Jim Porter: Foreclosed owner removes house fixtures | SierraSun.com

Jim Porter: Foreclosed owner removes house fixtures

Having counseled a few hundred local folks who faced the prospect of foreclosure after attempting to work with their lenders on loan modifications or short sales, I can understand the frustration of a homeowner-borrower.

The big banks have been impossible to deal with and — without conscience — prefer to foreclose on homes rather than work with their borrowers. It's better now in California with our Homeowner Bill of Rights law.

FACING FORECLOSURE

Robert and Monique Acosta borrowed $700, 000 from San Diego Metropolitan Credit Union in May 2007 — essentially at the top of the market when life was good and lenders couldn't give money away fast enough. Case in point: The home appraised for $705,000.

Three years later in June 2010, the Acostas' home had dropped in value and they were facing foreclosure.

I'm assuming the Acostas attempted to modify their loan or sell through a short sale without success. In any event, they were upset with their lender.

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CASH FOR KEYS

Monique Acosta and the lender had discussions about willingly vacating and tendering their keys right after the June 14th foreclosure.

Monique committed a serious mistake as it turned out later by writing the lender, "$10,000 plus will maybe get me and my aunt to move out of this home in good condition." Sent with multiple exclamation points. Apparently the credit union didn't accept the offer.

WE'LL SHOW YOU

The Acostas moved out of their home after the foreclosure sale but not before taking out their rage by making a few "home modifications" including the following:

Cutting down a tree in the back yard and pushing it into the swimming pool; pulling up all plants and the cypress trees; spray painting the interior walls; putting black dye on all the tile; removing a speaker system, shutters, stove hood and three chandeliers; pulling out the wrought iron posts from the staircase; smashing the banister; demolishing the hot tub; pulling out the kitchen cabinets, countertops, appliances and even wooden beams attached to the ceiling; removing the carpet; tearing out the rock facing on the house exterior; removing the garage door and entry gate; removing all light fixtures; smashing all plumbing; removing 12 interior doors; destroying the pool and pool equipment; pulling out the air conditioning units; and throwing almost everything in the pool — after chipping the pool steps.

Other than that they left the house intact just as they had found it. When questioned afterwards by police, Robert Acosta said there were "scratches and … stuff on the walls … but no vandalism." The kitchen was "fine" and intact. The credit union sold the house "as is" for $178,500 after going on title following the foreclosure. Most of that sum was covered by insurance, but overall the credit union took a big loss.

It was probably reimbursed by another lender or the federal government, but I'm only guessing.

HOMEOWNERS CHARGED

The Acostas were charged with a violation of Section 502.5 of the Penal Code which forbids a borrower from intentionally harming a secured lender by removing or disposing of property that is "attached or affixed" to the premises.

By the way, the police found some of the missing items in a storage unit maintained by the Acostas and located a Craig's List advertisement for "cypress trees" with Robert Acostas' telephone number.

I can see the ad now: "One cypress tree and just about everything else you need for your home, some items available for pickup and some to be retrieved from the bottom of a certain swimming pool."

CRIMINAL DEFENSE

The Acostas claimed that Section 502.5 was unconstitutionally vague challenging phrases like this in the Code: "Part of the freehold," "attached or affixed," "premises," or "improvement."

JAIL TIME

The Court of Appeal had no problem determining the Penal Code was not unconstitutionally vague, writing, "a person of common intelligence can understand the statute, including the challenged phrases." The Acostas were put on probation for five years on condition they serve jail time of 270 days. While it probably felt good at the time, their misguided attempt to get back at the lender cannot have been worth it.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. He may be reached at porter@portersimon.com.