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February 29th, 2012 | Author: Matthew D. Weidner, Esq. http://mattweidnerlaw.com/blog/2012/02/emergency-injunction-banks-kicking-down-doo rs-and-taking-property-it-is-against-the-law/ It really is quite crazy and disturbing to know that in this country banks are kicking down doors, taking property, violating the most basic (formerly) American rights. It just drives me insane that I keep fighting these issues, and I keep hearing the banks argue that they have the right to break down your door….. But will judges step in and control this behavior before it gets even more wild and out of control or will someone have to get hurt first? DEFENDANT’S EMERGENCY MOTION FOR TEMPORARY INJUNCTION Defendant (hereinafter “Defendant”), by and through undersigned counsel, respectfully files this Emergency Motion for Temporary Injunction, pursuant to Fla. R. Civ. P. 1.610, and precedent case law, and as grounds thereof states: INTRODUCTION This is an action for foreclosure of residential real property owned by Defendant. Despite this, Plaintiff, or its agent, entered Defendant’s property without Defendant’s express permission. See Defendant’s Notice of Filing Police Report, Motion for Declaratory Judgment and memorandum in Opposition to Lender Break-Ins. After filing the previously mentioned motion, Defendant’s counsel was given assurances by Plaintiff’s counsel that if this activity was occurring, that it be ceased. See the attached email. Despite this, Plaintiff, and or its agents, have again, on or around February 24, 2012, entered Defendant’s property and placed a note on her door that her property that they are going to change the locks on her property and winterize the home. It is important to make one thing clear, Plaintiff is merely alleging that it is a lienholder in this action and more importantly, this honorable Court has taken absolutely no action to allow Plaintiff to enter Defendant’s Property. This constitutes a gross and callous disregard of Defendant, this Court, and the laws of the State of Florida. Consequently, an emergency temporary injunction is necessary to bar Plaintiff’s further violation of Florida law and Plaintiff’s rights. STANDARD OF REVIEW A party seeking the entry of a preliminary injunction carries the burden of persuasion and must demonstrate: (1) a likelihood of irreparable harm and the unavailability of an adequate remedy at law; (2) a substantial likelihood of success on the merits or a clear, legal right to the requested relief; (3) that the threatened injury to the petitioner outweighs and possible harm to the respondent; and (4) that the granting of a temporary injunction will not disserve the public interest. Naegele Outdoor Advertising Co., Inc. v. City of Jacksonville, 659 So. 2d 1046, 1047 (Fla.
1995). MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION I. Plaintiff’s continued and unauthorized trespass onto Defendant’s property constitutes irreparable harm to which no adequate remedy at law exists a. Legal Standards Injunctions are available against continued trespass. See e.g. Hanna v. Martin, 49 So.2d 585 (Fla. 1950). b. Argument The gravamen of Defendant’s Motion for Declaratory Judgment was that Plaintiff’s continued trespass onto her property constituted irreparable harm to which she had no adequate remedy at law. Indeed, Defendant has provided that not only had Plaintiff trespassed onto her home twice, but that local law enforcement had refused to stop this unlawful behavior. Plaintiff, by and through its counsel, represented to this Court that it would “cease” these actions if they were occurring. Consequently, Plaintiff’s unauthorized continued trespass constitutes irreparable harm to which no adequate remedy at law exists. An emergency temporary injunction should therefore be issued. The note left on Defendant’s door stated that Plaintiff would again be entering Defendant’s property, this time to change the locks and winterize her home, therefore, she is in imminent danger of being kicked out of her home. II. Defendant has a clear legal right to the requested relief a. Legal Standards The granting of a mortgage in real property is “only a lien that transfers no title, right of possession, or interest in land.” Barclay v. Robert C. Malt & Co., Inc., 985 So. 2d 53, 55 (Fla. 4th DCA 2008). Florida is a “lien theory” state in which a mortgage only conveys a “naked lien” and therefore, as a matter of law, “a mortgage transfers no title, right of possession, or interest in land. Such rights accrue to the mortgagee only where there is a default, court foreclosure, and sale to the mortgagee.” Martyn v. First Federal Savings and Loan Association of West Palm Beach, 257 So. 2d 576, 579-80 (Fla. 4th DCA 1972). In fact, it has been the law of Florida for over 100 years that a mortgagee must seek a judicial remedy before depriving a property owner of possession. See Hull v. Burr, 50 So. 754 (Fla. 1909) (holding that in no case shall the “obsolete” and “antiquated claim in favor of [a] mortgagee to the right of possession of the property, specified in said mortgage, or any part thereof…be recognized or admitted in a Court of Justice in this state.” Id at 763). Moreover, the Florida legislature has expressly recognized that
