions. Including the actual employee that ordered the "work" done.
Dirk, are you an attorney?
No, I am not an attorney (if I was I would never say anything without charging a fee) however I do know how to look up state laws and read them. There is NO exception to a clause for breaking and entering and malicious mischief, theft and destruction of private property for commercial purposes. That does not exist in law that I can find. No police agency when given the actual state statutes can just walk away without a criminal complaint. They are not judges or courts and are not there to determine if there is any "right" commercially. If they fail to take the complaint then the next step in most states if to file a formal complaint (internal investigations) against the officer who failed to do his duty.
I don't care that a bank includes that it can "protect its property"(it has no property, just a note). The invasion of an occupied dwelling and harm to the legal owner in the process is a crime the way I read the law. It has nothing to do with contract law. The law would require protection of personal and private property by the paid service either way. It would seem to be up to the bank or servicer to PROVE that the house was "abandoned" before they could make entry, not the owner to prove not abandoned after suffering loss.
I will suggest that anyone in foreclosure post thier own window with a NO TRESSPASSING or other notice of occupation by the owner. I personally would also place a notice of use of force upon home invasion such as "any person entering this house uninvited will be assumed to be here to do bodily harm and will be dealt with accordingly".
Thanks for letting us know, from the legal advice that you have been giving, it appears that you are an attorney, thanks for setting it straight that you are not an attorney.
Recently, I had Bank of America Field Services call me regarding one of my short sales on a vacate property letting me know he was going to change the locks to the property. I informed the gentlemen he had no right to change the locks as the property was locked up and inspected weekly. He called his supervisor to get instructions on how to proceed. The gentlemen called me back after speaking to his supervisor to let me know he was going to proceed. I informed the gentlemen if he proceed with the re-key then I was calling the police because there was no reason to re-key the property. The property was not in harm and was secured. I called the Field Services Department and had a discussion on the phone with a representative and inform them I was calling the police and there was no reason to complete the re-key. The outcome was the re-key was cancelled and the locks were not changed.
I believe Banks do not have the right to re-key a property along is the property is for sale, secure and maintain. As long as the property is for sale the Bank is interfering with a sale between a Buyer and Seller.