Another Foreclosure Bungled: West Virginia this time

Submitted by Charlton Stanley (aka Otteray Scribe), Guest Blogger

Moran RdIt has happened again. This time in Logan, West Virginia. Schoolteacher Nikki Bailey came home from visiting a sick friend in the hospital, only to find a work crew from CTM Industries removing the last few pieces of her belongings from her house. The workers told Ms. Bailey they had been sent by a bank to clean out her house for foreclosure.

There is one minor detail. Her house was paid off in full twenty-five years ago. She showed reporters around the house, and everything was gone to the bare walls. Her pictures, diplomas, awards, and all her belongings.

There is one additional important detail. Ms. Bailey lives on Godby Street in Logan, WV. The house in foreclosure is in Godby Heights. That is in Chapmanville, ten miles away.

Mrs. Bailey told a reporter from news station WSAZ, “Everything was gone. Living room furniture, my Marshall diploma, my high school diploma, my pictures, my history. I was teacher of the year. All of that stuff is gone. It’s all gone.”

Adding insult to injury, the workers from CTM Industries told her they had inspected her things and considered them junk; therefore, they took everything to the dump. They had a couple of items remaining on their truck that had not yet been taken to the landfill. The repo company employees returned those things to her house on her insistence. Photographs of her house show it has been stripped of everything but the carpet…and the few items she was able to prevent them from hauling off

Ms. Bailey has retained an attorney, but the identity of the bank in question remains unidentified. The repossession company is not talking about who their client is. When reporters contacted CTM Industries to get a statement, the person answering the phone hung up.

Kanawha County Prosecutor Mark Plants
Kanawha County Prosecutor Mark Plants

Kanawha County Prosecutor Mark Plants indicated he was not going to pursue criminal charges. Prosecutor Plants opined, “It’s a lot like taking someone’s luggage at the airport. If I take a black bag, a black piece of luggage, get home and realize this is not my bag, that’s not a crime. That’s an accident,” He went on to say that no doubt somebody would have to make restitution, but no crime was committed.

Sorry Mr. Plants, taking someone’s life history from them and destroying it deliberately is not exactly like picking up the wrong suitcase at the airport. How do you make a victim whole when her diploma from Marshall University, her teacher of the year awards, her pictures and her memories are taken from her, pronounced as junk and hauled off to the landfill? A suitcase indeed, Mr. Mark Plants.

If there really is nothing they can be charged with, you could have talked all day Mr. Plants, and not say what you said to the reporter.

Television station WSAZ has the story with a video of their broadcast of the story.

This story is getting repetitious. A similar incident happened In Ohio.  In that case, the bank is demanding sales receipts for all the property wrongly taken and sold at auction before they will consider making restitution. Several more incidents have been reported on this blog, here, here and here. That is just a sampling. 

Please discuss. What do you think?

56 thoughts on “Another Foreclosure Bungled: West Virginia this time

  1. Photo credit for the sign at the top of this page goes to a friend of mine who blogs under the username rb137 at Daily Kos. She took this photo while on vacation and emailed it to me. It has come in handy several times when posting stories like this.

  2. Trespass used to be a crime:

    Frequently, trespassing is a result of a misunderstanding involving re-entry to a mall, bar or nightclub after the person was requested to leave. Often, the accused person does not know he or she was breaking the law. In this type of situation, trespassing is most often regarded as a second-degree misdemeanor offense with a maximum potential penalty of 90 days in jail and a $500 fine.

    (Caldarone Law Group).

  3. Theft. Plain and simple. Conversion at best.

    I want to know why criminal charges are not pending.

    They should be.

    Without question.

  4. Prosecutor Mark Plants indicated he was not going to pursue criminal charges. This man is more clown than lawyer. He’s clueless to the point of absurd. If CTM and the bank responsible return ALL items as they were before they were landfilled then you have a shoddy suitcase comparison, but this Neanderthal company simply junked a person’s life history. I can only think that the prosecutor knows the banksters behind this mistake and has received substantial campaign offerings. Banksters and their minions are never punished to the extent demanded or deserved. Two-tiered justice where you can serve hard time for grabbing a pair of jeans from Walmart while banksters pillage the country without fear of punishment.

  5. I thought taking luggage was a crime. Can I really pick up someone’s black bag and walk off with it? It’s only “not a crime” if they don’t catch me. Sure — they’re not likely to press charges if I still unknowingly have the thing, and its contents are intact. What if I dumped the contents in the garbage? Is it a crime then?

