Home Inspection during a chapter 13 that mimic a home invasion

[BigJohn]

My mortgage company claims they have the right to enter my house (without knocking or giving notice). I suspect they are wrong. They claim they own the house I claim I have the key.

What brought this issue up was we got one payment behind and as a result of that, the mortgage company entered our home 4 times. I found out about the entries about 6 - 12 months afterwards when they decided to bill us!

The big problem with their home inspections was that at one time they forgot to close 2 doors and a gate which led to one of our animals getting out and the animal got hit by a car. This cost me considered amount of money in vet bills.

Now my mortgage company claims they are not under obligation to close doors and gates when doing a home inspection. They do not have to knock or do anything - just enter. I disagree and I claim they are liable for the vet bills.

Another dispute I have with the mortgage company is I can not tell their home inspections from those doing home invasions. I have asked my mortgage company if those who do home inspections are armed. They refuse to tell me. I know if I was doing home inspections like they do - I would be armed.

I suspect they are legally trespassing and border on the line of harrassment. What makes this issue a big deal is a few years ago a few armed men tried robbing me.

Any comments?

[Bell30656]

I think I'd consult with an attorney. Each state has different laws but if someone entered my house, they had better hope I'm not home at the time and don't arrive while they are there. It wouldn't be pretty. The first thing I would do is change/upgrade the locks.

[newbie2]

Whomever you've been talking to has been giving you a line of crap. They do NOT have the right to enter your own. It is still YOUR home. They can drive by, knock on the door, or ask a neighbor if you are still occupying it. That's all they can do. Call an attorney and sue their behinds.

[keepsmiling]

WTF???!!! The world has truly gone mad if this is legal!
Yikes, if you can... sue sue sue!
Here's hoping for a HUGE settlement for you.

[catleg]

Too bad you weren't home.
Especially if you live in a castle doctrine state.
Pennsylvania recently joined the ranks.
Creditors beware.

[despritfreya]

If you are in Arizona. . .

You are the legal owner of the property. Unless your mortgage or deed of trust provides otherwise, the lender has no right to enter (without permission) as the lender has no possessory right to the property.

ARS § 33-703:

A. A mortgage is a lien upon everything that would pass by a grant of the property, but does not entitle the mortgagee to possession of the property unless authorized by the express terms of the mortgage.

Translation: Bank has a lien on the property with no right to possession.

ARS § 33-805:

Deeds of trust may be executed as security for the performance of a contract or contracts.

ARS § 33-807:

A. By virtue of his position, a power of sale is conferred upon the trustee of a trust deed under which the trust property may be sold. . . after a breach or default in performance of the contract or contracts, for which the trust property is conveyed as security, or a breach or default of the trust deed. At the option of the beneficiary (lender), a trust deed may be foreclosed in the manner provided by law for the foreclosure of mortgages on real property. . .

Translation: Upon default, the lender may sell the property either by the Power of Sale conferred in the Deed of Trust or by judicial foreclosure. No mention of the ability to take possession before the sale/foreclosure.

ARS § 33-811:

E. The trustee's deed shall operate to convey to the purchaser the title, interest and claim of the trustee, the trustor, the beneficiary, their respective successors in interest and all persons claiming the trust property sold by or through them, including all interest or claim in the trust property acquired subsequent to the recording of the deed of trust and prior to delivery of the trustee's deed. That conveyance shall be absolute. . . and clear of all liens, claims or interests that have a priority subordinate to the deed of trust and shall be subject to all liens, claims or interests that have a priority senior to the deed of trust.

Translation - upon completion of the Trustee Sale under the Power of Sale, title (and the right to possession) transfers to purchaser only subject to any senior liens that were against the property.

So, unless OP contracted to allow access to the property, the lender cannot gain access without permission until such time as the lender completes a foreclosure and is the "successful bidder".

Des.

Edit: I am attaching a "boiler plate" provision from a typical Deed of Trust. This, despite State law, gives the lender the ability to enter (upon resonable notice) if the lender suspects waste to the property:

“Preservation, Maintenance and Protection of the Property; Inspections. . .

