This half article indicates that landlords in (at least parts of) Ohio can dispose of stuff left in a rental property on the day of an eviction, so maybe banks can do the same thing with a foreclosed house.
Really? Not that I’m doubting you, I’m genuinely surprised that people privately hired to dispose of the contents of a building are legally barred from taking something they like from the contents.
I hired a guy to take away a bunch of debris from a kitchen demo, is it illegal for him to take the old kitchen sink and re-sell it or use it in his own house? In what way is a foreclosure cleanout legally different than my situation?
Eventually, yes.
But there’s a more nuanced answer.
When a bank forecloses, they become owners of the real property, not the personal property. Typically the bank will then begin eviction proceedings against anyone living in the home. For example, if the people living in the home had been renting the home from the actual owners, the bank may have to honor that lease. But of course the bank has no way of knowing about the existence of such arrangements. So they will attempt to contact the residents. If there is no response, they will send representatives to inspect the property. In this case (according to them) the property appeared to be abandoned. If the owners abandon their home and leave personal property behind, the bank is generally entitled to remove that property. After all, the owners have no right to store their personal property in someone else’s home.
So they typically move all abandoned personal property to the curb, where the local trash services have already been summoned to remove it.
If the former owner is still there, typically they’ll work with that person to avoid that spectacle – give them time to call a mover, etc. But not loads of time, because the former owner cannot frustrate an eviction by refusing to move his property.
I’m kinda wondering about that too.
[QUOTE=Ohio Statutes]
2911.21 Criminal trespass.
(A) No person, without privilege to do so, shall do any of the following:
<snip>
(4) Being on the land or premises of another, negligently fail or refuse to leave upon being notified by signage posted in a conspicuous place or otherwise being notified to do so by the owner or occupant, or the agent or servant of either.
(D)
(1) Whoever violates this section is guilty of criminal trespass, a misdemeanor of the fourth degree.
[/QUOTE]
Signage indicating the house number was posted in a conspicuous place, providing notification to anyone taking anything resembling normal care to attempt to identify the house by its address, and ISTM that the bank’s agents negligently failed to leave despite that notification.
I’d be interested in the legal eagles’ take on this.
And this gets back to the GPS question: does use of a GPS override the need to pay attention to ‘signage posted in a conspicuous place’? ISTM that the bank is saying it does, since it rather strongly implies that using the GPS instrument to identify the house was sufficient exercise of due diligence to make sure they were at the right place, despite the visible street number.
Not if you can’t find me. 
I’m pretty sure that the “signage in a conspicuous place” has to notify the trespasser to leave, not simply display a house number.
There may not have been an insurance policy in place, and the insurer may already have disclaimed coverage.
What about this part (which was snipped from the Ohio statutes quote)
Doesn’t the front door constitute an “enclosure manifestly designed to restrict access”?
Also the signage is discussed separately along with other factors. And each numbered section in itself is sufficient for the charge. I’m sure the police and the DA don’t want to get mired down in criminal trespass charges every time somebody fucks up without an initial intent to commit a crime, but how much willful disregard of common sense can be used to make an act unknowing? Can you wander into houses in you neighborhood randomly and say “I didn’t notice it wasn’t my house, I wasn’t paying attention. And they all look pretty much alike you know, doors, windows, roof, pretty much the same thing.”
I think the point that they didn’t know they were on the land or premises of another is the part that trips up the criminality. If I think I was legally invited to be on the land, am I still supposed to honor the “no trespassing” sign, or the closed front door, lest I be a trespasser?
Is it true that the house they were supposed to be at was across the street?
In my view, the “recklessly” mens rea mentioned here would need more than the claim that they didn’t look at the house number, especially if they DID rely on the GPS. That may be foolish; in my view it’s not criminal recklessness.
If the jury believes you? Yes.
In other words, if you don’t intend the criminal act, it’s not a criminal act.
The problem is that we have no mind-reading machine. So the more far-fetched your explanation is, the less likely the jury will believe it.
In this case, all the factors point to their telling the truth. This wasn’t a heist disguised as a mistake – it was a mistake.
In fact, to cut to the chase: does anyone wish to take the position that this was not, in actual fact, a mistake?
And that is the real issue. Whether or not the bank had the right to remove the items (oopsie doopsie so no crime) they at no time had ownership of the possessions until the eviction process had taken place which as far as I know hadn’t happened. So not having legal ownership (yet), how is their destroying someone else’s property legal?
