Court of Appeals victory will protect residents from illegal threats of eviction

May 14, 2021

IMPORTANT NOTICE ABOUT EVICTION

A person who claims the right to possess this property believes that this property is abandoned. If you are currently residing in the property, you must immediately contact:

[Name and phone number]

If you do not contact the person listed above within 15 days after the date of this notice, the person claiming possession may consider the property abandoned and seek to secure the property, including changing the locks without a court order.

Imagine finding a notice like this on your front door. The questions start running through your head: I’m clearly living here. Why would they think it’s abandoned? Is it even legal to threaten to kick someone out like that?

Such threats are the focus of the case Wheeling v. Selene Finance. The Public Justice Center and the Consumer Law Center LLC have argued in Maryland’s appellate courts since 2017 that someone seeking to take possession of a home cannot do so, or threaten to do so, with no court order and without first making a reasonable inquiry into whether someone lives there. This April, the Court of Appeals of Maryland agreed with PJC Murnaghan Appellate Advocacy Fellow Olivia Sedwick’s briefing and oral argument that the residents sufficiently pled their case that the property owner made an unlawful threat of eviction and that the residents are entitled to pursue emotional distress damages under the Maryland Consumer Protection Act.

Wheeling v. Selene Finance takes on the latest approach to an issue that the PJC has been fighting for years. In 2013, PJC attorney Matt Hill drafted and, along with PJC allies, helped pass a law that prohibits landlords and foreclosure sale purchasers from evicting or locking out a homeowner or tenant without court process or the presence of the Sheriff. The law also prohibits threats of non-judicial eviction. The law does have a narrow exception, allowing non-judicial evictions in cases when the owner conducts a reasonable inquiry to confirm that the resident has abandoned or surrendered the property. Even then, the owner must still provide notice to the resident and wait 15 days to hear back. If they don’t receive a response, the owner can proceed with regaining possession of the property. In Wheeling v. Selene Finance, we argued that the owner did not make a reasonable inquiry into whether the property was occupied before posting the notice, and therefore the notice itself constituted an illegal threat to evict under the statute.

Since this is the first case to interpret the fairly new law, the PJC joined the plaintiffs’ trial counsel, Phillip Robinson of the Consumer Law Center LLC, for the appeal to help ensure that residents’ rights under this important statute are respected. 2017-18 Murnaghan Fellow K’Shaani Smith filed the opening brief. 2018-19 Murnaghan Fellow Ejaz Baluch, Jr. authored the reply and argued the case before the Court of Special Appeals.

Unfortunately, the Court of Special Appeals held that the law did not apply because, despite an illegal threat to evict being made, the residents were not dispossessed of their respective properties. That court also did not agree that the residents adequately pleaded a claim against Selene Finance for causing them emotional distress in violation of the Maryland Consumer Protection Act (MCPA).

Since then, based on our successful petition for certiorari* authored by pro bono co-counsel Jamar Brown and Andrew Baida of Rosenberg Martin Greenberg, the Court of Appeals of Maryland decided to hear the case. 2020-21 Murnaghan Fellow Olivia Sedwick’s October 2020 opening brief challenged the ruling from the Court of Special Appeals, arguing that threats of eviction like the ones Selene Finance made are violations of the law as its plain language states, even if the threat doesn’t result in the resident losing the property. The brief also argued that the residents are entitled to pursue emotional distress damages under the MCPA without first having to describe specific details in their complaint, because that’s not required in other civil cases. Olivia then filed the reply brief in December 2020 and argued the case before the Court of Appeals on January 5, 2021.

On April 30, the Court of Appeals issued a ruling agreeing with the PJC that the residents sufficiently pled their case that the property owner made an unlawful threat of eviction and that the residents are entitled to pursue emotional distress damages as described above.

We are pleased with these important rulings and believe they will send a strong message that owners, mortgage servicers, and the like cannot legally try to intimidate residents into giving up their homes, even if they fail to push them out.

Thank you to our co-counsel and the staff at the Consumer Law Center LLC and to Rosenberg Martin Greenberg for working with us on this case, as well as to PJC administrative staff Becky Reynolds.

 

*A petition for certiorari seeks discretionary review by the highest appellate court on grounds of the public importance of the case.