Lender or its agent may make reasonable entries upon and inspections of the Property. If it has reasonable cause, Lender may inspect the interior of the improvements on the Property. Lender shall give Borrower notice at the time of or prior to such an interior inspection specifying such reasonable cause.”

So, I must assume that OP and probably all of us, have given away some of our privacy rights.

[helpmeout]

They need a court order to enter your house. And if someone shows up wanting to inspect the home, tell them to leave or you will call the police and have them charged with criminal trespass. Obviously, that is something that you can do only if you are there. But if you notice that someone has entered your home without your permission, call the police and report the break-in.

I would also discuss what has been going on with your attorney.

[BigJohn]

Thanks for all the advice. I called the mortgage company and told them again I can't tell the difference when they do home inspections and a home invasion. I told them that if I hear somebody rummaging around in the backroom I would probably investigate and would take a gun. The mortgage company's employee told me I have no right to have weapons nor can I protect myself. The person said I was breaking the law and claimed 4 times that she was going to contact the local police and have me arrested. She claimed the conversation was recorded. I called back and the next person confirmed that I was going to be arrested and the call was transferred to a supervisor. The supervisor said I was not going to get arrested. Today I called back and the employee told me there is no records that any of this happened.

Tomorrow I send out my certified letter.

[BigJohn]

As for my lawyer, he will not discuss it unless I show up with some money.

[Bell30656]

As for my lawyer, he will not discuss it unless I show up with some money.

Lawyers are funny about that stuff. They seem to like money. You could check with other lawyers. This sounds like something they may feel that they could easily win. I suggest that you POST your property. Check with your state's statute on exactly what you have to do on this. In my state, by posting no trespassing signs that have my name and address on them it changes the charge from "simple trespass" to "criminal trespass after warning". The latter being a felony.

I'd still suggest changing those locks so that they have to physically break in, if they should decide to return.

[BigJohn]

They don't have the original keys. Even if they did, those locks have been changed.

I have 'No Trespassing' signs posted.

[IamOld]

bIGjOHN this is very odd - in my state if ANYONE enters your property without your permission you can "protect" yourself with a weapon. This sounds like abject bull*&*&t. May we ask who the company is? And the line about them calling the cops - let them go ahead. You were simply scared beyond belief at thuggish men vandalizing your property and threatening you.

You are still under a 13 and making payments? What's their deal? They're protected.

Even if your own lawyer won't take this without $$, perhaps you can find someone who does this kind of work (foreclosure defense, debt collection defense, who will on a contingent fee basis. - my atty does this sort of stuff on contingent if he sees any possibility of recovery of $$ against a creditor.) Do NOT take this lying down. And, as others have said, maybe you need to start recording the conversations yourself!

I know Des will correct me if I'm wrong, BUT if you can prove that the dog was injured when these a*holes left doors open, that they would be responsible for, as it is not exercising ORDINARY care in the carrying out of their "duties."

[BigJohn]

Thanks IamOld.

I think the reason why they are mad is because I recently took them to Small Claims Court and won. I would like to take them to Small Claims court over the dog. I sent them out a letter today to that effect.

[IamOld]

HAHA!!! Bravo BigJOhn! That sounds like some troll within their bureaucracy. Take them to Small Claims again - AND - if you're interested - these days I think think this may just be the kind of story that local news would be interested in...

Thanks IamOld.

I think the reason why they are mad is because I recently took them to Small Claims Court and won. I would like to take them to Small Claims court over the dog. I sent them out a letter today to that effect.

[BigJohn]

I send the mortgage company several certified letters about an issue. I write the letters in the format that will make a Small Claims Court judge pay attention. Otherwards I am not angry but to the point. The mortgage company sends me back 'garbage' that needs a ceipher and they don't provide the ceipher. When I go to court, I print up another court case that involved that same mortgage company. That court case claimed the mortgage company even with the advent of computers still can not produce ledgible records. When I show the judge the records the mortgage company produces for me, it generally ends up with the judge shaking his head in a 'No" fashion.

I am tired of getting mistreated by my mortgage company. I came up with a spreadsheet that calculates exactly what my principal is, my escrow and what I have paid in interest on a month to month basis. If there records are off and they refuse to make the corrections, we go to Small Claims Court and I let them explain to the judge why they refuse to credit my accounts properly.