Or let’s put it this way. You legally foreclose on my Ohio home, confiscate my possessions and start the eviction process (30 days minimum IIRC). As Lord Felton points out on thet 30th day my possessions are yours. So presuming you have legal possession of my stuff, can you legally sell/destroy it on days 1-29? If not, can you claim lack of intent?
It’s irrelevant whether they had legal possession of the property. It was the wrong house. The OP’s article describes the correct house as “bank owned”, which suggests that the eviction process is complete (though they and you may be conflating ownership with possession.)
Again, it comes down to criminal intent. The law recognizes that it might not be the best thing in the world to punish people for making mistakes. So, for a good many crimes (criminal damage to property included), the laws are written so that the crime requires that you actually intend to commit it. When I destroy something I legitimately think is mine, I don’t have the intent to destroy something of someone else’s so I haven’t committed a crime. I will certainly be civilly liable for it, but it’s not criminal if it is only done by negligent mistake.
If I know they are your possessions and that I don’t own them, and I destroy them, then, yes, I have the requisite intent to destroy property belonging to another. If I miscount the days and I think the property is mine, I then no longer have the intent to destroy something belonging to someone else, and thus I lack the criminal intent. In either case, of course, you will be able to sue me to recover the value of the property.
Again, it comes down to the criminal justice system, for the most part, not wanting to punish honest mistakes and instead punishing intentional crimes.
Heh. Explain the alimony check I write each month.
I have no problem with the criminal justice system not wanting to punish honest mistakes.
I think the point here is that this wasn’t an honest mistake. This was a mistake of extreme negligence.
An ‘honest mistake’ assumes that you have done what was reasonable to do in order to come up with the correct answer, but still somehow came up with the wrong answer. If I add up your bill and give you the wrong total because the 6 in the tens column looked like an 8 to me, that’s an honest mistake.
If I give you the wrong total because I examined sheep entrails and gave you a total based on what I saw there, that’s not an honest mistake, that’s something that should forever disqualify me from doing arithmetic in a situation that would matter to anyone else.
The thing I would have expected the law to take into account - that apparently it doesn’t in this case, according to you guys - would be some standard of what is known as ‘due diligence.’ And the standard of due diligence would presumably be greater or less based on the consequences of getting the wrong answer. Nobody’s setting a standard of due diligence for how I find my friend’s new house, because if I knock on the wrong door, it doesn’t fucking matter. I’m welcome to use maps and street numbers, or GPS, or Google maps, or sheep entrails. Nobody gives a good goddamn how I go about figuring out which house is his, nor should they.
But if you’re physically taking possession of a house (including taking such steps as changing the locks and throwing away personal property on the premises), it’s extremely important that you have identified the correct house. One would think a pretty high standard of due diligence in making sure you’ve identified the correct house would be called for, in the law itself.
Having purchased houses on a couple of occasions, in those transactions, I’m given various information to ensure that I don’t take possession of the wrong house by accident: the deed gives the legal identification of the property (lot 173 on Plat Map A-3 in Suchandsuch Subdivision), the street address (which I’ve already visited with the realtor, and the home inspector, and all), and finally, I’m given the keys to the house, which should open the locks on the front door.
In a foreclosure, you don’t get the keys. But the bank does have access to the legal description and the street address, and one would expect that availing oneself of these resources and using them to identify the house it has taken ownership of, would be the standard of due diligence it would be expected to meet, to ensure that it takes possession of the correct house.
Doing these things but somehow getting the wrong house anyway would be an ‘honest mistake.’ Taking possession of the wrong house after failing to do these things is NOT an honest mistake. They have NOT done the things that would elevate their conduct to the level of a ‘mistake.’ This is a negligent and harmful act.
You don’t have the right to just go busting into anyone’s house and take over the place, and if you don’t do the obvious things to make sure you’ve got the right house, the house you have authority to do this with, then yes, it should be trespassing of a criminal sort.
If it isn’t, then the problem is with the law.
We’ve discussed these sorts of seizures before, and I felt then, as I do now, that some people seem too ready to exempt the corporation on the issue of “intent.”
The bank didn’t demonstrate any particular intent to follow the law carefully (or it would have double-checked before the taking. Hell, I double-check before sending an e-mail.) The bank also didn’t demonstrate any particular intent to respect the conventions of society (in this case, “don’t mess with other peoples’ property”).
The bank DID demonstrate intent to take, however. And that taking, all that it could, as soon as it could, without any scruples to make certain it was right, was its primary focus. Asocially, soullessly, rapaciously, take, take, take, and damn the consequences.
This is one of the consequences.
Suspending the presumption of innocence is one of the consequences?