    My best to this woman. I hope she can squeeze blood out of this company. It won’t bring back most of what she lost, though.

  6. My question is why she did not call the police and have the workers arrested on the spot. That would have forced the company and its workers to face criminal charges immediately. The nice thing about Texas law is that she could have legally shot and killed the crooks as they were driving off. That would sure put a crimp on repo companies and make them a lot more cautious. It is also my understanding that an officer from the Sheriff dept is supposed to be on site to keep the peace when such things are being done and to ensure that the paperwork is correct. There is a major screw up in that regards as well. So the DA and the Sheriff are at the very least crooked, and/or incompetent.

    I would think that if I were a friend of this teacher, I would form a company to get a bid on doing this kind of work, and go to the DA’s home while he was at work, and strip his home of everything and take it to the dump. Then if he chooses to file criminal charges, I would rely on jury nullification of such charges. That is a good old Southern tradition too, especially back in the civil rights days when murder of blacks by a white was not considered a crime.

  7. Wait until this happens in a castle doctrine state and the homeowner starts shooting. Then it’ll be national news and maybe somebody will finally realize that something needs to change.

  8. While the prosecutor’s remarks may be legally correct (although it does appear that the repo company intended to permanently deprive Ms. Bailey of her possessions) his callousness in the light of this catastrophe is jaw-dropping. And that he has not summoned the company in for a very serious talk about the identity of their client and the source of the address information is more jaw-dropping still. I guess we can see who it is he thinks his office serves, and it’s not the citizens of his district.

  9. Here is focus on West Virginia law:

    §61-3-30. Removal, injury to or destruction of property, monuments designating land boundaries and of certain no trespassing signs; penalties.

    (a) If any person unlawfully, but not feloniously, takes and carries away, or destroys, injures or defaces any property, real or personal, of another, he or she is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars, or confined in the county or regional jail not more than one year, or both fined and imprisoned.

    (b) Any person who unlawfully, willfully and intentionally destroys, injures or defaces the real or personal property of one or more other persons or entities during the same act, series of acts or course of conduct causing a loss in the value of the property in an amount of two thousand five hundred dollars or more, is guilty of the felony offense of destruction of property and, upon conviction thereof, shall be fined not more than two thousand five hundred dollars or imprisoned in the state correctional facility for not less than one year nor more than ten years, or in the discretion of the court, confined in the county or regional jail not more than one year, or both fined and imprisoned.

    (West Virginia State Code). I am next going to take a look at defenses to burglary and criminal trespass.

  10. I agree with Gene, except would add criminal trespass to the list of charges. They do have a trespass law on the books in W. VA.
    http://www.legis.state.wv.us/wvcode/Code.cfm?chap=61&art=3B even though the first offense is a misdemeanor. The county prosecutor’s position shows how “The Law” works in most of this country. No prosecution , no outrage and even a justification/trivialization of this act. Had Plants had an ounce of intelligence, even if he is without conscience as I assume, he would have made a big deal of this and helped his political career. Then again I assume that corporate money is far more important to his political career that the good will of the voters.

  11. From Mark Plants’ Official Kanawha County Prosecuting Attorney’s web site:

    …We tirelessly seek to bring justice without delay to those who prey on the innocent. Our goal is to hold perpetrators accountable while serving victims of crime….

    Oh really.

    http://www.kanawha.us/prosecutor/

  12. The supreme court of W. Virgina went to great length to discuss that state’s burglary and criminal trespass law:


    If any person shall, in the nighttime, break and enter, or enter without breaking, or shall, in the daytime, break and enter, the dwelling house, or an outhouse adjoining thereto or occupied therewith, of another, with intent to commit [a crime] therein, he shall be deemed guilty of burglary.

    Unauthorized entry is not a required element of the crime of daytime burglary by breaking and entering as defined in W.Va. Code § 61-2-14a(a) (1999).

    To prove the crime of trespass, under W.Va. Code, 61-3B- 2 [1978], the State must show . . . . that the entry was without authorization, license or invitation. [of the owner]

    (State v Slater, 665 S.E.2d 674, 2008). So, if they “broke” anything (forced door open, broke window, etc.) to get in then the WV law for “daytime burglary” has been violated.

    If they had a key, not breaking anything, criminal trespass would still be in play.

  13. If a bank or corporation does it its a MISTAKE if a human did it you better believe it would be a crime. It is really time for these people to have PERSONAL RESPONSIBILTY for the “mistakes” they make. Start putting a few CEOs in prison and the culture of gross negligence would change.

