Foreclosure in 94404>Question Details

Phyllis Mcar…, Real Estate Pro in San Mateo, CA

Criminal act, or civil matter?

Asked by Phyllis Mcarthur, San Mateo, CA Sun Dec 12, 2010

Man buys a home at auction. His name is on title. He enters the home and takes pictures the day he takes title. 5 days later the previous owner goes into the home and strips it of all appliances, fixtures, fawcets, and he even removed the gabage disposal. New owner fails to change the locks right away because there's a lockbox on the door, and the realtor (that had the home as a short sale) claimed he had some personal belongings in the home. When the man meets the "Realtor" He has the same last name as the previous owner. The police are called, they say it sounds like a civil matter. What do you say?

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Phyllis in this case study I would recommend looking at when the deed was recorded. Traditionally the deed is not recorded the exact same time as the auction.
If the man entered the home without proper notice and it was occupied it could be a criminal matter on the person that entered without notice.
If the deed was recorded and the person placed proper notices then entered it would be a criminal matter on the person that took the items from the property.
The police have a problem establishing the timeline and who had ownership without eye witness accounts of the property being removed and dates being recorded. Go talk to the detectives and see if they can start a criminal investigation but it may be hard if no one saw them moving things out.
1 vote Thank Flag Link Mon Dec 13, 2010
Phyllis,

There are no doubt additional circumstances involved with this scenario but the fact of the matter is this would be best dealt with with the support of an attorney.

Bill
2 votes Thank Flag Link Mon Dec 13, 2010
This is a good academic question. Whenever the policy does not want to get involved, they call it a civil matter. Personally, I don't agree. Anytime someone enters a structure without the rightful owner's permission it should be considered a matter for the police. The reality is, they don't have the manpower to get involved. At a minimum, they should take a report and question the neighbors. It would be difficult to remove appliances without being seen by somebody. I would talk to a supervisor at the police to push for more action.
1 vote Thank Flag Link Mon Dec 13, 2010
Ute Ferdig -…, Real Estate Pro in Newcastle, CA
MVP'08
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It sounds like trespass and conversion even if the man that committed it is the prior owner, let alone an impostor.

Theft, trespass, or vandalism can be prosecuted as a criminal matter.

This could be both a civil and criminal matter. Sometimes the police prefers to call it a civil matter because they don't want to spend the time working on the case.

I once had a client who had an employee who embezzled his company's money for well over $100,000. We thought we had sufficient evidence to make a criminal case against the employee. We filed our report to the police and nothing came out of it.
1 vote Thank Flag Link Mon Dec 13, 2010
This is clearly a question to ask of an attorney, and few of us are attorneys.
1 vote Thank Flag Link Mon Dec 13, 2010
Alan May, Real Estate Pro in 60201
MVP'08
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File a police report and contact an attorney, you have a law suit about to happen. You will need to get an estimate of damage ready.

Depending on the type of lockbox the agent uses there could be a record of when it was last opened and who opened it. I would get the serial number of the lockbox and a picture of it. If it is one that records activity that will be something you can use against the agent if it turns out he let someone in after closing.
1 vote Thank Flag Link Mon Dec 13, 2010
Since when is breaking and entering, and theft a civil matter? The owner, however, should have changed the locks no matter what, he could have arranged to meet the realtor at a later date and time, or for that matter said to the realtor, get your stuff out now or else prove it's yours. Didn't it raise a red flag when the realtor had personal items inside the home?

Here's what really makes me angry, we seem to have forgotten the meaning of the word 'crime' in this country. I always raised my kids on the theory 'take care of the little things and the big things will take care of themselves'. I feel the same about crime, enforce the law regarding theft and you won't have to worry so much about bank heists.

I have a client who is being harassed unmercifully by a neighbor just because the guy 'can'. The neighbor is interfering with their ability to sell their home. He filed a lawsuit claiming my clients damaged and//or killed his trees, trees that are perfectly healthy and lush. He's even gone so far as to file a lien on my client's property which stops them from doing anything, selling, refinancing, anything with the property. The guy wants several thousand dollars in damages for the stupid trees.

When all this didn't work, didn't get my clients to give him money he is not entitled to, he turned to criminal activity. He harasses my clients, blocks their driveway with his truck, blocks the private road they live on and refuses to move so they can get out and has even stood at the end of their driveway grabbing his crotch and screaming obscenities at their home. Guess what the cops said? It's a civil matter!

I am with you on this, it's definitely criminal, as is lewd and lascivious behavior toward my clients and the cops and the courts in this country need to do their job!
1 vote Thank Flag Link Mon Dec 13, 2010
Hi Phyllis

Regret to hear about this dilemma. Clearly, it is a criminal issue, provided the owner can go down to the police station and make it stick.

