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Court of Appeals: New owners have right to self-help

The new owners of a foreclosed home in Baltimore legally changed the locks on a house that was still occupied, Maryland’s highest court held.

The common-law remedy of peaceable self-help is still valid, the unanimous Court of Appeals held; however, it also revived the occupant’s claim that the new owners improperly threw out $75,000 worth of his property.

Demetrius Nickens was living at his parents’ foreclosed home at 3022 Kentucky Ave. when Mount Vernon Realty Group LLC, the Baltimore-based property manager for the new owners, disposed of what Nickens alleges were new appliances, computers, clothing, personal and financial papers, furniture and other personal items.

Mount Vernon had told Nickens on May 14, 2009, that it was going to enter the home and remove his belongings unless he vacated the house. It entered and changed the locks on Sept. 6, 2009, after learning that Nickens would be out of town on that day.

The Court of Appeals held that Mount Vernon lawfully entered the house and changed the locks under the right of self-help, rejecting Nickens’ argument that the right did not survive a 2008 change to the Baltimore City Code.

“The common law imported to Maryland in 1867 from England, through Article 5 of the Maryland Declaration of Rights, provided Respondents with the right to employ peaceable self-help against Nickens, who had only physical possession of the dwelling,” Judge Glenn T. Harrell Jr. wrote for the court.

To “effectuate lawfully the right to self-help, a titleholder must use reasonable care in dispossessing the individual residing at the property,” Harrell wrote.

To determine if the self-help remedy is properly used, the court said it applies a standard of reasonableness based on the “attendant circumstances.”

In Nickens’ case, the court said Mount Vernon acted reasonably.

“The record shows that Nickens knew, since early 2009, that his parents’ property had been sold at a foreclosure sale,” it said. “The parties stipulated that Nickens received notice that [Mount Vernon] intended to enter and repossess the property; nevertheless, even if no notice was given, we hold that notice is not required in order to exercise peaceable self-help.”

However, the court said that the duty to “act reasonably” in exercising the right of self-help includes the “disposition of the occupant’s personality found in the dwelling on the real property.”

The court said it was clear that Nickens did not intend to abandon his belongings in the house.

“The record does not show that Nickens expressed in any way … that he meant to relinquish his interest to his belongings when he traveled out of town,” the court said. “Abandonment had not been demonstrated as a matter of law, on the record as developed.”

Michele Z. Blumenfeld of Ferguson, Schetelich & Ballew P.A. in Baltimore and Russell J. Pope of Treanor Pope & Hughes in Towson represented Mount Vernon Realty. Blumenfeld and Hughes did not return calls for comment.

Matt Hill, an attorney at the Public Justice Center who represents Nickens, said he was happy that Nickens is going to be able to relitigate the conversion claim. He said, however, that in the broader scheme of things, it is a disappointing decision that could lead to “a lot of vigilante action.”

He said the decision creates fear and uncertainty for anyone living under foreclosure.

“Any time they go to the grocery store for a couple of hours, they could come back and have their locks changed under the court’s decision,” Hill said. “And this would be peaceable self-help, and it is not peaceable. To say that we are going to strip away your rights to the entire judicial process is somewhat disturbing. It hits people in the middle of the foreclosure crisis while they are down.”

HARRELL

WHAT THE COURT HELD

Case:

Demetrius Nickens v. Mount Vernon Realty Group, LLC., et al, CA No. 7, Sept. Term 2012. Opinion by Harrell, J. Argued Sept. 6, 2012; filed Oct. 19, 2012.

Issues:

(1) Did the lower courts err in rejecting a forcible-entry claim of an occupant who was locked out after foreclosure? (2) Did the lower courts err in finding that plaintiff could not claim conversion of personal property in the residence?

Holding:

Affirmed in part and reversed in part. (1)The Court of Special Appeals correctly held that the common law right of peaceable self-help permits a foreclosure purchaser to enter a residential property and change the locks while the resident is out. (2) The Court of Special Appeals erred in affirming the dismissal of the conversion claim in the absence of evidence indicating an intent to abandon the personal property.

Counsel:

Matt Hill for appellant; Michelle Z. Blumenfeld and Russell J. Pope for appellees.

RecordFax # 12-1019-20 (30 pages)