  14. Photos, home videos, are precious. When there’s a flood or hurricane approaching, that’s what people pack up first.

  15. CTM can be sued in civil court and is responsible for the millions of dollars worth of memorabilia and antique furniture and a place to reside in the mean time. How to get big bucks for all that junk.

  16. Al, traffic tickets don’t require mens rea. This, under the secpmd WV statute eited above, specifically does. The first statute cited, however, does not appear to have the same intent requirement, although I neither practice criminal law nor in WV, so I bow to those who have expertise in either.

  17. To pick up on what Nick said just above.

    With modern digital cameras and massive memory storage capacity in modern computers and thumb drives, it is easy to take lots of high quality pictures of everything you own. If it has a serial number on it, keep a record. If it is valuable, get it appraised. Keep your records in a separate location. Remember what happened to Nikki Bailey. If they took everything to the landfill, as they claim, any computer files in the house would have disappeared too.

    Remember, you are not filling out a tax return and listing thrift store or yard sale prices. Think in terms of replacement cost if your house is cleaned out. Think it can’t happen to you? Think again.

  18. It’s not burglary…. It’s not larceny…. Trespass is the best that they have…. But how can you have transferred intent when the hose they should have gone to was the target if the repo…. Yes there is loss… Make the victim whole….dig deep repo, forclosure company….and of course respondant superior…. For the bank… These types of cases are unfortunate…. But whee is the intent….

  19. Mary Hackett Graham 1, September 1, 2013 at 10:59 am

    Dredd, I think that Plants’ position is that there was lack of intent to commit a crime.
    ==============================
    The critical facts are any forced entry during the daytime, and then the taking or destruction of property once inside (If they did not force their way in then daytime burglary will not lie).

    But if the owner gave no permission to enter, whether breaking or not, then entering is trespass:

    “The elements necessary to the proof of criminal trespass under W.Va. Code, 61-3B-2 [1978], are: (1) a knowing entry, (2) in a structure or conveyance, (3) without being authorized, licensed or invited.”

    (State v Slater, supra).

    They knowingly entered the structure. They entered without the owner’s permission.

    Once that trespass took place, the taking and/or destroying of property once inside, adds to the crime:

    Any person who unlawfully, willfully and intentionally destroys, injures or defaces the real or personal property of one or more other persons or entities during the same act, series of acts or course of conduct causing a loss in the value of the property in an amount of two thousand five hundred dollars or more, is guilty of the felony offense of destruction of property…

    (WV code §61-3-30, supra) The two factual scenarios, then, are 1) if a breaking in took place in the daytime, and the intent of the breaking was to take property once inside, then “daytime burglary” has taken place; 2) if they had no permission from the owner to enter, then a trespass took place.

    WV seems to have a unique law on daytime burglary.

  20. I don’t understand … want the name of the bank then look at who holds the mortgage for the property that was supposed to have been foreclosed. The repo company acted as their agents and according to the article in the DailyMail, the bank gave them a wrong address.

    As to trespassing .. each worker trespassed and did so numerous times as the entered, left, reentered, left, reentered … once again as agents of the bank who owned the mortgage on the house that was supposed to be foreclosed.

    Plants, the Prosecutor and a Republican, ran unopposed in the primary and general elections in 2012 and won a second term. Someone suggested that this prosecutor was counting his campaign contributions which is all fine and dandy because he’s going to need it after this debacle. Ol’ “Suitcase Plants” will definitely not be unopposed next time around.

    “Isn’t it interesting that we have to go to the UK to find this kind of photo coverage of a very visual story?” (OS) Excellent observation

  21. Anonymously Yours 1, September 1, 2013 at 11:14 am

    It’s not burglary…. It’s not larceny…. Trespass is the best that they have…. But how can you have transferred intent when the hose they should have gone to was the target if the repo…. Yes there is loss… Make the victim whole….dig deep repo, forclosure company….and of course respondant superior…. For the bank… These types of cases are unfortunate…. But whee is the intent….
    ===========================
    “Criminal intent may have to be proved to convict under some statutes, but in some states trespass is a criminal offense regardless of the defendant’s intent.” (Dictionary).

    Intent isn’t mentioned in the WV statute or case law as to the intent of the trespasser is it?