Florida is a judicial foreclosure state in which a mortgagee only gains possession of real property after default, court foreclosure, and sale. See generally Fla. Stat. §702, et seq. See also Folks v. Cheeser, 145 So. 602 (Fla. 1932) (holding that under Florida law “in no case will the right of possession to property by a mortgagee be recognized in a court of justice in this state, until due foreclosure is had according to the forms of law proving for foreclosures of mortgages.” Id at 603). It is imperative that this Court also note that Fla. Stat. §702, et seq. provides absolutely no provision which would allow a mortgagee to break into a property it does not own, change the locks therein, and therefore deprive the owner of possession. In other chapters, the Florida Legislature has specifically excluded the self-help remedies which deprive a person of possession of real property. Specifically, Fla. Stat. §83.67 expressly provides that a landlord may not “prevent the tenant from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks.” Bold emphasis added. Generally, the owner’s consent is required for a mortgagee to take possession of a secured property without a Court order. See e.g. Joyner v. Bernard, 14 So. 2d 724, 726 (Fla. 1942) (holding that owner’s consent is required to take possession and collect rents); Bornstein v. Somerson, 341 So. 2d 1043, 1049 (Fla. 2d DCA 1977) (holding that a mortgagee may take possession of a mortgaged property only by consent of the mortgagor or through the appointment of a receiver in foreclosure proceedings). As if this was not enough, Florida courts have long held that where a mortgagee enters the property of a mortgagor prior to the conclusion of a foreclosure lawsuit, such action constitutes trespass and damages may be awarded to the mortgagor. See Mid-State Investment Corporation v. O’Steen, 133 So. 2d 455 (Fla. 1st DCA 1961). In Mid-State Investment Corporation, supra, the First District held that [i]n our opinion the contract before us was clearly intended to secure the payment of money and must be deemed and held to be a mortgage, subject to the same rules of foreclosure and to the same regulations, restraints, and forms as are prescribed in relation to mortgages, to use the words of the statute. This being so, the defendant had only a naked legal title as security for the indebtedness, had no legal right to repossess the real or personal property, and had no such right to trespass upon the real property or exercise dominion over the personal property. Id at 457. Bold emphasis added.
The Fifth District has expressly affirmed the above holding of the Mid-State Investment Corporation court in Cain & Bultman, Inc. v. Miss Sam, Inc., 409 So. 2d 114 (Fla. 5th DCA 1982). Most notably, the Cain & Bultman, Inc. court went even further to note that “contract provisions relating to forfeiture and self-help possession (or “repossession”) violate public policy and are not enforced or recognized as valid as such in law or in equity.” Id at 120. It is also vital that this Court take note that other states which follow judicial foreclosure have repeatedly held that repossession by the mortgagee is prior to the completion of a judicial foreclosure is an unlawful practice. See e.g. Wells Fargo v. Tyson, 897 N.Y.S. 2d 610 (Supreme Court, Suffolk County, March 5, 2010) (penalizing Wells Fargo $150,000 in punitive damages for employing the unlawful practice of property invasion and lock-out in the State of New York); Russell v. American Real Estate Corporation, 89 S.W. 3d 204 (Tex. App. Corpus Cristi-Edinburg District 2002) (holding that Fannie Mae’s agent locking out tenant at sufferance constituted trespass and possibly constituted invasion of privacy); Wheeler v. Community Federal Savings and Loan Association, 702 S.W. 2d 83 (Mo. App. E. Dist. 1986) (holding that an action for damages will lie where a mortgagee or its agent enters mortgaged premises in mortgagors’ absence to change locks because mortgagees have no authority to do so). b. Argument Even a cursory glance at the case law, supra, reveals that Defendant has a clear legal relief to an injunction. The only interest Plaintiff might claim in the subject property is a mere naked lien in the form of a mortgage. This claim, however, should also be closely scrutinized in light of Defendant’s Motion for More Definite Statement. Even assuming Plaintiff could claim a lien against the property, any self-help remedies it might argue it is entitled to under the subject mortgage violate public policy and therefore cannot be recognized in either law or equity. See Cain & Bultman, Inc., supra, As a result, an injunction should be issued. III. Plaintiff suffers no harm as a result of this motion as it has no legal right to trespass onto Defendant’s property whereas Defendant has been continually injured by Plaintiff’s illegal trespass Because Plaintiff has absolutely no right, in either law or equity, to engage in the continued trespass onto Plaintiff’s land, it suffers no harm as a result of an injunction. On the other hand, Defendant has continually suffered by Plaintiff’s actions. Most importantly, Plaintiff appears intent on continuing its authorized trespass despite representing to counsel that this activity would cease. Therefore, an injunction should be granted. IV. Granting Defendant’s motion will actually service the public as it protects same against illegal intrusions onto property The right to be secure in one’s property is a fundamental tenet of this country. Plaintiff’s atrocious conduct shows inherent disregard for this principle. The granting of this motion would thus validate the public’s right to be secure in its
property. Therefore, an injunction should be issued. CONCLUSION WHEREFORE, based upon the foregoing, Defendant respectfully requests this Court order a temporary injunction against Plaintiff barring it from entering onto her property or providing any direction to its agents to enter Defendant’s property; award attorney’s fees and costs to Defendant; and any other relief the Court deems just and proper.
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