- Self-Help Is a Viable Remedy but Property Taken Must Be Accounted For
- January 16, 2013 | Author: Edward J. Levin
- Law Firm: Gordon Feinblatt LLC - Baltimore Office
In Nickens v. Mount Vernon Realty Group, LLC, et al., 429 Md. 53 (2012), Deutsche Bank National Trust Company bought the house at 3022 Kentucky Avenue in Baltimore City at the foreclosure sale that its servicer had instituted. The property was occupied by Demetrius Nickens, whose parents had been the owners and mortgagors of the property. Nickens notified counsel for the secured party that he was a tenant in the property when he filed an appearance in the foreclosure action. The foreclosure sale was ratified on January 30, 2009, and Deutsche Bank was awarded judgment of possession on May 14, 2009. It or its servicer engaged Mount Vernon Realty Group, LLC to act as agent.
Mount Vernon gave notice to Nickens that unless he vacated the premises it would enter the house and remove his possessions. After finding out that Nickens would then be away, on September 6, 2009, Mount Vernon entered the home (which was unoccupied at the time), removed and disposed of Nickens’ personal property, changed the locks, and placed a “no trespassing” sign on the door. According to Nickens, his personal property included appliances, computers, clothing, and furniture and was worth $75,000.
Nickens sued Mount Vernon in the Circuit Court for Baltimore City on April 19, 2010. His amended complaint consisted of ten counts. The Circuit Court, after a hearing, granted Mount Vernon’s motions to dismiss.
Nickens appealed to the Court of Special Appeals, which considered his claims of forcible entry and conversion. The Court of Special Appeals held in an unreported opinion that by using self-help to repossess the real property, Mount Vernon did not violate Maryland law. It further held that Mount Vernon’s taking the personal property was not an act of conversion because Nickens had abandoned it by leaving his belongings in the house, where he had no legal possessory interest.
The Court of Appeals granted Nickens’ petition for a writ of certiorari. The Court of Appeals first considered the common law origin of peaceful self-help, reaching back to the statutes of 5 Richard II, Chapter 8 (1381) and 8 Henry VI, Chapter 9 (1429). The Court held that the common law in Maryland, adopted from England in 1776, provided Mount Vernon with the right to use peaceable self-help against Nickens and that Nickens, who did not have a right to lawful possession of the real property, did not have a cause of action under either of the old English statutes.
The Court of Appeals then considered the self-help remedy as it has evolved under Maryland law. The Court cited a number of cases upholding the right of title holders, without judicial process and without prior notice, to enter and repossess their properties, whether residential or commercial. The Court noted that a standard of reasonableness applies to the exercise of a titleholder’s right to self-help and that there may be no unnecessary force. The Court held that Mount Vernon had acted reasonably in repossessing the property when Nickens was out-of-town, and that Nickens had received notice of Mount Vernon’s intention to repossess, even though no notice was required to peaceable self-help.
The Court of Appeals considered Nickens’ assertion that a 2008 Baltimore City ordinance regarding writs of possession executed by the Sheriff of Baltimore City provided an exclusive remedy. The Court held, however, that there was no demonstrable evidence that the City intended to supersede the use of the common law remedy of self-help.
Finally, the Court discussed Nickens’ claim that Mount Vernon committed the tort of conversion. There cannot be a conversion of property if it has been abandoned, but Nickens had pleaded that he never showed an intention to abandon the personal property. The Court held that reasonable means must be exercised to dispose of personal property. Because the record on the subject case did not disclose whether Mount Vernon acted reasonably with regard to the disposition of Nickens’ property, the Court of Appeals remanded the case for discovery on that point.