  22. The hosing market (and eventually our economy, again) is about to go off the cliff: ARMs are increasing, Jumbo mortgages are on the rise, and the federal reserve continues to spend $85 billion a month (they’ve been doing this since October 2008) in the form of quantitative easing to ensure interest rates stay at all time lows.

    Not to mention that the banks haven’t released all of their pre-foreclosured properties, potential short-sells, and property tax sales (via local and state governments) onto the market.

    Student loans have reached the $ trillion mark, credit card usage have reached pre-2008 levels, and consumers are spending more than they are saving and/or than they have.

    I am wondering if our ‘rescue invasion’ of Syria has something to do with saving our economy? Over 2.5 billion barrels in oil reserves located beneath the Syrian ‘grounds’?

  23. I meant to say consumers are spending more and saving less (moreover, consumers are depleting their 401(k)s just to maintain a certain standard of living or trying to ‘keep up with the Jones’).

  24. One problem here is that there are multiple potential defendants, not just the bank and the foreclosure crew. Between the “loan” which was foreclosed and the crew, there is at least one “‘servicing agent.” Probably more. And a law firm or two. And a court clerk or two. Any of these people could have made a typographical error.

    Or, if things are really funky, it is possible that the underlying physical copies of the Note and the Mortgage (whether for this house, or a typo-ed house) were never properly transferred to persons who may have bought and sold them either currently or 25 years ago, assuming the mortgage was really for this house.

    This is a really big problem which affects homeowners and RICH RENTIERS alike, because New York trust law, and various state laws require actual transfer of the paper work and related NOTE. Which many have been rumored to have been shipped to India reprocessing into bird cage liners to cover up various crimes. Which means homeowners may have been paying the wrong parties all along, and this woman may have only thought she paid off her loan.

    And the RICH RENTIERS who get into things called REMICs, have a huge IRS tax problem for failure to meet the requirements for the tax benefit. Not to mention that some states require a Mortgagee to file a Release of Mortgage with the clerks of court when a loan is paid off, and sometimes attach criminal penalties for willful failure to do so.

    Add to all of this the fact that many Title Insurance companies stopped doing actual title searches and just issued policies as cheaply as possible to maximize their profits, and it could be a long time pinning down who screwed up for this poor lady.

    If I was the Sheriff, I would encourage the Crew to cough up the paperwork by jailing them and their bosses, as accessories after the fact, and try to get as high as possible bail to keep them in the hoosegow. Then, the journey to track this down could begin. And do the same with each person higher up the trail.

    Squeeky Fromm
    Girl Reporter

  25. Just an observation to follow up Squeeky and others. I have worked with all kinds of prosecutors at both state and Federal level for four decades. Some were good, some were bad, but most were pretty average. I have yet to come across a prosecutor who could not figure out something to charge a suspect with.

  26. Boy, I’m getting scared to leave my house to go to the grocery store for a couple of hours! Our house has been paid off for over 10 years, and we went through our CU. Although they did sell our mortgage to CUNA … no, hubs says that was “a long time ago, before CUNA went crazy”. I guess this is when we all need to get to know our neighbors, so we can protect each others’ property from things like this. I don’t think I’ve ever heard, in one of these reports, that NEIGHBORS CALLED THE COPS BECAUSE THEY KNEW THE HOUSE BEING “RAIDED” WAS PAID FOR, AND knew where the owners were and when they’d be back! Definitely going to be notifying SEVERAL nearby neighbors any time we go out of town after this!

  27. chimene,
    I think a lot of people feel that way. I have been pricing burglar alarms and video with audio capability. Newer cameras have night and low light vision, and if wireless can be monitored remotely. BTW, the video recorder should be in a hard to find location, such as the attic or a cutout in a closet ceiling.

    An independent power supply is a good idea, so if power is cut, it does not disable the security system. I want to see the bankster’s burglars try to work with an alarm screaming at 110+ decibels and no way to shut it off.

  28. chimene,, I hope you live in Texas since your neighbors can open fire on such crooks as did this latest outrage. Make sure your neighbors are armed, and know how to shoot straight. There is nothing like a few dead bad guys to stimulate reforms and get the attention of crooks and other officials.

  29. It seems like there was a case in CA where the same thong happened to a fairly affluent couple. Their attorney foreclosed on the local branch of BA. Started cleaning that puppy out. Law enforcement watched as file cabinets were loaded on a truck. But I do realize there is a difference between CA and WV.

