Posted on Wednesday, December 22, 2010
TRUCKEE, Calif. — When Mimi Ash arrived at her mountain chalet here for a weekend ski trip, she discovered that someone had broken into the home and changed the locks.
When she finally got into the house, it was empty. All of her possessions were gone: furniture, her son’s ski medals, winter clothes and family photos. Also missing was a wooden box, its top inscribed with the words “Together Forever,” that contained the ashes of her late husband, Robert.
The culprit, Ms. Ash soon learned, was not a burglar but her bank. According to a federal lawsuit filed in October by Ms. Ash, Bank of America had wrongfully foreclosed on her house and thrown out her belongings, without alerting Ms. Ash beforehand.
In an era when millions of homes have received foreclosure notices nationwide, lawsuits detailing bank break-ins like the one at Ms. Ash’s house keep surfacing. And in the wake of the scandal involving shoddy, sometimes illegal paperwork that has buffeted the nation’s biggest banks in recent months, critics say these situations reinforce their claims that the foreclosure process is fundamentally flawed.
“Every day, smaller wrongs happen to people trying to save their homes: being charged the wrong amount of money, being wrongly denied a loan modification, being asked to hand over documents four or five times,” said Ira Rheingold, executive director of the National Association of Consumer Advocates.
Identifying the number of homeowners who were locked out illegally is difficult. But banks and their representatives insist that situations like Ms. Ash’s represent just a tiny percentage of foreclosures.
Many of the incidents that have become public appear to have been caused by confusion over whether a house is abandoned, in which case a bank may have the right to break in and make sure the property is secure.
Some of the cases appear to be mistakes involving homeowners who were up to date on their mortgage — or had paid off their home — but who still became targets of a bank.
In Texas, for example, Bank of America had the locks changed and the electricity shut off last year at Alan Schroit’s second home in Galveston, according to court papers. Mr. Schroit, who had paid off the house, had stored 75 pounds of salmon and halibut in his refrigerator and freezer, caught during a recent Alaskan fishing vacation.
“Lacking power, the freezer’s contents melted, spoiled and reeking melt water spread through the property and leaked through the flooring into joists and lower areas,” the lawsuit says. The case was settled for an undisclosed amount.
More common are cases like Ms. Ash’s, in which a homeowner was behind on payments, perhaps trying to work out a modification, when bank crews changed the locks.
In Florida, contractors working for Chase Bank used a screwdriver to enter Debra Fischer’s house in Punta Gorda and helped themselves to a laptop, an iPod, a cordless drill, six bottles of wine and a frosty beer, left half-empty on the counter, according to assertions in a lawsuit filed in August. Ms. Fisher was facing foreclosure, but Chase had not yet obtained a court order, her lawyer says.
The break-in was discovered when a Canadian couple renting the house returned from the beach.
Chase officials said such behavior by its contractors, if determined to be true, would be considered unacceptable and corrective action would be taken.
Banks and their contractors insist that the number of mistakes is minuscule given the hundreds of thousands of new foreclosure cases filed each month. Bank of America, for instance, says it works with third-party contractors to inspect and maintain more than one million properties each month and has enhanced its controls in the last year to prevent mistakes.
Alan Jaffa, chief executive of Safeguard Properties, which inspects and maintains foreclosed properties for mortgage servicers, acknowledged that a handful of mistakes had been made. In most instances, he said, his company provided a valuable service that protected properties and neighborhoods.
“There is a stigma that we go in, kick the door in and throw grandma out head first and board up the windows,” Mr. Jaffa said. “We are doing a lot of good out there.”
But Alan M. White, a consumer law expert at Valparaiso University in Indiana, says: “Volume is not an excuse for violating someone’s rights.”
A clause in most mortgages allows banks that service the loan to enter a home and secure it if it is in default, meaning if the mortgage payment is 45 to 60 days late, and if the house has been abandoned, authorities said.
Banks do so to protect the property from vandalism or damage for which the bank could be liable.
But determining when a house is abandoned is not always easy and is often left to inexperienced contractors, said Carlin Phillips, a Massachusetts lawyer who represents Ms. Ash, who is 45.
“It’s sometimes as little as someone looking through the windows, or knocking on the door of a neighbor and saying, “Where are they?’ ” Mr. Phillips said.
In Washington, Celeste Butler went to check on her father’s house after he spent months in the hospital and ultimately died.
“The house was ransacked,” Ms. Butler said, adding that it had been neatly maintained beforehand. “They had destroyed furniture, broken into china cabinet. They had looted jewelry.”
In her lawsuit, Ms. Butler is accusing Safeguard, a contractor for JP MorganChase, of breaking into her father’s house. Ms. Butler asserts that Chase failed to properly credit payments made when she switched to an automatic system in June 2009, but that she and the bank worked quickly to rectify the problem.
Officials at Chase said its contractors, dispatched to inspect the house when payments were late, found it in disarray. When no one responded to a letter asking if the property had been abandoned, Chase said, its crews went back in the house to put antifreeze in the pipes.
The clearing out of Ms. Ash’s Truckee home, on Ski Slope Way high above Lake Tahoe, came after several horrific years of personal and professional hardships.
During the California real estate boom, Ms. Ash and her husband, Robert, thrived. Mr. Ash bought the house in Truckee in 2003. Two years later, he was stabbed to death in a road-rage incident near Truckee. (The driver was convicted of second-degree murder and is in prison.)
From there, Ms. Ash’s troubles with the Truckee house became tangled in her worsening financial situation and, she claims, the bungling of the bank, originally Countrywide Financial, which was bought by Bank of America in 2008.
She intended to assume the mortgage on the house, which landed in probate court after her husband’s death. The bank required that she catch up on payments and taxes, so she sent a check for $15,000.
Hearing nothing from the bank for many months and not having ownership of the house, she made no more payments, she said. By the time Countrywide reached Ms. Ash, the real estate market was collapsing, so she sought a loan modification.
Months and years of frustration followed. The bank lost documents and rarely returned her e-mails and phone messages, she said.
When Countrywide issued a default notice in 2007, it went to the wrong address, her lawsuit says. Later, Ms. Ash said, the bank assured her it would not foreclose while she pursued the loan modification.
Even so, the bank conducted a foreclosure sale on the property in May 2008. Again, Ms. Ash said she had not been notified and learned of the sale during a summer visit. She said she had been told the sale would be rescinded.
Near Halloween 2008, work crews broke in and cleaned out the place, taking Persian rugs, china, furniture bought on a trip in Peru, skis, photos of her marriage and childhood in Iran. Her husband’s ashes were taken from the couple’s master bedroom.
A bank spokeswoman, Jumana Bauwens, said, “We take the allegations made by Ms. Ash very seriously and are thoroughly researching her claims. Bank of America will work with Ms. Ash and her counsel to determine the extent and cause of her claims and move toward an appropriate resolution of the case.”
Although the original foreclosure was rescinded, as promised, Ms. Ash, who discovered the break-in in January 2009, says it is hard for her to visit the house anymore and she will probably let it lapse into foreclosure. At this point, she said, it is just a “sad reminder that 22 years of my history vanished.”
“This is in essence a burglary,” said Ms. Ash, walking through the vacant home, with its four levels and commanding mountain views. “But when a burglar goes in, they don’t take your photos and your husband’s ashes.”
“This used to be my haven I’d run away to,” she said. “Now I run away from it.”
By ANDREW MARTIN NYT