Carter v. Butts County Georgia, 050316 FED11, 15-12529

Docket Nº:15-12529
Party Name:DAVID CARTER, CLAYTON GRAHAM, JR., MITCHELL WEBSTER, Plaintiffs - Appellees, v. BUTTS COUNTY, GEORGIA, et al., Defendants, TIMOTHY FILBECK, Individually and in his Official Capacity, Defendant-Appellant.
Judge Panel:Before TJOFLAT and ROSENBAUM, Circuit Judges, and GOLDBERG, District Judge.
Case Date:May 03, 2016
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit



BUTTS COUNTY, GEORGIA, et al., Defendants,

TIMOTHY FILBECK, Individually and in his Official Capacity, Defendant-Appellant.

No. 15-12529

United States Court of Appeals, Eleventh Circuit

May 3, 2016

Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 5:12-cv-00209-LJA

Before TJOFLAT and ROSENBAUM, Circuit Judges, and GOLDBERG, [*] District Judge.


Defendant-Appellant Timothy Filbeck was a lieutenant with the Butts County Sheriff's Office. When his house was foreclosed upon, he, like anyone else who has been through foreclosure, had certain options available to him. But arresting the new owner's agents, Plaintiffs-Appellees David Carter, Clayton Graham, Jr., and Mitchell Webster (collectively, "Plaintiffs"), who were lawfully performing their jobs, was not one of them. And neither was ordering Plaintiffs handcuffed and thrown in jail overnight. We think that should go without saying. Yet Filbeck did these things, anyway. Now Filbeck tries to convince us that he is immune from suit. We are not persuaded. Being a law-enforcement officer is not a license to break the law. And it is certainly not a shield behind which Filbeck may abuse his power with impunity.


Filbeck worked as a deputy sheriff with the Butts County Sheriff's Office. In the Spring of 2005, he and his wife bought a home (the "Property") for themselves. In connection with the purchase, Filbeck executed a Security Deed, which authorized the mortgage owner to enter the property to protect its interests if Filbeck abandoned the Property.1 At the time relevant to this appeal, Ocwen Loan Servicing LLC ("Ocwen") was the mortgage holder with respect to the Property.

In July 2010, the Filbecks fell behind on their mortgage and defaulted on the loan. Ocwen notified the Filbecks of their default and informed them that it was opting to accelerate their loan, causing the entire amount of the outstanding balance of the mortgage to become due. In addition, Ocwen advised the Filbecks that it intended to sell the Property at a foreclosure sale. In September 2010, Ocwen initiated foreclosure proceedings on the Property.

By letters dated September 22, 2010, and November 22, 2010, Ocwen notified the Filbecks of the impending foreclosure. Attached to the letters were Notices of Sale, which stated that the Property was scheduled to be sold on the first Tuesday in January 2011. Ocwen arranged for these Notices of Sale to be published in the local paper in December 2010. Filbeck acknowledged that he received the letters and saw the Notices.

In response to the foreclosure proceedings, in early November 2010, the Filbecks moved out of the Property and into a family member's home. They ate, slept, and began receiving mail there. In November 2010, all utilities (electric, water, and sewer) on the Property had been turned off. Ultimately, the Property was foreclosed upon on January 4, 2011, and conveyed to U.S. Bank National Association, by and through Ocwen, its duly appointed attorney-in-fact. Nothing in the record suggests that the Filbecks ever sought to challenge the foreclosure. But Filbeck claims that he was unaware that the foreclosure proceedings had been finalized.

In the meantime, in mid-December 2010, Altisource Portfolio Solutions ("Altisource"), Ocwen's agent and property manager, contracted with MD Maintenance, LLC ("MDM"), to prepare the Property for resale. Danny and Tina Carter, 2 who own MDM, explained that their standard procedure for preparing a foreclosed home for resale includes first determining whether the home is still occupied or whether, instead, it has been abandoned. If the home is still occupied, MDM notifies Altisource, which then initiates eviction proceedings. But if the home has been abandoned, MDM enters the home, changes the locks, takes pictures, cleans out the home, and repairs any damage. MDM also places signs on the home that state that the property is under the supervision of Ocwen, note that MDM is the authorized representative of Ocwen, and provide contact information for MDM in case a reader needs to access the property or report a problem (the "MDM Notice"). MDM followed this standard procedure with respect to the Filbecks' home.