  30. Incredible how it isn’t a crime if a bank is behind it. I fear to leave my house empty of all people just on the off chance something like this could happen to us. We live in a county with dozens of similar sounding addresses…

  31. OS, I think you’ll enjoy this —

    “Katie Barnett, a 36 year old nurse from McArthur, Ohio, made the mistake of taking her family on a two week trip last month, never realizing when they left home that they would return to find the family residence ransacked, emptied and, for good measure, the locks to the doors changed.

    “A burglary? Or maybe, as the local police theorized, the work of squatters who had taken advantage of the open domicile to have a two-week vacation of their own?

    “It turns out, the home invasion was far more insidious than either the Barnett family or the local crime sleuths could imagine.

    “You see, the Barnett family had fallen victim to one of the most dangerous, dreaded and ethically challenged genres of home invaders in the nation—bankerus moronicus piggius….”

    ~ America’s Dumbest Banks: Bank Repos Wrong House, Destroys Contents, Then Refuses To Pay Owner’s Losses – http://www.forbes.com/sites/rickungar/2013/07/27/americas-dumbest-banks-bank-repos-wrong-house-destroys-contents-then-refuses-to-pay-owners-losses/

    (How do you do blockquotes?)

  32. JoF,
    I saw that story when I was pulling this one together. There are literally too many out there. Also, there are numerous stories of SWAT raids on homes where people inside were killed, only to discover too late the police raided the wrong house. I have been considering putting up a big sign on the front and back doors in addition to alarms just to be on the safe side.

    As for formatting, it is identical to Daily Kos formatting for blockquote, italics and bold . WordPress will not allow images in comments, but you can post videos. All you have to do is copy the URL from the YouTube video and paste; it will format itself to proper size. If it is easier for you, open DKos in a tab, put your quote in a comment box on DKos, format it, then copy and past into the comment box here. Close the open comment box on DKos without posting.

    Here is some information on formatting:
    http://wpbtips.wordpress.com/2010/05/23/html-allowed-in-comments-2/

  33. OS, Seems to me that if a law enforcement agency has invested in a SWAT team, the agency is likely to use it on flies to justify the expense.

    Thank you for the link and tips.

  34. Great, but sad story OS. The court will “convince” the repossession company to release the name of the lender involved. I think both the bank and the repossession company will have to dig deep to compensate for this horrible error made worse by arrogance.

  35. Shouldn’t they have to prove it was a mistake? That’s a legal defense, sure, but how on earth can it be pre-emptive? They say a secret unnamed bank sent them to the wrong address – how do we know that actually happened without any sort of discovery?

    Couldn’t I just pull up a truck to someone’s house and loot it, say a secret unnamed bank sent me to do it and whoopsie made a mistake, and walk away scot free?

  36. not sure how it works in the rest of the world.. but here in nyc repo agencies are not allowed to throw anyones possessions away. whether they considered it junk or not. here if the ladies home was in foreclosure the repo or marshall agency IS REQUIRED to put the owners possessions in storage with them given x amount of time to retrieve the possessions. the fact that the repo agents so nastily told this lady THEY CONSIDERED IT ALL JUNK. would prompt me to sue not only the company but alsi go after every agent involved. lets see how much the courts think their possession is worth. i would also go to every social media site i could find and post my story with the name of the company and agents. lets see how much the owners of said company feels their lost of business is worth. and if they are criminal charges to what i propose. i would take the stand that they already took my life. there is nothing else to lose.

  37. as for the DA. he’s a mason owned by the banks of course he isnt going to charge them. this type of stuff will continue unless the people wake up and begin removing their money from the banks. and start saving their money in municipal credit unions

  38. New York State Court of Appeals Chief Judge Sol Wachtler: “a grand jury would ‘indict a ham sandwich,’ if that’s what you wanted.”
    Of note, Wachtler would experience the system, sans robes at a later date.
    http://en.wikipedia.org/wiki/Sol_Wachtler

    I find it hard to believe there is no means of making a case for prosecution. My guess is the bank has ties to the Prosecutor’s office, or further-up the food chain.

    O.S.: Just an observation to follow up Squeeky and others. I have worked with all kinds of prosecutors at both state and Federal level for four decades. Some were good, some were bad, but most were pretty average. I have yet to come across a prosecutor who could not figure out something to charge a suspect with.

  39. “My guess is the bank has ties to the Prosecutor’s office, or further-up the food chain.”

    Yep. The lack of charges here certainly smells like the fix is in.

  40. I would also assume, from the homeowner’s perspective, that the house was full of irreplacable one-of-a-kind artifacts, many millions of dollars worth.

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