Is there proof that the previous owner went in and took out appliances, can neighbors testify?
The challenge is if you make it Civil and sue, it will be tough to collect from someone who is broke.

Clearly you will have to go after the Listing agent who has the same last name as the previous owner.
Since, our Lock boxes are Coded one can check when any agent goes in from MLS records.
Unless there is proof that the previous owner broke in, the only one you can go after is the Agent.

A DRE complaint maybe a good start and then a lawyer.
Good luck.
Perry
1 vote Thank Flag Link Sun Dec 12, 2010
Phyllis,

It is definitely attorney time. It seems like the former owner trespassed on the property of the new owner and stole property that is was no longer his. The rest of the story seems irrelevant if the first part is factual. It sounds both civil and criminal. Talk to an attorney.
1 vote Thank Flag Link Sun Dec 12, 2010
Phyllis: This SHOULD be a Criminal Matter. What a horrible thing to happen but important information you are providing to us all to remember to get the locks changed ASAP!
~~~
1 vote Thank Flag Link Sun Dec 12, 2010
Hello Phyllis,
It appears to me that the buyer who just purchased the home ought to seek legal counsel. I would think that the previous owner had no right to enter the property after the sale since he no longer owned it and certainly is not entitled to anything left there without a court order. An attorney's advice would be wisest. I hope this is helpful.
Good Luck!

Laura Feghali
Prudential Connecticut Realty
1 vote Thank Flag Link Sun Dec 12, 2010
Dear Phyllis

I am not an attorney however if the title was transferred to the new owner and the previous owner comes into the home, unless disclosed in the real estate contract to purchase that these items were not included, I think that is theft and clearly a criminal act...There must be something you are leaving out of this story.....don't understand why the police won't work on this case....Did this happen in San Mateo...>>????

Thank you for sharing story, please let me know the outcome...

Respectfully,

denise laugesen
President's Elite
Coldwell Banker
650-465-5742
http://www/deniselaugesenteam.com
deniselaugesen@comcast.net
1 vote Thank Flag Link Sun Dec 12, 2010
Seemingly clearly a criminal matter, but good luck getting the prosecutor to prosecute (and that's who I would be dealing with--not the police).

In Seattle I used to say that for them to prosecute fraud it had to be an amount over $100,000 or have a victim that was politically connected. In smaller areas they tend to prosecute more things.
0 votes Thank Flag Link Mon Jul 14, 2014
So, Rachel,

You buy a home, with appliances and nice hardware in the bathrooms

You are on title, for a couple of weeks

I go into the home and steal your appliances and rip out your faucets,

It doesn't take a rocket scientist (or a lawyer) to say burglary...I'm just saying.....
0 votes Thank Flag Link Tue Apr 5, 2011
Phyllis,

First of all I want to say that agents need to be careful commenting on legal matters, even when they think they know the answer. Unless you are an attorney you should not comment on questions like these, unless you preface it with the fact that you are not an attorney and are speculating (which some agents did).

I am an attorney but since I no longer practice law I am going to defer this to someone who does. However, I must say that this case seems to present actions both civilly and criminally. The home owner definitely should file a police report and seek the advice of a local attorney right away.

Best of luck!

Rachel LaMar, J.D.
LaMar Real Estate, Inc.
0 votes Thank Flag Link Mon Mar 28, 2011
Local court civil matter in my opinion
0 votes Thank Flag Link Wed Mar 23, 2011
Definitely a criminal matter. No matter whether they are related, locks were not changed, etc., no one can enter the home without the expressed permission of the owner. File criminal charges.
0 votes Thank Flag Link Sun Dec 12, 2010
Phyllis,
I agree, I am sorry to say but when purchasing the home at foreclosure I would always recomend having the locks changed that day (ASAP) no matter what, you tell the agents that they will need to make an appointment. I would also check your local laws as well on this matter. I would suggest that you contact an attorney.

It does look like you will need to go to civil court I am sorry to say.
0 votes Thank Flag Link Sun Dec 12, 2010
Dear Phyliss

I am not an attorney, however if the buyer took title, then the previous owner comes into the home 5 days after the close of escrow and strips the property of all the appliances...it sounds like a theft which is a criminal act.
Did the purchase contract exclude those items, and what were the personal items that the realtor had in the home????
This all sounds odd, cannot understand why the police won't take action, please let me know the outcome and did this happen in San Mateo???
Happy Holidays>>>>
denise laugesen
650-465-5742
Coldwell Banker
top 1% President's Elite
http://www.deniselaugesenteam.com
0 votes Thank Flag Link Sun Dec 12, 2010
Sounds like an attorney could best advise--once the new owner took possession, you may have trespassing issues, possible theft issues if the appliances, etc., were part of the sale, possible breaking and entering, possible invasion of privacy, etc.
0 votes Thank Flag Link Sun Dec 12, 2010
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