Self-Help for the Foreclosure Purchaser: Maryland Opinion Examines the Self-Help Step of Changing Locks while a Resident Is Out

Self-Help for the Foreclosure Purchaser: Maryland Opinion Examines the Self-Help Step of Changing Locks while a Resident Is Out

Maryland Court Affirms Self-Help via Lock-Out but Reverses Conversion Claim Related to Resident's Belongings

The Maryland court of appeals will not recognize an impermissible forcible entry when a foreclosure purchaser's lawful possessory interest in a dwelling is enforced (through lock-out) by means of the common law remedy of self-help.

In Nickens v. Mount Vernon Realty Group, LLC (MVRG), 2012 Md. LEXIS 664 (Md. Oct. 19, 2012) [enhanced version available to lexis.com subscribers], the court rejected Demetrius Nickens' claim that the lower court erred in holding that the common law right of peaceable self-help permitted MVRG to enter foreclosed residential property and change the locks while Nickens was out.

Upholding the Remedy of Self-Help

Nickens lived in his parents' home when the home was sold at a foreclosure sale. MVRG notified Nickens that unless he vacated the house, they intended to enter and remove his belongings. When Nickens left town, MVRG entered the unoccupied home, changed the locks, and disposed of Nickens' personal belongings.

Nickens unsuccessfully sued MVRG for forcible entry and conversion. The court of appeals affirmed in part, holding that:

the long-recognized remedy of peaceable self-help allows a property owner to use reasonable means to repossess his, her, or its property from an unlawful possessor of that real property. Under the well-pleaded facts and reasonable inferences, even viewed in a light favorable to Nickens in this case, Respondents, as agents of the successful foreclosure purchaser, employed the peaceable self-help remedy reasonably when MVRG ...  entered the residential property and changed the locks for the purpose of repossessing the property.

....

Prior notice to the unlawful possessor that repossession of the realty will occur is not required.

Nickens unsuccessfully pointed to a 2008 ordinance (Balt. City Code Art. 13, § 8B-2) which, he asserted, provided MVRG an exclusive procedure to possess the property via a writ of possession, notice, and sheriff's execution. Section 8B-2 did not indicate that all foreclosure purchasers had to resort to its process exclusively. Rather, the language implied that it was but another manner by which a foreclosure purchaser could repossess property in Baltimore.

Reversal on the Conversion Claim

Nickens' appeal wasn't a total failure. On his conversion claim, the court reversed because no discovery occurred as to how MVRG, in the absence of Nickens and in the course of exercising the self-help remedy, disposed of Nickens' personal belongings. Consequently, there was no adequate basis from which to conclude that MVRG acted reasonably in disposing of Nickens' belongings. The court held that:

The foreclosure purchaser and its agents have the duty to use peaceable and reasonable self-help with "no more force than necessary" to repossess the real property. Disposition of the personalty found therein, therefore, is also held to a standard of reasonableness, and those actors may be liable for the disposition of the personalty that is not accomplished in a reasonable way.

The court rejected MVRG's assertion that because Nickens was not in lawful possession of the realty, all of his belongings within the realty were abandoned and, hence, no conversion occurred, no matter how his belongings were disposed. The court noted that:

a reasonable inference from the well-pleaded facts is that Nickens did not manifest an intent to abandon his belongings in the house simply because he continued his occupancy after the foreclosure sale became final, or when he notified the Parkses [the owners/employees of MVRG] that he would be out of town for a period, but would return impliedly. 

....

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