Between December 12, 2010, and January 15, 2011, MDM's representatives visited the Property about four times to verify that no one resided in the home. Although MDM found some personal items left by the Filbecks, it found no one living at the Property. The heat and electricity were turned off, and "cobwebs [extended] from wall to wall in almost every room." MDM established that the utilities on the Property had been discontinued in November 2010. Tina also personally spoke with a neighbor of the Filbecks who confirmed that no one was living at the Property. Against this background, MDM concluded that the Property had been abandoned.

Around January 18, 2011, Danny and other MDM employees arrived at the Property to begin preparing it for resale. During the visit, the men posted the MDM Notice on the front door. One of the men took a picture of the MDM Notice and sent it to Altisource. Eleven days later, when Graham, along with other MDM employees, returned to the Property to continue cleaning it out, the MDM Notice was still affixed to the front door.

The following day, Filbeck visited the Property and discovered that some of his personal property was missing. Although the MDM Notice was still affixed to the front door, Filbeck did not contact anyone at Ocwen, Altisource, or MDM regarding their entry into the home or the removal of any property.3

Instead, Filbeck boarded up the windows, nailed the doors shut, and placed four signs reading "KEEP OUT" on the Property. Filbeck also prepared and filed a police report using fellow deputy Kenneth Mundy's name4 and submitted a claim to Liberty Mutual Insurance for the missing property.5 When Mundy later discovered the police report, he demanded that his name be removed from it and insisted that he had not prepared it, authorized it, or known anything about it at the time that it was submitted.

On January 31, 2011, Graham and Greg returned to the Property to continue their maintenance efforts. When they arrived, they discovered that the windows had been boarded, the doors nailed shut, and the MDM Notice had been removed and replaced by the "KEEP OUT" signs. Greg reported the circumstances to Tina, who, in turn, called Altisource to confirm that the Property had been foreclosed upon and that MDM was authorized to be there. Altisource assured her that everything was proper but suggested that she call the police to inform them of what had occurred.

So Tina called the Butts County Sheriff's Office, explained the situation to the dispatcher, and requested that an officer visit the Property. Officer Thomas Middleton arrived with another officer, and Greg explained to them that the Property had been foreclosed upon by Ocwen, who, in turn, had hired MDM to prepare the Property for resale. After Middleton looked around the Property and concluded that no one was living there, he left the Property without incident.

Later, Middleton told Filbeck about his visit to the Property. In the course of their conversation, Middleton informed Filbeck that he had seen paperwork that appeared to authorize the entry into and cleaning out of the Property. A few weeks later, on the morning of February 22, 2011, Plaintiffs went to the Property. The "KEEP OUT" signs were still there. Because the doors remained nailed shut, Graham and Webster entered the Property through a bathroom window. They began removing items from the home and placing them on MDM's trailer, which was parked on the Property.

While Plaintiffs were working, Filbeck learned they were there and caused Lieutenant Matthew Vaughan to go to the Property and confront them.6 When Vaughan arrived, Plaintiffs told him that they were cleaning out a "foreclosure home." David Carter gave Vaughan and other deputies who joined Vaughan on the scene, documentation showing that the Property had been foreclosed upon and that Plaintiffs were legally authorized to work there. The documentation also instructed anyone with questions to contact Altisource at a provided phone number.

Meanwhile, Filbeck arrived on the scene and assumed control of the investigation. Upon Filbeck's arrival, Vaughn handed him a piece of documentation.7 David also attempted to show Filbeck an authorization letter on his phone, but Filbeck refused to review it and retorted that the authorization letter "and the rest of this paperwork don't [sic] mean a damn thing." Filbeck appeared to be extremely angry, and he cursed and shouted at Plaintiffs.

In an effort to resolve the situation, David called Tina and asked her to speak with Filbeck. Although Tina tried to explain to Filbeck why MDM was at the Property, Filbeck refused to listen. Instead, Filbeck insisted that he owned the house, that MDM had no right...

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