Relating to Real Estate
Foreclosure Purchaser Liable for Disposing of Personal Property
In 111 Scherr Lane, LLC v. Triangle General Contracting, Inc., 233 Md. App. 214 (2017), the Court of Special Appeals (CSA) held that the purchaser at a foreclosure sale needed to give the owner of personal property that was located on the foreclosed property a reasonable time to remove that property.
Josiah and Joan Tice owned a piece of mostly unimproved property in Grasonville, Queen Anne’s County. The Tices used the property to store several trailers containing equipment for their company, TECO, Inc., an electrical business. The Tices also leased some of the property to Triangle General Contracting, Inc. Triangle parked some trailers filled with various equipment on the property.
In 2013, the property was sold at foreclosure sale to the appellants, Edward Gills and his company, 111 Scherr Lane, LLC. After the foreclosure sale, Mr. Gills contacted the Tices several times in an attempt to have the trailers removed from the property, but they failed to do so. Mr. Gills was not aware of the leasing agreement between the Tices and Triangle.
The foreclosure sale was ratified in December 2013, and settlement occurred on February 5, 2014. Five days later, Mr. Gills wrote a letter to the Tices stating they had 10 days to remove their trailers and any other personal property. The Tices immediately began removing equipment from the property, but they were unable to remove all of the equipment and trailers stored there within 10 days due to snow and rain storms. After the 11th day, Mr. Gills refused the Tices access to the property.
Triangle, which stored equipment on the portion of the property that it leased, did not receive notice of the foreclosure action and was unaware of the foreclosure sale. When the Tices finally informed Triangle that the property had “changed hands” in March 2014, Jack Leone, the owner of Triangle, immediately contacted Mr. Gills about retrieving Triangle’s trailers, but Mr. Gills refused to permit Mr. Leone to do so. Mr. Gills eventually removed or scrapped most of the trailers, equipment and other items that remained on the property.
Triangle and TECO filed actions in replevin against Mr. Gills and 111 Scherr Lane in Queen Anne’s County District Court to recover their personal property. (Replevin is an action for seizure of personal property that is made pre-judgment, but after determination of probable cause.)
Mr. Gills asserted, among other defenses, that Triangle and TECO had abandoned the trailers and equipment by leaving it on the property and not reclaiming it for months following the foreclosure sale.
The Tices claimed that they did not act to retrieve any of their personal property immediately after the foreclosure sale, because they believed that the sale “was not yet finalized” and thought they “might be able to enter into an agreement with Gills to continue storing trailers” on the property.
The district court disagreed with Mr. Gills, and issued writs of replevin in favor of Triangle and TECO for their personal property.
First, the court found that Gills did not have the authority to demand that the Tices or Mr. Leone remove their property immediately after the foreclosure sale because Mr. Gills then only held equitable title to the property.
As to Triangle, the court found “no basis” that Triangle had abandoned its personal property, because Triangle was unaware that the foreclosure sale had occurred and promptly sought return of its trailers and equipment once it was notified.
As to TECO, the court found that TECO’s and the Tices’ waiting to remove their personal property until after legal title to the property was conveyed to Mr. Gills showed merely “procrastination” and not abandonment of the trailers and equipment. Further, the Tices’ efforts to remove TECO’s personal property after Mr. Gills sent the February 2014 letter was affirmative evidence that they had not abandoned the property.
The district court also rejected Mr. Gills’ attempt to dismiss the replevin actions on the ground that he was no longer in possession of most of the personal property that Triangle and TECO claimed when the actions were filed.
After the writs were executed and some of the personal property was recovered, the actions were transferred to the circuit court because the value of the property involved exceeded the monetary jurisdiction of the district court. (As a technical matter, because some of the personal property was not recovered on the writs, the case was converted to detinue, which is an action for recovery of personal property, or its value, after judgment.)
The circuit court adopted the findings of the district court that neither Triangle nor TECO had abandoned the trailers or equipment on the property, and entered a final judgment in favor of TECO and Triangle for possession of the recoverable personal property.
The circuit court also entered judgment for the value of the property scrapped by Mr. Gills. Mr. Gills and 111 Scherr Lane appealed.
The CSA affirmed the ruling of the circuit court.
Citing Nickens v. Mount Vernon Realty Group, LLC, 429 Md. 53 (2012), the court confirmed that a purchaser of real property sold in foreclosure does not have the right to dispose of personal property left on it unless the former owner has abandoned it. Property is considered abandoned when the owner “‘has walk[ed] off and [left] [the property] with no intention to again claim it or exercise rights of ownership over it.’”
The CSA held that the district court’s finding that neither Triangle nor TECO abandoned their personal property was accordingly “amply supported by the record,” and the circuit court did not err in adopting that conclusion in its ruling.
The CSA also rejected Mr. Gills’ contention that TECO and Triangle were not entitled to damages for the personal property that could not be recovered with the writs of replevin, because Mr. Gills no longer had possession of the property when the actions were filed. Prior to the suits, Mr. Gills scrapped most of the trailers and equipment that had been on the property, knowing that they belonged to TECO and Triangle and that those parties desired to retrieve it. The court noted that, although the general rule is that actions in replevin may only be brought against a person who has possession of the property “at the time the complaint is filed,” there is an exception where the defendant “disposed of the property culpably, after the plaintiff made demand for it, but before suit was filed.”
The 111 Scherr Lane case has some curious implications with respect to what notice a foreclosure purchaser must provide before the purchaser may lawfully dispose of personal property left behind by the former owner.
In this case, the foreclosure purchaser made numerous attempts to coordinate with the former owners to remove their personal property to no avail, before finally issuing an ultimatum once the foreclosure sale was ratified and settled. Had Mr. Gills extended his own deadline because of the inclement weather and permitted the Tices to finish retrieving their property beyond the 10th day, he would not have found himself in court and liable for thousands of dollars in damages.
The court’s holding suggests that a purchaser of foreclosed real property must reasonably permit the former owner to retrieve the personal property. Just how accommodating the foreclosure purchaser must be remains to be answered.
For questions, please contact Edward J. Levin.
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