Couple Charged for Removing Items from Foreclosed Home

[justbroke]

It doesn't matter about the dryer, washing machine, and refrigerator. You can take those without any issue. The stove is questionable (based on how it's attached or not), and the dishwasher is generally "installed" and fixed to the counter and/or wall.

[BCA2009]

This is all speculative until we read actual case law, but here are my questions:

This is all assuming you are in Florida which is a judicial foreclosure, full recourse state. And assuming you took the fixtures before foreclosure and can prove it.

How would this be any different than:

a) starting a remodeling project, tear out both bathrooms and strip drywall and fixtures from the family room. Then hit finacial misfortune and file BK. Are you going to be refused discharge?


b) You strip the house on purpose, then are foreclosed on. No BK yet. The house is sold thru court auction a year later. The bank gets a deficiency judgement for the difference between the sale price and the outstanding mortgage amount (which is normal). . Another year goes by and you file BK and include the deficiency judgement. Is the deficiency judgement or some part of it going to be non-dischargable because three years ago before you were foreclosed on and you purposely took fixtures and doors out of the home way back then just before foreclosure?

c) You buy a home with a 200K loan. You build a permenant detached garage (a nice one) for 100K with cash. No loans or refinances. Because the market declines, the total property is worth $175K. Is the bank entitled to the garage. What if you it down and left a concrete foundation in the back yard? Can the bank prevent discharge?

The way it looks to me and I am not a lawyer, but have researched as best I can. The bank has an opportunity to lift the auto stay and object to the dischage before you are discharged. This would take too many resources to do for every case so they don't even try (cost benefit decision). After discharge and while the house is still yours, you can take stuff out of it. Hell, you could still remodel it, put a new roof on it, install a sprinkler system, etc. So where is the law that says you can't molest/ update/ change YOUR property.

This is compounded by the fact that it is taking a year or longer (becuase the bank waits) to foreclose. How can you be obligated to maintain the home in some undefined state until the bank decides to foreclose.

I would love to read some case law on where a home owner has been held liable for the damage to a home post discharge but before foreclosure.

Just becasue a prosecutor wails against something implies something, doesn't mean he will prevail in court.

[justbroke]

I would love some caselaw too. Unless and until the actual title changes... I don't see any issues.

[BCA2009]

OK, Here is what i have found. It is a violation of California Penal code section 502.5 to take fixtures out of secured property. So the CA people might have some issues. It doesn't appear to matter according to the law when the removal 9pre or post foreclosure) occurred. So I guess techniacally whn you remodel a home you are temporarily in violation of CA criminal law.

It appears to be different in FL. Removal of fixtures or any secured property is covered by FL Statute Chapter 679 (State UCC Laws) and is civil. So no theft, just breach of contract if you are sued. This a lengthy, wordy chapter with alot legalese, so read at your own risk. It appears from my limited legal reading abilities (section 679.604) that the remedy would be to pay the injured party the value of the removed items, but is not responsible for the decline in value to the real property from which the items were removed. Nor responsible for any costs to restore the items.

It does not mention BK, just performance and remedy for the contract breach.

So I'm pretty sure the bank could challenge the dismissal of the debt, during that period of the BK, BUT what rights to they have after discharge?

Bottom line in FL is it appears it would take some litigation and who knows where it leads.

If someone has the knowlege to look up case law on section 679.625, that would be cool. Or BK rulings affected by this statute.

Just for the record if I move out of my home, I'm only taking the easily movable appliances. I'm just curious about this becuase it is interesting, not because I want to pull all of the copper plumbing out of may house.

[justbroke]

I haven't read any cases for Florida and I'm nowhere near the law library to check caselaw. My cursory glance yielded no cases. This is relatively new law (2001).

[koasta11]

I have a question, I built a house then I took out a take out loan with my current bank. The house was not finished it still is not finished and it does not have a certific of occupancy. I want to take the appliances and some other things fixtures ect. I am also in chp 7 which will be discharged within 2 weeks my forclosure will not be complete until november can I take the things.
Koasta I live in Washington State

[justbroke]

It depends where you live, probably.