Wednesday, April 20, 2011                                                                                                              Story and Photo by Charlie Perry

 
    An armed Pinellas County Sheriff began enforcement of a writ of possession today.  The new owner, Freddy Mac, supplied the muscle to move the family's property out of the home, putting it down on the ground outside the house. Neighbors and children then moved  the stuff off of the ground into a rented truck. 
    Largo resident J. Dustin was served with the writ on Friday by a deputy who told her she had to be out of the house by Monday at 5:00 P.M.  Ms. Dustin filed for protection in the United States Bankruptcy court Monday around two or three o'clock.  The bankruptcy court routinely enters an automatic stay in all filings, except landlord-tenant cases.  (This case was a foreclosure case, not a landlord-tenant case). After filing on Monday, she called the Sheriff's office and informed his staff of the filing, "In order to keep him from wasting his time."  She was told words to the effect of "I don't know what that means." 
    At a conference with a bankruptcy attorney on Tuesday she was informed that the automatic stay would give her protection for at least a small period of time.  "I needed time to move.  My children have a grand piano.  We have a lot of other property. I have my instruments and sheet music. All our things!  There's no way we could move all that out by Monday at 5:00." She was quite upset.
    On Wednesday, however, two days after the bankruptcy was filed, the new owner (who is connected to the mortgagee, Bank of America), and a Pinellas County deputy sheriff arrived to forcibly remove the family and their things and this was done.  The deputy, when shown the bankruptcy petition, case number and filing receipt told the mother of three, basically the same thing as she was told before - "I don't know what that means."  

      After everything was removed from the house, while the neighbors and children were moving musical instruments, art, furniture, pots, pans, papers and effects from the ground into the truck, but before the locks were changed, the deputy announced that he could not go ahead with the eviction.  The bank's people asked to change the locks anyway, but the deputy said no. 
    Sgt. Goettel, the deputy's superior, observed that Freddie Mac had not been placed in possession.  He expressed surprise in learning that the family and their things had actually been put out of the house at the time the deputy called off the dispossession proceeding.  The deputy had only reported that he stopped the proceeding.  Sgt. Goettel says the family still has official possession and can go back in if they want to.  The deputy who is enforcing the writ told the defendant that when he comes next time she must be out in five minutes. 
    The plaintiff's attorney is the Florida Law Default Group, a Tampa Law Firm that is facing a motion to dismiss in connection with the bilking of a defendant  in a different foreclosure case for fraudulent service of process fees.  St. Petersburg attorney, Matt Weidner , who brought that motion, observed that "Jack-booted thugs" have violated the law in foreclosure cases and that the automatic stay may have been violated in this morning's removal of the defendant and her family.  At the time of making the statement, Mr. Weidner was not aware that the deputy had stopped before the locks were changed.
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      The confusion in the Sheriff's Office may have been caused by a new federal law, 362(b)(22) of the United States Code, which states, "[It] does not operate as a stay of any eviction...by a lessor against a debtor involving residential property in which the debtor resides as a tenant under a lease ... obtained before the date of the filing of the bankruptcy petition..."  The writ of possession served by the sheriff's office has a form stapled to the back that says it is an "eviction" process.  Since the exception to the automatic stay speaks of "any eviction" the law could be misread.  A bankruptcy author, Henry J. Sommer, said the exception to the stay "...does not apply...to an eviction judgment obtained by a purchaser or property of foreclosure who does not have a lease..." 
    Matt Weidner said, "The tragedy of all this is that people wait until the 11th hour before seeking help." He encourages those who are in danger of home foreclosure to see a lawyer for help early on. 
    "Police assume that since a bank is involved they can do nothing."  Mr. Weidner mentioned instances of banks forcefully taking possession of property without obtaining a writ of possession.  "Homeowners call the police.  The police see it is the bank doing it and refuse to protect the homeowner." Clearwater Police allowed a bank to break into homes and change the locks on three different properties, he said.  "Nobody cares about it," he lamented.
     More information on bank abuse can be found at his blog (click here).  He provides free no-obligation consultations to those with foreclosure issues and can be reached at 727-894-3159.